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America's Blame Culture

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America's Blame Culture centner 00 fmt 8/14/08 7:10 AM Page i America’s Blame Culture centner 00 fmt 8/14/08 7:10 AM Page ii centner 00 fmt 8/14/08 7:10 AM Page iii America’s Blame Culture Pointing Fingers and Shunning Restitution Terence J. Centner Carolina Academic Press Durham, North Carolina centner 00 fmt 8/14/08 7:10 AM Page iv Copyright © 2008 Terence J. Centner All Rights Reserved Library of Congress Cataloging-in-Publication Data Centner, Terence J. America’s blame culture : pointing fingers and shunning restitution / by Terence J. Centner. p. cm. Includes bibliographical references and index. ISBN 978-1-59460-483-6 (alk. paper) 1. Liability (Law)—United States. 2. Torts—United States. 3. Government liability—United States. I. Title. KF1250.C43 2008 346.7303—dc22 2008011656 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America centner 00 fmt 8/14/08 7:10 AM Page v To my wonderful family: Mary Ann, Ann Marie, and John Harry E. and Mary Ellen, Harry A., and Jean centner 00 fmt 8/14/08 7:10 AM Page vi centner 00 fmt 8/14/08 7:10 AM Page vii Contents Table of Cases xiii Table of Statutes xxi Table of Acts and Bills xxv Table of Text and Periodical Citations xxvii Acknowledgments xxxix Chapter 1 · A Culture of Blame 3 Other Views on Responsibility 6 Legal Systems and Communities 8 Liability Rules for Accidents 11 Shortcomings of Our Tort System 12 Notes 15 Chapter 2 · An Overview of American Tort Law 17 Observations from Europe and America 18 Are There Too Many Lawsuits? 20 A Lack of Objectivity 21 Needy Victims 22 Tort Liability in Negligence 23 Categories of Entrants 24 Legislative Expansion of Exceptions to Liability 26 Notes 27 Chapter 3 · Some Views of Tort Litigation 29 Safety 30 Litigation Costs 33 Contingency Fees 33 Shifting Litigation Costs to Losing Parties 34 Excessive Damage Awards 35 Capping Compensatory Damages for Pain and Suffering 36 vii centner 00 fmt 8/14/08 7:10 AM Page viii viii CONTENTS Capping Punitive Damage Awards 38 Deterring Future Negligence 40 Notes 41 Chapter 4 · Medical Malpractice Claims 45 Medical Malpractice Crises and the Issues 46 My European Experiences 47 Medical Malpractice and What It Means 48 Legislative Responses 49 The Collateral Source Rule 50 Joint and Several Liability 51 Frivolous Lawsuit Legislation 52 Results of Legislative Reforms 54 Alternatives to Litigation 55 Notes 56 Chapter 5 · Care and Releases 61 Requiring Care 63 Releases Waiving Claims 65 Not Enforcing Releases 67 Contrary to Public Policy 67 Unfair Bargaining Power 68 Contrary to a Statutory Duty 69 Altering Public Policies Regarding Releases 70 Notes 72 Chapter 6 · Attitudes and Social Responses 75 Personal Responsibility 76 Assumption of Risk 79 Primary Assumption of Risk 79 Secondary Assumption of Risk 81 Expectation That Injured Persons Should Sue 82 Fear of Being Sued 84 Notes 85 Chapter 7 · Governmental Immunity 87 Historic Underpinnings of Immunity Protection 89 The