Tort Fight at the Accountability Corral

I remember growing up on Chicago's South Side and hitting an errant line drive through Mrs. Kowalski's kitchen window. Almost immediately, my friends pointed a finger at me; and I was forced to work every weekend in her yard until the replacement window was paid off.

Everyone has an anecdote from childhood in which a sibling or friend blamed them for some wrong that occurred. But the lesson learned from these stories is not paying back a certain sum of money but the ability of the person to accept responsibility for his or her own actions.

It's a valuable lesson to carry to adulthood. And nowhere is this concept of accepting responsibility more apparent than in tort law. In fact, it's what tort law is all about. The very basis of tort law has evolved from frontier justice to compensation of injured people with dollars in an effort to restore the injured person to the pre-accident condition. But as we approach the 21st century, that just doesn't seem to be enough, if it ever was.

In this era of insurance, recalls and government compensation programs, the injured and their families often are not willing to quietly accept a check and go away, scathed by events that forever changed their lives. More and more victims demand to see some type of connection between compensation and responsibility, and it is only the plaintiff's lawyer who can help them achieve that type of relief.

Perhaps it is the evolution of a more mature society that is demanding greater emotion satisfaction when one has been wronged. For instance, the cry for accountability was deafening when a speeding commuter train crashed into a busload full of high schoolers in Fox River Grove.

I have been witness to the parents of the young woman killed in a high-rise blaze who would not settle their lawsuit until the City of Chicago instituted changes in its 911 response system that had failed their daughter so tragically. And, more recently, a Barrington man whose family was wiped out in the United Airlines crash in Sioux City, Iowa, snubbed millions of settlement dollars until at least one of the defendants owned up to its part in the crash.

That is why the families of those involved in the July crash of TWA Flight 800, killing all 230 aboard off Long Island, lay vigil for weeks until answers were forthcoming. They just needed to know. And they still wait, some now turning to the civil justice system to seek the answers they so desperately need.

These victims can, at the very least, point a finger at someone. It is very difficult, however, to explain to the mother who loses a child in a drive-by shooting; to the family of a child paralyzed in a hit-and-run accident; or to the father whose daughter is left beaten and raped that there is no one who can be held accountable for the tragic and insufferable loss they must forever endure.

The origins of wrongdoers' responsibility dates back to the primal era when the need of injured persons to seek vindication for the wrong committed went beyond compensation for the monetary value of the loss. Gradually, though, the eye-for-an-eye system of justice evolved into a civilizing tool called tort law.

But will the ultimate outcome result in deterring unsafe behavior? Certainly, that is the goal of many plaintiffs in holding out for an admission of liability from a defendant. But the more legislatures build in protections from sanctions for wrongdoers through so-called tort reform" efforts, the less likely the civil justice system has the ability to shape individual or corporate behavior.

The lack of the system to act as an effective deterrent led one leading legal commentator, Roscoe Pound, to ruminate in 1914 that the legal system attempted nothing more affirmatively than to furnish the injured person a substitute for revenge." Roscoe Pound, The End of Law as Developed in Legal Rules and Doctrines", 27 Harv. L.Rev. 195, 199 (1914).

In the last eight decades, one hopes, tort law has become more sophisticated than mere retributive justice. Tort law can respond to victims' physical needs through compensation. But, of late, more importantly, the public policy of tort law, driven by the goals of victims, is attempting to make judgments of responsibility for harm in an effort to meet the injured's emotion needs as well. Plaintiffs are insisting on an admission of liability to reflect an appropriate deterrent effect so that the defendant does not feel an entitlement to injure others. It is this form of justice that no insurance company can provide. It must come directly from the defendant itself.

Negligence, with its fault-based premise, certainly has dominated tort law in the 20th century. But as we enter the beginning of a new millennium, it appears that the injured and their loved ones will turn more to the intangible restorative effect the civil justice system affords. Perhaps it is through compensation accompanied by an admission of liability that a plaintiff will attain less a feeling of victim and more an empowerment as a proactive member of society.