Sorry we’re a day late!!!! Here’s Stephen’s Monday morning post, except on Tuesday. Thanks Stephen!!
One of the most troubling thing concerning the law which I learned in school is a fairly antiquarian concept, but a slight error in logic grows over time, gets expanded and exploited until the error gets so glaring that it cannot be ignored, but too often people identify the symptoms rather than the cause, particularly when that cause is an error of judgment which has an ancient pedigree.
One of the precepts every first year law student learns is that a wrongdoer, particularly in torts, or civil wrongs, takes his victims as he finds them. In other words, if you hit a guy upside the head, you cannot complain when he dies from an injury which ought not have been fatal to any normal person.
Or, in more modern familiar examples, if you send a flashing gif to a person highly prone to epileptic seizures, you cannot complain that the person you sent the gif is just too stupid to turn off his automatic play features the way a normal, reasonable epileptic would.
It is called the “thin-skull” rule, often citing that first example I just gave, that the measure of damages, apart from the question of liability itself, is measured in the actual damage caused not the amount of damages which could be reasonably foreseen.
Suppose a person accidentally leaves something lying upon the floor, another person trips over that negligently placed item, falls down a flight of steps, knocking a broom over, which causes a lit oil lamp to be knocked out the window, setting the garbage bin on fire, and thus burning down the entire tenement building. That person is then responsible for all of that damage caused by his negligence, at least in theory.
(There is an analogy to certain Mrs. O’Leary’s cow and a certain city set ablaze therefrom, but that poor creature has been put upon far enough for one slight error in bovine discretion.)
That extreme example shows just how out of hand the thin skull rule can become, just like the fragile villainous character in the movie Unbreakable, some people are just accidents, or rather victims, waiting to happen.
However, the thin skull rule was not originally intended to apply to unintentional, or merely negligent torts. When applied to intentional torts, like the aforementioned battery upon a man with a particularly thin skull, or a vandal who seeks only the petty misdemeanor of defacing an ugly ceramic of marginal value but which happens to be a Ming Vase, then one’s sympathy for that mistake or accidental coincidence of fortune is not comparable to the guy negligently leaving something on the floor.
There is a valid reason for this, in that of the basic torts: assault, battery, larceny, false imprisonment, trespass upon property, and negligence; all but one of them require that the intent of the tortfeasor. These are collectively called, therefore, “intentional torts”, to distinguish them from all other torts, which all fall under the heading “unintentional torts” , which are all negligence.
(Of course, a more rational and less medieval court might have classified the first four as trespass against the person, separated out negligence entirely, and merely had the law of trespass whether against the person or property, rather than trying to compile a list.)
Why is the intentional tort distinction important? In olden times, lawyers would vastly prefer to have a case of an intentional tort rather than a negligence case, because in addition to compensatory damages to try to make the victim whole again, they also had punitive damages, to set an example of the tortfeasor to teach others to not follow their example. Lawyers liked the punitive damages because that is where the real money was.
Proving that the action was intentional, however, made the case far more difficult to win than merely proving that a person was negligent or irresponsible. After all, the mere fact that damage was suffered is pretty strong evidence that someone was negligent, and that puts the attorney halfway to winning his case.
However, a nefarious, or enterprising depending on how you view it, attorney came up with an idea to make negligence more lucrative. While you could sue for a variety of damages as the result of someone else’s negligence, you could only recover the value of what you could actually prove you suffered in damages.
One of the more enterprising examples was the loss of consortium, or marital privilege. In other words, a husband or wife could count as damages their being deprived of sex so long as they could prove that the loss of sexual relations resulted from the negligence in question. This one was a bit tenuous, but the courts figured there was something of a natural deterrence to fraud as a person would not want to publicly admit impotency or frigidity.
The idea which really brought negligence into the forefront, the epitome of ambulance chasing, was the invention of the notion that a person ought to be compensated for their pain and suffering. It sounds so innocent on the surface, a person who broke their arm could have it reset, but what about the pain and suffering they had to endure.
Not sympathetic enough, then look as a person who suffers from black lung, or white lung, and all of the fear and loss that they would have to endure for the rest of their life. Think of all of the things a person who lost a limb will not be able to do now, and that heartless negligent wealthy big company which can easily afford to compensate them for their pain and suffering.
You see, pain and suffering is by its very nature subjective. It cannot be objectively proven, so it becomes up to the emotional heartstrings of the jury to determine the value of another human’s suffering. Those juries are far more generous if the entity paying the bills is some nameless, faceless corporate entity.
When you combine the thin skull rule with the pain and suffering damages and the easier negligent standard of proof, you have created the perfect storm for frivolous lawsuits and a promotion of junk science and expert witnesses. “To each according to his need” is the mantra of the socialist, but the idea applies to the negligence victim, “to the plaintiff according to his fragility.”
A weak emotional state is a perfect vehicle for racking up damages under the pain and suffering criteria. Along comes a psychological expert to explain to a jury just how debilitating that emotional trauma is upon such a fragile person, and voila, huge pay-outs.
This is the foundation, the beginning of the promotion of hurt feelings as not merely a legal cause of action, but as a societal standard for colleges, politics, even religion. If pain and suffering are legitimately recognized in court as real damages, no measure of subjectivity can be dismissed in any other area of life.
Victimology has become the standard operating procedure today, because telling someone that their feelings do not matter strikes them as saying that their pain and suffering is not real. If pain and suffering are legitimately recognized by the courts, how can it be ignored in the court of public opinion? If you tell them that they are just being overly sensitive, then you must recognize that is just their natural state and it would be unreasonable to expect them to grow a thick skin, or a thick skull.
The precepts of victimology were conceived and financed through rhetorical maneuvers which those most learned among us have been unable to effectively counter with proper reason because they adhere to a dogmatic reverence for precedent. Errors of the past must be corrected, especially when those errors are embedded in principles.