TORT REFORM SERIES
What is it, really?
—The first in a 5-part Series on Tort Reform—
If you are an American who pays the least bit of attention to politics, you’ve undoubtedly heard the term Tort Reform thrown around. You may even have a general idea of what it means and what the goal is. Understanding what it means and whether you should support it requires a deeper dive than listening to political pundits in the news. It first requires a fundamental understanding of the foundation and purpose of our Tort System, how and why it works.
A tort is a civil wrong – other than a breach of contract – where a wrongful act or omission causes a person harm and/or loss. All first-year law students take a year-long class on torts because torts are a fundamental part of the foundation of our common law system.
The Foundation of Common Law Torts
Torts have their foundation in Anglo-Saxon and Germanic systems of law and were later adopted and developed in medieval England during the 12th and 13th centuries. By the 18th century Torts had become its own body of law in England was later adopted by the United States in the 19th century. In short, our tort system has a very long and important history in the development of the legal system we have today.
Torts themselves take many forms. There are intentional torts, such as assault, battery, and defamation. There are unintentional torts, which we call negligence, where the tortfeasor (wrongdoer) fails to use reasonable care resulting in harm and/or loss to another. There are strict liability torts, such as product liability cases, where neither intent nor negligence apply.
The general basis of negligence is that we all have a duty to exercise reasonably due care in our dealings with others. If we breach that duty, and that breach of duty causes damage to another person or entity, then we are responsible for the damages caused by that breach.
What are Damages?
Damages are the harms and losses sustained by the injured party. You can’t give someone a new leg, and you can’t bring someone back from the dead, so in the vast majority of cases, compensation for the harms and losses sustained by the injured party is limited to money damages as determined by a jury of our peers and rendered in a jury verdict.
Harms are typically viewed as the non-economic harm caused by an injury. In other words, it’s not about lost money, it’s about lost quality of life, pain, suffering, anguish, inability to do the things you did before you were injured. These things are not directly quantifiable as a monetary loss, but money damages are they only way to compensate for the harm caused by an injury.
Losses are exactly that: a monetary loss. This loss typically takes the form of medical or funeral expenses incurred, future medical expenses expected to be incurred, lost wages, lost earnings capacity, or property damage. These are losses that are economic in nature and thus are more easily calculated and accounted for that the intangible harms done by an accident.
Torts, Civil Justice and the U.S. Constitution
Holding people and corporations accountable for their actions is a cornerstone of Tort Law and our Civil Justice system. In the United States of America, every person is guaranteed the right to seek redress in a court of law for the harms and losses they may have suffered due to the actions or omission of another. Our constitution (The Bill of Rights – 7th Amendment) guarantees the right to trial by jury in seeking such redress. At the conclusion of a trial by jury, the jury’s verdict provides monetary damages as a reimbursement for the harms and losses they determine the injured party to have suffered.
In the land of rugged individualism and personal responsibility, there is – and long has been – a movement to obstruct the enforcement of that responsibility. That movement is Tort Reform (or Tort Deform as many of my colleagues like to call it). The Tort Reform movement seeks to limit your right to trial by jury and the damages that you are allowed to collect through such a trial.
Why is Tort Reform “A Thing”?
Follow the money. Who lobbies congress and state legislatures to get laws passed? Typically, it’s not your neighbor. It’s business and industry. It’s the Chamber of Commerce. It’s the insurance industry. It’s corporations looking to reduce risk and make more money. Of course, these corporations have sold this to a large swath of the American public by using the Red Herrings as signs of systemic abuse. They provide great sound bites and are easily sold to people who don’t have the time or energy to read deeper into the cases themselves.
The Tort Reform movement has had a lot of traction in conservative circles, which I find ironic. Conservatives like to tout their philosophy of deregulation when it comes to government interference in the private sector, but many of them are the first to plead for legislation to rein in “runaway juries” and “frivolous” lawsuits. Why is that?
The Goals of Tort Reform
Tort reform doesn’t seek to eliminate your right to damages. It seeks to limit those rights, significantly. There are several methods that are being employed to that end.
Damage Caps
Many states have imposed “caps” or limits on the amount of non-economic damages you may recover in certain circumstances. While some states have caps on non-economic damages, the biggest push has been in Medical Malpractice claims.
Caps on damages are a simple way to limit the exposure of insurance companies and larger “deep pocket” defendants by setting an upper limit to the amount of money a jury may award for certain damages. For example, in Tennessee there is a $750,000 cap on non-economic damages in medical malpractice cases. Here’s how that works in practice: a friend of mine recently received a large verdict in a medical malpractice case involving a lifelong catastrophic fetal injury that occurred during birth. The non-economic verdict was for $15 million (essentially the baby’s life will never be what it should have been; she will require lifelong care). Because of the cap, that $15 million will be reduced to $750,000.
