Robert S. Marx Lecture
February 17, 2011
University of Cincinnati College of Law
Victor E. Schwartz1
Shook, Hardy & Bacon L.L.P.
Washington, D.C. 20004
(202) 783-8400
vschwartz@shb.com
FORCES THAT SHAPE TORT LAW: IMMUNITY, OVERKILL, AND A
RATIONAL PATH TO THE FUTURE
I want to begin by thanking the College’s perceptive, dedicated and enterprising
Dean, Louis Bilionis, for inviting me here today. I would like to express my
gratitude to Cheryl Delvecchio for her guidance throughout to assure that
everything was implemented well.
My thanks also to the alumni, judges,
professors, and students who are here. For me, the University of Cincinnati College
of Law is home. I first walked into what was then the auditorium of this college in
the fall of 1967 at the young age of 26. Suddenly, the room was filled with 170 law
students. It was intimidating yet, also was very inspiring.
I have known, and been proud of, so many of our alumni and former students who
have had stellar careers, even though they took my torts class. Some of you have
been gracious enough to be here today.
The greatest calling card of the University of Cincinnati College of Law throughout
the country is its Robert S. Marx Lectures. When I had the privilege of serving as
Dean in the early 1970s, I invited a young professor from Rutgers Law School
named Ruth Ginsberg to deliver the Marx Lecture. Today, Judge Ginsberg has a
1
Victor E. Schwartz is Chairman of the Public Policy Group in the Washington, D.C. office of
the law firm of Shook Hardy & Bacon L.L.P. He created the “Iron Triangle Defense” in
litigation, which combines his team’s talents in public relations, government relations, and
litigation. He co-authors the most widely used torts casebook in the United States, Prosser,
Wade and Schwartz’s Torts (12th ed. 2010). His scholarly articles have helped influence the
development of tort law in both Congress and legislatures. The Legal Times of Washington has
named him one of the 30 Most “Visionary” Lawyers in Washington over the past three decades.
The National Law Journal named him as one of the 100 most influential attorneys in the United
States, and the Washingtonian magazine has named him one of the top government relations
specialists in the nation's capital.
different job. In 1973, I invited a young professor from Harvard named Alan
Dershowitz to deliver the Marx Lecture. Professor Dershowitz has made quite a
name for himself and has had an effect on our laws. So you see, Marx Lecturers
have had an impact, and that is why I regard this responsibility as an extraordinary
opportunity. I thank you.
From almost the first day of law school, the law of torts has interested me. I had
two great Columbia Law School professors; Alfred Hill who made tort law seem as if
it was a fog, like cotton candy, hard to grasp or hold; and Willis Resse who
organized tort law in ways that were easy to understand. Following law school, I
served as a law clerk in a federal court where I saw tort cases being handled and
tried daily. When I taught at the Cincinnati College of Law, the Deans were kind to
me, and, in addition to my teaching classes, they also let me practice law.
Interestingly enough, my cases were almost always for injured parties. My
experience as Dean here at the College of Law prepared me for my next position; to
run an 11 agency interagency task force in the federal government. The task force
studied and developed real solutions for the 1980’s product liability insurance crisis.
Eventually, I transitioned out of teaching because the problems in the law of torts
became national in scope, challenging in their dimension, and increasingly more
policy driven.
My full-time participation in the practice of law often has me working to contain
tort law’s excesses. My work and the work of many others developed into what is
now known as tort reform. I have been involved in the passage of almost 200 state
laws and several federal laws.
The Forces that Shape Tort Law
Preparing for the Marx Lecture has given me time to reflect over the past 40 years
and focus on the forces that shape our tort law. Sometimes tort law can have
barriers that so overwhelm plaintiffs that they treat them unfairly. These rules can
result in barring a plaintiff’s claim even though he or she was seriously injured by
someone else at fault. This occurred with the “contributory negligence” defense: if
a plaintiff was even slightly at fault, he or she would have no opportunity to recover
any damages. The forces that shaped the contributory negligence defense were
economic. It was embraced by courts driving the Industrial Revolution of the 1880s
and the perceived need to help the economy and develop industry at a rapid pace.
The cost of liability in the 1800s was seen as just too much for industry to bear. So,
the barrier of “contributory negligence” arose.
Almost a century later in the 1970s the economic situation in our country changed.
It was clear that industry could survive quite well without the contributory
negligence defense.
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Nevertheless, the contributory negligence defense was still used by most states.
