Social Benefit of Limiting or Transferring Civil Liability

[Kanastrous]

Yeah, ugly thread title. Couldn't think of a better way to put it.

Sometimes a person causes loss or injury to another person, to such a degree that the costs are ruinous. Now, a number of states have laws in place that protect the responsible party's assets, for example, in some states no matter how much harm you are responsible for causing someone else, you can't lose your house, and/or your car, and/or your pension.

Well, I don't see the moral righteousness of this policy. If you do someone else sufficient harm, someone is going to be ruined by the costs of treating their injuries, and their long-term care. In order to gain access to certain support programs, one has to basically give up everything and put one's self into poverty, becoming an effective ward of the state for the purpose of getting the required care - all while the party who caused the injuries goes their merry way, house and car titles in hand, pension checks coming in each month, no further worries.

Why is it considered more desirable for the injured party to go broke and homeless as a result of the responsible party's actions, than for the responsible party to go broke and homeless? Since someone is going broke/homeless either way, I don't see the underpinning argument in favor of making the victim lose everything, rather than the person who victimized them, losing what they have.

Maybe someone with some background in social policy, moral philosophy, or some such discipline can illuminate me, on this one.

[Temujin]

Well, in a proper social welfare state, no one would be completely broke / homeless; but that doesn't mean that the responsible party should be allowed to keep all their luxuries and excess gobs of cash either.

As for why this happens; well in America we have this ridiculous notion that society is more of a competition and not a collective effort to make life better for everyone, which of course is put forward and supported by the usual suspects. The person has an option to sue the offending party, and they win, good for them. But if the other person with more money can fend them off and they lose, well then it sucks to be them.

This is what some libertarians I've known would joke is the "dark side of capitalism". Of course when the shoe's on the other foot, they don't find it so funny.

[Broomstick]

Oddly enough, this comes up on a day when I am reminded of a tragedy of that sort.

I'd like to introduce you to Charla Nash, who was mauled by a champanzee owned by a friend and employer. I will not post the extremely graphic photos of what she looks like now, because no one should see them without a warning. This is also why, when Charla goes out in public now (and unlike most faceless people, she does go out in public) she wears a hat with an attached veil (color-coordinated to her outfit, judging by some of her recent appearances). She doesn't want to scare people. Anyhow, the chimp basically ate her face - lips, nose, eyes - as well as her hands. It's pretty awful. But, if you want to see for yourself here is a link, scroll down to see a photo of what's left of her face

Clearly, Ms. Nash is in a bad position. She is blind. She essentially no longer has hands (I think one arm still has one usable thumb attached, that's it). She is able to "eat" by sucking liquids through a straw via a hole surgeons constructed in what is left of her face. She is able to speak, but her speech is often garbled and distorted. She is no longer capable of living independently (although she is trying to be as independent as possible) and certainly is unemployable.

Her family is suing the owner of the chimp (said chimp is now deceased - when the police arrived and saw Ms. Nash they shot it rather than trying to reason with it) for $50 million. Clearly, part of the motivation is money to enable Ms. Nash to live comfortably for the rest of her life, with whatever care she needs.

I thought perhaps a concrete example may add to the discussion. Is it right to reduce Sandra Heroild to destitution to serve Charla Nash's needs? Is it right to leave Charla Nash destitute with such grievous and permanent injuries? There is no way to right the wrong done to Nash, there is no treatment, surgery, or prosthesis to return her to even a semblance of normal. Clearly Heroid bears some responsibility, as the chimp belonged to her and she, as owner, is responsible for it, and for keeping it confined so as not to injure others, yet she did not succeed in that responsibility.

Clearly, in the US the cost of lifelong care for someone as disabled as Nash is a large motivation for suing. Yet, even in a country where there is an actual social safety net, where medical costs will not wipe out a person financially, what are the limits of care provided, and should the state confiscate some of the finances of a guilty party? Or should the victim still be able to get direct redress?