Modify Comparative Fault
Sometimes more than one party can be at fault in a case. You can have more than one defendant, a nonparty to the suit, or even the Plaintiff may bear some responsibility. In such cases, the principle of comparative fault comes into play. Here’s how it works: let’s say you have a slip and fall case where an employee of a grocery store leaves a cart of frozen products out in an isle, then goes to help someone and forgets about the cart. After 30 minutes, the items on the cart begin to melt and a pool of water forms on the hard tile floor. A shopper comes by, looking at the items on the shelves, not their feet, and slips in the water, falling to the ground and suffering a broken hip. A jury could be ask to assign a percentage of fault to the grocery store for leaving the frozen items out, allowing them to melt, thus creating a dangerous condition (water on the tile floor), and also assign a percentage of fault to the Plaintiff for “not watching where they were walking”.
The idea behind this is that each party pays their fair share of fault. If the damages are $10,000 and the Defendant is only 40% at fault, then they have to pay $4,000. In Florida, the 2023 tort reform that passed changed that. The new Florida Law states that if the Plaintiff is more than 50% at fault, they receive nothing. While that’s no good for the Plaintiff, in some jurisdictions, if a plaintiff is 1% at fault, they are barred from recovery. That means that even if the defendant is 99% at fault, the Plaintiff gets squat.
Tightening Statutes of Limitation & Repose
A statute of limitations is a statutory time limit on the time in which you may bring your claim. If you fail to settle your claim or file a lawsuit within the statutory period, you are sh*t out of luck. You will never be able to recover for your harms and losses.
The statute of limitations for negligence in the State of Florida was four years from the date of loss or accident. In 2023, the legislature passed a law reducing the statutory period to 2 years. This is a classic example of tort reform meant to limit claims.
Why Americans Should Care
There are many other ways state legislatures are attempting to limit tort claims through tort reform. Without push back, they will continue to whittle away at individual rights. Without a Tort System, there is no recourse for non-contractual losses sustained as the result of the actions of another person or entity. In other words, if you can’t bring a lawsuit for harms and losses you sustain due to another’s negligence, then you are out of luck. When that happens, the cost of your loss is shifted from the negligent person or entity to society as a whole.
How is this burden shifted? If you suffer and injury that prevents you from working or causes you to incur massive medical bills, you have a loss. If you lose money, you have less money to spend. If you can’t bring a tort claim to recover that loss, maybe you can’t provide for your family; maybe you lose your home; maybe you are forced into bankruptcy, which impacts other businesses; maybe you end up on Medicaid, which is paid for by other Americans through their taxes. In short, your loss is spread across and borne by society, and you are never “made whole”. In other words, while much of your loss is covered by society, your life is never the same, and person or entity who caused your loss pays nothing. If that is where we end up, the tort reformers will have won.
What Is Tort Reform, Really?
TORT REFORM SERIES
What is it, really?
—The first in a 5-part Series on Tort Reform—
If you are an American who pays the least bit of attention to politics, you’ve undoubtedly heard the term Tort Reform thrown around. You may even have a general idea of what it means and what the goal is. Understanding what it means and whether you should support it requires a deeper dive than listening to political pundits in the news. It first requires a fundamental understanding of the foundation and purpose of our Tort System, how and why it works.
A tort is a civil wrong – other than a breach of contract – where a wrongful act or omission causes a person harm and/or loss. All first-year law students take a year-long class on torts because torts are a fundamental part of the foundation of our common law system.
The Foundation of Common Law Torts
Torts have their foundation in Anglo-Saxon and Germanic systems of law and were later adopted and developed in medieval England during the 12th and 13th centuries. By the 18th century Torts had become its own body of law in England was later adopted by the United States in the 19th century. In short, our tort system has a very long and important history in the development of the legal system we have today.
Torts themselves take many forms. There are intentional torts, such as assault, battery, and defamation. There are unintentional torts, which we call negligence, where the tortfeasor (wrongdoer) fails to use reasonable care resulting in harm and/or loss to another. There are strict liability torts, such as product liability cases, where neither intent nor negligence apply.
The general basis of negligence is that we all have a duty to exercise reasonably due care in our dealings with others. If we breach that duty, and that breach of duty causes damage to another person or entity, then we are responsible for the damages caused by that breach.
What are Damages?
Damages are the harms and losses sustained by the injured party. You can’t give someone a new leg, and you can’t bring someone back from the dead, so in the vast majority of cases, compensation for the harms and losses sustained by the injured party is limited to money damages as determined by a jury of our peers and rendered in a jury verdict.
Harms are typically viewed as the non-economic harm caused by an injury. In other words, it’s not about lost money, it’s about lost quality of life, pain, suffering, anguish, inability to do the things you did before you were injured. These things are not directly quantifiable as a monetary loss, but money damages are they only way to compensate for the harm caused by an injury.
Losses are exactly that: a monetary loss. This loss typically takes the form of medical or funeral expenses incurred, future medical expenses expected to be incurred, lost wages, lost earnings capacity, or property damage. These are losses that are economic in nature and thus are more easily calculated and accounted for that the intangible harms done by an accident.
