‘Tort Reform’ Hysteria

Thursday, November 18, 2010

Page 7

IN MY OPINION (Column)

‘Tort Reform’ Hysteria

BY GERT K. HIRSCHBERG

(The writer is a retired trial lawyer, an American Board of Trial Advocates member since 1978 and a former professor of torts at five California law schools. He counts 4,000 of his former students among California’s lawyers and judges. He was presiding referee of the Disciplinary Board, later called the State Bar Court. He is a former member of the State Bar Board of Governors—1980 to 1983—and the Judicial Council of California.)

The hysteria engendered by the term ‘tort reform’ so effectively used in election campaigning, mostly by people who do not even know the meaning of the word “tort,” is totally eclipsed by the greatness of California’s former Chief Justice Roger Traynor, and what he has accomplished. It is no disrespect to any of his successors, or to any chief justice, state or U.S., to acclaim Traynor as perhaps the greatest chief justice in the history of the republic.

For years our jurisprudence has struggled with the party injured by a defective or negligently manufactured product when that party had not been in direct contact with the manufacturer and was thus a remote party. In the midst of the industrial revolution, a court ruled that if the injured party was allowed to recover, it would open the doors to the most absurd and outrageous consequences to which the court could see no limit. It would create an infinity of actions. See Winterbottom v. Wright, (1842) 152 Eng Rep. 42.

The road to recovery was indeed a rocky road, especially where the manufacturer’s conduct could not have proven to be negligent. The manufacturer whose negligence was proven was found liable by another great justice, but of New York’s highest court, Benjamin Cardozo, in MacPherson v. Buick Motor Co., (1916) 217 N.Y. 382.

But the struggle to find liability in all other cases found the road tortuous with such obstacles as notice and intricacies of contract law. Then, along came Roger Traynor in 1944, in a case which firmly established liability in an exploding bottle case, based upon res ipsa loquitur, Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453. He wrote a concucurring opinion for all the world to see, which laid the groundwork for strict liability.

Negligence should not be a requirement. The whole world should notice though. Not a single state had adopted the doctrine of strict liability, Traynor gave the signal for everyone to follow. He wrote in 1944:

“I concur in the judgment, but I believe the manufacturer’s negligence should no longer be singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my opinion it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings…. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.”

Note that Traynor did not establish new law. He could not. He was only one of seven. But he proposed new law and did so convincingly. This was 1944. This was the year of Hitler’s war machine, the Tojo bellicosity, and at home, the draft and the Big Bands. Not one state had allowed recovery for defective products. This justice’s prophesy and suggestions appealed to the logic and the conscience of the nation and its sense of justice.

Hence, in 1963, as a justice of California’s supreme court, but before he became its chief justice, Traynor startled the world, not just California, by declaring and decreeing strict liability in favor of parties injured by defective products. Prior restrictions of privity and notice were by-passed in a spectacular manner. The case was Greenman v. Yuba Products, Inc., 59 Cal. 2d 57. It was soon followed by every state. In the words of William L. Prosser, dean of U.C. Berkeley’s law school, the citadel had fallen.

This doctrine, which Traynor alone had suggested in 1944, now became the predominant rule in the world. No wonder that in his obituary, the New York Times noted that he was one of the greatest talents never to sit on the U.S. Supreme Court.

As the son of poor Irish immigrants, Roger Traynor, born in Utah, received all his training at U.C. Berkeley’s law school, where he was a student, editor-in-chief of the law review, and then a teacher. An illustrious, but short career was abruptly terminated when on July 31, 1940, then-Gov. Culbert Olson nominated Traynor to the California Supreme Court. When he was promptly confirmed by the qualifications committee. One wonders whether in today’s climate, at least on a national state, he could have, or would have, received such muster.

Traynor’s style and reasoning were reflected in his admission and membership in the American Academy of Arts and Sciences—a rare honor for a sitting judge. He was respected, but not labeled a liberal or a conservative. Eloquent tributes in the California Law Review in July 1983 came from Judge Henry Friendly and Chief Justice Warren Burger.

The space allotted to this column cannot possibly include groundbreaking cases involving intentional infliction of emotional distress, interracial marriage, governmental immunity, no-fault divorce, etc. It would be possible to structure an entire law course on the contributions of this great jurist.

During his tenure, Traynor authored more than 900 opinions, there is just a myriad of contributions to the jurisprudence of this state and this nation.