Litigation Reform: Who Benefits Most?

Litigation Reform: Who Benefits Most?

The death of Nancy Clay has produced as much controversy and public concern in Chicago as any private tragedy. It also has exposed many significant frailties in the operation of systems upon which the public has come to place total reliance for its protection.

That controversy was fueled, in part, by the unselfish activities of the Clay family who, acting not in their own interest, but out of a concern for the safety and well-being of the whole community, publicized the horrible and needless circumstances of their daughter's 1987 death at One Illinois Center.

In lieu of damages, the Clay family settled its case against the city in return for improvement in the 911 emergency system that so grievously failed to save their daughter's life.

The city paid the Clays' out -of-pocket costs of litigation ($550,000) and on April 12 passed a safety ordinance requiring the registration of all so-called "vanity" or common-name addresses throughout Chicago.

Under the new law, the computer system located at Chicago's new high-tech 911 facility, will give accurate locator information for every caller, even if that caller does not know the exact calling location. Building owners will be subjected to appropriate fines and penalties for non-compliance and registration will be ensured or double-checked through control mechanisms conducted with various city departments.

Other procedural changes have come about as a result of the Clay family effort: The Chicago Fire Department has altered its fire response and management procedures in light of testimony outlining deficiencies in the city's ability to respond to and combat high-rise fires.

Fire emergency personnel can use the word "trapped" over the airwaves to describe a victim's predicament. Prior emergency policy prohibited the use of that word despite a person's situation.

All of these measures promote the public good.

The Clay family's offer may be, in the context of private tort litigation, unique. Their purpose, however, has long been recognized as the proper object of tort cases since the beginning of the last century.

While the compensation for injury has always been primary, it also has been one of the objects of tort litigation to produce a remedial effect. The theory has been that, in order to avoid liability, people should be inspired to exercise caution in their conduct and activities.

However, in the case of industrial and commercial defendants, a judgment means, at most, increased insurance premiums. These payments can be passed on to the consumer, leaving no remedial effect whatsoever.

Remedial settlement can be an effective tool for social reform. Although now limited to cases in which it will be created by agreement, it would be valuable in situations in which it could be judicially invoked, an alternative to be pleaded by the plaintiff who knows better than anyone, perhaps, the consequences of dangerous procedures being left uncured. Such plaintiffs, by reason of their injuries, could sue to require remedy for the public at large.

Robert A. Clifford is a Chicago lawyer concentrating in aviation, personal injury, medical malpractice and product liability law. He represents William and Marion Clay, parents of Nancy Clay.