6 State Constitutions and American Tort Law-Witt adopted no fewer than 146 constitutions. Some note that as compared to the veritable orgy of constitutional drafting and redrafting in the nineteenth century, state constitution-making has slowed in the twentieth century (e.g Henretta 1991). And yet even in the twentieth century alone, eighteen states ratified entirely new constitutions. Ten states did so after 1960(Tarr 1991; Grad 1968). Taking just the seven years from 1986 to 1993, there were no fewer than fifty-two amendments to state declarations of rights alone(Tarr 1998, 13) Given the length and detail of the american state constitutions, it should hardly be surprising that they have come to have significant bearing on modern debates over tort reform. Beginning in the mid-1970s, liability insurers, product manufacturers, and other repeat-play tort defendants began a concerted effort to enact laws that would limit tort liability that they contended had run amok. Typical tort reform legislation included statutory limitations on punitive damages awards(25 states)and statutory caps on damages for pain and suffering(23 states). Other reforms included limitations on plaintiffs' attorneys' fees; statutes of repose that protect products manufacturers and other potential defendants from suits for injuries caused by older products; and limitations on the common law joint- and-several liability rule, which often allowed a plaintiff to recover the full extent of her damages from any one defendant. In all, some 48 state legislatures enacted tort reform legislation of one sort or another(franklin & Rabin2001,788) Even as state tort reform efforts picked up, however, a parallel development got underway in state constitutional law. Plaintiffs responded to state tort reform by contending(among other things) that statutes that capped punitive damages, limited pain and suffering damages, and imposed new limitations periods on tort suits, violated provisions in state constitutions. As a result. for almost two decades now state courts have been asked to decide whether certain reforms in the law of torts are within the power of the state legislature of their state. The results of such constitutional challenges to tort reform statutes have been mixed. Courts have upheld challenges to tort reform legislation in at least 139 cases decided since the beginning of 1983 Tort Reform Laws Upheld 2001 And yet during the same time period, courts have struck do statutes as violations of state constitutions in at least eighthy-three cases
6 State Constitutions and American Tort Law – Witt adopted no fewer than 146 constitutions. Some note that as compared to the veritable orgy of constitutional drafting and redrafting in the nineteenth century, state constitution-making has slowed in the twentieth century (e.g., Henretta 1991). And yet even in the twentieth century alone, eighteen states ratified entirely new constitutions. Ten states did so after 1960 (Tarr 1991; Grad 1968). Taking just the seven years from 1986 to 1993, there were no fewer than fifty-two amendments to state declarations of rights alone (Tarr 1998, 13). Given the length and detail of the American state constitutions, it should hardly be surprising that they have come to have significant bearing on modern debates over tort reform. Beginning in the mid-1970s, liability insurers, product manufacturers, and other repeat-play tort defendants began a concerted effort to enact laws that would limit tort liability that they contended had run amok. Typical tort reform legislation included statutory limitations on punitive damages awards (25 states) and statutory caps on damages for pain and suffering (23 states). Other reforms included limitations on plaintiffs’ attorneys’ fees; statutes of repose that protect products manufacturers and other potential defendants from suits for injuries caused by older products; and limitations on the common law jointand-several liability rule, which often allowed a plaintiff to recover the full extent of her damages from any one defendant. In all, some 48 state legislatures enacted tort reform legislation of one sort or another (Franklin & Rabin 2001, 788). Even as state tort reform efforts picked up, however, a parallel development got underway in state constitutional law. Plaintiffs responded to state tort reform by contending (among other things) that statutes that capped punitive damages, limited pain and suffering damages, and imposed new limitations periods on tort suits, violated provisions in state constitutions. As a result, for almost two decades now state courts have been asked to decide whether certain reforms in the law of torts are within the power of the state legislature of their state. The results of such constitutional challenges to tort reform statutes have been mixed. Courts have upheld challenges to tort reform legislation in at least 139 cases decided since the beginning of 1983 (Tort Reform Laws Upheld 2001). And yet during the same time period, courts have struck down tort reform statutes as violations of state constitutions in at least eighthy-three cases
