Tort costs in America now run about $250 billion a year. This "tort tax" has increased a hundredfold over the past five decades, and most of the growth has been fed by abuses of civil law.
But there's a more insidious cost that can't be measured in dollars alone: Abusive lawsuits are eroding virtues that define Americans as a people and America as a nation. A comparison of two recent cases illustrates how the damage is done.
In 1998 Jane Costa went to a Red Sox game at Fenway Park. Seated in the unscreened bleachers, she was hit in the face by a foul ball and severely injured.
Costa sued the Red Sox, claiming she hadn't been adequately warned of the dangers, even though her ticket clearly stated what every baseball fan already knows: "BE ALERT. FOUL BALLS AND BATS HURT." The trial court dismissed the suit. Last year, an appellate court agreed that when a ballpark provides screened seating for all who want it, as Fenway does, people who sit in unscreened areas assume the risk of being hit by foul balls.
In 1999, Louis Maisonave went to a Newark Bears game at Riverfront Stadium. He was standing at a vending cart outside the screened area, buying a beer, when he was hit in the eye by a foul ball. Like Costa, he sued. And as in Massachusetts, the New Jersey trial court dismissed his complaint on the same longstanding principle: Maisonave could have gone to vending carts in a screened area. When he chose foul-ball country instead, he assumed the risk that goes with it. The ballpark wasn't liable.
On appeal, however, the New Jersey Supreme Court thought otherwise. Concurring with the 5-2 majority, Justice John Wallace called the assumption-of-risk principle "outdated" and "hopelessly anachronistic." He rhapsodized that "the beauty of common law is the ability to adapt to the times," and said "the time is ripe" for the court to "mark new ground."
And so it did, ruling that when spectators are buying snacks at concession stands, they aren't watching the game. That makes them vulnerable to injury, so the ballpark has a duty to protect them. The case was sent back to the trial court.
The logic of this new ground contains the seeds of its own expansion. If concession stands divert fans' attention from the game, so do vendors roaming in the bleachers, mascots cavorting on the field and billboards in the outfield. If fans sitting behind home plate need screens to protect them from foul balls, so do spectators along the baselines. They're also in the line of fire.
What has all this to do with our character as a nation? Just this: Americans are steeped in traditions of risk-taking. The first colonists risked all to cross an ocean and settle in a wild land. Our constitutional republic was founded by men who risked their lives and fortunes, pledging their sacred honor to the cause of liberty.
Our unparalleled economic well-being is produced by innovators and entrepreneurs who assume the risk of new ventures. Even today, half of all small businesses fail within the first four years.
The defense of our liberty depends on soldiers with the courage to face the risks of war, knowing full well they might pay the ultimate price.
But this distinctively American courage isn't formed through great feats of daring. We acquire it by learning to accept the smaller risks of everyday life. And this is where courts are doing their harm.
The legal lesson delivered by five activist judges in New Jersey will teach untold thousands a new wariness of risk at baseball games. That lesson doesn't stand alone. Thousands of similar lawsuits are teaching us to lower our tolerance for risks we once accepted as a normal - even desirable - part of life.
We are stripping playgrounds of swings, merry-go-rounds and anything else that might conceivably injure a child. Americans are increasingly hesitant to render good-Samaritan aide to injured strangers. Golf courses, where generations of Americans enjoyed sledding, are now closed in winter. Public swimming pools are vanishing, and those that remain often have no diving boards.
The list is endless, but the abusive lawsuits that generate the list all deliver the same lesson: Accepting personal responsibility for the consequences of risky choices is an "outdated" and "hopelessly anachronistic" moral view.
Those are one judge's words. As courts enforce them ever more broadly, they are taking root in our national psyche and sapping our tolerance for even trivial risks. If courts continue to require "others" to eradicate the risk of foul balls, sliding boards and a thousand other commonplaces, we will sooner or later run out of "others" to hold responsible.
When we do, who is going to stand up and assume the risks that really matter - such as hunting down madmen who fly airliners into skyscrapers?