An Interesting Opinion on Tort Reform from 1987

I found the dissenting opinion below in a products liability case from 1987. It really does make me stop to wonder if things wouldn’t be more equitable if everyone was informed of everything in a case: that there is insurance, that the victim has already been compensated x amount, etc.

HICKMAN, Justice, dissenting.

I dissent because the appellant did not manufacture nor supply the machine that took the hand of Jeff Green.
This case is typical of products liability cases, and in some respects demonstrates what is wrong with our legal system in the way it has come to treat torts.
First, the employer, Chicopee Manufacturing Company, built this machine, and if anyone or any entity should be blamed for negligent design, or failure to warn, it is Chicopee. Of course, Chicopee has workers compensation insurance and cannot be sued. The appellee, Jeff Green, has presumably collected his compensation. It will not, I am sure, compensate him for his loss, but it is not insignificant either. Then there is the carelessness of Jeff Green. Frankly, he should have known not to stick his hand in the machine. Common sense tells us all that that is dangerous. But, tragically, these accidents do happen regardless of the care and good intentions of employers, supervisors and employees.
Why this particular lawsuit? For money. If only a slight case can be made against someone or some company remotely connected with the accident perhaps a jury will make an award. The jury, of course, is not told the truth. They are not told Chicopee has workers compensation or Green has made a recovery. We are going to have to begin telling juries the truth if we intend to reform tort law. The simple fact is that we do not trust juries with the truth. Insurance companies fear that juries will make excessive awards if they know a defendant has insurance. Plaintiffs’ lawyers fear juries will reduce their awards if they know their clients are already compensated. So we keep from the jury the truth and have lawsuits like this: a defendant with a deep pocket is sued in hopes of more money.
The law, of course, can be stretched to bring such defendants into the realm of liability. Usually the theory is a failure to warn—that is the handiest charge of negligence.
Even hammers, axes and ladders have warnings on them, warning users to be careful. These warnings are put there because manufacturers have been sued because someone was dumb enough (and there is no other way to say it) to hurt themselves through carelessness. Carelessness causes many accidents, and all the signs in the world will not change that fact.
I regret joining the decision in W.M. Bashlan Co. v. Smith, 277 Ark. 406, 643 S.W.2d 526 (1982). A safety belt, over 11 years old, failed while being improperly used, and we affirmed an outlandish verdict. It is such decisions as this which are, in a large part, destroying our ability to produce products in this country, and at the bottom of it all is simple greed.
There is tragedy in the lives of those harmed, but our system has adequate legal remedies for most wrongs. The quest for larger and larger verdicts is simply founded on greed. Why not tell juries the truth? Why not tell juries exactly how much the lawyers will get? Could we have any worse system?

Ark.,1987.
Hergeth, Inc. v. Green
293 Ark. 119, 733 S.W.2d 409, Prod.Liab.Rep. (CCH) P 11,551

Advertisements