Traffic Violence: The Biggest Mass Tort

Warning: this post starts with a lesson in legalese.

A “tort” is a wrongful act, whether intentional, reckless, or negligent, that is remediable through a civil lawsuit (apart from whether the act constitutes a crime or regulatory violation). “Mass tort” litigation results when a product harms many people, creating a public health crisis, triggering a regulatory response from government, and mass litigation by victims. Asbestos use gave rise to what most consider the biggest mass tort ever, involving more than a million claims of death and injury.

But the harm of asbestos pales in comparison to that caused by high-speed personal motor travel. Motoring has caused more than 3.5 million fatalities and tens of millions of serious injuries over the last century, and continues to kill more than 35,000 and seriously injure hundreds of thousands each year in the US alone.

By the numbers, motoring clearly is the biggest mass tort ever. But this fact goes unrecognized to the extent we interpret traffic crashes as discrete “accidents” arising from specific individuals’ “mistakes,” rather than as a pattern of carnage inherent in our car-based transport system. On this point and others, there’s a lot street justice advocates can learn from asbestos litigation. (Disclosure: I have extensive experience defending asbestos claims.)

Asbestos is a fire-repellent, fibrous mineral that was ubiquitous in consumer and industrial products, from children’s crayons to nuclear submarines, into the 1970s. A hundred years ago, it was known that asbestos exposure could cause lung disease. But manufacturers largely ignored the risks, insisting that only heavy exposures in industrial settings were harmful, and that even industrial exposures could be rendered safe with simple precautions such as hosing down dusty workplaces. In other words, asbestos was perfectly safe as long as it was “used as directed.” Because of the long latency period between asbestos exposure and manifestation of disease, the manufacturers’ claims went largely unchallenged, and for decades asbestos use was barely regulated.

Then in the 1960s, solid epidemiological evidence emerged to prove that asbestos exposure caused a variety of lung cancers. Trade unions and the burgeoning environmental movement pushed for the elimination of asbestos use, while manufacturers pushed back, arguing that lives would be lost in fires if fireproofing substitutes inferior to asbestos were mandated.

But the manufacturers lost. In 1972, the federal government responded to the public health crisis by enacting emergency regulations setting maximum asbestos exposure levels. With growing public awareness, victims of asbestos exposure began suing manufacturers. Courts quickly recognized that the existing tort litigation rules could not deliver efficient justice to the growing mass of asbestos claimants, and fashioned a new set of rules. Mass tort litigation was born.

Not surprisingly, the companies that used asbestos found the necessities posed by a strict regulatory environment and a crushing liability burden to be the “mother of invention,” and came up with adequate substitutes.  Today asbestos is still used only in a handful of applications where its utility outweighs its highly-regulated risks.  To the extent manufacturers cause asbestos exposure beyond these restrictions, a jury is entitled to find them strictly liable for all injuries resulting from the exposure.

We should be taking the same approach with the biggest mass tort of all — private motoring. The federal government should respond to the public health crisis by setting high minimum standards for driver training, licensure and periodic re-certification. Manufacturers should be required to add external airbags, crossover mirrors and other equipment proven to save lives. Drivers who insist on city driving should be required to carry more liability insurance given the higher risks associated with city driving. Courts should adopt streamlined procedures and simplified proofs so motoring victims don’t have to wait years for compensation. And most importantly, juries should be permitted to hold automobile manufacturers strictly liable if their products cause harm when “used as directed” in contexts where their risks outweigh their utility — such as in pedestrian-rich urban environments where alternatives to private motor travel abound.

The arguments against these proposals are easy to anticipate. The very language we use —“accidents” — bespeaks a neutral technology causing harm only when human operators make “mistakes.” But the risks of a technology aren’t properly assessed in a hypothetical world where mistakes aren’t made. To be safe, a product must be designed to avoid the harm of mistakes that foreseeably will be made. That’s why every power saw has a safety guard, and every venetian blind cord has a strangulation warning. And that’s exactly why every automobile should have an exterior airbag, a warning light on the exterior to warn cyclists that the door is about to open, and other reasonable, inexpensive safety features designed to prevent the harm that cars predictably cause each day.

To speak of a “mass tort” on our streets rather than a series of “accidents” is to emphasize the unified system of private motor travel at the root of the problem, and the culpability of the manufacturers that reap billions from that system while foisting the costs on the public. Most importantly, “mass tort” emphasizes the enormity of the problem and the need for a governmentally-imposed, systematic solution. It’s time we started talking about the biggest mass tort ever.

