The Psychology of Tort Law 9780814724712

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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 UNIVERSIT Y PRESS New York and London

NEW YORK UNIVERSIT Y 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

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Contents

Preface Acknowledgments Introduction 1. The Real World of Torts

ix xiii 1 8

2. Intentional Torts

25

3. Negligence

39

4. Causation

65

5. Limits on Liability: Duty and Scope of Liability

83

6. Damages

109

7. Defenses

142

8. Products Liability

168

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

197

Appendix: Psychology and Torts

211

Notes

217

Subject Index

289

Name Index

297

About the Authors

313 vii

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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 ix

x

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Preface

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.

Preface

| xi

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

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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. xiii

xiv

| Acknowledgments

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 1

2

| Introduction

other results that are surprising. Our discussions about the convergence and divergence of psychology and torts have led us to take on this wideranging 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

Introduction

| 3

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,

4

| Introduction

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

Introduction

| 5

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 science”25 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

6 |

Introduction

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.

Introduction

| 7

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 8

The Real World of Torts

| 9

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

10 | The Real World of Torts

38 Filed Cases

116 Brought to Lawyer

201 Disputes

857 Claims

1000 Grievances

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).

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. 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

The Real World of Torts

| 11

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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

12

| The Real World of Torts

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 situation to prevent future harm (for example, changing doctors or quitting a job), or engage in some other form of self-help.17 “[I]t now seems completely uncontroversial to assert that most injuries go without a remedy.” —David M. Engel, Lumping as Default in Tort Cases: The Cultural Interpretation of Injury and Causation, 44 Loy. L.A. L. Rev. 33, 44 (2010).

When injured parties do make claims to those who they believe have injured them, their claims are sometimes addressed quickly and satisfactorily by the injurer. Other times resolution is more difficult but is still managed by the parties themselves after a period of negotiation. In some types of cases, insurance processes provide a structure within which to resolve claims. If the dispute is not resolved, some injured parties will

The Real World of Torts

|

13

choose to lump it or exit at this stage, perhaps deciding that the costs (monetary or otherwise) of finding an attorney or of pursuing a legal claim are too high, worrying that engaging the legal system will cause them to lose control over their dispute, or acting in accordance with a norm that views litigation as something to be avoided, except as a last resort.18 Other claimants will seek the advice of an attorney. Some claimants who would otherwise pursue a claim may be unable to find an attorney to champion their cause. The attorney might determine that it is unlikely that the elements of a tort can be successfully proven. Or the attorney might conclude that although it is likely that a tort was committed, pursuing recovery is not economically viable. Indeed, claims are more likely to be filed when there is better evidence of negligence and when the resulting injuries are more severe.19 One plaintiff ’s lawyer explained the up-front costs of bringing suit in a medical malpractice case this way: “you’re talking about $100,000 that you’re gonna spend on technical expertise to write reports, to give depositions, you know, to explain the standard of care and how it’s been breached. You’re talking about a lot of money, and—in other words—it makes the juice not worth the squeeze.”20 Attorney screening, which can be influenced by a host of legal and psychological factors, eliminates a very significant number of potential tort cases.21 Of those disputes accepted by an attorney, some will be settled or otherwise resolved without formal legal action. Only some will become lawsuits. Once a suit has been filed, the pattern of attrition continues. Some cases will be resolved on pretrial motions. Some will eventually be settled. And only a small fraction will go to trial. In 2005 just 3.5 percent of the tort cases filed in state courts were disposed of by trials.22 Given how few disputes are resolved through trial, an additional useful metaphor is that of a dispute tree—with disputes being resolved via many different mechanisms, or branches, including trial and settlement, but also including “truncated branches for injuries named and blamed but not claimed,” barren branches for cases in which tortiously injured plaintiffs lump it, branches that represent various forms of alternative dispute resolution, and branches that represent various nonlegal mechanisms for dealing with injuries.23

14 | The Real World of Torts

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The Vanishing Trial Both the number of tort trials and the proportion of filed tort cases resolved by trial have experienced a recent and very steep decline. In the federal courts, approximately 16 percent of tort cases went to trial in 1962. By 2012, only 1 percent of tort cases were disposed of by trial (see figure 1.2). State court cases show a similar pattern. Between 1996 and 2005, the number of tort trials in state courts dropped by nearly one-third.24 The decline in tort trials is not simply due to a decline in the filing of tort cases. While the number of tort filings in state court has declined (by 21 percent between 1996 and 2005),25 this rate of decline is not enough to account for the even bigger decline in trials. And in the federal court system, the number of tort filings has increased at the same time that trials have been declining.26

The Real World of Torts

|

15

Figure 1.2. Tort trials in U.S. district courts by fiscal year, 1962–2012. Data source: Administrative Office of the U.S. Courts, Annual Report of the Director, Table C-4 (1962–2012) and Tables C-4 & C-3B (2007–2008). See also Herbert Kritzer, The Trials and Tribulations of Counting Trials, 63 DePaul L. Rev. 415 n.21 (2013) (correcting for two large multidistrict litigation matters).

Analysts cite a number of factors that have contributed to the declining rate of trials: instances of mass settlement, the increasing costs and complexities of taking cases to trial, an increase in the management of cases by courts (for example, settlement via judicially managed settlement conferences or disposition by summary judgment), broad discovery rules, and an increase in the use of alternative mechanisms of dispute resolution such as mediation.27 Tort Trends in State Courts (1996–2005) t
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16 |

The Real World of Torts

Trial and Settlement By now it should be clear that most tort cases are resolved without trial. Thus, juries and judges apply tort doctrine to resolve only a subset of cases. But even though relatively few cases go to trial, judicial resolutions cast a long shadow over the tort litigation process, influencing what cases are brought, whether and how cases are defended, and how disputants and their lawyers settle cases.28

Assessing Claims and the Standard of Proof At trial, a trier of fact—a judge or a jury—will be asked to assess particular tort claims, determining whether the elements of the relevant torts or tort defenses have been proven. In a trial situation, it is inevitable that the fact finder will be presented with an array of information that bears on the relevant claims and defenses. Fact finders must sort through this mass of information in order to reach a verdict. According to the story model of decision making, fact finders do this by constructing narrative stories from the evidence presented at trial. Stories that account for more of the evidence (coverage) and that are internally consistent, plausible, and complete (coherence) tend to be most influential. To make a decision, fact finders then match their preferred stories to the available verdict options.29 An alternative meter reading model of decision making proposes that fact finders continuously track information, weigh new information as it is perceived, and update their evaluations accordingly.30 In most, if not all, tort cases, it is impossible to establish the facts with perfect certainty. Courts, therefore, need to specify the “degree of sureness”31 that fact finders need to have in their decisions. In most instances, the plaintiff must prove each element of the tort claim by a preponderance of the evidence; the defendant must prove any affirmative defense by the same standard.32 The preponderance of the evidence standard is probabilistic, requiring the fact finder to conclude that the fact at issue be “more likely than not,” and stands in contrast to the heightened beyond a reasonable doubt standard used in criminal cases. In between these two standards is the clear and convincing evidence standard, used in many states as the standard of proof for determining

