Who takes the risk and pays for our choices?

On June 6, 2006, a tragic accident occurred during a little league baseball game.  The 14-year-old pitcher was hit in the chest by a line drive off a metal bat. Unbelievably, when the ball struck the young man’s chest, his heart went into ventricular fibrillation, a rhythm incompatible with life.  He remained in this rhythm until the paramedics arrived and “shocked” him back into a normal rhythm. Unfortunately, he suffered permanent brain injury and will live with significant disabilities the rest of his life.  The family’s attorney estimates this young man’s future care will cost millions of dollars. 

The family decided to sue Little League Baseball, the sporting goods store that sold the bat, and the manufacturer of the bat.  They contend metal bats are inherently dangerous and if not for the negligence of allowing metal bats, their son would not have suffered the injuries he did.  The bat’s manufacturer explained that the young man’s injury rarely occurs, but when it does it mainly results from thrown balls, not batted balls.  Moreover, nearly 18 years ago, metal bat manufacturers and Little League Baseball worked together to limit the performance of metal bats to that of wood bats.

Does this sound like Little League Baseball and the bat manufacturers were negligent or does this sound like they worked together to limit risk in a sport that has inherent risk?  As sad as this young man’s condition is, I wonder if this lawsuit has less to do with negligence and more to do with “deep pockets.”

In 1992, a young woman backed her car into Galveston Bay and drowned, unable to get out of her seatbelt.  Her parents successfully sued Honda for their negligence for failing to make the seat belt more user friendly.   Not surprisingly, an appeals court threw out the case.  Why?  Because this young woman had a blood alcohol of 0.17, twice the legal limit.  I do not understand how the first jury found Honda 75 percent responsible for a drunken person having difficulty operating a seatbelt.  Do we need warning labels informing drivers that seatbelts may be more difficult to operate if they are drunk?

Do we have any personal responsibility or any personal liability participating in sports or in life?  Is it reasonable to participate in a sport, refusing to accept responsibility for the risks that come with the sport?  More important, are these lawsuits really about negligence, as claimed?  Reviewing some of these cases, I saw a pattern.  There was a direct relationship between the injuries, the financial costs of the injuries, and the probability of filing a lawsuit. 

These types of frivolous suits that are simply looking for deep pockets have significant drawbacks.  First, they clog an overburdened court system wasting time and money.  Second, the companies involved will recover their legal costs by passing them on to us, the consumer. 

We all pay the costs of frivolous lawsuits.  There is plenty of blame to share for propagating frivolous lawsuits, especially our societal values of no individual responsibility for anything that happens to us.  Anything that goes wrong in our lives must be somebody else’s negligence and someone owes us money.

Our ancestors had something that is in short supply today -common sense.  I learned about liability and common sense about ten years ago when my wife and I were vacationing in Belize.  We hired a guide to tour us through their national zoo.  The zoo consisted of dirt paths through natural forested areas, sections periodically fenced with a wire fence.  One of their prized exhibits had the jaguars, animals up to 6 feet in length weighing up to 250 pounds.  And the only thing separating us from death was that wire fence I could put my hand through. 

I asked our guide what would happen if someone was injured sticking his or her hand through the fence.  How would this poor country pay the costs of the resulting lawsuit?  He looked at me with an admixture of surprise and puzzlement, making it obvious he thought my question was absurd as he said, “How could someone sue us because they were stupid?”

What a novel thought, perhaps something to put into effect in our legal system – common sense and personal accountability for our actions.  There is little personal financial risk for those filing lawsuits because often the attorney will accept a percent of the winnings rather than an hourly fee.  Maybe there needs to be financial risk associated with filing a lawsuit, leading to more thought before filing.  The system was designed to protect those individuals who cannot spend large sums of money to file a lawsuit.  But, have we protected them so well that we are making it far too easy to file a lawsuit; to easy to throw out a net and see what we can catch?   

The Belizean guide understood common sense.  We can learn from him – if we choose to.

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