The American Museum of Tort Law

Leonidas Petrakis

Evolution of individuals’ rights, consumers’ protection, and holding wrongdoers accountable

Sites that become icons in the development of nations sometimes have lofty origins while others have more modest beginnings. Monticello, which in the intellectual and political history of the US occupies a special niche, was the plantation of the classically educated (he enjoyed reading Homer in the original) third President of the Republic, Thomas Jefferson. On the other hand, the environmentalist and civil disobedience pioneer Henry David Thoreau made famous a small pond in Ralph Waldo Emerson’s property with the publication of his famous opus Walden after living at the site for two years. In 2015 in a small New England town opened The American Museum of Tort Law to celebrate the struggles and achievements of tort law, and also to advance its potential for a more just society. The Museum is the project of Ralph Nader, the indefatigable American activist for justice and fairness.

The odd sounding and generally unfamiliar term “tort” (like the more familiar “torture”) derives from the Latin “torquere” (to twist), and it is simply a fancier term for a wrong, an injustice, a crime. In the legal sense, “tort” is a wrongful act (other than breaching a contract) that may be the basis for a civil lawsuit in order to obtain redress for the wrong suffered. 

Nader has written: “In the 1950s, at Harvard Law School, the faculty purported to teach us “the law”. We did not spend much time on the “lawlessness” of the rich and powerful (there wasn’t even a single course or seminar on corporate crime), nor on how the powerful always intricately wrote and passed laws (containing legal loopholes, tax escapes, or corporate subsidies) that became predatory instruments against the general public.” Tort law is a means of leveling the playing field and holding the powerful to account when products or services provided endanger health or safety. Τhe historian Eric Foner of Columbia University has called tort law “the weapon of the weak”.

Tort law had its origins in 13th century English common law, but the subject became particularly important with the attention focused on it by the great American jurist Oliver Wendell Holmes Jr. in the 1880s. In the second half of the 20th century tort law received its greatest impetus with the many celebrated cases now being featured in the Museum. 

In 1965 Ralph Nader published his best selling book Unsafe at Any Speed: The Designed-In Dangers of the American Automobile, a hard-hitting indictment of the safety practices of the automobile manufacturers. With significant inputs from industry insiders he documented the systematic resistance of car manufacturers to incorporating safety belts and anti-roll bars, and also not disclosing to buyers tire pressure and other safety related issues. Nader focused on the Chevrolet Corvair, and for this General Motors attacked him and tried to besmirch even his private life. He sued General Motors for the tort of invasion of privacy, and won not only an apology from its President but also collected damages that have supported his many pro-consumer activities. The Museum now features a red “Sporty Corvair”, highlighting one of the key milestones in the success of contemporary tort law. 

In the 1970s many lawsuits were filed against the Ford Motor Company also, directed at the disastrous record of its subcompact Pinto, a low priced car that Ford marketed to compete with Volkswagen and Japanese imports. The car would be engulfed in flames when rear-ended and its gas tank ruptured, resulting in hundreds of fatalities and injuries. The lawsuits uncovered that the company knew of the proclivity of the Pinto to burst into flames upon rupture of its gas tank, yet it proceeded to produce the car having calculated that it was more cost effective to settle liability suits than to incorporate into the design the safety features that would have prevented the fires. Company engineers had proposed solutions for the problem at a very small additional cost per vehicle, but President Lee Iococca refused to accept them, insisting that the car was not to cost more than $2000. Iococca famously said, “Safety doesn’t sell”. Yet the suits and the negative publicity did bring about changes. The National Highway Traffic Safety Administration issued a damning report that forced Ford and the other companies to recall millions of vehicles, and to make appropriate design changes. In addition, the Federal Government tightened the safety standards despite big lobbying efforts against them. Hundreds of thousands of lives as a result of these higher safety standards have been saved.

Tort law has also impacted tobacco use, a significant item in many cultures. Pipe smoking was part of an academic persona, while cigarette smoking, especially as presented by Hollywood, was glamorous and sexy. These images of tobacco use persisted even when its serious health effects were becoming manifest. The extremely profitable tobacco companies doubled down in the face of mounting scientific evidence of the causal relationship between smoking and lung cancer and other diseases, and continued to promote vigorously the use of their injurious products. “More doctors smoke Camels than any other cigarette” proclaimed a notorious article (accompanied by the picture of a “physician” with stethoscope and of course puffing away at his Camel), its facsimile now featured in the Museum. The companies knew that if they could get young people to start smoking they would be hooked for life. “Joe Camel” advertisements, which had targeted young people, and the mucho image of the “Marlboro Man” were ubiquitous in billboards and other advertising media, and they were widely credited for the successful marketing of cigarettes. Of course the tobacco manufacturers were big contributors to political campaigns. 