The Real World of Torts

| 17

whether punitive damages are warranted.33 Psychological research has found that while jurors may have difficulty quantifying the preponderance of the evidence standard in numerical terms, they are able to make the broad distinctions required by the three major standards of proof.34

Settlement The standards of decision that fact finders are asked to apply are central at trial, but also lurk in the background of the tort settlement process. As litigants and their attorneys decide whether to agree to a settlement offer or demand, they compare the proposed agreement to the likelihood (and costs) of winning or losing the trial, prospects that are shaped by the tort elements that must be proven, the available defenses, and the relevant standards of proof. But various aspects of human decision making complicate this seemingly straightforward comparison. Predictions about trial outcomes may be overconfident. For example, attorneys have a tendency to be overconfident in their predictions about the outcomes of their own pending cases.35 Because people tend to judge the likelihood of events by the ease with which they come to mind, highly available, though not necessarily representative, examples may distort predictions.36 The choice between settlement and trial may also be affected by how the options are framed. For example, people react more strongly to perceived losses than they do to perceived gains of equivalent size (loss aversion).37 Proposals may be devalued simply because they were proposed by the other side (reactive devaluation),38 decisions may be influenced by anticipated regret,39 and more.40 Thus, the choice between settlement and trial and the nature of tort settlements are likely to reflect a mix of tort doctrine, the availability of remedies, the rules of procedure, the influence of attorneys, and the psychology of decision making.

Litigant Motives Motives for Claiming We have seen that many injured parties do not pursue tort claims— either because they do not perceive an injury, do not blame another for their loss, or find that claiming is too difficult or costly. In contrast, when

18

| The Real World of Torts

injured parties perceive that they have been injured and blame another person or entity for their loss, they may pursue tort claims. People may differ in their underlying propensity to file a claim—an individual difference known as claims consciousness.41 Knowing how to pursue a claim and social influences may also make it more likely that an injured person will bring a lawsuit. Those who file claims are motivated by a variety of aims. Successful tort claimants receive money damages, and economic recovery is important to many claimants. Financial compensation can be crucial for claimants who need to pay bills associated with their injuries, and can also serve symbolic purposes. Consistent with this reasoning, empirical studies tend to find that people who are more severely injured or have otherwise suffered greater economic losses are more likely to pursue their claims than those whose injuries are more modest. Lawsuits are also less likely to be brought when injured claimants have access to other sources of money for covering needed medical expenses.42 Many claimants, however, sue not only to obtain financial compensation but also to achieve nonfinancial goals. They want to obtain information or explanations, generate behavioral change or reform, obtain a public judgment of accountability, and achieve a “just” resolution of their dispute.43 In some types of cases, one of the central reasons that people pursue legal claims is to obtain an explanation for how they came to be injured.44 Plaintiffs in medical malpractice lawsuits, for example, often maintain that they needed to file suit in order to get the information necessary to find out what happened and assess the validity of their claims. And, as it turns out, many plaintiffs drop their medical malpractice lawsuits once they acquire this additional information.45 In addition, injured parties who are provided with timely information about problems or potential problems in their medical care are less likely to bring suit.46 “I want the truth . . . I don’t know what he [the doctor] did. Is that why you sued? Yeah. I want to get to the bottom of this, what he did.” —Plaintiff in a medical malpractice case, quoted in Tamara Relis, “It’s Not about the Money!”: A Theory on Misconceptions of Plaintiffs’ Litigation Aims, 68 U. Pitt. L. Rev. 701, 726–27 (2007).

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| 19

Another factor that drives many legal claimants is a desire to produce some kind of reform or other behavioral change—change that will prevent the recurrence of a similar harm.47 Claimants in medical malpractice cases, for example, are often concerned with reforming medical practices and procedures to avoid future errors and prevent additional injury. Or, to take a widely publicized case, consider Stella Liebeck, the claimant in the hot coffee spill case against McDonald’s: [Liebeck] was sitting in the front passenger seat of a Ford Probe driven by her grandson . . . who had pulled away from the [drive-through] window and fully stopped by a curb in the parking lot. Liebeck tried to remove the cup’s lid to add sugar and cream. Lacking a flat surface inside the small car, she placed the coffee between her legs to free up both her hands for prying off the lid. As the lid came off, the Styrofoam cup tipped, spilling all the coffee into her lap.48

Liebeck suffered third-degree burns over 6 percent of her body; permanent scars from the hot coffee marred more than 16 percent of her body. Her original request to the company focused on reform—she asked that they reassess their coffee heating procedures and pay a modest amount toward her medical expenses. It was only when these requests were rejected—McDonald’s offered her $800 and refused to lower the temperature of the coffee—that Liebeck sought the assistance of an attorney.49 Obtaining a public judgment or acknowledgment of accountability also motivates some claimants. Public judgment can place responsibility on an offender, moderate any self-blame, recognize and affirm the societal norm that was violated, and communicate to an injured party that he is a respected member of the community. To take just one example, one family who lost a loved one in the September 11, 2001, terrorist attacks decided not to settle with the September 11th Victim Compensation Fund set up by Congress. The family believed that going to trial was a way to expose the “conscious choice[s]” that the defendants had made and to hold them accountable for those choices.50 And, finally, claimants seek a just resolution of their claim. This may mean a number of different things, implicating many different types of

20

| The Real World of Torts

justice. For example, claimants may be concerned with the distributive fairness of their outcomes, resisting settlements that do not strike them as substantively fair. They are concerned with the procedural fairness of the process itself. People’s evaluations of legal outcomes and their willingness to comply with those outcomes are often largely driven by the extent to which they find the procedures used to be procedurally just, including whether they were treated with respect and able to tell their story to a neutral decision maker.51 Concern about procedural fairness is not limited to a desire to be treated justly by courts and court personnel. Claimants also desire to be treated respectfully by those on the other side of the claim.52 Claimants may also be concerned with reestablishing justice between the parties or within society in some way. For example, a claimant may seek retributive justice—attempting to punish the other party and to make sure they suffer their just deserts.53 And many claimants want an apology. Many say they would not have filed a lawsuit if the other person had apologized; settlement negotiations may stall in the absence of an apology; and many claimants express disappointment when they do not receive an apology. As one example, consider the medical malpractice case that followed the death of the actor James Woods’s brother. The parties reached a settlement only after the CEO of the defendant hospital admitted that errors were made and apologized to the Woods family. In the press conference announcing the settlement, Woods said, “It was all I ever needed to see in my life, one human being saying to another human being ‘I’m sorry for your loss.’”54 Apologies can change the ways that claimants evaluate the case and the other side, provide information and accountability, signal behavioral change, lessen negative emotions, reduce any need to punish the other side, and facilitate tort settlement.55 Claimants’ varied goals are often intertwined—sometimes in ways that are compatible and other times not. Claimants may want both information and reform. They may need compensation, but wish for public accountability. A claimant’s request for an apology may be tied to the search for an explanation of what happened, a desire to be treated with respect, and the hope that the offense will not be repeated.56 In some instances, a claimant may decide to set aside one or more of these interests in order to maximize another, to accomplish a more speedy resolution, or out of administrative necessity.

