The Psychology of Tort Law

By Jennifer K. Robbennolt and Valerie P. Hans

Tort law regulates most human activities: from driving a car to using consumer products to providing or receiving medical care. Injuries caused by dog bites, slips and falls, fender benders, bridge collapses, adverse reactions to a medication, bar fights, oil spills, and more all implicate the law of torts. The rules and procedures by which tort cases are resolved engage deeply-held intuitions about justice, causation, intentionality, and the obligations that we owe to one another. Tort rules and procedures also generate significant controversy—most visibly in political debates over tort reform.

The Psychology of Tort Law explores tort law through the lens of psychological science. Drawing on a wealth of psychological research and their own experiences teaching and researching tort law, Jennifer K. Robbennolt and Valerie P. Hans examine the psychological assumptions that underlie doctrinal rules. They explore how tort law influences the behavior and decision-making of potential plaintiffs and defendants, examining how doctors and patients, drivers, manufacturers and purchasers of products, property owners, and others make decisions against the backdrop of tort law. They show how the judges and jurors who decide tort claims are influenced by psychological phenomena in deciding cases. And they reveal how plaintiffs, defendants, and their attorneys resolve tort disputes in the shadow of tort law.

Robbennolt and Hans here shed fascinating light on the tort system, and on the psychological dynamics which undergird its functioning.

• Language: English
• Publisher: Open Road Integrated Media
• Release date: Jan 1, 2016
• ISBN: 9780814724804

Book preview

The Psychology of Tort Law

Psychology and the Law

General Editor: Linda J. Demaine

The Psychology of Tort Law

Jennifer K. Robbennolt and Valerie P. Hans

The Psychology of Tort Law

Jennifer K. Robbennolt and Valerie P. Hans

With a Preface by Linda J. Demaine

NEW YORK UNIVERSITY PRESS

New York and London

NEW YORK UNIVERSITY PRESS

New York and London

www.nyupress.org

© 2016 by New York University

All rights reserved

References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

Library of Congress Cataloging-in-Publication Data

Robbennolt, Jennifer K., author.

The psychology of tort law / Jennifer K. Robbennolt and Valerie P. Hans ; With a Preface by Linda J. Demaine.

pages cm. — (Psychology and the law)

Includes bibliographical references and index.

ISBN 978-0-8147-2494-1 (cl : alk. paper) — ISBN 978-1-4798-1418-3 (pb : alk. paper)

1. Torts—United States. 2. Law—Psychological aspects. I. Hans, Valerie P., author. II. Title.

KF1249.R62 2015

346.0301’9—dc23 2015027828

New York University Press books are printed on acid-free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books.

Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1

Also available as an ebook

For Grant, Dale, and Jake

—JKR

For Michael and Zachary

—VPH

Contents

Preface

Acknowledgments

Introduction

1. The Real World of Torts

2. Intentional Torts

3. Negligence

4. Causation

5. Limits on Liability: Duty and Scope of Liability

6. Damages

7. Defenses

8. Products Liability

Conclusion: A Psychological Perspective on Tort Rules, Tort Cases, and Tort Reform

Appendix: Psychology and Torts

Notes

Subject Index

Name Index

About the Authors

Preface

The New York University Press Psychology of Law book series addresses an intriguing state of affairs in legal scholarship. Although law and legal process are inherently psychological in nature, traditionally, relatively few law professors, judges, or legal practitioners have drawn on empirical psychological research to inform their perspectives and decisions. In recent years, the legal community has increasingly recognized that both substantive law and legal procedure rest on a multitude of testable assumptions about human behavior that can be informed by psychological research. Without formal training in psychology, however, legal experts may find it challenging to identify relevant and informative psychological research, evaluate its methodological rigor, and interpret the empirical results. Consequently, in the absence of trusted resources to translate findings from psychological studies and apply them to core legal issues, psychology’s potential to inform legal doctrine and practice will remain unfulfilled. Lawyers, in particular, will lack the tools that would enable them to better understand the law’s effects on human behavior and how the law might be better constructed to achieve its goals.

