Trashing the Rule of Law

For most of our history, we followed the British system of common law, including laws dealing with tort liability. This heritage has been attacked by courts and plaintiff attorneys so much that it is barely recognizable.

One such doctrine of tort liability is the assumption-of-risk doctrine. Simply put, the assumption-of-risk doctrine holds that if the user of a product or service is aware of the danger, and nevertheless proceeds to make use of the product or service and is injured by it, he is barred from recovery. In other words, assumption-of-risk doctrine holds that people bear some accountability for the results of their actions.

As a result of the successful lawsuits against tobacco companies, assumption-of-risk doctrine is a skeleton of its past. For decades, under our traditional tort regime, if a plaintiff knows the risks of smoking, yet still smokes and contracts a tobacco-related illness, he had no claim against the tobacco manufacturer. That’s all changed. The courts have all but said that it’s the tobacco company, not the smoker, who’s responsible for the smoker’s plight.

Americans are quite pleased with the success of the political and legal attack against an unpopular industry. They’re pleased by smoking regulations and the near confiscatory cigarette taxes levied in the name of protecting children and recouping health-care expenses. In some jurisdictions, taxes have made a pack of cigarettes sell for $7, and predictively a flourishing black market, along with its associated violent crime, has emerged. The question I ask is: Will Americans be just as happy if the cigarette attack is carried to other products?

Sam Katzman, attorney for the Washington, D.C.-based Competitive Enterprise Institute, says, “The tobacco litigation campaign’s most significant impact may well be not its effect on the tobacco industry or on smokers, but its creation of a template for attacking other industries.”

The tobacco litigation made the case for diminished personal responsibility and the “social costing” of products. In other words, all a lawyer has to successfully argue is that a product such as tobacco, hamburgers, casinos, cars, etc., are addictive. That means individual responsibility for his lifestyle choices is out the window. Lawyers then hire “expert” witnesses to argue that the product imposes costs on society. Attorney generals and politicians come out of the woodwork calling for taxes to recover those costs. The icing on the cake is to somehow argue that America’s precious children are harmed by the product. Success is nearly a foregone conclusion.

The nation’s tyrants have already begun using the tobacco litigation template against the food and beverage industries. In addition to obesity lawsuits against McDonald’s, Burger King, Kentucky Fried Chicken, Nabisco and others, they’re calling for the labeling of fat content. Cowardly executives are complying by providing additional nutritional information and even downsizing some of their products. If they think appeasement will deter the tyrants, who know what’s best for Americans, they have another think coming.

Decades ago, the government conducted costly education campaigns and mandated labels on cigarettes warning about the dangers of smoking. That didn’t deter successful lawsuits against tobacco companies and neither will its equivalent, nutritional or fat content labeling, deter lawsuits against the food industry.

Abandonment of assumption-of-risk doctrine means Americans pay more, and will pay even more, for the goods and services. When we ski, we risk breaking a leg — but since we have diminished responsibility, the higher liability insurance premiums paid by ski lodges translate into higher lift ticket prices.

If food companies are to stay in business, they too will have to pay higher liability insurance premiums and hire teams of lawyers to defend themselves. Who do you think will bear the final burden of these costs? Nullification of responsibility for our actions has had a devastating effect on our economy, not the least of which is international competitiveness. When are we going to call for a halt?