「2004 State Constitutions and American Tort Law-Witt (Tort Reform Laws Held Unconstitutional 2001) Not surprisingly, these cases have generated considerable attention: praise from plaintiffs'advocates and bitter opposition from defendants interests. And yet what neither side has realized is just how deeply such cases runs in the history of American law I. The Wrongful Death Statutes For much of the first century of tort reform in Congress and American state legislatures, tort reform meant legislation that expanded liability rather than contracted it. The first examples of this liability expanding reform were wrongful death statutes enacted beginning in 1847 At common law, tort actions were often said to expire with the plaintiff,a victim's estate had no survival action against a tortfeasor. nor did the victim's dependents have a wrongful death action against the tortfeasor Malone 1965; Witt 2000). 'After Lord Campbell's Act authorized actions for wrongful death by dependents in Great Britain in 1846, American states quickly followed, enacting statutes that typically provided for the recovery of damages in cases of death"caused by wrongful act, neglect, or default where the act, neglect, or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recove damages. The result was a dramatic expansion in tort liability and a significant redistribution of entitlements from tortfeasors to the families of victims. Where once damages had been generally unavailable in death cases, now tortfeasors confronted the prospect of significant damages And yet what is remarkable about the wrongful death statutes is how little constitutional litigation they generated. As the lead nineteenth-century authority on wrongful death observed,"the constitutionality of the various acts which give a remedy in case of death the enactment of wrongful ss. state wrongful death legislation was nderstood as substituting for rather ng the common law actions(Witt 200 740) An Act Requiring Compensation for Causing Death by Wrongful Act, Neglect, or Default, 847NY Laws chap. 450,$ 1, at 575
[2004] State Constitutions and American Tort Law – Witt 7 3 Several American jurisdictions allowed death actions prior to the enactment of wrongful death legislation Nonetheless, state wrongful death legislation was generally understood as substituting for rather than supplementing the common law actions (Witt 2000, 732-33, 740). 4 An Act Requiring Compensation for Causing Death by Wrongful Act, Neglect, or Default, 1847 N.Y. Laws chap. 450, § 1, at 575. (Tort Reform Laws Held Unconstitutional 2001). Not surprisingly, these cases have generated considerable attention: praise from plaintiffs’ advocates and bitter opposition from defendants’ interests. And yet what neither side has realized is just how deeply such cases runs in the history of American law. II. The Wrongful Death Statutes For much of the first century of tort reform in Congress and in American state legislatures, tort reform meant legislation that expanded liability rather than contracted it. The first examples of this liabilityexpanding reform were wrongful death statutes enacted beginning in 1847. At common law, tort actions were often said to expire with the plaintiff; a victim’s estate had no survival action against a tortfeasor, nor did the victim’s dependents have a wrongful death action against the tortfeasor (Malone 1965; Witt 2000).3 After Lord Campbell’s Act authorized actions for wrongful death by dependents in Great Britain in 1846, American states quickly followed, enacting statutes that typically provided for the recovery of damages in cases of death “caused by wrongful act, neglect, or default,” where the “act, neglect, or default is such as would (if death had not ensured) have entitled the party injured to maintain an action and recover damages.”4 The result was a dramatic expansion in tort liability and a significant redistribution of entitlements from tortfeasors to the families of victims. Where once damages had been generally unavailable in death cases, now tortfeasors confronted the prospect of significant damages. And yet what is remarkable about the wrongful death statutes is how little constitutional litigation they generated. As the leading nineteenth-century authority on wrongful death observed, “[t]he constitutionality of the various acts which give a remedy in case of death