The Real World of Torts

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Defendants’ Motives As with plaintiffs, it is tempting to assume that defendants are primarily motivated by the financial considerations of a lawsuit—aspiring to pay as little money in a judgment or settlement as possible and to minimize legal fees. And, as with plaintiffs, it is true that the amount of the settlement demand and the expected financial exposure at trial are key factors in defendants’ decisions about whether to settle or go to trial. But, as with plaintiffs, defendants’ concerns also go much deeper.57 For example, defendants are concerned about the potential reputational consequences of lawsuits, settlements, and verdicts. A public relations specialist from the Mitsubishi automobile company observed, Too many litigators think too much like the good lawyers they are and how they can win in court. My concern is that they will win the battle but lose the war. What good does it do to save the company several hundred thousand dollars in attorneys’ fees, maybe a few million dollars in awards, but ruin its public image [so that] the company is no longer able to sell its product, and tens of millions of dollars are lost?58

Such concerns might lead a defendant to quietly settle a lawsuit rather than risk the publicity of a trial. Another might refuse to settle, hoping to be vindicated by the outcome of a trial. A physician defendant might be worried about having to report an adverse judgment or settlement to the National Practitioner Data Bank or about the implications for her insurance coverage, hospital privileges, or licensure.59 Some defendants—particularly those who anticipate being potential defendants in more than one case (often known as repeat players)—may refuse to settle cases in hopes of gaining or maintaining a reputation for toughness so as to discourage additional litigation.60 Or, concerned about how setting a precedent might affect future cases, they may settle a case to avoid what they anticipate might be a bad precedent or take a case to trial in an attempt to establish a precedent that will benefit them. As two leaders of the defense bar noted, “[T]he decision to settle or not to settle often has nothing to do with the specific case itself. The overriding responsibility of the defense team is to see beyond the immediate

22

| The Real World of Torts

effect of that single case and to calibrate litigation-related decisions to the long-term business of their clients.”61 It is critically important to consider the effects of insurers on tort claims, including interactions between and among defendants and insurers. Insurance coverage looms large in tort cases, with automobile, homeowners’, health, and professional liability insurance implicated in even routine tort cases. A single defendant may even have multiple and overlapping insurance coverage from multiple insurers. The availability of liability insurance can shape the claims that are brought (or not brought) and determine the amount of damages recovered. We will see (chapter 6) how insurance policy limits drive many tort case decisions, in part because some lawyers and litigants prefer to obtain settlements from insurance companies rather than to take “blood money” out of the defendant’s pockets.62 Insurance coverage can transform claims against individuals into claims against the insurer. Indeed, insurers have been called the “ultimate ‘repeat players.’”63 Medical and other insurers may also tag along on suits initiated by plaintiffs in an attempt to be reimbursed. As a result, negotiations among insurers are a significant part of resolving many lawsuits.64 Insurance companies may be more likely than some other types of defendants to focus particularly closely on the financial bottom line. But they are also likely to take a long-term view of what will serve their financial goals, paying attention to how their decisions today might influence the possibility of future litigation or the legal rules that will be applied. In addition, the interests of particular defendants and their insurers can sometimes diverge. For example, a doctor might be opposed to a settlement favored by the insurer because she has additional concerns—reputation, reporting to the National Practitioner Data Bank—that are not shared by the insurer. Or the interests of insurer and insured may diverge in cases in which the potential exposure exceeds the limits of the insurance policy. In such cases, the insurer and insured may well disagree about the merits of a settlement offer that is within the policy limits. When an insurance company is managing the defense, however, defendants may feel they have little or no control over the decision to settle. Indeed, the insurance contract may contain provisions that make it difficult for a defendant to refuse to settle.65

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Defendants, like plaintiffs, are also concerned about experiencing justice. Defendants resist paying settlements to plaintiffs who they believe do not deserve them or in amounts they see as substantively unfair. And, just as plaintiffs do, defendants want to be treated with respect and to tell their side of the story. Consider the experience of one judge: I had a case in which a lady had sued a dry cleaner for damaging her clothing. . . . Well, when she got through presenting her case, I wasn’t even clear about whether or not she was suing the right dry cleaner. She just didn’t seem to have a case. So as soon as she was done, I said that the judgment was for the defendant. At that point, the dry cleaner almost attacked me. I thought he was going to jump over the bench and grab me, so I said, “Sir, sir, I just ruled in your favor. The case is over.” But he was furious. He said, “I wanted to tell you about what this woman did!” And at that moment, I realized that most people would rather be heard than win.66

Some defendants may want to settle, feel responsible (or guilty or ashamed), or want to apologize.67 Other defendants may resist admitting that they have caused harm and resist accepting liability for harm they do not believe is their fault. In some instances, it may turn out that this resistance is well-founded, that the defendant’s conduct was not tortious or that the conduct at issue did not cause the harm. But it can also be difficult to accept that our actions have caused harm to another, to simultaneously believe that we are good people but that we have acted wrongly. This cognitive dissonance can result in attempts to rationalize what might have in fact been tortious conduct as having been reasonable instead. In order to reconcile tortious behavior with an otherwise positive self-image, a defendant may recharacterize or remember what happened in a way that is not actionable, look to situational factors that explain or excuse the relevant conduct, generate reasons why the conduct was not blameworthy, or blame the victim.68

Conclusion An empirical and psychological view of the tort system reveals that lumping it is the norm, trials are rare, and settlement is common. How a

24

| The Real World of Torts

case makes its way through the tort system depends on whether and how claimants name, blame, and claim; how attorneys assess the merits and economics of tort liability; and whether and how defendants choose to defend claims brought against them. Tort litigants have a range of concerns that motivate their decision making. They care about the financial and emotional aspects of their cases, the potential impact on their reputations, the possibility of reform, whether their cases are handled in a procedurally just way, the implications of their cases for cases that may arise in the future, and more. The contours of the tort system have changed over time, with, for example, the proportion of tort cases that are resolved through trial declining steadily over the past several decades. But the last systematic data collected about tort cases in the state courts—the courts in which most tort cases are handled—describe cases that were terminated in 2005. Upto-date data depicting the shape of the tort system are sorely needed, as is ongoing collection of data through time that will allow exploration of changes in the patterns of disputes and the ways such disputes are resolved.