Steve Vaccaro is an attorney with the Law Office of Vaccaro & White.

  • KillMoto

    Technology exists – and is cheap – to fix two related problems:
    “I wasn’t driving when the wreck occurred”
    We need a means of non-repudiation: concrete, irrefutable proof of who was driving at the time of the crime.  For about $10 per car and $1 per license, we can equip licenses with smart chips.  To start and maintain operation of a car, slide your license into the card reader on the dash board and enter your secret PIN.  This is in addition to the ignition key, and does not serve the same purpose.  I can loan you my car, but I’m not going to give you my license and PIN for the day – not if I will be held liable for any damage you do.

    “That [cyclist/jogger/old lady with a walker] came out of nowhere!”
    For about $100 each, cars can be equipped with digital video cameras that film what’s going on both inside the car and out.  When the device senses shock, it saves the last 10 seconds of digital video.  Require these on all cars, and moreover require that what is filmed is open to all parties of a wreck, and anyone with an interest (insurance companies, police, researchers…).  So when someone kills a jogger because they had their face in the glove box while driving, there will be a film record of that negligence.  Other relevant telemetry data (speed, state of brake system, etc.) will be in the public data file too.  This tool helps address non-repudiation too.    

  • Guest

    i live in NYC but got my license in Georgia. Took me 30 minutes from walking in, talking the test on computer and going through a road test on a tiny lot in the middle of the woods. yet NYC with its crazy system of getting a license is still not as safe.

    the video thing, i hear a lot of russian drivers have it. reason being that you will never get an insurance payout without proof of what happened.

  • Daniel Winks

    @c44dc01f8107c1b33104b538f33b734d:disqus  Those are FANTASTIC ideas.  However, the issue is even when clear fault is easily established, killing someone with a motor vehicle is pretty much never prosecuted.  There needs to be a mind-set change in this country (USA) regarding the acceptability of killing someone with a motor vehicle.  Millions of dollars of auto-industry lobby money and propaganda have corrupted people’s minds and now most think that pedestrians/cyclist “had it coming” if they get killed.

    Most people seem to be fine with the rate of murders caused by motor vehicle operators, as any change to prevent said deaths might result (probably will) in traveling by private motor vehicle being more expensive and much slower.  It seems a human life is worth less to most people than 5 or 10 minutes of their time each day.

  • krstrois

    This is such a great series, and just the sort of rigorous information and wide perspective I want when having conversations about this stuff. Thank you, Steve!

  • jrab

    I really like Counselor Vaccaro’s suggestion for taking into account the area in which the motor vehicle is being driven when judging the fault. It seems to me that one big problem that we have as pedestrians on city streets is that drivers act as entitled to use them as they do the highway.

  • good stuff

  • Anonymous

    I very much like the mass tort framing. It captures much better than existing rhetoric the systematic but unintentional form of traffic violence. I definitely plan to file this one away. This column is awesome.

    That said, there is a tension between this type of argument and many made on this site. The mass torts/products liability framing places responsibility on automobile manufacturers on the position that most crashes are indeed accidents on the part of the individuals involved. Drivers aren’t held to be bad actors, except in extreme cases. To argue that most crashes involve individual negligence or liability would undermine the mass tort argument. 

    Personally, I think the mass torts framework is both more accurate descriptively and more appealing morally. But I wonder if everyone here agrees. 

  • Lyle,

    Thanks for you insightful comments.  There is a tension, but it is mainly theoretical.  For example, If a speeding driver strikes and injures a pedestrian crossing mid-block with the crash bars installed on the front end of an SUV, and it is shown that the injuries were more severe because of the crash bars, then the driver, the pedestrian and the vehicle manufacturer should each be allocated a share of the fault.  OTOH, if a driver negligently fails to discern a cyclist, and sends him or her to the ground with a relatively gentle sideswipe, it’s difficult to see how the injury was cased by a defect in the vehicle; fault would lie entirely with the participants in the crash.

    The case against motor vehicles as defective and dangerous has to be rooted in the facts of a particular case.  It is not that “cars go too fast,” but that they fail to incorporate reasonable measures designed to avoid the harms that commonly result when they are used as intended. 

  • Brad Aaron

    The last two paragraphs of this column are suitable for framing.

    This is much the same argument made by Ralph Nader in “Unsafe At Any Speed,” albeit at a time when cars were more dangerous to their operators than they are today.

    To pivot on what @LyleLanley:disqus said, I wonder if the mass tort approach could hold without casting drivers as unwitting victims, much as they are already.