Federal Tort Claims Act 91 State Tort Claims Acts 93 centner 00 fmt 8/20/08 12:02 PM Page ix CONTENTS ix Other Governmental Units, Functions, and Acts 95 Notes 98 Chapter 8 · Historical Liability Exceptions 101 Good Samaritans 102 The Good Samaritan Paradigm 103 Protected Classes and Zone of Protection 104 Gratuitous Act, Good Faith, and a Standard of Conduct 105 Duty to Assist or Rescue 106 Veterinary Good Samaritan Statutes 109 Gleaning Statutes 110 Notes 112 Chapter 9 · Recreational Use Statutes 115 Justifying Dispensation for Recreational Activities 117 Providers and Their Premises 119 Activities Covered 120 Liability Despite the Statutes 122 Disqualification Due to Compensation 123 Notes 125 Chapter 10 · Exceptions for Horses 129 A Defense for Providers of Equestrian Activities 131 The General Standard of Conduct 133 Court Interpretations 133 A Suitability Exception 134 Provisions that Maintain Negligence Liability 136 Dangerous Hidden Conditions 136 Warning Signs and Contractual Admonitions 138 Notes 139 Chapter 11 · Exceptions for Sport Activities 141 Special Dispensation for Some Sports 143 Directive on Inherent Risks 144 Duties for Providers and Participants 146 Immunity for Sport Providers 147 A Limitation on Effectiveness 149 Policy Issues 150 Notes 152 centner 00 fmt 8/20/08 12:02 PM Page x x CONTENTS Chapter 12 · Protecting Our Children 155 Assigning Liability 157 Parental Obligations 159 Supervisory Decisions 159 Participation Decisions 161 Parental Liability Provisions 162 Attractive Nuisances 163 Interjecting Greater Safety 164 Notes 165 Chapter 13 · Realigning Duties 169 Duty of Care for Obvious Dangers 171 Uneven and Slippery Pavements 172 Variable Steps 173 Failure to Warn Others 174 Negligence Due to No Warning 175 Requirement Established by a Statute or Regulation 176 Duty to Supervise 177 Imposing Duties on Participants 179 Notes 180 Chapter 14 · Effecting Changes in Our Tort System 183 Accepting Responsibility and Ending Blame 185 Special Interest Legislation and Business Trends 187 Favoritism for Big Business 187 Excessive Executive Compensation 188 Legislative Pork 189 Environmental Degradation and Injury Damages 190 Enforcing Existing Laws 191 Endorsing Science and Expert Opinions 192 Private Benevolence 193 Notes 195 Chapter 15 · Developing a Community 199 Tackling Two Major Problems 201 Alternative Dispute Resolution Options 202 Encourage Recoveries to Deter Accidents 205 Seven Strategies 207 (1) Adopt Alternative Dispute Options 207 (2) Add Error Prevention Strategies in Medical Services 208 centner 00 fmt 8/20/08 12:02 PM Page xi CONTENTS xi (3) Add Safety Requirements 208 (4) Impose Obligations on Participants 208 (5) Curb Environmental Damages 208 (6) Enforce Our Laws 209 (7) End Governmental Perks 209 Concluding Comments 209 Notes 210 Appendix 1 · State Recreational Use Statutes 213 Appendix 2 · Equestrian and Animal Immunity Statutes 215 Appendix 3 · Sport Responsibility Statutes 217 Index 221 centner 00 fmt 8/14/08 7:10 AM Page xii centner 00 fmt 8/14/08 7:10 AM Page xiii Table of Cases 145 Route 