2

Intentional Torts

Each fall, first-year law students across the country crack open their torts casebooks and begin reading the first case of their law school careers. For many of them, that first case is Vosburg v. Putney, a lawsuit between two Wisconsin schoolboys over a schoolhouse kick that happened over a century ago.1 Today, we would probably use the term “bullying” to describe some of fifteen-year-old plaintiff Andrew Vosburg’s school experiences. In the month or so before the injury that gave rise to the lawsuit, he sprained his ankle when boys at school threw him against a faucet. Out sledding with friends, Vosburg was dragged off the sled at the bottom of the hill by a group of boys, scraping off the skin above his right knee. And there was a previous quarrel between the two boys at the center of the lawsuit—Vosburg and George Sidney Putney, his eleven-year-old classmate, had sparred briefly when Putney tried to prevent Vosburg from retrieving his textbook after an exam.2 On the day of the schoolhouse kick, after the boys’ teacher had called their class to order, Putney stood up, reached across the aisle with his leg, and kicked Vosburg in the shin. By all accounts, the kick was a relatively mild one. However, shortly thereafter, Vosburg began crying, whereupon the teacher sent him out in the hallway. Within days, Vosburg’s leg became inflamed and painful at the spot of the kick and deteriorated rapidly. Doctors concluded that the schoolhouse kick had aggravated a previous leg injury. Doctors’ house calls, visits by medical consultants, treatments, and two operations followed, leaving Vosburg with a permanent disability. Bills totaling $425 came close to equaling if not exceeding his father’s yearly income.3 The lawsuit was probably not all that satisfying for either family, as litigation and appeals dragged on for four years. Nevertheless, it offers a captivating illustration of the complexity that arises in trying to decide whether an act like young Putney’s kick should give rise to intentional tort liability. 25

26 |

Intentional Torts

In general, we tend to presume that people intend their actions. Under most circumstances, people are also credited for intending the consequences of their acts, good or bad. Along with these presumptions of intentionality come attributions of responsibility, judgments that are important when liability in tort is being considered. But what do we mean when we say that an act is intentional? How can we know what Putney “intended” when he kicked his classmate in the shin? Does the context matter? Should we hold a young boy responsible for an intentional tort, even if he has imperfect understanding about the potential consequences of his actions? And what happens when the ultimate consequences are wholly unforeseen? These questions and more arise in Vosburg v. Putney, making it a fruitful vehicle for exploring tort liability for intentional actions. In answer to questions posed by the trial judge, the jury found that the kick was an “exciting cause” of Vosburg’s injury; that Putney did not intend the harm; and that damages were warranted. But could those damages be awarded if Putney did not intend the harm that resulted? The Wisconsin Supreme Court reasoned that if the defendant acted with the intent to cause harm, then he would clearly be liable for the harm that he caused. Under some circumstances, however, liability might attach even if the defendant acted without the intent to cause the harm. If the act itself was “unlawful,” then the intent to commit it was unlawful and the actor should be responsible for all the consequences, even if the particular consequences were not specifically intended. Because Putney kicked Vosburg in a schoolroom that had been called to order, the act was unlawful, and Putney could be held responsible for the harm. It is also important to note that tort law treats acts that are undertaken with the desire to produce an effect and acts that are done with the knowledge that an effect is substantially certain to occur as equivalent for the purposes of the intentional torts.4 Under this rule, an actor like George Putney could be found liable for the intentional tort of battery as long as he was substantially certain that his action would cause the relevant consequences, even though it may not have been his purpose to do so. To be sure, courts have struggled with the question of what consequence a defendant must be shown to intend—simply physical contact with the plaintiff (single intent) or that the contact be harmful or offensive (dual intent).5

Intentional Torts

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The Intentional Torts Intentional torts cover civil wrongs that are caused by the intentional acts of others, and constitute a small but important proportion of tort cases. In 2005 fewer than 5 percent of trials held in tort cases in state courts were intentional tort cases.6 On the other hand, plaintiffs bringing intentional tort claims are much more likely to seek, and to receive, punitive damage awards than are plaintiffs in other types of tort cases.7 Vosburg v. Putney is an example of a case involving the tort of battery in which the wrongdoer intentionally causes harmful or offensive bodily contact.8 To be offensive, the contact must offend a reasonable sense of personal dignity—that is, it must be one that an ordinary person, not an overly sensitive person, would find offensive. Thus, tort law invokes the ordinary or reasonable person as a relatively objective standard against which to evaluate whether a particular contact offends personal dignity. This reasonable person will appear throughout this book, doing yeoman service in many tort law contexts (see, in particular, chapter 3).9 A defendant is liable for assault when he or she acts intending another person to apprehend, or anticipate, imminent harmful or offensive contact and thereby causes the person to experience such apprehension.10 Rather than protecting bodily integrity in the way that battery does, the tort of assault protects the plaintiff ’s peace of mind. But because no physical contact is required, the circumstances under which a defendant is liable for an assault are limited. For example, the threatened harm must be immediate and close by, as opposed to distant in time or space. The reasonable person reappears: The target must “reasonably apprehend” the harmful or offensive contact.11 Other intentional torts that protect interests in personal integrity include false imprisonment, in which one person unjustifiably confines another; slander and libel; and violating an individual’s privacy. An intentional tort of more recent vintage is intentional infliction of emotional distress; an actor who by extreme and outrageous actions intentionally causes severe emotional harm may be required to compensate for the emotional harm caused.12 In addition, there is a small but significant set of intentional torts that redress injury to property: trespass to land, trespass to personal property, and conversion.13

28 |

Intentional Torts

What all these torts have in common is that they require intent on the part of the defendant as an element of the tort. Thus, the ascription of intentionality is central to the cases, making it important to understand how we attribute intent to actors.

A Psychological Perspective on Intentionality Psychologists have been centrally concerned with many of the same questions about intentionality that the Wisconsin Supreme Court debated over a century ago, questions that torts professors continue to ponder today. Decades ago, psychologists like Fritz Heider recognized the importance of intentionality in our perceptions of human action.14 And over the years, many psychologists have examined the features that distinguish intentional and unintentional behavior and how judgments of responsibility are linked to perceptions of intentionality.15 This research has provided a good picture of the “folk concept” of intentionality, that is, what laypeople mean when they say someone has acted intentionally. One interesting study asked people to rate the intentionality of a wide variety of actions, such as yawning during a lecture, sweating, driving above the speed limit, and stealing peaches. There was strong agreement about whether each of these actions was perceived to be intentional or unintentional. Participants’ implicit conceptions of intentionality included four main components: desire for a particular outcome, beliefs about an action that leads to that outcome, intent to perform the action, and awareness of what one is doing in performing the action. Whether the actor had the ability or skill to produce a particular outcome through the action was also incorporated into people’s theories of intentional action.16 Vosburg v. Putney likely stimulates lively discussion in law school classrooms about intentionality because Putney’s kick arguably falls short of including all these elements. The jury found that Putney intended to kick Vosburg, and that appeared to be enough for them, holding him liable for damages despite his claim that he intended no harm. The Wisconsin Supreme Court similarly found that the “unlawful” nature of the intentional kick was sufficient to hold Putney liable for damages. In the absence of a desire to harm, the requirement that the kick be unlawful was the court’s way of limiting the range and number of intentional harmful actions that would result in liability.