Three important exceptions to psychology’s peripheral status in legal scholarship are eyewitness testimony, false confessions, and jury decision making. In each of these realms, insights from psychological research have entered legal discussions and debates, resulting in marked improvements in the legal system’s functioning. These exceptions, which developed precisely because lawyers communicated the fundamental legal issues to psychologists and psychologists introduced lawyers to informative research findings, demonstrate the potential of psychology to inform the law.

The Psychology of Law book series is intended to help make the exceptions into the rule by expanding and strengthening the intersection of law and psychology. To achieve this goal, the series applies psychology to subjects covered in the core law school curriculum. The books are designed to facilitate exchanges between lawyers and psychologists about these fundamental legal issues by introducing psychologists to the legal issues and introducing lawyers to the most pertinent research methods and findings. The books are valuable assets for law professors who desire to incorporate psychological science into their classes. To facilitate their adoption in law classrooms, the books map onto popular casebooks and are relatively brief and practical. The books are also prime resources for participants in psychology-law graduate programs, professors who teach undergraduate law and psychology courses, and mainstream psychologists who study legal issues. The books’ expansive coverage of psychological research on core legal topics and their identification of areas in need of further research will provide these audiences with current knowledge and a roadmap to inspire further research. Finally, the books will be useful to legal practitioners whose work in particular areas of law can benefit from an understanding of psychology. All volumes are authored by eminent scholars who are conversant in both psychology and the law and possess the expertise necessary to identify and articulate legal issues of import, apply psychological theory and research findings to them, and identify areas of future research for psychologists.

The Psychology of Tort Law is the inaugural book in the series. Jennifer K. Robbennolt and Valerie P. Hans first discuss the inability of economic cost-benefit and corrective justice theories to completely explain and inform fundamental aspects of tort law doctrine, despite their current dominance in tort scholarship. This discussion paves the way for the rest of the book, which identifies the main psychological issues in the traditional law school torts curriculum and presents in an easily accessible way the major findings from well-designed psychological studies. Robbennolt and Hans explore general patterns in claims, verdicts, and awards, and the motivations of participants in the system. They draw upon psychological science to explain how judges and jurors arrive at conclusions regarding intent and to illuminate courts’ conception of the reasonable person, the linchpin of negligence analysis. They discuss biases and other psychological tendencies that can detract from, or enhance, jurors’ and judges’ conclusions about cause-in-fact. They provide a psychological explanation for the limitations on liability that courts impose through duty and proximate cause (scope of liability) analysis. They describe the ways that damage awards can be predictably altered when particular psychological processes are engaged or overcome. And they offer insights into the psychology of defenses to tort claims. In each of these areas, Robbennolt and Hans identify places in which the psychological literature is consistent with or reinforces the law, instances in which psychological findings and the law are at odds, and areas that could benefit from additional research. In short, they have achieved in this book what has been too long in coming, and what many thought could not be done—a groundbreaking view of tort law that stands to transform our understanding of the subject.

Linda J. Demaine

Acknowledgments

We are delighted that our book is the inaugural volume in the Psychology and Law series organized by Linda J. Demaine. We thank her for proposing the idea of a book on psychology and tort law to us. We are also grateful for her careful review of the completed manuscript and for all her support along the way.

We benefited from a veritable village of torts scholars who took the time from their busy and productive lives to offer comments on drafts of manuscript chapters. In addition to Linda’s help, two other extraordinarily generous colleagues—Jeffrey Rachlinski and Joseph Sanders—read the entire manuscript (parts of it more than once) and made a host of helpful suggestions that improved the book enormously. We owe them a huge debt of gratitude.