[Temujin]

See, I'm a firm believer that people like Ms. Nash should be provided a reasonably comfortable life by the state, with full access to what ever medical services exist (or are developed) that she may have need for. We as a society should take care of her, as she nor her family can afford to do so (and would only be able to do so if they were part of the rich 1%). Of course, I believe that medical care (like all essential services) is an intrinsic right, and should be fully available to everyone.

Ms. Heroild, while certainly responsible, should not be completely destroyed and reduced to homelessness. I don't believe she has that much money to effectively lose anyway, and if i remember correctly, Travis (the chimp) was a source of her income. But she should do some form of community service, perhaps as a spokesperson educating people to the dangers of keeping wild animals or something like it. And since this was not a malicious act on her part, it may be therapeutic as I'm sure this has been rather psychologically traumatic for her.

Now if she was someone with tens of millions of dollars, than yes, she can afford to lose some of that money. It has to be looked at on a case by case basis; how much is the person worth and what is their income source and amount. But aside from a few rich individuals and corporations, most people just won't have too much that they can afford to lose, nor would it be enough to generally to provide any real compensation. This is why society needs to step up and collectively shoulder the burden.

[Zaune]

Also worth mentioning is that many civil lawsuits take place after the defendant was acquitted of criminal charges related to the incident. Sometimes it may mean they were genuinely negligent but covered their tracks too well, but often it's determined that the defendant simply made an error of judgement.
The best quote I've ever heard on this subject comes from The World According To Clarkson of all sources. He compares accidentally forgetting to scan an item at a supermarket checkout and accidentally omitting to check the "Bow Doors Closed" indicator light before giving the order for your ferry to set sail; same sort of momentary slip, vastly different consequences.

And where is the moral righteousness, as you put it, in ruining someone's life beyond hope of repair for making an honest mistake?

[Broomstick]

Is keeping a potentially dangerous wild animal in inadequate housing that permits escape an "honest mistake"?

[Kanastrous]

I have some passing familiarity with the Nash case. The chimp concerned had been the subject of at least two complaints; in both cases he bit someone while out in public (off his caretaker's property). The details are easily found via a web search if anyone wants to find them. And on the day of the attack, Travis (the chimp) was given a dose of Xanax by his caretaker, a drug not approved for use in primates, and an act of unbelievable irresponsibility by the caretaker. By the way, she died a week or two ago, so the court case will presumably go forward against her estate.

Zaune's comparison between a supermarket-checkout error and blowing a critical safety checklist item does not hold up, at all. Lives are not at stake in the usual operation of a supermarket checkout line, so there is no reason to demand that the register operator treat the work with the kind of attention to detail and consciousness of danger, as the person responsible for safely configuring and operating a vessel upon which hundreds to thousands of lives may depend. You might as well suggest that a painter who accidentally overpaints the pane of a window is no different than a reactor operator who neglects to insert the control rods when safety requires - or pick any one safe activity with little-to-no chance of lethal hazard, to an unsafe one where danger is omnipresent.

And where is the moral righteousness, as you put it, in ruining someone's life beyond hope of repair for making an honest mistake?

You miss the crux of the question: where one party or the other (the victim or the perpetrator who victimized them) is going to suffer losses to underwrite the victim's care, why should the party responsible for creating a victim with needs be allowed to skate off scot-free, leaving the victim to be ruined by the cost of their own care? Whether or not the perpetrator made 'an honest mistake' is beside the point: it's their mistake, honest or not, they have already grievously harmed someone as a consequence, so why shouldn't the person who made the mistake, and caused the injury, be held responsible for the consequences? "I made a mistake" does not absolve you from responsibility for the consequences of that mistake. And a moral person admits their responsibilities and covers the costs of the damage they've done - unless your definition of 'moral' is someone who merrily fucks others over, then washes their hands of it and leaves their victim to bleed to death.

The observations regarding a social safety net that would care for everybody etc are appreciated, but irrelevant to the OP. The question was not 'what system could we promote that would work better?' the question was 'where is the moral underpinning for breaking the victim, rather than the individual who victimized them, in the first place?'

[Temujin]

The only people allowed to handle these animals should be zoologists and others who have the proper training and experience.

