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Expanding Reasonableness in the Field of Torts Induces Efficiency and Fairness

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Expanding Reasonableness in the Field of Torts Induces Efficiency and Fairness

1. Introduction

Over the past several years the body of laws governing compensation in tort law has substantially transformed from its common law origins. In the course of what many have advocated in the name of "tort reform," more than half of the United States have revised, or attempted to revise, one or more aspects of tort liability and damage principles to a greater or lesser degree. Tort law is, of course, constantly evolving; everyday in courts across the country, judges, attorneys and jurors are making and reshaping the law. Despite efforts for reform, one still cannot overlook the nature of modern torts and fail to see a convoluted system of rules and laws that has seized the efficiency, fairness and original purpose of tort law.

The issue of the functionality and practicality of modern tort law has ripened in recent years. Skyrocketing insurance claims, fraud and collusion, continually evolving definitions of harm and offense, changing societal standards of "reasonableness," and evolving forms of technology in the face of tradition all compel one to critique the Law of Torts from a much more critical point of view.

The overall purpose of tort law has always been to compensate plaintiffs for unreasonable harm which they have sustained1. In essence, torts are all about whether some or all of the monetary incidents of an injury should be shifted to a third party defendant.2 "Reasonableness" can be defined as fair, proper or moderate under the circumstances.3

A full blown reform of tort law would seem tantamount to the dismantling of common tort law. Such an abolition of the current tort system is an idea that has been discussed with increasing frequency and seriousness in recent years. "It is time, I believe, to focus academic and political attention once more on doing away with ordinary tort actions for personal injury."4 An examination of historical and modern tort law and some principles reveal that areas exist that are in need of reconsideration. Furthermore expanding and implements a doctrine of reasonableness in certain aspects of tort law would induce efficiency and fairness in a runaway system.

This paper seeks to explore what the tort system would look like if more courts used a reasonableness standard. Part II will discuss expanding reasonableness to aspects of products liability. Section III, will detail how a reasonable approach coupled with personal responsibility would enhance the effectiveness of the tort system. Section IV argues how the hybrid theory of personal responsibility and reasonableness will apply to general tort damage and compensation recovery. Section V will specifically dissect medical malpractice compensation and the reasonable steps that can be taken to protect everyone involved in the practice of medicine, both the patients and doctors. Finally, Section VI will conclude with final thoughts and recommendations for the role of reasonableness in the tort system.

2. Products Liability

Products liability is the fastest-growing, and probably now the most economically significant, branch of tort law. Its very name refers to the liability of a seller of a chattel which, because of a defect, causes injury to its purchaser, user, or sometimes, a bystander. 5 The general rules of negligence in products liability refers to one who sells a product.6 Most commonly, negligence theory is used to make a manufacturer liable where he failed to use reasonable care in designing, manufacturing, or labeling a product.7 A negligent manufacturer is liable to a "remote" purchaser (one who bought from some intermediary in the distribution channel), or to a "user" or "bystander."8 In other words, "privity" is not required ─ the requirement that, in order to maintain an action, the plaintiff must show that he contracted directly with the defendant. 9

The reasonable principles of negligent products liability should be applied today in a case where personal injury has been caused by a carelessly manufactured product instead of strict product liability. Employing two different sets of recovery is cumbersome and confusing for those seeking recovery. Also, the courts would have an easier time of understanding and applying one set of laws and regulations than two different sets as we have today. Historically, however, the use of negligence theory for such purposes was drastically limited by the requirement of privity.10 This requirement stems from an 1842 English case, Winterbottom, where the driver of a mail coach was injured when the coach broke down due to a lack of repair.11 He sued the defendant, who contracted with the post office to keep the coach in good condition. The court held that since the defendant's original duty or repair arose out of a contract; that duty extended only to the other contracting party; the post office. Since the plaintiff never contracted with the defendant, his lack of privity meant that he could not recover, either in contract or more importantly for this discussion, tort. 12

During the seventy years following this case, the courts modified that rule to permit negligence suits without privity where personal injury occurred from an "inherently dangerous" defective product.13 A consumer who was made sick by contaminated food, for example, could sue the manufacturer, even though she had made her purchase from a retailer; the food was said to be "inherently" or "imminently" dangerous. Determining whether a product was "inherently dangerous," however, was difficult and uncertain. In 1916, Justice Cardozo rejected the "inherent danger" requirement in negligence actions, in the landmark case of MacPherson, in which the defendant, Buick Motor Company made a car that it sold to a retail dealer.14 The dealer in turn sold it to the plaintiff. Due to defective spokes in one of the wheels, the car collapsed and injured the plaintiff. Although Buick had purchased the wheel from someone else, there was evidence that Buick could have discovered the defect by reasonable inspection.15 MacPherson established the general principle that once the plaintiff shows that the product will be unreasonably dangerous if defective, he may sue in negligence without privity.16 The effect of this holding was virtually to



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