Contrary to Popular Myth, Americans Not Very Litigious
I went swimming at a lake upstate this summer with some friends who were visiting from Canada. From a distance it looked like a magical spot to cool off on a particularly sticky day. When we got there, however, we learned that the only place we were allowed to swim was a tiny cordoned off area that was further divided into even tinier subsections. As if that wasn't enough to drain any possible pleasure out of the experience, the lifeguards, who could pass for navy Seal trainees, were so authoritarian that a five-year-old girl was ordered out of the toddler section because her rubber duckie ring was not a "coast guard approved floatation device".
As we were driving away soon afterwards, in pursuit of a more hospitable watering hole, one of the Canadians remarked:
I guess that's what you get for living in such a litigious society.
And this is the problem, right? Because of the presumption that Americans never leave the safety of their own home without their personal injury lawyer's phone number on speed dial, we are forced to live in a society where excessive precautions are taken in most public spaces – and many private ones as well – to ensure that no accident or injury ever occurs. I mean, this is the country where you can spill hot coffee on yourself, sue the company that sold it to you for millions and, worse still, win.
Or so goes the narrative, anyway. The truth is that Americans don't sue that much at all. Seriously, who do you know who can afford to? But because the myth has been so successfully propagated, Americans have to live with the consequences of excessive law suit avoidance that tramples on the one thing that is supposed to be truly sacred in this country – our liberty.
The infamous McDonald's coffee spilling case was back in the news this week as it's been just over 20 years since the settlement, (although truth be told it's never really out of the news). Anytime anyone wants to argue for tort reform (usually right wingers who want to protect giant corporations from the little man who is out to get them), or impose more restrictions on our freedom of movement, the case is trotted out as an example of America's addiction to frivolous law suits. Not only was that case an anomaly, however, the generally accepted version of events (that an opportunist got a multi-million dollar payout for nothing) is almost totally devoid of those pesky things known as facts.
Firstly, the 81 year old woman who spilled the scalding coffee suffered severe third degree burns over 6% of her body (if you don't believe me,check out the video in this link for evidence).
Secondly, she sued initially for $20,000 to cover medical expenses, but because McDonalds refused to settle, the jury awarded her a much larger payout of $2.7m. This was appealed and she eventually ended up with around $600,000 and spent the rest of her life being the subject of ridicule. (Admittedly, some of the fallout was pretty funny. Who can forget the great Seinfeld line after Kramer tried to sue for a similar incident: "You get me one coffee drinker on that jury, you're going to walk out of there a rich man.")
But I digress, what I'm trying to get at is that the hot coffee case, which is constantly used as an example of America's apparent addiction to frivolous lawsuits, was neither frivolous nor representative of any growing legal trend. According to the most recent data, only 10% of injured Americans ever file a claim for compensation and only 2% file lawsuits. All told, tort cases represent just 4.4% of all civil caseloads and that percentage has been steadily declining. Between 1999 and 2008, tort caseloads dropped by a quarter. So we're really not all that litigious, yet we continue to be treated with kid gloves as though all it will take is a scraped knee for us to be on the phone to our lawyers.
This fear of litigation manifests itself in the most absurd ways. Last year, when I was working for a brief time in a commercial building in Manhattan, my request to bring my bike into the office (so it wouldn't get damaged or stolen on the street) was initially refused for "legal reasons". After all, I could slip and fall in the freight elevator or roll the bike over a co-worker's toe – leading presumably to lawsuits – and the building owners simply had to play it safe.
The same kind of excessive caution is also the reason that seesaws, merry-go-rounds, high slides and tire swings are a thing of the past in most playgrounds. When all of the aforementioned were being removed from New York city's playgrounds in the 90s, the parks commissioner at the time was quoted as saying:
In today's litigious world, the children come to the playground with parents and the parents come with lawyers.
Now, I know safety has its place, and one could argue that there are fewer lawsuits because we live in such a cocooned world. But somewhere between the non-coast guard approved rubber duckie floatation device and open manholes there is a happy middle ground. A bit of a reality check on how litigious Americans actually are would help us get there.