Since I was a kid, I always found it a bit sick the way those old shows and movies would dress chimps up like little hairy humans, and dub the lines of voice actors into their mouth movements.

And if somebody wants an exotic pet, let them get a fucking ferret or something. Even if your going to have a snake, you don't need a fucking boa constrictor. Even if you have the proper training and experience at handling reptiles, I believe there have been cases where these people have been mauled, or had others mauled while keeping them as pets. This kind of shit happens enough at zoos and the like anyway on a regular basis.

Again, I think the problem is twofold: The continuation of the idea that allows animals to be treated as property, and a libertarian mentality of being able to do what you want with minimal regulation. You want to own a tiger? Sure, just as long as you can afford the space and enclosure to house them. What, he got out and mauled the neighbor, well you better have a good lawyer, or it sucks to be you. As for the neighbor, the same applies.

It should be more like: I'm sorry Mr. Tyson, I don't care how much money you got, you can't own a fucking tiger. It's a wild animal and a protected species. If you want a cat, there are plenty at the shelter to adopt.

[Kanastrous]

Maybe we could have a 'wild animals in captivity' thread, as a thread of its own...?

Another problem I have, is the idea that in a matter where there is a clearly identifiable responsible party - fine, let's use Travis the chimp as an example; his caretaker's estate is reportedly worth quite a bit - the costs should be spread around to everybody via a socialized solution. Why? What benefit to society, draining money from public coffers so that a careless, irresponsible person who harmed someone else can keep all *they* have, and dodge responsibility for what *they* did? What morality is promoted, by protecting individuals who do harm at the expense of every other person? Are we really so eager to see to it that no one person can be held responsible for their own actions, that we want to make everybody in the society responsible, except the person at fault?

[Temujin]

Maybe we could have a 'wild animals in captivity' thread, as a thread of its own...?

That sounds like a good idea. It certainly is a bit of a bottomless hole topic.

Another problem I have, is the idea that in a matter where there is a clearly identifiable responsible party - fine, let's use Travis the chimp as an example; his caretaker's estate is reportedly worth quite a bit - the costs should be spread around to everybody via a socialized solution. Why? What benefit to society, draining money from public coffers so that a careless, irresponsible person who harmed someone else can keep all *they* have, and dodge responsibility for what *they* did? What morality is promoted, by protecting individuals who do harm at the expense of every other person? Are we really so eager to see to it that no one person can be held responsible for their own actions, that we want to make everybody in the society responsible, except the person at fault?

I certainly think that person should be reduced to an acceptable minimum standard of living, just not complete poverty and homelessness. By keeping her a productive member of society allows her to continue to bring in more money that can be split off and used to help the victims. By completely impoverishing her does no good.

But as I pointed out earlier, not many people have estates that can provide more than a drop in the bucket in the way of restitution. I don't know how much Ms. Heroild's estate is worth, but I doubt it's anywhere near the $50 million the plaintiffs are seeking. That money will have to come from somewhere.

[Knife]

Why is it considered more desirable for the injured party to go broke and homeless as a result of the responsible party's actions, than for the responsible party to go broke and homeless? Since someone is going broke/homeless either way, I don't see the underpinning argument in favor of making the victim lose everything, rather than the person who victimized them, losing what they have.

For having a socialist bent, you have surprising lack of foresight to other members of society. They don't strip everything away like that, home and etc..., so the perpetrators own family isn't in a card board box under a bridge some where. While your revenge kick would be sated with the 'harmer' being impoverished and ruined, generally we don't want to do that because if he/she has a spouse and children, you have just made more victims. I admit, it is a balancing act; getting restitution for being harmed and not destroying other lives while you do it, and not always done perfectly. I agree with others, in that a good social safety net, health care and the such, eliminates some of the problems in the scenarios.

[Werrf]

As always, I think that a balance would be a better choice here. Sending someone bankrupt to pay for the consequences of their mistake isn't going to help anyone. If you were to sue me for $50 million, feel free - you won't actually end up getting the money, because there's no damn way in hell I'm worth that much. In cases of corporate responsibility, where there's a chance the money might actually be there, then sure, that makes sense. For the average individual? Not so much.