Many other specialists in law, psychology, and torts read and commented on drafts of individual chapters, made trenchant criticisms, offered ideas for improvement, and pointed us to materials that we had missed the first time around. Our deep appreciation goes to Brian Bornstein, Jonathan Cardi, Neil Feigenson, David Hyman, Bert Kritzer, Margo Schlanger, Cathy Sharkey, Larry Solan, Bobbie Spellman, Tom Ulen, Neil Vidmar, Brad Wendel, and Lesley Wexler. We also thank James A. Henderson Jr. for sharing many insights into tort law and tort law teaching.

Students and staff at University of Illinois College of Law and Cornell Law School offered invaluable research assistance and help with the manuscript: Wen Bu (Law, Behavior, and Social Science Fellow; Illinois), Sally Cook (Illinois), Bonnie Jo Coughlin (Cornell), Amy Emerson (Cornell Law School Library), Lucas Rael (Illinois), Margaret Yoder (Cornell), and the faculty and staff of the University of Illinois College of Law Library. Valerie Hans also benefited from participation in a Cornell University theme project on Judgment, Decision Making, and Social Behavior sponsored by the Institute for the Social Sciences.

We also want to thank our law students. Their engagement in the world of tort law and their debates over some of the classic cases, like Carroll Towing, Daubert, Garrett v. Dailey, Kingston v. Chicago & N.W. Ry., Palsgraf, Sindell v. Abbott Laboratories, Tarasoff, and Vosburg v. Putney, encouraged us to pursue the idea of looking systematically at the psychological underpinnings of tort law.

As the two of us discussed, debated, wrote, edited, and revised, we learned a great deal from each other. Our fondest hope is that our book will stimulate others to explore some of the issues that we raise.

JKR, Champaign, Illinois

VPH, Ithaca, New York

Thank you to the following copyright holders for permission to excerpt their materials:

Mark Dowie, Pinto Madness, MOTHER JONES, Sept./Oct. 1977.

Theodore Eisenberg, Michael Heise & Martin T. Wells, Variability in Punitive Damages: Empirically Assessing Exxon Shipping Co. v. Baker, 166 J.OF INSTITUTIONAL& THEORETICAL ECONOMICS 5 (2010).

Valerie P. Hans & Valerie F. Reyna, To Dollars from Sense: Qualitative to Quantitative Translation in Jury Damage Awards, 8 J. EMPIRICAL LEGAL STUD. 120, 129 (2011).

Andrew J. McClurg, Poetry in Commotion: Katko v. Briney and the Bards of First-Year Torts, 74 OR. L. REV. 823, 836–37 (1995).

Neal J. Roese & Kathleen D. Vohs, The Visualization Trap, HARV. BUS. REV., May 2010.

Introduction

The driver of one car rear-ends another, causing damage to both cars; the driver’s liability insurance covers the cost of repairs. A jury debates the appropriate damage award for a baby who was born disabled after a doctor’s error during a difficult delivery. A judge evaluates a claimant’s whiplash injuries. A patient confides in his therapist about his desire to kill the woman who has spurned him; the therapist wonders whether to warn her. A package of fireworks falls and explodes; in the crowd’s rush to get away, a heavy object falls and hits a bystander. After receiving a common childhood vaccine, a child experiences a life-threatening allergic reaction. A teenager disregards the warning label on a lawn mower and loses a finger. Each of these cases implicates the law of torts. Each of these cases also implicates psychology.

The law of torts governs the circumstances under which one person or entity, a defendant, is to be held civilly liable for having caused harm to another, a plaintiff. Tort law is primarily concerned with determining whether an actor has acted intentionally or negligently in harming another, whether the act at issue caused the injury, and whether there should be any limits on liability for the harm caused. In addition, when liability is found, tort law is concerned with how to appropriately compensate the plaintiff for that harm through compensatory damages, and whether and how much punishment in the form of punitive damages is warranted.