State Constitutions and American Tort Law-Witt has rarely been questioned(Tiffany 1893, 28). There are therefore virtually no reported mid-nineteenth-century cases recording arguments by defendants that the wrongful death statutes impermissibly reallocated rights from defendants to plaintiffs; the one reported case indicating that such an argument had been made gave the argument such short shrift that defendants no doubt shrank from making it again. At least in part, this may have been because most state wrongful death legislation was general in its application, applying across the board to all tort defendants rather than singling out some class of defendants. But even legislation in the New England states in the 1850s that authorized wrongful death actions only against common carriers produced no reported mid-century cases on the question whether such statutes impermissibly singled out some class of Regular constitutional challenges to state tort legislation began to ppear only after the Civil War in the mid 1870s. In the wrongful death cases, for example, the Georgia Supreme Court in 1874 upheld the constitutionality of the wrongful death provisions of the states employers liability law against a challenge that it impermissibly singled out railroads by applying only to railroad employees. More typical of late nineteenth- century constitutional cases involving wrongful death were challenges to follows. The Georgia Supreme Court responded to the defendants constitutional argument as As to the constitutional competency of the legislature to pass the act, there cannot a shadow of doubt: neither a corporation nor a citizen can have a vested right to do wrong, to take human life intentionally or negligently. To prevent so erious an evil, the General Assembly may compel the wrong-doer, whether private or corporate, to make pecuniary compensation. The act is general; applicable alike to all, and making no odious discriminations against railroads. he legislature might make a reckless destruction of life like this a capital felony on the part of the employees of the road, if it be not one already. And for myself I believe it would, as a preventive, be better to do this than to South-Western R.R. v Paulk, 24 Ga 356(1858) 1853 Conn. Pub. Acts chap. 7488, at 135: 1855 Maine Acts, chap. 161$ 1, at 160: 1840 Mass. Acts, chap. 80, at 224: 1850 N H. Laws, chap 953,$7, at 928: 1855 R I. Acts 1388, at 15:se so An Act Concerning Passenger Carriers, 1840 Mass. Acts chap. 80, at 224(creating a quasi-criminal liability in cases of passengers killed by the negligence or carelessness of common carriers) orgia rr Banking Co. V. Oaks, 52 Ga. 410(1874); see also Ballard v. Mississippi Cotton Oil Co., 34 So. 533(Miss. 1903); Mobile, J. &K.C. RR, 46 So. 360(Miss. 1908): Pensacola Electric Co. v. Soderlind, 53 So. 722(Fla. 1910)
8 State Constitutions and American Tort Law – Witt 5 The Georgia Supreme Court responded to the defendant’s constitutional argument as follows: As to the constitutional competency of the legislature to pass the act, there cannot be a shadow of doubt: neither a corporation nor a citizen can have a vested right to do wrong; to take human life intentionally or negligently. To prevent so serious an evil, the General Assembly may compel the wrong-doer, whether private or corporate, to make pecuniary compensation. The act is general; applicable alike to all, and making no odious discriminations against railroads. The legislature might make a reckless destruction of life like this a capital felony on the part of the employees of the road, if it be not one already. And for myself I believe it would, as a preventive, be better to do this than to treat human life as stock, to be paid for in money. South-Western R.R. v. Paulk, 24 Ga. 356 (1858). 6 1853 Conn. Pub. Acts chap. 74 § 8, at 135; 1855 Maine Acts, chap. 161 § 1, at 160; 1840 Mass. Acts, chap. 80, at 224; 1850 N.H. Laws, chap. 953, § 7, at 928; 1855 R.I. Acts 13 § 8, at 15; see also An Act Concerning Passenger Carriers, 1840 Mass. Acts chap. 80, at 224 (creating a quasi-criminal liability in cases of passengers killed by the negligence or carelessness of common carriers). 