Of Hazards, Risks and Culprits

By Frank Trippett

Lightning struck two young men visiting Sequoia National Park in 1975, killing one and damaging the other's nervous system. The tragedy would seem to be an ugly triumph of miscreant weather and bad luck, yet a pending lawsuit against the National Park Service demands "no less than a million" for the disabled survivor and $1,606,645 for his late companion's family. The plaintiffs' argument: the park management negligently failed to warn the victims against standing where lightning might strike. The most amazing thing about the plaintiffs' position is that it is not at all unusual.

Today any mishap, no matter how fluky, can wind up in court. Take the case of the woman who collected $50,000 damages from San Francisco with the contention that her fall against a pole in a runaway cable car transformed her into a nymphomaniac. Or the pedestrian who, as she crossed Chicago's Sears Tower plaza, suffered a broken jaw when the wind toppled her against a guard rail. She recently filed a $250,000 suit against the architects and manager of the building. Her argument: the structure's design increased wind velocities in the area; moreover, the management was negligent in failing, in a period of hazardous winds, to prohibit her from crossing the plaza.

The attitude that gave rise to these suits is showing itself more and more wherever Americans venture risks. That means everywhere because the world remains strewn with invisible banana peels and eldritch hazards. "People now feel they have the right to legal redress if anyone or anything imposes upon them and interferes with their ability to enjoy life," says Chicago Lawyer Philip Corboy, whose firm is prosecuting the case against Sears. This "I'm entitled" spirit is spreading so that it is time to wonder: Is there any limit at all to the world's liability for an individual's risk? Can there be a really risk-free society?

Humans, true, have tried to evade or minimize risk ever since man first ducked into a cave to elude the sabertooth. Ancient Babylonia invented marine insurance, but notoriously litigious Americans have always wanted more than mere insurance. As soon as the automobile became popular, the motoring public began to develop what San Francisco Liability Lawyer Scott Conley calls the belief that "there must be a pot of gold at the end of every whiplash." Now the old litigious spirit has become almost a reflex. Malpractice suits against doctors are epidemic. The volume of damage suits, doubling in some jurisdictions in the past ten to 15 years, has been increasing five times as fast as the population in bellwether California.

It is the avant-garde of the litigant spirit that is most unsettling. If one can blame the Government for a lightning strike and a corporation for a wind gust, it is easy to imagine tracking almost any mishap to some distant agency. Should owners of property on which there is a public passageway prohibit barefoot pedestrians or else assume liability for every stubbed toe? Must the manufacturer of a knife clearly label it as dangerous or else be vulnerable to damages for a kitchen worker's sliced finger? Could the designer of a dam be blamed if a voluntary swimmer drowned in a lake thus created?

The sue-if-possible attitude seems oddest when it crops up among those who freely--and deliberately--take risks. Surely the thrill of skiing is provided partly by the possibility of a spill.

Just as certainly, the wilderness camper who beds down in grizzly-bear country is not expecting wall-to-wall safety. Yet skiers who fall have tried to hold slope owners liable for their injuries (a verdict awarding $1.5 million to a Vermont skier was upheld by the State Supreme Court), and outdoorsmen who camp in the vicinity of Yellowstone National Park's bears are, when attacked, trying to lay the rap on the Park Service. A camper received leg wounds from one of the bears against which the park constantly warns with signs, brochures and general publicity; the victim argued that the Park Service was negligent not to warn more sternly, more thoroughly, more precisely. The Government won that case, but an $87,417 judgment to another victim, who had been illegally camping in the park, was set aside only on appeal.

The increased tendency of injured parties to sue somebody--anybody--has several roots. One is a heightened public awareness that government agencies, private companies and individuals are vulnerable to lawsuits, and that juries too often are overly generous. The publicity given to big awards awakens greed. Says Colorado State Senator Ray Kogovsek: "People read about these enormous settlements and they think, 'If this person got so much, maybe I have a right to that much too.' " Years of activist consumerism have also made people more alert to possible claims against institutional America. The act of suing, in short, has become less personal, and when the defendant is an institution, people do not suppose anybody is getting hurt. But as high insurance rates and doctors' bills attest, a damage payment that hurts nobody is as rare as a truly free lunch.

The modern welfare state is a monument to man's flight from risk. Yet even its considerable list of assurances--against unemployment, disability, blindness, lost bank funds, starvation--amounts to only a fraction of the protections available to Americans. Courts in California have held not only barkeeps but party hosts liable for injuries caused by drunken customers or guests. In the light of an abundance of other social cautions, one can almost imagine that the Oklahoma legislator was serious in proposing the bill, happily defeated last winter, that would have required a woman to obtain a written agreement as a legal precondition for sexual intercourse.

In both its public and private spheres, the nation is rightly acting to reduce many of the risks that people have no choice but to hazard--on the road, in factories, in the natural environment, even in the field of speculative finance. But plainly, the spreading eagerness to avoid all risks and to find culprits for all injuries is going too far. The attitude rests on a refusal to to accept fate or personal folly as the real source of many of life's bumps. It is as if society is beset by the Utopian dream of a world that is free, if not of risks, then of all individual responsibility for those taken and lost.

The sort of world in which some vague higher authority is expected to prohibit individuals from going any place where they might get blown by the wind or struck by lightning would be a world bereft of true freedom. If it could be contrived, such a world would be fraught with severe risks for the human spirit. For, as Psychologist William James said at the turn of the century: "It is only by risking our persons from one hour to another that we live at all."

--Frank Trippett

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