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.