Intentional Torts

| 29

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Intentionality Bias Psychological research has demonstrated an intentionality bias, in which people are inclined to provide explanations for outcomes using accounts that emphasize intent.17 This tendency to impute intentionality extends even to geometric shapes and inanimate objects. In the 1940s Fritz Heider and his collaborator Marianne Simmel first demonstrated that observers of moving geometric shapes like triangles and circles automatically saw them as acting intentionally and in motive-driven, goal-directed ways, driven by the context and the direction of the movement.18 Since then, this phenomenon has been replicated many times.19 The tendency to interpret human action as intentional is pronounced. Evelyn Rosset, for example, analyzed people’s interpretations of sentences describing intentional versus ambiguous actions. When people had to interpret the sentences quickly, under time constraints, they leaned toward attributing intentionality even for seemingly accidental actions. People needed additional time to process unintentional

30

| Intentional Torts

explanations, suggesting that there is a default assumption that actions are undertaken intentionally.20 In line with this result, Erik Helzer and David Pizarro analyzed how people categorize acts as intentional or accidental. Their participants were much faster at categorizing intentional actions as compared to accidental ones. Moreover, when people made categorization errors, the pattern of errors was asymmetrical. People were much more likely to err by calling an accidental act intentional than by categorizing an intentional act as accidental.21 It seems that we assume that actions are intentional unless there is reason to persuade us otherwise.

Factors Influencing Attributions of Intentionality It turns out that the speed of an action affects how people attribute intentionality. Consider the common practice of reviewing slow-motion replays to evaluate rules violations in sports. In one well-known example, the longtime Pittsburgh Steelers defensive player James Harrison tackled an opponent, Mohamed Massaquoi, in the course of a football game. Though Massaquoi was slow to get up after the tackle, the field judge did not penalize Harrison for unnecessary roughness. Later, it was discovered that Massaquoi had suffered a concussion. The National Football League undertook a formal review of the tackle—which included watching video clips of the tackle—and subsequently fined Harrison $75,000 for unnecessary roughness. Could the difference between the quick action on the field and the slow-motion review of the tackle after the fact have contributed to these divergent assessments?22 To find out, Zachary Burns and Eugene Caruso presented participants with regular-speed or slow-motion sports action video clips, including a clip of the Harrison tackle. Compared to those who viewed the events at normal speed, the participants who viewed events in slow motion rated the acts as more intentional. Slow motion also led participants to say that the contact was more planned, that the hit was more forceful, and that the actor was more blameworthy and more deserving of punishment. The actor viewed in slow motion was also seen as trying harder to achieve the outcome and having a greater ability to avoid the outcome. The same information was presented in both the slow- and regular-motion clips. But because the events displayed in slow motion

Intentional Torts

| 31

appeared to take more time, participants perceived a greater opportunity for the actor to develop an intention.23 The consequences of an action also influence judgments about the intentionality of the action. In particular, people are more inclined to attribute intentionality to actions that have negative consequences than they are to actions that have positive effects, an asymmetry that has implications for the tort system.24 In one study, Joshua Knobe presented participants with the hypothetical case of a company’s board chairman who decides to undertake a new venture developed by a company employee.25 In one version, the venture will make money for the company, but it will also hurt the environment. The chairman does not care one way or the other about hurting the environment; he is solely interested in making money for the company. The company undertakes the venture and it has the predicted twin effects of making a lot of money for the company and hurting the environment. In an alternate version of the scenario, the same venture was described as having the side effect of helping the environment. As with the scenario in which the venture caused environmental harm, the chairman does not care one way or the other about helping the environment; he only wants to make money for the company. The company undertakes the venture and, as predicted, it makes money for the company and helps the environment. The two scenarios produced two very different responses. Most participants (82 percent) who read the harm scenario said the chairman intentionally harmed the environment. But in the alternate version, most participants said the chairman did not act intentionally to help the environment. Thus, it appears that ideas about intentional action are influenced by moral judgments about right and wrong.26 Lawrence Solan argues that the reason for this sort of asymmetry in the attribution of intent is the harm-causing executive’s deviation from baseline expectations.27 We assume that when people act, they usually do so intentionally. In fact it would be strange to specify that I “purposely” called a taxi, or that he “intentionally” texted a friend. Intent is assumed. Similarly, it is assumed that people will behave in socially appropriate ways. An executive who is so callous as to be indifferent to the environmental harm his actions will produce deviates from these baseline expectations. Even though the chairman did not aim to hurt the

32 | Intentional Torts

environment, people find him blameworthy and attribute intent to him. While people may be able to distinguish between a specific purpose to cause harm and a side effect, they find both to be blameworthy. Recall as well that tort law considers an act to have been intentional if it is undertaken with knowledge that an effect is substantially certain to occur. While the law acknowledges that the desire to cause an effect and the knowledge that an effect is substantially certain to result are different mental states, they define the same level of tort liability. In the moral universe, an actor who recognizes that an undesirable side effect is substantially certain to occur and acts anyway is as blameworthy as an individual who acts purposely to produce that outcome.28 In this way, our folk psychology overlaps with the principles of tort law.

Intentionality and Harm The focus on intentionality is so strong and pervasive that it can even influence how the harm that results from an intentional action is perceived. Indeed, both the negative experience of a harmful event and the measurement of the damage caused are heightened when the act that caused the harm was intentional. First, the direct personal experience of harm is dramatically influenced by whether the harm is intentional or unintentional. In a fascinating laboratory experiment, participants were paired with a confederate and asked to complete a number of different psychophysical tests, including color matching, pitch judgment, number estimation, and a “discomfort assessment.”29 In the key test of discomfort assessment, participants rated their subjective discomfort after they experienced one-millisecond electric shocks delivered to them via a wristband. For half the shocks, the participants were led to believe that the confederate had chosen the electric shock test for them. In the other half, they were led to believe that the confederate had chosen another test, but a computer snafu led them to receive the shock. In other words, half the shocks were portrayed as intentionally delivered. These intentional shocks were rated as more painful than the shocks that were unintentional. In addition, whereas the pain ratings for unintentionally caused shocks declined over time as participants habituated to the shocks, there was no decline at all for intentional shocks. The “sting of intentional pain” remained intense.30