303 Corporation v. State of (N.J. Super. Ct. App. Div. 2003), New York, 7 Misc. 3d 1026A (N.Y. 100 Ct. Claims 2005), 125 Avila v. Citrus Community College Albright v. Metz, 672 N.E.2d 584 District, 131 P.3d 383 (Cal. 2006), (N.Y. 1996), 125, 165 195 Alden v. Maine, 527 U.S. 706 (1999), B & B Livery v. Riehl, 960 P.2d 134 98 (Colo. 1998), 72 Allen v. Snow Summit, Inc., 59 Cal. Babcock v. County of Oswego, 644 Rptr. 2d 813 (Cal. Ct. App. 1996), N.Y.S.2d 958 (N.Y. Sup. Ct. 1996), 153 16 Alpha Zeta Chapter of Pi Kappa Baltierra v. Corona-Norco Unified Alpha Fraternity v. Sullivan, 740 School District, 2006 Cal. App. S.W.2d 127 (Ark. 1987), 139 Unpub. LEXIS 4007 (Cal. Ct. App. Anderson v. Atlanta Committee for May 9, 2006), 85 the Olympic Games, Inc., 537 Basso v. Miller, 386 N.Y.S.2d 564 S.E.2d 345 (Ga. 2000), 127 (N.Y. 1976), 28 Anderson v. Atlanta Committee for Berlangieri v. Running Elk Corpora- the Olympic Games, Inc., 584 tion, 76 P.3d 1098 (N.M. 2003), S.E.2d 16 (Ga. Ct. App. 2003), 73, 140 127 Bernier v. Burris, 497 N.E.2d 763 (Ill. Anderson v. Little & Davenport Fu- 1986), 58 neral Home, 242 Ga. 751 (Ga. Blanchard v. Murray, 772 N.E.2d 1978), 112 1122 (Ill. App. Ct. 2002), 112 Andrews v. Department of Natural Bledsoe v. Goodfarb, 823 P.2d 1264 Resources, 557 So.2d 85 (Fla. Ct. (Ariz. 1991), 126 App. 1990), 181 Bonewell v. City of Derby, 693 P.2d Arlington v. State Farm Lloyds, 145 1179 (Kan. 1984), 126 S.W.3d 165 (Tex. 2004), 100 Bragg v. Genessee County Agricul- Atalese v. Long Beach Township, 837 tural Society, 644 N.E.2d 1013 A.2d 1115 (N.J. Super. Ct. 2003), (N.Y. 1994), 126 72 Breazeal v. Henry Mayo Newhall Aversano v. Palisades Interstate Park- Memorial Hospital, 234 Cal. App. way Commission, 832 A.2d 914 3d 1329 (Cal. Ct. App. 1991), 112 xiii centner 00 fmt 8/14/08 7:10 AM Page xiv xiv TABLE OF CASES Brough v. Hidden Valley, Inc., 711 City of Indianapolis v. Johnson, 736 A.2d 382 (N.J. Super. Ct. App. N.E.2d 295 (Ind. Ct. App. 2000), Div. 1998), 152 127 Bucheleres v. The Chicago Park Dis- Clark v. Fair Oaks Recreation and trict, 665 N.E.2d 826 (Ill. 1996), Park District, 130 Cal. Rptr. 2d 180 633 (Cal. Ct. App. 2003), 180 Buck v. Greyhound Lines, Inc., 783 Clark v. Interlaken Owners, Inc., 770 P.2d 437 (Nev. 1989), 112 N.Y.S.2d 58 (N.Y. App. Div. 2003), Burns v. Addison Golf Club, 514 166 N.E.2d 68 (Ill. App. Ct. 1987), 140 Cody v. Falletti, 112 Cal. Rptr. 2d Busnell v. Japanese-American Reli- 593 (Cal. Ct. App. 2001), 16 gious & Cultural Center, 50 Cal. Comte v. Girard Orthopaedic Sur- Rptr. 2d 671 (Cal. Ct. App. 1996), geons Medical Group, Inc., 132 85 Cal. Rptr. 2d 855 (Cal. Ct. App. C.R.S. v. United States, 11 F.3d 791 2003), 56 (8th Cir. 1993), 99 Contursi v. Sullivan Transfer Com- Calhoun v. The Belt Railway Com- pany, 2003 Cal. App. Unpub. pany of Chicago, 731 N.E.2d 332 LEXIS 5700 (Cal. Ct. App. June (Ill. Ct. App. 2000), 28, 180 13, 2003), 195 Capri v. L.A. Fitness International, Cook v. Komorowski, 752 N.Y.S.2d LLC, 39 Cal. Rptr. 3d 425 (Cal. 475 (N.Y.
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