Beginning in the early 1970s, however, the forces of compassion and the need for
fairness broke the “contributory negligence” wall. My first book, Comparative
Negligence suggested a fairer system: do not bar a negligence person’s claim, but
reduce it in proportion to his or her fault. At this time, there was also another force
of change at work; a concerted effort was underway by some academics and policy
makers to radically change the tort system using a theory, first developed by Judge
Robert Marx for whom these lectures are named, called the “no-fault compensation”
system. The threat to the legal profession of having the entire automobile accident
field of litigation replaced by a no-fault system caused the plaintiff and defense bars
to come together and eliminate arbitrary rules in the litigation system. The
“contributory negligence” defense was one of those rules. Today, comparative fault
is the law in 46 jurisdictions. When the plaintiff and defense bars economic
concerns coalesce, this is a true force that can shape American tort law.
Perhaps the greatest wall that has stood in front of plaintiffs in the history of tort
law is “immunities”. Not that long ago, as late as the early 1970s, one could not sue
a church or charitable institution no matter how great the merits of one’s claims. In
tort law, a parent could not sue a child, the child could not sue a parent, and a
husband could not sue a wife under any circumstances. City and states were also
immune from lawsuits. In fact, until 1946, the federal government was immune
from lawsuits.
Immunities had their forces and economic reasons behind them. For example, when
one gave money to his or her religious institution, one wanted to believe that his or
her gift was to be used to further the purposes of that religion and not to be
consumed by tort law and judgments. The forces to protect religious and other
charitable institutions were strong.
The American Law Institute (ALI), with its prestigious membership of judges,
professors, and public and private sector attorneys who, every few decades, “restate”
the law of torts, looked to another force that shapes American tort law, namely our
liability insurance system. ALI experts believed that tort liability for charities and
churches could be absorbed by those institutions because liability insurance was
more readily available. Religious institutions would not disappear under a torrent
of lawsuits. They could insure against negligently created risks. When the ALI,
through the Restatement and courts tore down the wall of charitable immunity,
they focused on cases where church or temple buses were negligently driven or a
church member was injured because of a negligently maintained building.
But, as it is often the case in the history of tort law, forces that may help plaintiffs
overcome an arbitrary limit on liability can become so strong that there is overkill:
too much liability exposure. The change in law may become so magnified that
unsound public policy results. For example, when courts and legislatures abolished
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the “contributory negligence defense” and installed “comparative fault,” that result
was fair. But, currently we are working on a legislative tort reform in Florida
because its Supreme Court held that when a drunk driver crashes his vehicle into a
tree, the jury is prohibited from knowing that the driver was drunk. Some judges
believe that ignoring a plaintiff’s fault will result in safer automobiles, and that the
automobile company can absorb the cost of the risk. They are engaging in the
highly questionable force of regulation through litigation: the use of the threat of a
large tort judgment to regulate an industry. At least in the judgment of others,
including me, this is tort law running wild and forces for change are engaging in
overkill.
If saving lives is a goal, it is of equal importance for tort law to send a signal to
drunk drivers that they will not be rewarded for reckless behavior that endangers
others on the roadway. These overkill cases are not alone in the history of tort law.
Product liability law became so expansive in the late 1980s that good products were
lumped in with bad ones. A drug that is therapeutic and prevented extremely
serious attacks of morning sickness, named Bendectin™, was driven off the market
by excessive liability forces.
Overkill in liability adversely impacts safety in more ways than one. Until a
Supreme Court decision put a stop to it, some lawyers used tort law to force
automobile manufacturers to install airbags before they were ready for general use.
Again, this was regulation through litigation. Overkill in tort law brought political
forces into the arena and some state legislatures curbed what they deemed excesses
in the tort system. Tort law should not force manufacturers to make changes in
design. Design changes for safety reasons should be proven. Along similar lines,
tort law should also not force doctors to conduct unnecessary tests because they fear
tort liability.
Immunities and Overkill
Nowhere has the battle between the forces that sometimes prevent plaintiffs from
being treated fairly and forces that create liability overkill been more dramatic than
in the area of immunities. A fundamental reason for this is that when the ALI and
courts ended many immunities, very little thinking was given to what duty should
be placed on the defendant who was previously immune. For example, when
immunities were ended between parent and child, the focus, as with charitable
immunities, was on automobile accidents. Those are the cases that supported the
Second Restatement of Torts abolishing immunities. No thought was given to what
tort law should do in very different circumstances. For example, suppose a smart
17 year old child who has very wealthy parents is told that he must attend a state
university. But he wants to attend Harvard and the school has accepted him.
Should the parents have a duty in tort law because of their “negligent” behavior
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toward their child? We would all instinctively say “no,” but when one looks to
guidance from the Restatement, there is absolutely none.
The same has been true with respect to the liability of religious institutions.
Liability of Religious Institutions After the Fall of Tort Immunities
Insurance, its availability or its real or practical unavailability, clearly is a force
that can push tort law to expand or contract. Its availability helped end
immunities. Its unavailability or cost has been a force to place legislative limits on
product liability and malpractice.