Both authors of this book have backgrounds in psychology, and teach classes and conduct research on tort law and the civil justice system. As we have presented and debated tort law principles and practices and shared our research findings with our law students and colleagues, we have been continually intrigued by the overlaps between the legal and psychological dimensions of torts. Our research projects on lawyers, litigants, and fact finders in tort cases have generated many findings that strongly resonate with psychological principles, but have also produced other results that are surprising. Our discussions about the convergence and divergence of psychology and torts have led us to take on this wide-ranging examination of the psychology of tort law.

Psychology and the Objectives of Tort Law

Tort law has a variety of aims, including deterring harmful behavior, offering a mechanism for remedying wrongs, allocating the costs of injuries, and providing compensation to those who are injured.

Some scholars see the primary objective of tort law as deterrence. If it works well, tort law creates incentives for desirable behavior and disincentives for unacceptable behavior.¹ Under an economic model of tort law focused on deterrence, tort liability aims to minimize the combined cost of accidents and accident prevention by forcing actors to take into account the consequences of their decisions to act or not act. Requiring actors to pay compensation to injured victims provides an economic incentive to engage in behavior that is legally acceptable.² Perhaps it is not surprising, then, that economic thinking has dominated recent theories about tort law.

Even so, an economist might be puzzled that tortious behavior ever occurs. Rational decision makers should weigh the costs and benefits of any course of action and act appropriately. The prospect of tort liability should deter all negligent accidents, at least as long as the tortfeasor is able to pay the costs. Yet it is clear that tortious behavior frequently occurs. Any review of the tort case law will unearth a veritable goldmine of ‘objectively’ unreasonable behavior that has not been deterred.³

From a psychological standpoint, however, the fact of tortious behavior does not seem odd at all. For tort law to effectively deter tortious conduct, the targets of the law must be aware of and understand the rules, willing to follow the rules, and able to conform their conduct to the requirements of the rules as they make decisions about activities in which to engage, the extent and location of those activities, and any precautions to undertake.⁴ Psychological theory and research inform each of these assumptions.

First, decision makers are not always aware of the rules that apply to them.⁵ In addition, the incentives provided by the tort system are not always straightforward in practice. As we will see, many meritorious tort cases are not brought,⁶ muting the deterrence signal between behavior and tort. The significant length of time it takes for a tort suit to conclude and the buffer of liability insurance can both further weaken this link.⁷ At the same time, however, many potential defendants overestimate the likelihood that they will be sued.⁸ Beyond this, it is surely not the case that people are solely self-interested or only motivated by the incentives provided by the tort system. Tort-related behavior may be influenced by an actor’s own morality, social norms, incentives provided by the market, the desire to help others, self-expression, the actor’s own safety, emotion, and much more.⁹

As we will see throughout this book, psychology poses all sorts of complications for the assumption that decision makers can easily engage in the type of cost-benefit analysis required by standard economic models. Our capacity to pay attention is limited, we use mental shortcuts or heuristics to make decisions, we develop and rely on habits or other forms of automatic behavior, and we do not always think about risks or costs and benefits in the ways anticipated by economic models. Thus, even people who aspire to act in accordance with economic models of decision making may find this difficult to accomplish in practice.¹⁰

Other scholars theorize that the primary objective of tort law is to accomplish corrective justice by remedying past wrongs.¹¹ In this view, tort liability is intended to restore the moral balance between the parties, to communicate a message about the wrong that was done, and to make the plaintiff whole through money damages.¹² Deterrence theories typically do not attach importance to the link between plaintiff and defendant—that is, there is nothing special about the fact that the defendant must pay money damages to the plaintiff.¹³ In contrast, theories of corrective justice emphasize the relation between the injurer and the injured.¹⁴ Part of what is to be accomplished is a restoration of the relational balance between injurer and injured that entails allocating the plaintiff’s losses specifically to the defendant. Empirical evidence provides support for the notion that corrective justice norms are central to people’s responses to violations of tort law¹⁵ and confirms that fact finders do not myopically seek optimal deterrence.¹⁶