  • Ralph Nader 2.0

    Outstanding. I’m pretty certain that if this state of affairs is ever going to change, the change is going to be wrought by activist-attorneys using legal tools. Keep up the great work, Steve. 

  • Joe R.

    Two things:

    1) Back at the turn of the 20th century, using asbestos may have been justified even if it was known to cause harm for two reasons. One, suitable substitutes didn’t exist. Two, the long latency between exposure and disease, coupled with the short life expectancy at the time, meant the majority of those exposed wouldn’t live long enough to get lung cancer anyway.

    2) There is another mass tort staring us in the face besides the one suggested in this article-namely one against the fossil fuel industry. Burning fossil fuels has caused at least an order of magnitude more preventable deaths than motor vehicle use. And in both cases,  viable substitutes exist except both industries have propagated a misinformation campaign  making people think civilization as we know it would fall apart if we stopping using fossil fuels and greatly decreased motor vehicle use.

    I would love to see a lawyer or lawyers brave enough to see the proposed class action lawsuit to its logical conclusion. It might be the same as what happened with asbestos-namely the burden of using road motor vehicles will be so great that in nearly all circumstances it will be less costly to opt for the substitutes-namely rail transport, cycling, or walking. In fact, it could be argued that motor vehicles themselves aren’t the problem, but rather the idea that everyone should own one and have a driver’s license. Because of this ill-conceived notion, we’ve necessarily dumbed down the process, with predictable results.

  • Joe R.

    @twitter-22824076:disqus “The case against motor vehicles as defective and dangerous has to be rooted in the facts of a particular case.  It is not that “cars go too fast,” but that they fail to incorporate reasonable measures designed to avoid the harms that commonly result when they are used as intended.”

    Actually, some of this lawsuit can indeed be framed as “cars go too fast”. Not that the top speeds are too high, but rather the acceleration rates are too high. No rational driving cycle requires you to go from 0 to 60 mph in under about 20 seconds, and yet motor vehicles exist which can do 0 to 60 in under 4 seconds. We even sell cars based on their power. A suitable lawsuit might simply require a fix as a remedy-namely all new and existing cars must be modified so that they’re incapable of getting to 60 mph in less than 20 seconds. Moreover, this fix can’t be a simply limitation of power because that would still imply vehicles could go from 0 to 30 mph in only about 5 seconds, which is way too fast for urban environments. Rather, you need to limit the acceleration rate to 3 mph/sec or less at all speeds. Or perhaps if we buy the questionable notion that you might really need to get to 60 mph in under 20 seconds for safe highway merging (it is questionable because heavy vehicles somehow manage to safely merge despite needing two to five times as long to reach highway speeds), then perhaps we can just have the acceleration rate limiter kick in on local streets. Regardless, motor vehicles shouldn’t be able to reach speeds incompatible with urban environments in the space in between two blocks. In fact, if we go the urban acceleration rate limiter approach, probably 1 mph/sec is plenty. Let drivers take half a minute to reach the NYC speed limit. Chances are good with the number of red lights/stop signs most cars will never get much above the speed of a fast cyclist.

  • Thanks for your comments, Joe.  I agree that acceleration rates should be subject to evaluation to determine whether the risks outweigh the utility. 

    And the long latency between exposure and disease with asbestos is definitely a factor in why the public and institutional reaction was so strong once the relationship between exposure and disease was revealed.  We’ve had a long, gradual opportunity to get used to traffic violence, and there’s little that is latent in its effects. 

  • Kevin Giant

    One thing that asbestos and cars have in common is their lethal cancer-causing poisons.  Car drivers kill far more people with the lethal poisons in car pollution than they kill people by hitting and crushing them.

    For example, Toronto’s Medical Officer of Health, Dr. David McKeown, has produced an official Report that concludes that in Toronto (population 2.5 million):

    Car drivers poison and kill 440 people each year.
    Car drivers poison and injure 1,700 people each year so seriously they have to be hospitalized.

    Children and the elderly are particularly vulnerable to being poisoned by car drivers.  Other findings are that in this one city alone:

    Children experience 1,200 acute bronchitis episodes every year due to being poisoned by car drivers.

    Children experience 68,000 asthma symptom days due to being poisoned by car drivers.

    The full Report may be found on the City’s official website at:

    http://www.toronto.ca/health/hphe/pdf/air_pollution_burden.pdf

    One of the people poisoned and killed by car drivers was my father.  Needles to say, by killing my father, those people have incurred my grave displeasure.

  • Raynanspats

    Excellent info.
      Very clear message 4 the average citizen. thank u.

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