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

Witt & Tani, TCPI 10. Damages
disabilities to make hedonic adjustments to their conditions.” Samuel R. Bagenstos & Margo
Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 VAND. L. REV. 745, 750
(2007); see also Anne Bloom with Paul Steven Miller, Blindsight: How We See Disabilities in
Tort Litigation, 86 WASH. L. REV. 709, 731-37 (2011) (describing tort law’s influence on
perceptions of disability). Might the damages phase of tort litigation present an opportunity to re-
“frame” disability, to borrow Professor Elizabeth Emens’s phrase, encouraging more respectful
treatment of disabled people and a more realistic and positive understanding of what it means to
be disabled? Elizabeth A. Emens, Framing Disability, 2012 U. ILL. L. REV. 1381 (2012). Does it
matter that this particular re-framing seems to involve taking money away from people with
disabilities?
Doubts have surfaced in the psychology literature, however, about the extent to which
Brickman’s study serves as evidence of hedonic adaptation. A 2006 article pointed out that the
Brickman study actually reveals modest but significant differences between the happiness levels
of persons with paraplegia and persons without. See Ed Diener et al., Beyond the Hedonic
Treadmill: Revising the Adaptation Theory of Well-Being, 61 AM. PSYCHOL. 305 (2006).
Similarly, newer studies of persons with paraplegia and other groups with disabilities
demonstrated that, although these groups are not as unhappy as typical observers seem to expect,
disability does have a significant negative impact on their happiness levels. See Richard E. Lucas,
Adaptation and the Set-Point Model of Subjective Well-Being: Does Happiness Change after
Major Life Events?, 16 CURRENT DIRECTIONS IN PSYCH. SCI. 75 (2007); see also Andrew J.
Oswald & Nattavudh Powdthavee, Does Happiness Adapt?: A Longitudinal Study with
Implications for Economists and Judges, 92 J. PUB. ECON. 1061 (2008) (finding that hedonic
adaptation to disability, while significant, is partial: 30 to 50 percent rather than 100 percent).
Moreover, just because a person can adapt to disability and live a happy, meaningful
life—this does not mean that a particular plaintiff will, or that the plaintiff has not experienced a
kind of loss that extends beyond medical bills and lost income. If tort law were to disallow
damages for loss of enjoyment of life, would it both undercompensate injured plaintiffs and
under-deter actors in the defendant’s position? As writer s. e. smith puts it, in a piece on the
connection between environmental toxins and disability (including her own), “There’s nothing
wrong with being disabled. But there can be something wrong with the way you become disabled,
and to pretend otherwise is to perpetuate injustice.” How might tort law insist, as smith does, that
“[d]isability is not wrong or tragic or bad,” while also, recognizing that sometimes it is a symptom
of a grave injustice”? s. e. smith, When Disability Is a Toxic Legacy, CATAPULT (Apr. 23, 2019)
available at https://perma.cc/4QWP-XAD8. One idea, advanced by legal scholar Anne Bloom, is
for tort law to focus less on restoring the plaintiff to a pre-tort level of well-being, which requires
constantly looking back to an idealized iteration of the plaintiff’s body, and more on holding the
defendant accountable, both for the losses and suffering the defendant’s actions have caused and
the difficulties that the plaintiff is likely to encounter going forward in the pursuit of a meaningful
life. Bloom also raises the possibility of damages for “unjust enrichment”—forcing a defendant
to acknowledge and disgorge any benefit gained from the act of disabling others. Anne Bloom
with Paul Steven Miller, Blindsight: How We See Disabilities in Tort Litigation, 86 WASH. L.
REV. 709 (2011); see also Sagit Mor, The Meaning of Injury: A Disability Perspective, in INJURY
AND INJUSTICE: THE CULTURAL POLITICS OF HARM AND REDRESS 27 (Anne Bloom, David M.
Engel, & Michael McCann, eds., 2018) (discussing ways to compensate plaintiffs for disabling
harms and promote human resilience without reinforcing a tragic view of disability).
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