Rather than guaranteeing the righting of wrongs, however, some theorists argue that tort law is best understood as affording plaintiffs "the right to redress wrongs."¹⁷ They distinguish the idea of corrective justice, which emphasizes correcting wrongs and restoring the equilibrium between injurer and injured, from the notion of tort law as a vehicle for civil recourse: In permitting and empowering plaintiffs to act against those who have wronged them, the state is not relying upon the idea that a defendant has a pre-existing duty of repair. Instead, it is relying on the principle that plaintiffs who have been wronged are entitled to some avenue of civil recourse against the tortfeasor who wronged them.¹⁸

In addition to the primary aims of deterrence, corrective justice, and civil recourse, tort law has a range of other outcomes and benefits. The tort system reveals and transmits information about hazards and injuries. Indeed, plaintiffs frequently cite the desire for information about what happened to them as a reason for filing a lawsuit.¹⁹ Tort verdicts provide information—about community standards, safety, vindication, and other topics—to other audiences as well. The tort system also provides a public forum within which plaintiffs and defendants can tell their stories. The opportunity to recount one’s own story of an injury is an important facet of fair process or procedural justice. And the tort system offers a public space within which society can debate how tort obligations should be defined.²⁰

This panoply of objectives implicates the psychology of decision making in tort. While legal scholars weigh the primacy of deterrence and corrective justice in tort law,²¹ decision makers—including defendants, plaintiffs, attorneys, judges, and jurors—are likely motivated and influenced by these multiple goals and objectives in complex ways. Each of these goals can be held with varying degrees of intensity, and goals are sometimes complementary and sometimes conflicting. In some instances there may be multiple ways to accomplish a goal. At other times, important goals may be difficult to fulfill.²² Jurors, for example, may simultaneously seek to construct a story of what happened that fits the evidence presented and match that story to the verdict options given to them, reach what they consider to be a defensible verdict, appropriately compensate an injured victim, send a message about wrongful behavior, take into account all the information they find relevant even if some of it is not legally relevant (for example, insurance or lawyers’ fees), strike the right balance between the parties, deter future wrongful behavior, and give voice to their expectations about personal responsibility.²³ In addition, jurors may show reactance in the face of blatant manipulative tactics by counsel, attempt to comply with economic logic and attempt to reconcile [their] conflicting . . . interpretations of the judge’s instructions. At the same time, they may desire to ‘finish the trial and go home; avoid fighting with other jurors; [and] avoid the wrath of the defendant, plaintiff, or community.’²⁴ Judges, attorneys, and litigants take similarly multifaceted approaches to the range of decisions that they must make as they choose to bring, defend, settle, and decide tort claims.

Tort Law and Psychology

In seeking to accomplish its objectives, the law of torts is inevitably concerned with how legal rules influence behavior, how the psychology of decision makers interacts with the legal rules, and how jurors and judges evaluate and respond to the behavior of both plaintiffs and defendants. Tort law implicates any number of questions about human behavior and decision making. What motivates people to pursue tort claims? How do people determine whether particular conduct is accidental or intentional, reasonable or unreasonable? How do people think about what factors caused which harms? How do such judgments inform determinations of blame and liability? How do people decide tort compensation and punishment? In short, the law of torts implicates many of the same phenomena that cognitive and social psychologists study.

Psychology is at its core an empirical discipline—a hub science²⁵ that focuses primarily on understanding how people perceive, think, feel, and make decisions. Rather than relying on intuition, trial and error, or appeals to authority, the science of psychology depends on close observation, the testing of assumptions, and an emphasis on systematic measurement:

Thinking like an empiricist differs in important ways from thinking like a lawyer. While both modes of thinking are grounded in rigorous analysis, lawyers and empiricists often have different goals and approaches. Legal analysis places a premium on argumentation and appeals to authority, is frequently geared toward proving a particular view, is often focused on the particulars of an individual case, and is directed at reaching a definitive conclusion. In contrast, empirical analysis places a premium on observation, challenges assumptions, is oriented toward the testing of hypotheses, is usually focused on describing patterns that operate in the aggregate, and is a continuing enterprise in which new work builds on that which came before and generates even more questions for further investigation.²⁶