Intentional Torts

| 33

Second, in a series of studies exploring reactions to actors with different subjective intentions, John Darley and his collaborators discovered that harm is evaluated as more serious when the actor acted intentionally. Breaking a mirror, stepping on a contact lens, and causing a car fire are all seen as causing more damage when done intentionally. In one study, a deliveryman either accidentally (because he forgot that the truck was in reverse gear) or purposefully (because he was angry at the homeowner) backed his truck into the homeowner’s garage, causing damage that the insurance company gauged to be about $1,000. Participants made judgments of the total dollar damage to the property, and also made recommendations about what the deliveryman should pay the homeowner. The amount of damage attributed to the deliveryman who intended to back into the house was $1,446.45, compared to only $928.57 for the deliveryman who did so accidentally. Similarly, participants recommended that the deliveryman pay $1,732.14 in damages when the act was intentional, but only $792.86 when it was an accident.31 In research that further explored Darley and colleagues’ insights, Daniel Ames and Susan Fiske also found that a wrongdoer’s intent magnifies perception of the harm caused. Participants read scenarios in which individuals were harmed. Across scenarios, the harm caused was the same, but whether the wrongdoer intended to cause the harm varied. Intentionally caused harm was evaluated as being greater in magnitude than was inadvertently caused harm. For example, in one study, participants read about a CEO in a small company with profit sharing. The CEO made an investment that did poorly, thus reducing the employees’ profits. In one condition, the CEO was described as believing that the investment was a good one. In the other condition, the CEO made the dubious investment because he thought that the employees would work harder in the future if they made less money now. Participants assessed the harm caused to the employees as significantly greater when the CEO intended the investment loss. This was true even though the employees were said to be unaware of the investment (thus holding constant the potential psychological harm) and even when, in one version, the CEO was fired for his actions (eliminating the likelihood of future harm from the CEO).32 In another set of experiments that explored the impact of intent on harm assessment, Ames and Fiske contrasted harm caused by a human

34

| Intentional Torts

agent with harm from a natural source. A water shortage was described as having been caused by a lack of rain or by a man who diverted the flow of water. Ames and Fiske asked their participants to estimate the sum of seven dollar amounts, presented quickly via computer, for the various costs of the water shortage. The actual sum was $2,862, but because the individual dollar amounts were presented quickly, errors were likely. When a drought caused the water shortage, participants came fairly close to the actual sum with an average response of $2,753. However, when the water shortage was described as resulting from intentional diversion of the water, the average estimated sum jumped to $5,120! Ames and Fiske concluded that the intentionality of the wrongdoer shifted perceptions of the harm done.33 These studies indicate that intentionality boosts the perceived severity of the harm, whether measured by subjective pain assessments or monetary damages. These results may reflect the operation of what psychologists call motivated reasoning.34 As we have seen, intentional wrongdoing is viewed more negatively, and the desire to punish intentional misbehavior is strong. This may motivate an increase in our perceptions of injury severity to justify the more severe condemnation and punishment that are desired. In addition, as we have seen, it can be difficult to divorce assessments of intent from evaluations of the actor’s character and motives.35 Whatever the psychological mechanisms, the harm severity studies underscore how profoundly we target intentional action that leads to negative results. We will return to this issue in chapter 6 when we discuss evidence that the tortfeasor’s intentionality figures importantly in tort damage assessments.

Intentionality and Tort Responsibility In both the criminal and civil justice systems, characterizations of the parties’ intentionality are central to the legal rules governing the assessment of responsibility. In both systems, special rules and (sometimes) more severe sanctions apply to intentional as opposed to accidental actions. Therefore, it is important to understand whether and how people distinguish intentional and accidental actions and how these judgments are related to their decisions about tort liability.

Intentional Torts

|

35

One line of research in linguistics suggests how one can frame an accident in intentional terms. Introducing subtle linguistic cues that emphasize agency and intentional action readily pushes people toward more blaming, presumably because the action is seen as more intentional. Consider the following study. Researchers described the same accidents using different language. In the agentive condition, they used pronouns relating to the actor (Mrs. Smith) and more active verbs: “As Mrs. Smith reached to grab the napkin, she toppled the candle and ignited the whole tablecloth too!” In contrast, the nonagentive condition employed more passive verbs and avoided personal pronouns: “As Mrs. Smith reached to grab the napkin, the candle toppled and the whole tablecloth ignited too!” Not surprisingly, participants who read the agentive version blamed Mrs. Smith more for the resulting fire and required her to pay significantly more in damages than did those who read the more passively worded description.36 Even though there appears to be good agreement about what constitutes intentional action in the minds of laypeople, distinguishing between intentional and other mental states for purposes of the law can be challenging. Francis Shen and his colleagues examined whether people could reliably distinguish among purposeful, knowing, reckless, negligent, and blameless mental states in a criminal law context.37 Criminal laws often distinguish among these states of mind and regularly sanction purposeful, intentional actors with the greatest punishment. The Model Penal Code defines these states of mind as follows: t
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36 |

Intentional Torts

Shen and his colleagues presented a variety of short scenarios in which the mental state of the actor and the harm done by his action were varied. Their participants reliably differentiated among purposeful, negligent, and blameless mental states. Consistent with other research, participants did not appear to have trouble identifying purposeful, intentional behavior. However, the participants experienced some difficulty distinguishing between knowing and reckless mental states.39 Pam Mueller, Lawrence Solan, and John Darley asked a similar set of questions about individuals’ ability to distinguish mental states in a civil context.40 They presented variations of a case based on an actual Oklahoma trial in which an employee was injured at work.41 In the case, a worker was electrocuted as he was attempting to repair emergency lighting that was “hot” with electricity that was not turned off during the repair. The researchers varied the boss’s state of mind when he sent the worker out to do the job. In the intentional condition, the boss desired for the employee to receive an electric shock (because he hated the employee for jilting his sister). In the knowing condition, the boss knew with 100 percent certainty that the employee would be shocked. In the reckless condition, the employer knew of a 20 percent risk that the employee would be shocked. In the negligent condition, the boss forgot to issue an instruction for the power to be turned off during the repair. And finally, in the “blameless” condition, an employee failed to follow the boss’s instructions to turn off the power.42 While these categories do not perfectly map onto tort law categorizations, it is nonetheless instructive to see whether people distinguish among them. Importantly, participants differentiated between the intentional and other conditions when asked to characterize the mental state of the boss. The boss in the intentional condition was more likely to be characterized as having acted intentionally than he was in any of the other conditions. Interestingly, the most blame was attributed in the condition in which the boss knew with 100 percent certainty that the worker would be shocked. Ratings in the intentional condition were lower, perhaps because the boss was described as acting in response to the employee jilting his sister (a negative act to be sure, but not usually deserving of electrocution) or because participants assumed some lower likelihood of a shock occurring. As might be expected, reckless and negligent states