When the immunity shield for religious institutions crumpled, just like the situation
with parent and child, as I have indicated, the Restatement supported its position
with cases that involved automobile accidents, slip and falls, and other ordinary
types of negligent behavior. But then, not long ago, the “catholic priest” scandal
erupted. Who was to be liable and why? The priest involved? His superior in the
church hierarchy? The church itself? The authors of the Restatement had not
thought about those issues. Like other stories that leave us with a feeling of
revulsion, crises that bring harm to innocent victims can be a force to push tort law
to impose liability. These forces will work to try to persuade courts to not follow the
black letter of the existing tort law, but to expand liability.
After the crisis subsides, however, uncertainty about liability follows in its wake.
Today, some courts are uncertain where to draw the line for tort responsibility of
religious institutions. Are they subject to liability for all bad acts of the clergy?
Suppose a particular religion has no organized or hierarchal clergy. Should the
church still be responsible in tort law for a wrongful act of a member who has the
“appearance” of authority? For example, a lay person who frequently addresses the
congregation?
Where will this force created by the church/priest crisis stop? Are there rational
limits for the liability of religious institutions? If so, what should they be?
I wrote about this scenario in the University of Cincinnati Law Review a few years
ago, Defining the Duty of Religious Institutions to Protect Others: Surgical
Instruments, Not Machetes Are Required.2 Courts apparently have found our article
to be useful. But, the lines are still shadowy. New issues have and will arise and
the quest to balance forces prompted by crisis are pitted against those who
appreciate that tort cases brought against religious institutions are not the same as
Victor E. Schwartz & Leah Lorber, Defining the Duty of Religious Institutions to
Protect Others: Surgical Instruments, Not Machetes, Are Required, 74 U. Cin. L. Rev. 11
(2005).
2
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those against an automobile company or even a doctor. The presence or absence of
insurance is not a sole force in these murky situations. Other forces that have and
should shape tort law are in play.
The Unique Nature, Purpose and History of Religious Institutions in America
Tort law needs to recognize that regardless of general forces that push to expand
liability, religious organizations and faith communities are different from secular
institutions both in their history and in their function. Their purposes and
objectives differ from secular institutions as well as the roles they play in people’s
lives. The explicit and implicit contrast between religious organizations and
government entities, commercial enterprises, professional associations, and even
secular charities are facts to be recognized as tort law shapes the future of the duty
of religious institutions. The hypotheticals I mentioned earlier about the child
suing the parent because he believed he should go to an Ivy League school has some
relevance here. Just like the relationship between a parent and a child, what a
religious community is about and what it is doing is unique and quite delicate.
Some matters should be resolved within the family itself, not by tort law. Similarly,
some matters should be resolved within religious institutions without the forces of
tort law shaping decisions. Some wish to treat religious organizations the same
way as secular institutions. But, headlines, rhetoric and even crises should not
push tort law over the edge and into overkill.
Constitutional Limits on Legal Rules Affecting Religious Institutions
This Marx Lecture is about tort law, not constitutional law. But, I would be
committing a “sin” to compartmentalize areas of law based on the law school
curriculum. Obviously, constitutional protections for the free exercise of religion
can and sometimes should place limits on tort law. The same way First
Amendment considerations of freedom of speech have placed limits on the law of
liable and slander.
Basic principles of the First Amendment’s Establishment Clause provide limits on
the liability exposure of religious institutions. When tort law liability runs too wild,
it is “government action.” There are constitutional limits about how much
government can interfere or entangle itself in religious matters. While wellcredentialed scholars and some respected plaintiff attorneys have argued that tort
rules should be applied uniformly to all institutions, including religious institutions,
most fortunately, courts have rejected such forces of overkill. Good common law
judges realize that tort law is not uniform in its scope and application of liability.
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Tort Claims Against Religious Institutions Should be Limited by the Basics of the
Need for Religious Autonomy
Beyond limits on government embodied in the Free Exercise, and Establishment of
Religion clauses of the Constitution of the United States, tort law itself should
recognize that religious institutions are not sellers of products or sellers of services.
They have and need autonomy to run their own house of worship.
Clergy Malpractice
Taking rules that apply to doctors or lawyers in malpractice and simply grafting
them on to religious institutions directly confronts the need for church autonomy
and tort law limits that flow from that doctrine. If a member of a clergy commits
what is tantamount to a crime, of course, liability should be imposed on him. But,
there really cannot be “a reasonable clergy standard” for all clergy conduct similar
to one applied to physicians. If a clergy person fumbles and is not able to persuade
a church member to better his ways, by what standard can the clergy person be
judged? Should the church be liable for “clergy malpractice” because of the
minister’s alleged negligence in failing to correct a member’s anti-social behavior?
Should a religious institution be subject to liability because its clergy fails in its
efforts to make people “better?” Clearly, those efforts should not be evaluated by
tort law. Courts, to their credit, have done a good job in making clear that clergy
practice or malpractice is a matter for a particular religious institution to decide.