7 Georgia RR & Banking Co. V. Oaks, 52 Ga. 410 (1874); see also Ballard v. Mississippi Cotton Oil Co., 34 So. 533 (Miss. 1903); Mobile, J. & K. C. RR, 46 So. 360 (Miss. 1908): Pensacola Electric Co. v. Soderlind, 53 So. 722 (Fla. 1910). has rarely been questioned” (Tiffany 1893, 28). There are therefore virtually no reported mid-nineteenth-century cases recording arguments by defendants that the wrongful death statutes impermissibly reallocated rights from defendants to plaintiffs; the one reported case indicating that such an argument had been made gave the argument such short shrift that defendants no doubt shrank from making it again.5 At least in part, this may have been because most state wrongful death legislation was general in its application, applying across the board to all tort defendants rather than singling out some class of defendants. But even legislation in the New England states in the 1850s that authorized wrongful death actions only against common carriers produced no reported mid-century cases on the question whether such statutes impermissibly singled out some class of actors for special burdens.6 Regular constitutional challenges to state tort legislation began to appear only after the Civil War in the mid 1870s. In the wrongful death cases, for example, the Georgia Supreme Court in 1874 upheld the constitutionality of the wrongful death provisions of the state’s employers’ liability law against a challenge that it impermissibly singled out railroads by applying only to railroad employees.7 More typical of late nineteenthcentury constitutional cases involving wrongful death were challenges to
「2004 State Constitutions and American Tort Law-Witt damages provisions. At least one wrongful death statute -the statute in Missouri-opted not for a cap on damages but for a mandatory damages igure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees. More typically, however mid-century wrongful death legislation authorized the recovery only of pecuniary damages"and often set caps on those pecuniary damages usually at $3, 000 or $5,000. The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning ofthe What is most significant about the late nineteenth century rtional law of wrongful death however. is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not"limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property. That same year, Arkansas adopted a similar bar on statutory limits on recoveries Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, nd Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, Nev Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7, 000 and s20.000 Tiffany1893,175-76) Marchv. Walker, 48 Tex 372(1977); Richmond&D.R. Co v. Freeman, 11 So.800(Ala. 892), Wright v. Woods'Administrator, 27S.w.979(Ky. 1894); Louisville N.R. Co. V. Lansford 102 F 62(1900); Brickman v Southern Ry, 54S.E553(SC. 1906), Hull v Seaboard Air Line Ry, 57 SE.28(1907) P
[2004] State Constitutions and American Tort Law – Witt 9 8 Carroll v. Missouri Pac. Ry, 88 Mo. 239 (1885). 9 States with damages caps under their wrongful death statutes included Colorado, Connecticut, Illinois, Maine, Massachusetts, Minnesota, Missouri, Nebraska, New York, Oregon, Wisconsin, and Wyoming. By the 1890s, caps in the District of Columbia, Indiana, Kansas, New Hampshire, Ohio, Oklahoma, Utah, Virginia, and West Virginia had been lifted to between $7,000 and $20,000 (Tiffany 1893, 175-76). 10March v. Walker, 48 Tex. 372 (1977); Richmond & D.R. Co. v. Freeman, 11 So. 800 (Ala. 1892); Wright v. Woods’ Administrator, 27 S.W. 979 (Ky. 1894); Louisville & N.R. Co. V. Lansford, 102 F. 62 (1900); Brickman v. Southern Ry, 54 S.E. 553 (S.C. 1906); Hull v. Seaboard Air Line Ry, 57 S.E. 28 (1907). 11Pa. Const. of 1874, art. III, § 21. damages provisions. At least one wrongful death statute – the statute in Missouri – opted not for a cap on damages but for a mandatory damages figure of $5,000 in death cases. Missouri courts upheld the mandatory damages provision in 1885 against constitutional challenges under state and federal jury trial and due process guarantees.8 More typically, however, mid-century wrongful death legislation authorized the recovery only of “pecuniary damages” and often set caps on those pecuniary damages, usually at $3,000 or $5,000.9 The interplay between these statutory provisions and state constitutional provisions relating to damages recoverable in tort produced a number of relatively minor, though locally significant, cases throughout the end of the nineteenth and beginning of the twentieth centuries.10 What is most significant about the late nineteenth century constitutional law of wrongful death, however, is not so much the constitutional decisions of state courts but rather the enactment of new state constitutional provisions expressly addressing torts issues. In particular, democratic