tort; n. Law

Damage, injury, or a wrongful act done willfully, negligently, or in circumstances involving strict liability, but not involving breach of contract, for which a civil suit can be brought.

Everyone has heard the stories about little accidents that lead to multi-million dollar damage awards. The spilled coffee at McDonalds, the law firms chasing ambulances. Plaintiffs that bring the lawsuits get millions of dollars, drive up our insurance costs, and the lawyers get rich. This, President Bush and others think, requires “tort reform.”

“Tort reform” is kind of a misleading term, however, because the reform isn’t really the definition of a tort, but the amount of money the tortee gets from the tortfeasor. We’re worried not that negligent actions are being called negligent, but that a single person is getting millions of dollars for the negligence–they’re getting something for nothing.

I’m not aware of any prophetic pronouncements on the issue, but my distillation of President Hinckley’s recent talk on gambling leads me to believe that there is an implicit argument that members of the church should support tort reform.

My take on the prophet’s pronouncement is that what is evil about gambling is the risk of addiction of getting something for nothing. A couple of quotes:

I am told that Utah and Hawaii are now the only two states in the United States that have not legalized lotteries and gambling of various forms. From the letters I have received from members of the Church, it becomes apparent that some of our young people start by playing poker. They get the taste of getting something for nothing, and then travel outside of the state to where they can gamble legally.

And:

The pursuit of a game of chance may seem like harmless fun. But there attaches to it an intensity that actually shows on the faces of those who are playing. And in all too many cases this practice, which appears innocent, can lead to an actual addiction. The Church has been and is now opposed to this practice. If you have never been involved in poker games or other forms of gambling, don’t start. If you are involved, then quit now while you can do so.

And finally from President Kimball:

From the beginning we have been advised against gambling of every sort. The deterioration and damage comes to the person, whether he wins or loses, to get something for nothing, something without effort, something without paying the full price

Another corollary is that in both circumstances, the person receiving the award is getting a windfall, but it comes at a cost to many others. Gambling, besides most people losing money, brings crime and sin. Excessive punitive damages drives up health care costs and can wrongly put people out of business.

Now I don’t think that just “getting something for nothing” is enough to buy into tort reform. Punitive damages play (or are supposed to play) a regulatory role by punishing companies not just for the times they are caught doing something harmful, but for the times they don’t get caught. Some states, such as California, are creating systems where some of the punitive damages award goes to the state, as opposed to it all going to the plaintiff. But although this solves the problem of giving a windfall to the plaintiff, since the amount of money is lower, fewer cases should be brought, and punitive damages awards might have to compensate by being higher. “Excessive” punitive damages are surely a concern–these don’t efficiently regulate businesses, and give huge windfalls to plaintiffs. But there are no easy answers.

Another problem is that there is an argument that in the gambling context, the real concern is not necessarily getting something for nothing, but the effects of being addicted to getting something for nothing. It’s gambling addicts we’re worried about, not gamblers who just enjoy the game the once a year they’re in the Las Vegas airport. But I think President Hinckley’s words cover not only the addict, but the casual player as well. His example:

One of our young men recently said, “Pay five bucks to see a movie; pay five bucks to play poker—it is the same idea.”

It is not the same idea. In one case you get something for which you pay; in the other case, only one picks up the winnings and the others are left empty-handed.

I don’t know whether I’m right or not, but I’m convinced that the Prophet does not want members of the church seeking after windfalls. This is a hard line to draw–aggressive investing should probably at some point be called “gambling.” But I think as a general matter, members of the church should provide value for the reward they receive. This might mean that both practicing aggressive investing and seeking huge punitive damages awards should be avoided.

Cross-posted at Approaching Zion.