Recruiting Members and Excommunicating Them
Unless a religious institution engages in unlawful activity, for example, using
illegal substances, or improper use of alcohol, or other criminal wrongdoing, to
persuade people to join their flock, tort law has no basis for entering the area of
whether their recruitment practices are tortuous.
While religious institution’s practices could include inappropriate coercion, no claim
for fraud should be permitted based on a religious institution’s representation that
God would bless a new member for giving money to a church, when actual blessings
do not follow. The same is true and this extends into labor law with respect to
religious institution’s autonomy to decide whether a person should rise in the
hierarchy or be dismissed. In some jurisdictions there is a tort for wrongful
termination. It is a zone where objective tort or labor law standards for hiring and
firing maybe appropriate for private industry, but these judgments are beyond the
perimeter of tort law with respect to religious institutions.
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Tort Law Rules Regarding Affirmative Duties for Special Relationships Should Not
apply to Religious Institutions
If there is one rule that I found students remember decades after their first year in
Tort Law class, it is there is no duty to rescue. The final episode of Seinfeld almost
got this wrong where the whole gang was put in jail for their failure to rescue. The
writers were smart enough to say that a criminal statute provided that affirmative
duty, not tort law. But, the basic tort rule that there is no duty to rescue, like so
many tort rules, has its exceptions. Exceptions that permeate the basic rule almost
eviscerate it in some circumstances. The major exception to the no duty to rescue
rule is based on a “special relationship” between the defendant and injured person
or the defendant and the person who caused an injury.
The special relationship rules were placed in specific “black letter” examples under
the ALI’s Second Restatement of Torts. Some directly dealt with the relationship
between a defendant and an injured party, for example, a hotel has affirmative duty
to rescue and help a guest. A hotel can be liable if a guest is ill and the hotel fails to
act, even though the hotel had nothing to do with causing that illness. As I have
indicated, special relationships can also arise because of the relationship between a
defendant and a person who has committed a wrong. For example, those who
transport prisoners must do so carefully; otherwise a defendant municipality, or
private entity can be subject to liability for an act committed by a criminal who
escapes and harms someone.
The criminal did the wrongdoing, but the
“transporter” has an affirmative duty to protect people from the criminal’s malicious
acts.
The new Restatement (Third) of Torts: Liability for Physical and Emotional Harm,
has engaged in a subtle but dramatic change with respect to creating duties based
on special relationships. While some specific examples are spelled out, the new
Restatement leaves the issue of when special relationships should be imposed by
tort law open-ended so courts can create new special relationships and affirmative
duties. Remember, that crises are a major force to expand tort law. That occurred
when some courts created absolute liability when they were overwhelmed with
thousands of asbestos cases. Returning to the example of religious institutions,
without guidelines, a court might be tempted to hold that a church has a duty in
tort law to rescue a member from his own bad choices. A court could also be
tempted to hold a church responsible for the tortuous act of a member, especially if
it is a headline grabbing incident.
Extending liability into either of these areas once again confronts religious or
church autonomy. A church is not a hotel or an institution whose business is akin
to transporting prisoners. A church cannot control what a member does and should
have no obligation to do so in tort law. That would be overkill. When religious
institutions were immune from suit, tort law was too restrictive. But, overkill of
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liability can occur against religious institutions if courts make analogies between
private enterprises and religious institutions.
Conclusion
The end of immunities and the uncertainty of rules evolving about duties of
religious institutions mirror forces at work throughout American tort law. Forces
that shield plaintiffs may become outdated when the reasons for them, often
economics, no longer exist. These forces must and should be examined and
reexamined as they have been with respect to eliminating the contributory
negligence defense and immunities that once permeated the tort system. On the
other hand, forces that result in overkill are often born out of crises that appear to
demand that tort law is a necessary guardian to prevent future harms. Crises may
be appropriate to impose liability in select circumstances, but broad changes in tort
rules because of such crises can harm society and its people. The same is true when
courts attempt to use tort law as a substitute for regulation that belongs in the
legislature and executive branches of government. Good products can be kept out
off the market, doctors can leave high risk practices and religious institutions can
be compromised in their work.
While the presence or absence of insurability has been a force to expand or narrow
tort law, that force should not be the sole determinant of tort law duties.
We are fortunate that throughout our history most, but not all, judges have used
their power to self correct both overly restrictive tort rules and overkill.
Fortunately, in our system of government, judges are not the sole oracle for
determining tort law duties. Legislatures have and should intervene where there
has been too much restraint, as legislatures did a long time ago with wrongful death
statutes, or to prevent overkill, as legislatures have done in some situations with
tort reform.
I hope that tort law will remain organic, have the ability to change and grow, but
also that the principal forces of tort law will be recognized, and restrained when
appropriate, so that both courts make determinations that are wise, thoughtful and
follow common sense.
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