In this spirit, we explore tort law through the lens of psychological science, examining the assumptions about human behavior and decision making that underlie the doctrinal rules, reviewing psychological research that tests these assumptions or otherwise sheds light on the functioning of the tort system, observing broad patterns in the cases and in the decisions of legal actors, and raising further empirical and psychological questions about tort law and practice.

In doing so, we draw on a range of psychological theories and research findings. For example, research on the ways people make attributions of responsibility for harms caused can enlighten questions about how and why claims are made and defended or not, how people think about intent, how people make judgments about causation, and how liability is apportioned among parties. Research on judgment heuristics can help us to understand how people make decisions about risk, judge the reasonableness of behavior, and award damages. Research on the story model of decision making can explain how jurors attempt to use the information presented to them in a tort case to reach a verdict that fits with the options presented to them. And research on social interaction, norms, and cues informs us about how people approach decisions about whether to pursue or settle tort claims, think about the role of custom in evaluating behavior, decide whether to engage in rescue attempts, and participate in group decision-making processes. These are but a few of the many psychological theories that can inform tort law (see the appendix for a more extensive list).

In the chapters that follow, we explore the operation of tort rules from four different perspectives. First and most fundamentally, we examine the premises of tort doctrines and their fit with our knowledge of human psychology. In many instances we find that tort doctrine and psychological intuition are aligned—with tort law reflecting and shaping community views of civil justice. In other cases, law and intuition diverge. In some such cases, it seems that the differing assumptions of the law and the tendencies of human psychology can quietly coexist. In other cases, the perceived legitimacy of the tort system may be undermined when the law diverges from community sentiment. And in still others, psychological tendencies may run counter to the legitimate purposes of tort law. Considering tort law through a psychological lens highlights this tension between lay intuitions about the law and the requirements of the law itself.

Second, we examine whether and how the law of tort influences the behavior and decision making of potential plaintiffs and defendants—automobile drivers and passengers, doctors and patients, manufacturers and purchasers of products, property owners, and so on. We are interested in how these decision makers choose what activities and precautions to undertake and which to pass up.

Third, we consider the judges and jurors who are called upon to decide tort claims. We are concerned with how judges and jurors apply the relevant tort rules in deciding the cases before them and the insights that psychology provides into the challenges faced by these decision makers. We focus broadly on psychological phenomena that may influence decision making, rather than emphasizing individual differences among fact finders.²⁷

Fourth, we investigate how legal actors resolve tort disputes in the shadow of tort law. Most tort cases are resolved short of trial through settlement or pretrial motions, or because they are simply dropped. Accordingly, a primary effect of tort doctrine is to cast a shadow within which the settlement of cases occurs. As disputants and their attorneys resolve cases, they face the same challenges that judges and juries face in applying the relevant tort rules to their situations. These attempts to settle cases may take into account a broader range of considerations (including those that are nonlegal), but occur against the backdrop of how legal decision makers would apply tort doctrine to their cases.

Throughout this book, we examine the implications of psychology for tort law in each of these domains. We conclude by describing how psychological theories and research findings can help to inform current debates about reforming tort law and tort practice and offer our suggestions for new avenues for research.