In the 1980s a number of lawsuits and especially the so-called “Master Settlement Agreement” between States and Big Tobacco companies brought out the conspiracy among tobacco companies to deceive the public by hiding the facts of nicotine manipulation and addiction; revealed the many dangers of smoking; held the companies accountable forcing them to pay to the States more than 200 billion dollars for expenses incurred in treating the diseases that tobacco caused; and forced changes in advertising that curtailed cigarette smoking. Today tobacco smokers are down from 45% to below 20%. According to Professor Richard Daynard, “Clearly, hundreds of thousands of lives have been saved”. 

 One of the most notorious cases that the Museum features is what came to be known as the “hot coffee” lawsuit. In 1994 a 79-year-old woman sued the fast food giant McDonald’s and received damages for having sustained burns on her body from spilled coffee. Those interested in advancing “tort reform” (consumer advocates call it “limiting tort”) presented this case as an example of frivolous lawsuits and excessive jury verdicts. Yet the facts showed that the case was anything but frivolous.

McDonald’s had a policy of selling its coffee at much higher temperatures than its competitors in order to gain commercial advantage (the coffee staying hotter for a longer period.) The company had received many complaints –including that children were victims- yet it persisted with the policy. At the higher temperature that McDonald’s was using third degree burns could be sustained in three seconds, while at the lower temperatures the burns did not materialize for 20 seconds, thereby allowing time for a person to react in case of a spill. In the case of the 79-year-old woman, the spill caused third degree burns over almost a fifth of her body requiring eight days of hospitalization, skin grafts and two years recovery. The trial judge found that McDonald’s behavior had been “willful, wanton, and reckless.”

The museum exhibits cover a wide range of tort law cases including dangerous toys that have resulted in death and injuries; flaming pajamas; the insulation “miracle material” asbestos, with its chrysotile form causing a form of lung cancer known as mesothelioma; injuries from breast implants and cases of medical malpractice; the infamous pollution of Love Canal; the contraceptive intrauterine device Dalkon Shield that caused severe injuries and resulted in hundreds of thousands of lawsuits from all over the world; the intrusion of the privacy and harassment of Jackie Kennedy Onassis. In all cases the lawsuits brought by an individual or a group of litigants benefitted countless other victims and saved potential victims when the unsafe and unlawful conditions were remedied.

Recently I visited the museum located in the town of Winsted in the remote but beautiful Connecticut countryside, where Ralph Nader and his other siblings grew up, children of Antioch Orthodox Christian immigrants from Lebanon. He welcomed us with a Greek salutation. At a vigorous 83 years of age, he is still passionately pursuing justice. The Museum itself is housed (ironically) in a reconfigured elegant bank building still featuring its safe vault. With engaging visuals, interactive graphics, a brief but effective introductory film, educational activities reaching out especially to students, and developing strong ties to law schools, the American Museum of Tort Law not only celebrates milestone cases but aims to solidify and expand efforts to protect individual rights and hold the rich and powerful to justice and fairness. This is an especially significant undertaking in the current climate in which President Trump is attempting to roll back gains made in the last several decades.

 

(first published in CHRONOS magazine, June 5, 2017)

photo: http://www.umassd.edu/news...

ΧΡΟΝΟΣ #50, 6 Iουνίου 2017

Leonidas Petrakis holds a PhD in Physical Chemistry from the University of California, Berkeley; has taught at various universities—in the US, France and Greece; was Department Chairman and Senior Scientist at Brookhaven National Laboratory; and worked in the private sector. He specialized in energy and environmental issues, and has authored, coauthored, or co-edited six books and more than one hundred and fifty scientific studies in peer-reviewed journals.

Recently I visited the museum located in the town of Winsted in the remote but beautiful Connecticut countryside, where Ralph Nader and his other siblings grew up, children of Antioch Orthodox Christian immigrants from Lebanon. He welcomed us with a Greek salutation. At a vigorous 83 years of age, he is still passionately pursuing justice. The Museum itself is housed (ironically) in a reconfigured elegant bank building still featuring its safe vault. With engaging visuals, interactive graphics, a brief but effective introductory film, educational activities reaching out especially to students, and developing strong ties to law schools, the American Museum of Tort Law not only celebrates milestone cases but aims to solidify and expand efforts to protect individual rights and hold the rich and powerful to justice and fairness. This is an especially significant undertaking in the current climate in which President Trump is attempting to roll back gains made in the last several decades.

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