Consumer Law

For your bogus media file: more tort "reform" propaganda

By Kia Franklin

Chimps one day, tort "reform" the next. NYPost cartoons are on a roll.

You know yesterday's NYPost chimp cartoon (a cozy mix of violent, racist, and insensitive imagery that the Post swears is just a "parody" on current events, even though just about every one else on the planet was offended by it)? Well, the same cartoonist responsible for that cartoon illustrated this tort "reform" gem today:

Cartoon by Sean Delonas, published on NYPost Website.

This new cartoon refers to the lawsuit of Dustin Dibble, who fell onto subway tracks and lost his leg when run over by a train. A jury awarded Dibble $2.3 million in damages, finding NYC Transit negligent because the train conductor could have avoided the collision.

The cartoon and a related op ed argue that this lawsuit illustrates the need for tort "reform." Why? Because Dibble was drunk at the time that he fell onto the tracks.

This lawsuit isn't exactly the kind that immediately draws sympathy for the victim, or even outrage at the injurer. I'm a proponent of responsible behavior, and I think it's pretty dumb to get drunk, go into the subway, get too close to the edge, and fall over onto the tracks. Obviously your judgment is impaired and it's just not a smart thing to do. And obviously if this puts you in harms way, you're partly responsible.

But tort "reformers" are capitalizing on the fact that Dibble was intoxicated to gloss over the obligation of the train conductor to avoid hitting people on the tracks. Worse still, they're using this lawsuit as propaganda to convince taxpayers that we are hurt when our money is used toward the maintenance of our public courts. I suppose they'd rather use that money to bail out banks (which is arguably the same thing as using the money to lobby against our rights as consumers). If anything, we need more support of civil justice right now, as more and more ordinary people are finding that they simply cannot afford to be cheated and mistreated by corporate abusers.

The civil justice system has a handy dandy tool in place that contemplates things like Dibble's drunkenness--it's called comparative fault. This measurement sends the message that hey, if your actions contribute to your own injury, you're going to be held partially responsible for it.

So if the details leading up to his injury had been different--i.e., if the subway had been crowded and Dibble had been pushed down, if he had been injured and fallen down, or if he'd had a seizure--the allocation of responsibility would have been different and so would the jury award.

But would any of these different scenarios change the obligation of the conductor to operate the train safely? Nope.

Tort "reform" cheerleaders have clamped down on this story as propaganda in attempt to absolve the powerful of responsibility for harming the little guy. It's offensive that the cartoonist and the op ed writer attempt to manipulate the taxpaying public's view of the civil justice system at a time when taxpayer money is being used to prop up improperly managed, irresponsible corporate actors who are "too important to fail," and too poweful to be held accountable. Now more than ever, it is important to provide ordinary people with some kind of assurance that they will be protected against negligent behavior and the injuries that stem from them.

Full post as published by TortDeform.com on February 19, 2009 (boomark / email).