Sue-for-anything justice erodes freedom

Sooner or later, Americans will realize that sue-for-anything justice erodes their freedom. First it was diving boards that disappeared, then seesaws. Businesses stopped giving references, and doctors started quitting.

Like a lake receding from its shores, the area of our freedom continues to diminish with each new theory of liability. The latest casualty is volunteerism. Last month, a jury in Milwaukee found the Catholic Archdiocese liable because a volunteer for a Catholic lay organization, driving her own car, ran a red light and caused an accident while delivering a statue of the Virgin Mary to an invalid. Although the church does not direct the activities of this group, called the Legion of Mary, its meetings are held on church property. The jury decided the Archdiocese should pay $17 million to the paralyzed victim, an 82-year-old semi-retired barber.

The chill on volunteer activities will be immediate. Volunteers often drive here and there for their charities. Religious institutions are particularly vulnerable, because they allow their premises to be used for a wide range of volunteer activities, including the Boy Scouts and Alcoholics Anonymous. What are the contours of liability? Why take the risk? Tort reform doesn't offer a solution to the steady expansion of liability. Reformers chastize courts for tolerating frivolous cases. But this case doesn't look frivolous to a judge. The victim is paralyzed. Employers are liable when employees cause accidents when driving on the job, so why shouldn't charities be liable for volunteers? Charities can carry insurance too. But this claim should be dismissed, even if it is not frivolous, because it implicates important issues of public policy. Just allowing the claim to go to the jury will change the behavior of charitable organizations around the country.

Should charities be accountable for the driving of their volunteers? Charities, unlike business, don't typically hire and fire their volunteers. Charities aren't organized to maximize profits -- they're trying to help society. Charities open their arms -- come in and help make life better for our community. How many charities carry $17 million of insurance? And will $17 million be enough for the next accident? Who is making the policy choice of whether charities should be liable for their volunteers' driving skills? No one. The jury is asked only to render a verdict between the parties. Juries don't have the authority to set policy. Every jury is different. Nine out of 10 juries could decide that the church is not liable. But when every case is decided on an ad hoc basis, policy becomes the lowest common denominator.

What's missing are rulings of law: Should charities be responsible in these circumstances? People need to know. Where, as here, a claim may affect people not in the courtroom, the judge must make a legal ruling setting forth whether the claim can proceed. Judges today may not inspire great confidence, but at least their written rulings contain legal principle which can be appealed, or overturned by statute. Today, with judges sitting on their hands, the claimant ends up making legal policy by default.

The harm is not that crazy verdicts will sink our economy. Extreme verdicts are relatively rare, and usually reduced on appeal. The harm is to the fabric of freedom. People no longer feel comfortable doing what's right and good. Legal fear now infects social dealings throughout society. This fear also has a flipside, an opportunity for exploitation when something goes wrong: Maybe we can get rich too. Cultural bonds begin to strain. The values that hold our society together, exemplified best in the spirit of volunteerism, are replaced by distrust and defensiveness. Want to take your child's class on a field trip? Restoring trust in society requires a shift in the goals of justice, which is supposed to provide the foundation of freedom, not just a mechanism to resolve disputes. A system that tolerates wildly disparate results from one jury to the next promotes fear, not freedom. For Americans to feel free in daily choices, judges and legislatures must reclaim the responsibility to set the boundaries who can sue for what. That's what it means to live under the rule of law.

Philip K. Howard is chairman of Common Good, a bipartisan legal reform coalition.