Essay on "Tort Law, Including the Pros"

Essay 10 pages (3115 words) Sources: 5

[EXCERPT] . . . .

When determining whether to account for negligent or strict liability the business and the judicial authority must take all of these factors into account (Giampapa, 2010).

Cons Tort Law

Tort law doesn't always act in favor of the businessman. In the U.S. Restatement of Torts governs law, restating what strict liability means for businesses; it eliminates or makes goods what immunities businesses public, private, families and charities may have in the vents of a product liability case. The second Restatement of Torts, published in the 1960s and 1970s essentially took away all immunities organizations had, and developed "principles of causation and duty" that did not favor the plaintiff or defendant in tort cases. In the 1990s and third Restatement of Torts was issued having to do with products liability; this established rules on strict product liability that suggested manufacturers not be strictly liable for the "design of their products or failure to warn about them" and that such liability should be "based on fault" (p. 2). Further the tort law argued that only in the cases of construction failure or quality control should strict liability be applied; the second part of this tort law allowed for "Apportionment of Liability" which added section for "joint and several liability, comparative fault, responsibility, and contribution indemnity" (p.2). This restatement also allowed for emotional and physical harm. One of the conditions of American law is that "a person is not responsible for a risk of physical or emotional harm that he or she did not create; there is no affirmate duty to rescue another" (p.7).

However, there is a clause that allows special relationships to be created; for example, there is a section that states if a plaintiff sets forward to take care of another to help them, and thus "undertakes" to "reduce the risk of harm to another" then the rescuer can "be subject to tort suits if he does not do so with reasonable care" (p.7). And who is to define reasonable care? As you can see the problem of language in many cases can be defined in many ways, as can much of the language in tort laws. This is where the allowance for misinterpretation and frivolous lawsuits can come into play.

In the American justice system, there are many frivolous lawsuits that cost businesses thousands of dollars each year, even millions of dollars. This can make tor law a con. However legislators also see the benefit of charitable work to public service agencies including non-profits and hospitals. They also see the benefits of medical service personnel who may be able to help individual's on-the-spot in a time in need. Take the instance of a medical professional who happens to help an individual during off-duty hours, say inflight or while out eating. There are in some states, Good Samaritan laws that can be put in place to limit the liability of professionals in the event someone is injured or decides they did not want the services provided by the professional that assisted them in the event of an emergency. You just never know when someone will sue someone else simply because they can.

Reform of Tort Law

Many opponents of the tort liability system claim it is to blame for the country's economic problems, including high insurance premiums. There have been multiple moves in recent years to address and reform tort law. Often the move to reform tort law and reasons behind it stem from the idea that tort law is to blame for many economic losses and expenses related to business losses and insurance premiums. Many people think that product liability cases are often overdone, resulting in excessive losses to businesses that can result in losses not only to the business itself but eventually, to the entire economic structure down to the consumer. When looking at the structure of the medical system, it is important to note that studies indicate the tort system is not the sole reason insurance premiums have increased; there are many other reasons including the high cost of research (U.S. Chamber of Commerce, 2010).

Much of the time tort cases merely shift money around according to the U.S. Chamber of Commerce. The Economic Policy Institute notes that the U.S. tort system is often blamed for the high cost of insurance, largely resulting from the costs associated with compensation for "pain and suffering" although some suggest that this is "seen as beneficial to society as a whole" (Eisenbrey, 2005). Many of the costs that have accelerated insurance premiums also include the collapse of the economy, stock market and low interest rates, as well as increasing costs of medicine in general (Eisenbrey, 2005). The tort system has not impacted real wages, as some have suggested; in fact, in order to determine the true causes for loss of economy, one must calculate the multitude of factors that come into play. This is because tort laws have been in effect for so many years, and it is only in recent times, as a result of the ongoing recession and multiple other factors that so many people have been quick to point to tort law as a reason for huge financial losses in so many factors. It is important to point out however, that plaintiffs in many cases, and defendants, should be well versed in tort law, so that the law is not abused, and so that they utilize tort law effectively, so that needless cases are not brought in front of the judicial authorities unnecessarily.

There are many complicated clauses within the tort system that can be easily misconstrued or abused by unethical attorney's looking to make their clients and their own pockets a littler fatter. This is why it is so critical for authorities and the judicial system to pay careful attention to the subtle nuances within tort law to ensure it is being followed appropriate and not abused. This third reinstatement of the Tort Law allows for just this opportunity, presenting reasons to claim product liability for example, but then offering specific examples of when strict liability should be applied, and other cases where it should not be applied, as in cases where all considerations may not have been aptly considered in the case of a defendant being brought to trial for negligence. An attorney and judicial body have an obligation to do their due diligence when addressing serious matters that could result in huge sums of money being paid to a plaintiff with a serious claim of injury or malpractice.

As evidenced, tort laws can be very beneficial, but they can also be very controversial. As a benefit, they can protect consumers from being taken advantage of and from unnecessary injury due to negligence on the part of the supplier or manufacturer. In the event of product liability, especially in the case of goods and services, tort law is very effective. However, in instances of physical and emotional liability, tort law can and is often used and abused. These days many individuals use tort law inefficiently.

This is especially evident in the case of big business, and in the medical profession, where insurance premiums have skyrocketed especially among healthcare professionals where some doctors have reduced the services they provide because insurance premiums for them to provide services to patients have becomes so high due to medical malpractice costs. The more tort law changes so that lawyers and judges can protect defendants from frivolous claims, the more likely tort law is to serve its proper purpose rather than to suit the needs of clients that simply want to make money from claims that do not serve a proper purpose.

Conclusion

Tort laws help businesses make good decisions when a claim is filed for injury or harm to a client. Tort laws can also result in frivolous claims if a client does not know how to use tort law effectively. In recent years and throughout history there have been many propositions brought forth to reform tort law, primarily because many agencies see tort law as an excuse to file unnecessary claims for physical and emotional harm. However, when one takes the time to learn tort law properly, it becomes evident that there are protective statements within the law that can prevent such disasters from occurring, where a business might have to go bankrupt because of unnecessary personal claims. It is up to the lawyers representing the cases and the judicial system to ensure that tort law is followed in an appropriate manner and not abused. When this happens, tort law is an efficient system for processing claims of injury and wrongdoing in civil cases.

References:

Eisenbrey, Ross. (2005 May). "The frivolous case for tort law change: Opponents of the legal system exaggerates its costs, ignore its benefits." Economic Policy Institute, Research and Ideas for Shared Prosperity. Retrieved July 22, 2011: http://www.epi.org/publications/entry/bp157/

Giampapa, Christopher. (2010). "Economic Analysis… READ MORE

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