Torts, Civil Justice and the U.S. Constitution
Holding people and corporations accountable for their actions is a cornerstone of Tort Law and our Civil Justice system. In the United States of America, every person is guaranteed the right to seek redress in a court of law for the harms and losses they may have suffered due to the actions or omission of another. Our constitution (The Bill of Rights – 7th Amendment) guarantees the right to trial by jury in seeking such redress. At the conclusion of a trial by jury, the jury’s verdict provides monetary damages as a reimbursement for the harms and losses they determine the injured party to have suffered.
In the land of rugged individualism and personal responsibility, there is – and long has been – a movement to obstruct the enforcement of that responsibility. That movement is Tort Reform (or Tort Deform as many of my colleagues like to call it). The Tort Reform movement seeks to limit your right to trial by jury and the damages that you are allowed to collect through such a trial.
Why is Tort Reform “A Thing”?
Follow the money. Who lobbies congress and state legislatures to get laws passed? Typically, it’s not your neighbor. It’s business and industry. It’s the Chamber of Commerce. It’s the insurance industry. It’s corporations looking to reduce risk and make more money. Of course, these corporations have sold this to a large swath of the American public by using the Red Herrings as signs of systemic abuse. They provide great sound bites and are easily sold to people who don’t have the time or energy to read deeper into the cases themselves.
The Tort Reform movement has had a lot of traction in conservative circles, which I find ironic. Conservatives like to tout their philosophy of deregulation when it comes to government interference in the private sector, but many of them are the first to plead for legislation to rein in “runaway juries” and “frivolous” lawsuits. Why is that?
The Goals of Tort Reform
Tort reform doesn’t seek to eliminate your right to damages. It seeks to limit those rights, significantly. There are several methods that are being employed to that end.
Damage Caps
Many states have imposed “caps” or limits on the amount of non-economic damages you may recover in certain circumstances. While some states have caps on non-economic damages, the biggest push has been in Medical Malpractice claims.
Caps on damages are a simple way to limit the exposure of insurance companies and larger “deep pocket” defendants by setting an upper limit to the amount of money a jury may award for certain damages. For example, in Tennessee there is a $750,000 cap on non-economic damages in medical malpractice cases. Here’s how that works in practice: a friend of mine recently received a large verdict in a medical malpractice case involving a lifelong catastrophic fetal injury that occurred during birth. The non-economic verdict was for $15 million (essentially the baby’s life will never be what it should have been; she will require lifelong care). Because of the cap, that $15 million will be reduced to $750,000.
Modify Comparative Fault
Sometimes more than one party can be at fault in a case. You can have more than one defendant, a nonparty to the suit, or even the Plaintiff may bear some responsibility. In such cases, the principle of comparative fault comes into play. Here’s how it works: let’s say you have a slip and fall case where an employee of a grocery store leaves a cart of frozen products out in an isle, then goes to help someone and forgets about the cart. After 30 minutes, the items on the cart begin to melt and a pool of water forms on the hard tile floor. A shopper comes by, looking at the items on the shelves, not their feet, and slips in the water, falling to the ground and suffering a broken hip. A jury could be ask to assign a percentage of fault to the grocery store for leaving the frozen items out, allowing them to melt, thus creating a dangerous condition (water on the tile floor), and also assign a percentage of fault to the Plaintiff for “not watching where they were walking”.
The idea behind this is that each party pays their fair share of fault. If the damages are $10,000 and the Defendant is only 40% at fault, then they have to pay $4,000. In Florida, the 2023 tort reform that passed changed that. The new Florida Law states that if the Plaintiff is more than 50% at fault, they receive nothing. While that’s no good for the Plaintiff, in some jurisdictions, if a plaintiff is 1% at fault, they are barred from recovery. That means that even if the defendant is 99% at fault, the Plaintiff gets squat.
Tightening Statutes of Limitation & Repose
A statute of limitations is a statutory time limit on the time in which you may bring your claim. If you fail to settle your claim or file a lawsuit within the statutory period, you are sh*t out of luck. You will never be able to recover for your harms and losses.
The statute of limitations for negligence in the State of Florida was four years from the date of loss or accident. In 2023, the legislature passed a law reducing the statutory period to 2 years. This is a classic example of tort reform meant to limit claims.
Why Americans Should Care
There are many other ways state legislatures are attempting to limit tort claims through tort reform. Without push back, they will continue to whittle away at individual rights. Without a Tort System, there is no recourse for non-contractual losses sustained as the result of the actions of another person or entity. In other words, if you can’t bring a lawsuit for harms and losses you sustain due to another’s negligence, then you are out of luck. When that happens, the cost of your loss is shifted from the negligent person or entity to society as a whole.
How is this burden shifted? If you suffer and injury that prevents you from working or causes you to incur massive medical bills, you have a loss. If you lose money, you have less money to spend. If you can’t bring a tort claim to recover that loss, maybe you can’t provide for your family; maybe you lose your home; maybe you are forced into bankruptcy, which impacts other businesses; maybe you end up on Medicaid, which is paid for by other Americans through their taxes. In short, your loss is spread across and borne by society, and you are never “made whole”. In other words, while much of your loss is covered by society, your life is never the same, and person or entity who caused your loss pays nothing. If that is where we end up, the tort reformers will have won.
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