Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 10. Damages
The history of accident law in the twentieth and twenty-first centuries is the story
of dynamic interaction between systemic reformers, on the one hand, and interest
groups, on the other. Beginning a century ago, we see a series of attempts to bring
order and bureaucratic rationality to the tangled skein of the common law.
Workmen’s compensation was the first such systematic effort at reform. It was also
far and away the most important effort, though it was followed by further reform
proposals for automobile accidents as well as niche programs for childhood
vaccines, black lung, and nuclear disasters.
Across the middle two-thirds of the twentieth century, however, interest groups
from at least two sides eroded the value of the rationalizing reforms. On one side,
employers’ lobbies systematically destroyed the value of workmen’s compensation
benefits. Only in the 1970s would legislative readjustment of benefit rates and the
indexing of benefit rates for inflation solve what by then had become an acute crisis.
From the other side—and often at precisely the same time—trial lawyers worked to
rehabilitate the common law and the courts in the modern state and to increase tort
liability by leaps and bounds.
Witt, Political Economy of Pain, supra. Reforms such as workers’ compensation statutes and
social security seem to have fostered a new way of thinking about harms and injuries that legal
scholar Lawrence Friedman has memorably called “total justice”: a social sentiment that the legal
system ought to annul injuries. LAWRENCE M. FRIEDMAN, TOTAL JUSTICE (1994). These social
sentiments, in turn, allowed plaintiffs’ lawyers to transform pain and suffering from a sleepy
corner of the law into one of the most hotly controversial areas of American legal practice.
Significantly, the twentieth-century transformation in pain and suffering damages took
place largely out of sight. There were few legislative debates, no landmark judicial decisions.
And partly as a result, the growth of pain and suffering damages produced a backlash in the last
quarter of the twentieth century, one that helped fuel the so-called tort reform movement, which
has aimed for nearly forty years now to roll back the expansions of tort liability and damages that
took place in the middle third of the twentieth century. We will return to the efforts of the tort
reform movement later on in this section. But for now, consider the following case, which came
after the rise of modern pain and suffering damages was largely complete:
McDougald v. Garber, 73 N.Y.2d 246 (1989)
WACHTLER, C.J.
This appeal raises fundamental questions about the nature and role of nonpecuniary
damages in personal injury litigation. By nonpecuniary damages, we mean those damages
awarded to compensate an injured person for the physical and emotional consequences of the
injury, such as pain and suffering and the loss of the ability to engage in certain activities.
Pecuniary damages, on the other hand, compensate the victim for the economic consequences of
the injury, such as medical expenses, lost earnings and the cost of custodial care.
626