Intentional Torts

| 37

of mind were judged to be less culpable, and the condition in which the boss himself was not at fault produced the lowest ratings of culpability.43 Participants, however, thought liability should attach to the employer even when he had arguably less culpable states of mind. For example, when asked about liability for medical expenses, a very substantial majority of the participants said that the employer should cover the medical expenses of the worker, regardless of the boss’s state of mind. All the participants in the intentional, knowing, reckless, and negligent conditions awarded medical expenses, along with 80 percent of the participants in the condition in which the boss was not directly to blame. Recall, however, that even in the case in which the boss himself was blameless, another worker’s actions led to the electrocution, so the cause of the injury remained within the company. Participants might have suspected that the boss’s improper supervision or inadequate communication played a role. Perhaps they held an intuitive notion that employers are or should be responsible for the torts of their employees. Or perhaps they made their decisions in the shadow of a norm that obligates an employer to take responsibility for employees who are injured on the job. Indeed, the overall pattern of awarding medical expenses fits well with the prevailing workers’ compensation system in the United States, which does not require the fixing of blame before covering the medical expenses and other economic damages of workers who are injured on the job.44 In subsequent studies, the same researchers discovered that most participants characterized the boss as acting negligently rather than intentionally if he simply knew of the risk of injury. In addition, when a risk of specific injury was not known—that is, the boss only knew of a statistical risk of some injury on the job—attributions of intentionality were substantially lessened.45 Finally, judgments about intentionality were not affected by who was at risk of injury—a specified versus an unidentified employee.46 This is consistent with the strictures of tort law in that battery does not require intent to cause harmful or offensive contact with a particular person. It is inconsistent, however, with another well-known psychological phenomenon—that people tend to be more sympathetic to identifiable victims.47 The researchers hypothesized that the company employees might have been a small enough group to constitute a collective “identifiable victim.”48

38

| Intentional Torts

Conclusion These psychological discoveries about the prominence we place on intentionality have a number of implications for tort. First, they help to explain why the intentional torts remain a robust and essential part of the framework of the tort system: Intentional actions that harm others are especially galling. The tort system provides targets of intentional actions generous and expansive remedies, such as holding intentional tortfeasors like George Putney responsible for all the consequences of their actions, even if some of the outcomes were not specifically intended. Second, the determination of whether an action is intentional is a key part of fact finders’ assessment of tort liability. This is especially true for intentional torts, but we will see in subsequent chapters that even in negligence cases there is a tendency to impute some measure of intentionality or to emphasize the intentional quality of the parties’ actions. The intentionality bias, or the tendency to over-attribute the degree to which an action was intentional and an outcome intended, operates in negligence cases as well.

3

Negligence

James Kaczinski and Michelle Lockwood decided to get rid of their backyard trampoline. They took it apart and left it in their yard, thirtyeight feet from a nearby gravel road. A few weeks later, before they had disposed of it, a severe thunderstorm moved through the area. The wind blew the trampoline into the road. The next morning, a driver swerved to avoid the trampoline in the road, lost control of his car, rolled several times, and was injured.1 Did James and Michelle act negligently? Negligence is at the heart of tort law. And at the heart of negligence is the “reasonable person.” To act negligently is to fail to exercise reasonable care—doing what a reasonable person would not do or failing to do that which a reasonable person would do under the circumstances.2 So, to decide whether James and Michelle acted negligently, we have to decide whether they acted as reasonable people under the circumstances. “The reasonable person does a yeoman’s job. She lifts the burden of painful decision-making from the legislature’s shoulders; she helps keep legal standards current by adjusting legal outcomes to shifting norms; she shields the law from excessive professionalization; and she helps snuff out evasive loop-holing by clever and well-informed bad actors.” —Donald Braman, Cultural Cognition and the Reasonable Person, 14 Lewis & Clark L. Rev. 1455, 1456 (2010).

Just who is this mythical reasonable person? Tort law experts provide some clues: the reasonable person is “a fictitious person, who is never negligent, and whose conduct is always up to standard,”3 one who is “free from both over-apprehension and from overconfidence”4 and “infallible in a way that ordinary people are not,”5 a “mythical human who is not ultracareful but who never acts unreasonably in taking risks or puts others at risk and who otherwise follows a community’s accepted norms of behavior,”6 and 39

40

|

Negligence

an ideal, a standard, the embodiment of all those qualities which we demand of the good citizen . . . [who] invariably looks where he is going, and is careful to examine the immediate foreground before he executes a leap or bound; who neither star-gazes nor is lost in meditation when approaching trap-doors or the margins of a dock; . . . who never mounts a moving omnibus, and does not alight from any car while the train is in motion, . . . who never drives his ball till those in front of him have definitely vacated the putting-green which is his own objective; . . . who uses nothing except in moderation, and even while he flogs his child is meditating only on the golden mean.7

Perhaps not surprisingly, psychology has important implications for understanding this central figure. Psychology enlightens and complicates both how individuals behave and how the reasonableness of an actor’s behavior is assessed after the fact. In the first section of this chapter, we examine the insights of psychology for how individuals behave in situations that may give rise to tort liability. In the second part, we focus on how psychology informs our understanding of the tort liability judgments of fact finders. The Reasonable Woman 7JTVBMJ[F
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Negligence

| 41

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Acting as a Reasonable Person In order to determine whether an action is reasonable, one must consider “the foreseeable likelihood that the person’s conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.”8 In the terms famously articulated by Judge Learned Hand in U.S. v. Carroll Towing Co. and now commonly known as the Hand Formula, reasonable action ought to take into account three factors: (1) The probability that [harm will result]; (2) the gravity of the resulting injury, if [it occurs]; (3) the burden of adequate precautions. . . . [I]f the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B is less than PL.9

In order to act appropriately under this notion of negligence, prospective harmdoers and victims must assess the nature of the risks of their behavior and the likelihood that those risks will materialize, the feasibility and effectiveness of precautionary measures, and the utility of the underlying activity—and they must balance these factors against one another. Standard economic models assume that actors have the capacity to make these assessments and to act appropriately in response to them, making non-negligent decisions about how to structure both their undertakings and related precautions.10 The psychological research, however, makes clear that risk-utility balancing in the strictest sense does not completely capture the nature of decision making about risk. It is unlikely that James and Michelle explicitly assessed the chances of bad weather, the likelihood that the trampoline would blow onto the road or do other damage, traffic patterns, alternative storage solutions for the trampoline, and so on. Deci-

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sion making about risk frequently happens quickly and unconsciously and is affected by a variety of heuristics. And even when the analysis is more deliberative, it is influenced by motives and emotions, limited by self-control, and shaped by social norms. These influences distinguish ordinary people from the idealized reasonable person—sometimes for the better, sometimes for the worse. Real individuals may sometimes aspire to conform to the standards set by the reasonable person, but real individuals are never consistently reasonable. Even conscientious individuals sometimes look while crossing the street, speed up at yellow traffic lights, and bend at the back when lifting heavy objects.11