So sure, make them pay something - as much as possible, actually - but not to the extent of bankrupting them. Have their wages garnished for x%. That should satisfy the demands of justice. Of course, let's not try to pretend the purpose is for anything other than revenge; for Mr. Average, there's no way they could possibly pay for the care needed. So that's where state support comes in, helping the innocent victim live as normally as possible, because the 'perpetrator' sure as hell can't do it.

IMO

[Kanastrous]

I want to clarify that the OP doesn't turn on 'how much should we punish somebody' or 'how much should society distribute the costs of liability.'

I'm asking about the very specific circumstances that presently exist for-real, and the moral calculation behind them: that when one party inflicts damage sufficient to reduce the payer to penury, the law in many places protects the person who did the damage, and makes the person who suffered the damage do the paying. One party or the other will bear the burden and go broke; that's just a given in the arrangement. So why do that to the victim rather than the perpetrator?

It's true that there are many preferable systems that we could imagine. But what I'm after is the moral argument underpinning the one that we actually have.

*edit* to try and further clarify, the observation that 'most people don't have an estate sufficient to cover their victim's costs anyway' is beside the point. When the victim's insurance, Medicare etc run out (if they have them) the public-welfare programs that will care for them effectively demand that you've divested yourself of most everything in your estate, anyway. So the question is really which party will be reduced to that point, not whether or not the parties have the money on-hand to cover the debts they've incurred.

[Broomstick]

I think a point that people also fail to grasp sometimes is that even if the guilty/responsible party can't pay for everything needed by the victim that partial payment for needs can make a significant difference in a person's life. Being disabled and unemployable, even in societies with strong safety nets, still isn't all that wonderful. Being able to, say, buy new clothes or help fund a child's education can be of enormous importance even if the cost of those things are a small part of overall costs. For some disabled people, an adaptive means of using a computer and an internet connection can be hugely important, are not always paid for by government programs, yet don't cost unbelievable amounts of money.

I don't see a problem with the causer of harm to suffer a bit to make the life of a victim a little bit better. You can do that without rendering the responsible party destitute. Saying "you must now pay X% of your income for life to victim Y for the rest of your life" might be a reasonable solution to the issue.

[salm]

Isn´t that what a liability insurance is for?
Around here practically everybody has one because they´re dirt cheap and very usefull. I pay 15 or so Euros per year and can fuck up stuff up to, i think, 100 Million Euros.

[Broomstick]

The US has liability policies, but nowhere near that little for that much. Or else they're very specifically targeted. For example, I used to carry a $1 million policy as a pilot, but that covered ONLY aviation fuck-ups, and it cost considerably more than what you quoted just for that.

[Kanastrous]

And in the event that you should fuck someone up using your car - most states in the USA permit you to drive on public roads while carrying a laughably small minimum of insurance. You can satisfy the legal requirement with no more than enough insurance to cover your victim for a couple of months. And of course you can easily do someone that much damage and more, using a car.

[HMS Conqueror]

It's misleading to view civil actions like this as some sort of punishment. That is what the criminal justice system is for. Rather they are about returning to one person wealth that has been unjustly taken from them by another.

For instance, in the case of the chimp, if it has taken a $20 note from Ms Nash's wallet, assuming that the owner was considered responsible for its actions, it is clear that they would owe Ms Nash $20. This isn't meant as a punishment, but just restitution for value of Ms Nash's that they are responsible for destroying. In the case of horrific injuries and serious reduction in quality of life, it's much harder to precisely determine how much money is owed, but that doesn't mean that it is $0. In that case, the medical bills and lost earnings alone would amount to more than $1m dollars. When you add in everything else, $50m doesn't seem unreasonable, although plaintiffs usually go into these sorts of cases at the high end, knowing that it might be worked down. So saying there should be a liability cap isn't saying that the one party should not be 'unduly punished', but rather that they should be allowed to destroy others' things with impunity.