1

The Real World of Torts

At 7:34 a.m. on September 22, 1989, twenty-one middle school and high school students in Alton, Texas, died and forty-nine others were injured when their school bus collided with a Coca-Cola delivery truck, fell twenty-four feet into a gravel pit, and was submerged in water. The National Transportation and Safety Board investigation found that each of the students died as a result of drowning or complications related to the submersion and that the probable cause of the accident was the truckdriver’s inattention and subsequent failure to maintain sufficient control of his vehicle to stop at [a] stop sign. Contributing to the severity of the accident was the lack of a sufficient number of emergency exits on the school bus to accommodate the rapid egress of all . . . students.¹

Like most tort plaintiffs, the parents of the victims did not immediately turn their thoughts toward tort lawsuits. ‘I didn’t want a lawyer,’ said Carmen Cruz, whose 17-year-old daughter was killed in the crash and whose 14-year-old daughter was injured. ‘I said, The first lawyer who can bring my daughter back, I’ll hire.’² But lawsuits were eventually filed—lawsuits involving allegations about the negligence of the truck driver, the poor design of the school bus, the dangerousness of the intersection, and the lack of guard rails near the pit.³ Like most lawsuits, the cases ultimately settled.⁴

Social scientists have studied how disputes, including those like this tragic bus accident (which inspired the movie The Sweet Hereafter), arise and are pursued. Popular images of tort plaintiffs suggest that people sue over any small injury, no matter whose fault it is. And torts casebooks can give the impression that most tort disputes are resolved through trial (if not on appeal). But one of the striking discoveries of the real world of torts is that most people lump it rather than sue.

The starting point of a potential tort case is the experience of an injury, and it is easy to see how a psychological perspective is inherent in this experience. But the transformation of an injury into a tort claim involves multiple stages, each also involving psychology. For an injury to become a dispute, an injured party must first recognize that she has been injured—a process of naming. Next, she must attribute the source of the harm to the fault of another—blaming. And then she must approach that other to ask for reparation of some kind—claiming a need for redress. Only when such a request has been in some way denied does a dispute emerge.⁵ And, as we will see, only some of these disputes will formally make their way into the tort system.

The Pattern of Tort Disputes

The Real Worlds of Torts

As we describe the real world of torts, it is worth noting that tort cases do not constitute a single, monolithic world. Instead, the tort system consists of several worlds.⁶ Automobile accidents make up the biggest category of tort cases, accounting for almost 60 percent of tort trials. These cases tend to involve more routinized claiming processes, often through insurance companies. Perhaps as a result, these cases tend to have higher rates of claiming and are less likely to involve lawyers. These cases also tend to involve fairly modest claims and to have higher plaintiff win rates in comparison to other types of cases.⁷ In contrast, high-stakes medical malpractice or products liability claims involve more complex issues, are more expensive to bring to trial, have lower rates of claiming and lower plaintiff win rates, and tend to result in higher awards.⁸ Mass torts make up yet another distinct world of tort litigation, one that involves class actions and multidistrict litigation, difficult issues of law and fact, and particular tension between the efficient resolution of cases and individualized justice (see chapter 8).⁹ There is, of course, additional variation among cases within each of these worlds, but paying attention to these broad categories helps to highlight the different ways that distinct types of cases tend to make their way through the system.

The Disputing Pyramid

As cases evolve from injuries to formal tort cases, there is a significant amount of attrition—many cases fall away at each stage. Social scientific research suggests that the pattern of tort disputes resembles a pyramid, which starts from a baseline set of grievances and shows increasing attrition as cases develop into claims, disputes, and formal legal matters, with cases dropping out of the system as they are abandoned or settled. In a classic study using data collected as part of the Civil Litigation Research Project in 1980, Richard Miller and Austin Sarat estimated that for every 1,000 grievances, only about 200 became disputes, only 116 made their way to a lawyer, and only 38 (fewer than 4 percent of grievances and fewer than 19 percent of disputes) became formal filed cases (see figure 1.1).¹⁰ More recent data—primarily in specialized contexts such as medical malpractice¹¹ or from countries other than the United States¹²—corroborate this pattern of significant attrition and few filed cases. In short, lumping it is the norm.

Figure 1.1. Pattern of tort disputes. Data source: Richard E. Miller & Austin Sarat, Grievances, Claims, and Disputes: Assessing the Adversary Culture, 15 LAW & SOC’Y REV. 52 (1981).