dissatisfaction with statutory caps on damages in death cases produced a wave of state constitutional provisions and amendments. State courts, after all, are not the only makers of state constitutional law. The people of a state have the opportunity to amend and redraft their constitutions, and in the late nineteenth century a number of states did just that to abolish and prohibit statutory limits on the damages recoverable in death cases. Pennsylvania led the way here, providing in its constitution of 1874 that the General Assembly could not “limit the amount to be recovered for injuries resulting in death, or for injuries to persons or property.”11 That same year, Arkansas adopted a similar bar on statutory limits on recoveries
State Constitutions and American Tort Law-Witt in cases of fatal and nonfatal injuries. 2 Wyoming(1889), Kentucky (1890),and Arizona(1912)followed. Oklahoma made the availability of wrongful death actions in cases for which a plaintiff could have recovered" had death not occurred" part of its constitution in 1907. And New York(1894), Utah(1896), and Ohio(1913) prohibited statutory damages maxima in death cases. Indeed, late nineteenth and early twentieth century state constitution makers included an array of specific tort law provisions in their constitutions. Texas's 1876 constitution provided that those who committed homicides by wilful act and gross neglect were liable for exemplary damages to the decedents survivors. Colorados 1876 constitution barred employers from requiring their employees to waive their tort rights against the employer as a condition of employment Wyomings 1889 constitution did the same, and also provided for tort ctions on behalf of miners injured or killed because of the violation of the constitution's rules regarding mines and mining 23 Mississippi's infamous 1890 Jim Crow constitution mandated exceptions to employers'common law defenses in employers' liability cases; established the availability of wrongful death actions; and prohibited waivers of tort liability as a condition of employment. Oklahoma's 1907 constitution provided that the defenses of contributory negligence and assumption of the risk were"in all cases whatsoever"a"question of fact and therefore"at all times "to be 12 Ark const of 1874,$ 32 Arizona Const, art. 2,$31 IN.Y. Const of 1894, art. 1,$18 %ohio Const, art. 1, $ 19a. ex Const of 1876. art. XV IColo Const of 18 wyo Const Of 1889, art.9, $4 Miss. Const, art. 7, 8193
10 State Constitutions and American Tort Law – Witt 12Ark. Const of 1874, § 32. 13Wyo. Const. of 1889, art. 10, § 4. 14Ky. Const of 1890, § 54. Kentucky’s 1890 constitution also constitutionalized the theretofore statutory wrongful death cause of action. See Ky. Const. Of 1890, § 241. 15Arizona Const., art. 2, § 31. 16Okla. Const. of 1907, art. 9, § 36. 17N.Y. Const. of 1894, art. I, § 18. 18Utah Const., art. XVI, § 5. 19Ohio Const., art. I, § 19a. 20Tex. Const. of 1876, art. XVI, § 26. 21Colo. Const. of 1876, art. 15, § 15. 22Wyo. Const. of 1889, art. 19, § 7. 23Wyo.Const. Of 1889, art. 9, § 4. 24Miss. Const, art. 7, § 193. in cases of fatal and nonfatal injuries.12 Wyoming (1889),13 Kentucky (1890),14 and Arizona (1912)15 followed. Oklahoma made the availability of wrongful death actions in cases for which a plaintiff could have recovered “had death not occurred” part of its constitution in 1907.16 And New York (1894),17 Utah (1896),18 and Ohio (1913)19 prohibited statutory damages maxima in death cases. Indeed, late nineteenth and early twentieth century state constitution makers included an array of specific tort law provisions in their constitutions. Texas’s 1876 constitution provided that those who committed homicides by wilful act and gross neglect were liable for exemplary damages to the decedent’s survivors.20 Colorado’s 1876 constitution barred employers from requiring their employees to waive their tort rights against the employer as a condition of employment.21 Wyoming’s 1889 constitution did the same,22 and also provided for tort actions on behalf of miners injured or killed because of the violation of the constitution’s rules regarding mines and mining.23 Mississippi’s infamous 1890 Jim Crow constitution mandated exceptions to employers’ common law defenses in employers’ liability cases; established the availability of wrongful death actions; and prohibited waivers of tort liability as a condition of employment.24 Oklahoma’s 1907 constitution provided that the defenses of contributory negligence and assumption of the risk were “in all cases whatsoever” a “question of fact” and therefore “at all times” to be