Btw, the presence or absence of state welfare is largely irrelevant here. Saying that it is ok that the perpetrator is not made to pay back his debt because uninvolved third parties will be made to pay the same is as if to say that victim is owed a debt by everyone in society for actions over which they had no control or knowledge, which is a ridiculous claim that I don't think anyone would advance. The role of a welfare safety net is rather to make sure that no one drops too far after the court settlement: either if the perpetrator is completely bankrupted, or if the victim still doesn't have enough money to pay their bills, or both.

[Stuart]

The US has liability policies, but nowhere near that little for that much. Or else they're very specifically targeted. For example, I used to carry a $1 million policy as a pilot, but that covered ONLY aviation fuck-ups, and it cost considerably more than what you quoted just for that.

I think the solution to this is indeed liability insurance. If somebody insists on having a dangerous pet, then they should be required to carry insurance adequate to cover any likely damages pay-out for the harm that per causes (that can be set using a percentile rule -say 90 percent of likely damage awards). For example some people like to keep poisonous snakes - fine, but if one escapes and kills somebody, then that 90 percentile is going to be very high indeed. Chimps would fall into that bracket as well; an adult chimp is nasty. If they don't have the required insurance, then by all means break them with the costs involved.

[Kanastrous]

This is a good observation re: the specifics of keeping dangerous animals but we've drifted from the OP with regard to the matter of assigning liability...

[Stuart]

have you ever known an SDN thread not to drift?

Anyway, my approach would be that if a person is required to have insurance against a specific eventuality and fails to have that insurance then breaking him is perfectly acceptable as an example to others. I mean, left with a cardboard box under a bridge type of breaking (and if his victim has a use for a cardboard box, take that as well). Refusal to buy mandated insurance is such a heinous breach of responsibility that it is deserving of such penalties. Remember, this is for not having the mandated insurance, not for the cause of the harm per se.

Where adequate insurance is not mandated or not available, then the situation becomes trickier. One possibility might be to set up a system where there is a premium on all insurance policies to fund the cases where a victim is left bereft due to the perps negligence. That provides resources to care for said victims. Where I live, one of the components of car insurance is a surcharge to pay compensation to road users hurt by under-insured drivers. I dislike it because I don't see why I should subsidize such people but it's arguably a least-worst solution.

[Kanastrous]

What about when the damage to victim exceeds the mandated insurance? Why should the overage in costs be the victim's responsibility to pay? Why shouldn't the perpetrator of the damage be made to pay the overage too?

[Stuart]

What about when the damage to victim exceeds the mandated insurance? Why should the overage in costs be the victim's responsibility to pay? Why shouldn't the perpetrator of the damage be made to pay the overage too?

He should. The mandatory insurance should be a minimum, not a maximum. If people choose to have more, then that's fine.

[Simon_Jester]

Makes sense up to a point. What I'd like to ask is how this applies to freak accidents, though? What about accidents where the damages are far greater than normal because of secondary circumstances?

I'm having trouble thinking of an example off the top of my head, but I recall earlier you talking about mandatory insurance being required to cover the bottom 90% of damage awards. What about cases that fall into the top 10%? The top 5%? 1%? At some point, you're bound to run into cases where the scale of the damage exceeds what anyone could reasonably have predicted, because of some fluke of circumstance.

If the defendant bought a million dollars of insurance to cover an issue where an accident normally causes no more than a hundred thousand dollars, and happens to be the one-in-5000 case where it causes two million dollars of damage... should we break the defendant?

[Stuart]

I would suggest that is where a court and discretion come in. If somebody buys a million dollars worth of insurance to cover a case where the usual damages are around 100,000, then obviously he was a prudent fellow and the court should bear that in mind along with the other extenuating circumstances.

What this really points to is the inapplicability of absolute rulings in a real world that is full of uncertainty. Discretion is essential. The above case is quite different from the drunken lunatic who can't get insurance so goes driving without it. Courts have to have discretion in handling things; zero-tolerence is for mental insects. I think the case above is where the insurance fund paid by surcharges would be of value. The judge would order that fund to make up the difference.