This article is from TOS Vol. 2, No. 4. The full contents of the issue are listed here.
Instrumentalism and the Disintegration
of American Tort Law
On February 20, 2003, the manager of the rock band Great White decided that the occasion of the band’s concert at a small Rhode Island nightclub called for something special. Lacking authorization from the club to do so, he lit a series of pyrotechnics on the stage while the band played. Tragically, the ensuing conflagration killed one hundred people and seriously burned or injured almost two hundred others.
In June 2003, a lawsuit was filed naming the band manager as a defendant. It also named as defendants the owners of the nightclub, who had installed on the interior of the building’s walls highly flammable soundproofing material that allegedly caused the fire to spread more quickly than it might have otherwise; Anheuser-Busch, for selling beer at the club and possibly promoting the event; the town of Warwick, Rhode Island, for its alleged role in the tragedy; several town officials, for theirs; and many others—twenty-seven defendants in total.
That was not all. In August 2004, the suit was amended to include an additional twenty-six defendants, bringing the total to fifty-three. Among the new defendants were nearby retail establishments that had sold tickets to the event, the band’s record company, the manufacturer of the pyrotechnics and its parent company, nearby radio stations that had mentioned the concert on the air, a cameraman who was present at the event as well as his television station and its parent company, and the company that owned the bus the band had used to get to the event. The amended lawsuit posited theories of why each defendant was responsible for the death and destruction caused by the fire.
Nor was that all. Other plaintiffs filed additional lawsuits blaming the fire on still others. The largest was filed on behalf of the families of eighty of the deceased and more than one hundred injured plaintiffs. According to the New York Times, that lawsuit—which includes all the defendants named in all the lawsuits to date—names ninety-three defendants.1
It would be an error to dismiss this as an “extreme” case that is not indicative of the reality of litigation in America today. Although the high number of defendants is indeed out of the ordinary, this is simply a function of the extent of damages. Had just one person been killed in the blaze, perhaps just one or two “theories” of liability would have been fabricated in connection with just one or two defendants in addition to the band manager. One hundred deaths produced a predictable torrent of creative legal theorizing, resulting in ninety-three defendants. In today’s litigious environment, this is business as usual.
No suggestion has been made in press accounts of the case that the lawyers involved will be sanctioned for filing suit against so many defendants who would appear to have nothing to do with what happened. As one of the defense attorneys stated in an interview: “We understand what is happening here. The plaintiffs’ lawyers are trying to create as deep of a pool as they can to compensate these people.”2 Indeed, one would search in vain for serious criticism of these tactics from the presiding judges, or in bar publications or law journals. Those experienced in litigation matters barely raised an eyebrow. Everyone understands.
The law that is the basis of these claims of liability against these ninety-three defendants is called “tort law,” and, as this case indicates, tort law in America has become a sprawling accretion of purported responsibility, exposing nearly anyone to liability for nearly anything.
How did American law descend to this level of non-objectivity? To answer this question, we must identify the origin of tort law, observe the kind of justice it was originally intended to serve, and trace its disintegration from there. As we will see, the modern law of torts was born in the “classical” period of American law, an era of respect for individualism and reason; it was killed at the close of that era by lethal ideas that entered American law in the early decades of the 20th century.
The story begins in the latter half of the 19th century. . . .