This is way off topic, so we'll throw it in for an out-of-the-ordinary weekend post.
Suppose an old man is trying to up to or walk down from a dais to the floor in an area of some facility like, say, the Yale Club. Suppose further that there is an arguably inadequate handrail, or even no handrail, and he stumbles and falls, injuring himself. What should he do? Let it go? Sue for negligence, seeking medical expenses only? Sue for medical expenses, income and reasonable compensation for pain and suffering? Or does he make a federal case out of it, literally, and seek not just medical expenses and general damages, but a million dollars in damages, plus a heaping dollop of punitive damages on top of it, plus attorney's fees and interest, even though state law doesn't permit fees and interest (and of course, a jury trial is a must). Which path is best? Which, if any, should the system permit? For two interesting and divergent viewpoints on this hypothetical, check with two prominent American judges: Robert Bork in 2002, and Robert Bork in 2007.
In 2002, in the Harvard Journal of Law & Public Policy, Judge Bork decried the harm that frivolous claims and excessive punitive damage awards brought to our justice system.
State tort law today is different in kind from the state tort law known to the generation of the Framers. The present tort system poses dangers to interstate commerce not unlike those faced under the Articles of Confederation. Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress's power, may now be constitutionally appropriate.
In 2007, Judge Bork takes a slightly different approach, perhaps because he now is the plaintiff in our hypothetical. You can read the complaint, filed on his behalf by the law firm of Gibson, Dunn & Crutcher, LLP (which almost certainly would rather be defending this lawsuit, but for the prominence of the plaintiff), at this Wall Street Journal link. Bork now believes that the lack a handrail suitable for someone of his age and frailty is evidence of gross negligence, justifying a seven figure verdict that includes punitive damages to punish, deter and make an example of the Yale Club.
We aren't passing judgment on his claims. They may very well have merit (well, except for the fees and interest, which NY PI attorneys tell us he can't get). But we are struck by the irony. It reinforces our belief that most tort reformers are just lucky folks who have never needed the legal system to save them from injustice. Their secret message? "Do as I say, not as I will do when I need to."
Meanwhile, over at Overlawyered, Ted Frank has this to say:
I sympathize with Judge Bork's serious injuries, but it's beyond me what his lawyers are thinking in asking for punitive damages. And if any danger is open and obvious such that there is an assumption of the risk, surely the absence of stairs to reach a lectern on a dais is—especially if the dais is of the "unreasonable" height that the complaint alleges it to be.
Robert Bork is to tort reform what Ted Haggard is to family values. In a 1995 opinion piece in the Washington Times, Bork criticized the expensive, capricious and unpredictable justice system:
"Today's merchant enters the marketplace with trepidation -- anticipating from the civil justice system the treatment that his ancestors experienced with the Barbary pirates."
But now, he's one of the pirates. All he needed was a hand up to the ship. And at the time of the accident, all he needed was a hand up. According to the New York Times, he went on to deliver the speech after he had fallen. The subject is a popular one around the blogosphere.
- Bork: Tort Reform for Thee But Not for Me (Booman Tribune)
- Leading Conservative Activist Seeks Punitive Damages (American Constitution Society)
- The Urgent Need for Tort Reform (Grasping Reality With Both Hands)
- Lawsuit of the Day: Robert Bork Hearts Plaintiffs? (Above The Law)
- The Fall of Bork (Reason Magazine - Brian Doherty)
- Is Bork's Trip and Fall a Misstep? (New York Times Opinionater - Tobin Harshaw)
- Legal Funnies (Alas, A Blog)
- Advocate for tort reform sues for over $1M (Bring it on!)
- When Tort Reformers Slip And Fall (Mother Jones)
[We'd give credit to other bloggers for finding the quotes, but frankly, we saw so many of them writing about this subject that we can no longer recall where we saw any of it first.]