Why might this pattern of attrition occur? A psychological perspective offers some explanations. First, some injuries are not identified as injuries by those who are injured. An injury might be too minor to be noticed. Its effects might not be discernible until some later point in time. It might be difficult to distinguish from symptoms that are not considered injurious (Is this pain a normal effect of my surgery or was I injured in some unexpected way?).¹³

Empirical Studies of Claiming Rates

• A RAND study estimated that one in six persons in the United States experienced economic loss during 1989 as a result of a nonfatal injury, including injuries caused by tortious and nontortious conduct. Only 10 percent claimed in some way. Just 5 percent sought the assistance of a lawyer, and fewer than 1 percent filed suit. Claiming rates varied by the source of the injury: approximately 50 percent of those injured in a motor vehicle accident made a formal or informal claim, while only 3 percent claimed for nonvehicular, nonwork injuries.a

• The Harvard Medical Practice Study estimated that adverse medical outcomes occurred in 3.7 percent of hospital admissions and that 27.6 percent of these adverse outcomes were due to professional negligence. Only 14 percent, or one in seven, of these negligently caused injuries became the subject of a filed claim.b

a. DEBORAH R. HENSLER, M. SUSAN MARQUIS, ALLAN ABRAHAMSE, SANDRA H. BARRY, PATRICIA A. EBENER, ELIZABETH LEWIS, EDGAR LIND, ROBERT J. MACCOUN, WILLARD G. MANNING, JEANNETTE ROGOWSKI & MARY E. VAIANA, COMPENSATION FOR ACCIDENTAL INJURIES IN THE UNITED STATES 124 (1991).

b. Troyen A. Brennan, Lucian L. Leape, Nan M. Laird, Liesi Hebert, A. Russell Localio, Ann G. Lawthers, Joseph P. Newhouse, Paul C. Weiler & Howard H. Hiatt, Incidence of Adverse Events and Negligence in Hospitalized Patients: Results of the Harvard Medical Practice Study I, 324 NEW ENGLAND J. MED. 370 (1991).

Second, even when the injured person recognizes that she has been injured, she may not blame another for her harm. She might not realize she was entitled not to be injured in this way. She might blame the injury on herself rather than another person or entity. Or she might chalk her injury up to bad luck, deem it to be simply an accident, or believe that the act that led to the injury was the kind of thing that could have happened to anyone. Psychologists have found that blame attributions—the ways people do or do not blame others—are influenced by factors that signal the degree of control the other had over the situation and its outcome. Thus, judgments about the degree to which the other desired or planned the outcome, the degree to which the other was a unique cause of the outcome, and the degree to which the other foresaw (or should have foreseen) the outcome all contribute to whether or not the other is blamed. Similarly, perceived constraints on the other’s degree of control—for example, incapacities or excuses—tend to mitigate blaming.¹⁴ Unless blame is attributed to another, claiming redress is unlikely.¹⁵

Third, even if she does attribute blame to another person, the injured party may still choose not to ask for redress. She might decide that confrontation is not worth it (in terms of time, money, or psychic energy) given the magnitude of the injury, or that such a request would damage her relationship with the injurer or have other negative consequences. She might choose not to sue because she has sufficient insurance or other resources to cover the costs of the injury. She might believe that to complain would do little to remedy the harm. She might not know to whom to make her claim or how to go about making it. Or she might react as did residents of Sander County, Illinois, who, when interviewed about their interaction with tort law, explained why victims seldom made claims:

Even when someone else’s negligence had clearly caused an injury, according to one farmer, Most of us would just think it’s one of life’s little accidents. Another farmer added, Farm kids, you know, are quite prone to having accidents, and they’re kind of used to it, I think. Usually just pick up and go on, and that’s all.¹⁶

Thus, rather than claiming, an injured person may choose to lump it and do nothing, find some way to exit from the