Risk-Utility Calculations Risk-utility balancing requires a consideration of the likelihood and magnitude of the risks posed by a particular course of conduct, consideration of the burdens of taking precautions against those risks and the utility of the conduct itself, and a weighing of these two sets of considerations. But research by psychologists has demonstrated that there are a variety of reasons why people might not engage in perfect Hand Formula–style calculations when deciding how to act. Some of these departures may result in behavior that is too cautious, while others may lead to decisions to engage in behavior that might be considered to be too risky. Assessment of Risks, Burdens, and Utilities There are a variety of ways our assessments of risk can be skewed. Some of these are related to the way the risk information is presented. Imagine, for example, that you are told that the likelihood that a machine part will malfunction is either one in ten or that the part malfunctions 10 percent of the time. Most people would perceive a risk framed as a frequency (one in ten) to be less risky than one framed in equivalent percentage terms (10 percent).12 The nature of the risk itself may also lead to distorted perceptions. How often is it that people are attacked by sharks? Not as often as many people think. This is because we tend to

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overestimate the likelihood of low-frequency events (and, in contrast, to underestimate the likelihood of high-frequency events).13 Risk perception can also be skewed by aspects of the perceiver. For example, being in a “hot” cognitive state in which our emotions are aroused can lead us to think differently about risks.14 Those of us who are nervous fliers usually recognize that our fear leads us to exaggerate the likelihood that a plane will crash. And the fact that anger can shrink our estimates of risk has undoubtedly contributed to many a bar fight. Note, too, that people tend to perceive that a particular harm is more likely when examples of that type of harm are easier to call to mind. Thus, harms that are more accessible—perhaps because one is aware of a recent instance, the harm has been prominently illustrated in the media, the risk is particularly dreaded, or the harm is otherwise especially memorable—tend to be thought of as more likely to occur.15 Consider how this sort of availability heuristic can influence even a seasoned doctor’s judgment. Ideally, doctors should rely on sound empirical research findings to recommend the best drugs for their patients. But doctors’ recommendations tend to be disproportionately influenced by recent and more memorable experiences. If a particular drug was ineffective the last time the doctor recommended it to a patient, then even if there is good evidence of the drug’s efficacy, the doctor is apt to prescribe another drug for the next patient.16 The effects of availability also present challenges for estimating the relative frequency of risks. For example, people tend to incorrectly perceive that the risk of more public events such as deaths in car accidents is higher than the risk of more private events such as deaths caused by strokes.17 Incorrect relative judgments like this can lead to a less than ideal set of precautions. Thus, for example, “an availability heuristic might lead a truck driver whose colleague suffered an accident during a snowstorm to exercise considerable caution on snowy highways, but render the driver unjustifiably incautious about driving at night with little sleep, notwithstanding that night driving by truck drivers is, all things considered, the greater danger.”18 Availability can also influence decision makers as they anticipate what could go wrong. When people make estimates of the likelihood that a harm will materialize, they tend to be influenced by the number and nature of the categories of problems that are explicitly considered.

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Potential problems that are considered as separate risks tend to be seen as more important than they are when they are considered as part of a catchall “other” category or grouped with other potential problems.19 Another complication in assessing risks and benefits occurs because we often anchor on salient values and attempt to adjust from them to arrive at an estimate.20 Consider the potential anchoring effect of a posted speed limit. “To be sure, the posted speed limit is not a random number . . . [b]ut that speed limit—as an upper bound on the safe traveling speed—may have no strong connection to the reasonable speed to drive during a storm.”21 Yet even in inclement weather, people are likely to anchor their driving speed on the posted speed limit. People also tend to ignore the base rate of the underlying phenomenon. Imagine being given the following description of a person chosen randomly from a group of seventy lawyers and thirty engineers. “John is a 39-year-old man. He is married and has two children. He is active in local politics. The hobby that he most enjoys is rare book collecting. He is competitive, argumentative, and articulate.”22 What is the probability that John is a lawyer rather than an engineer? At the median, people asked this question estimated a 95 percent likelihood that John was a lawyer. Now imagine being given the same description of John but being told that he was randomly selected from a group of thirty lawyers and seventy engineers. People given this information also estimated the probability of John being a lawyer at 95 percent. Even though the information about the composition of the group from which John was selected should have reduced estimates that John was a lawyer, it had no effect. The description given seems representative of a lawyer, so the underlying rate of lawyers in the population is ignored.23 People also tend to have an overly rosy sense of optimism and control when making decisions about their own behavior. Most drivers are overconfident in their abilities, thinking that they are better than average drivers,24 and consumers tend to think that they are less likely than others to be harmed by products.25 Moreover, people tend to overestimate their ability to control things that are not actually within their control, particularly when they are actively engaged in the endeavor. For example, people tend to believe that they have more control over

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the outcome when they choose their own lottery numbers or roll a set of dice themselves.26 Thus, there can be a tendency to believe that other people are less careful, that accidents are more likely to happen to other people, and that we personally have more sway over the possibility that a risk will materialize than we actually have.27 Consider a behavior such as talking on a cell phone while driving. It is much easier to see the negative impact of cell-phone use on other people’s driving than it is on one’s own driving. As Ellen Goodman has noted, “The very same people who use cell phones . . . are convinced that they should be taken out of the hands of (other) idiots who use them.”28 Assessing the burdens of taking particular precautions also presents difficulties for human judgment. For example, consider that when evaluating the utility of risk-prevention measures, people tend to be more influenced by the proportion of harms eliminated than by the total number of harms prevented. Thus, in one study, support for an airport safety measure was stronger when it saved a high proportion (say, 98 percent) of 150 lives at risk than when the measure was described as saving 150 lives. The value of saving 150 lives is hard to judge in the abstract, but a measure that is 98 percent successful sounds very good indeed.29 And finally, consider that people have a tendency to unconsciously process information in a way that is consistent with their preexisting preferences or goals, a phenomenon known as the confirmation bias or, more broadly, motivated reasoning.30 We seek out information that bolsters our beliefs and interests while paying relatively less attention to information that might be antagonistic. Similarly, we carefully question contrary information while more passively accepting assessments that seem congenial. This allows us to adjust our appraisals of risks, the utility of precautions, and the utility of an action in ways that further our own unconscious motives. Similar processes may also make it difficult to anticipate unintended consequences of an undertaking. We focus on desired consequences and pay less attention to predicting unintended effects.31 Each of these influences on risk perception would not be as problematic if people understood and effectively accounted for them. But overconfidence in our judgment means that we are unlikely to be sufficiently skeptical of our own perceptions about risk.

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