Child Safety, Part III

How might tort law respond, if at all, to the preferences of parents and the general population to invest about twice as much in child safety as adult safety? (see this post for a summary of the data, and this post for a discussion of whether those preferences are normatively defensible).

Here’s my take, which you can read more about here:

Because the studies that I’m drawing from concern the allocation of safety-related resources, they have their most direct implications when we view tort law as (at least partially) a means to make people safer by deterring risky behavior. Those studies create two main implications, one for levels of care and one for damages.

Under a deterrence rationale, the standard of care in tort law reflects what we want potential tortfeasors to invest in accident prevention. The investment patterns from my first post in this series suggest that, at least as a prima facie matter, people want potential tortfeasors to invest twice as many resources in preventing accidents when children are the primary potential victims, even when both children and adults are equally vulnerable.  And if my second post in this series is right, we have reasons to respect those preferences. So when children are among the foreseeable class of victims, courts should require a heightened level of care. Although courts appear to respond to a child’s increased vulnerability to harms—they blindly run out into the street to reach ice cream trucks, for example—I have not found evidence that courts have picked up on the extra value that we appear to place on child safety. I’ve also looked at practitioner treatises, and so far I cannot find any mention that courts or juries are more likely to find a defendant negligent if the victim was a child. So, as a prima facie matter, there are reasons to question whether judges and juries are applying a sufficiently stringent level of care in cases involving children.

To motivate potential tortfeasors to take a heightened level of care for children, damages for child victims should be about twice as high as damages for adult victims. Currently, tort damages tend to exhibit child discounts or mild child premiums. This should not be a surprise. We ask juries to set damages in particular ways that constrain their discretion. For wrongful death, we generally ask them to set damages by looking at the economic contributions that the decedent would have made to her relatives. This puts a very small value on dead children, and results in child discounts even after we add non-economic damages. For permanent injuries, some back-of-the-envelope calculations suggest that juries tend to award children 20-25 percent more than adults. This is approximately what we would expect if juries were awarding damages based on the number of years that a victim will have to live with her injuries, and then discounting those future yearly payouts to arrive at a single lump sum.   But that child premium is significantly lower than the 2 to 1 ratio that a deterrence-oriented tort system might strive for. So, as a prima facie matter, there are reasons to question whether damages for child victims are high enough to generate the amount of deterrence that people appear to desire.

Of course, there is much more to say.

A fuller deterrence analysis would require examining a host of additional factors, such as whether regulatory agencies or market forces or the threat of criminal liability already provide extra protection for children, whether risk compensation or substitution effects operate differently for the adult and child populations, the differences between contractual settings like medical malpractice and stranger cases, how to handle “hidden-child” cases (which would be partially analogous to thin-skull cases), etc. I invite readers to offer their thoughts on these issues. But as a first cut, there are reasons to think that tort law does not offer the desired mix of protection for adults and children.

We could also ask what civil recourse and corrective justice accounts of tort law might contribute to the discussion. But I will leave that for another day.

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5 Responses

  1. This is an interesting post. Have you looked into whether juries award different punitive damages in cases involving children versus those involving adults? Punitive damages aren’t always available, of course, but they may be a better fit for your deterrence rationale than an exclusive focus on compensatory damages. And the Supreme Court has suggested in cases like State Farm that punitive damages can fairly take into account the vulnerability and age of the victim.

    • Sean Williams says:

      Thanks for the comment Adam! I tried not to use terms like “compensation” or “compensatory” when describing the extra damages that I envision. In my first cut analysis, I’m agnostic about the label attached to those damages. The data that I’m drawing from focus on ex ante prevention. As you rightly point out, that perspective may fit better under the heading of punitive damages. I worry about focusing on vulnerability, however. Children are generally more vulnerable, but the studies that I use do their best to control for this. Even in the absence of special vulnerability, child safety is apparently more valuable than adult safety. Perhaps putting children at risk is more outrageous than putting adults at risk. I suspect that this is right. So juries may well award more punitive damages (and/or award them more often) for child victims, all else being equal. Unfortunately, I have not yet found data on point.

      As an aside, there are ways of implementing a child premium without directly increasing damages. We could, for example, increase the probability that child victims will sue or will be successful by asymmetrically extending statutes of limitations for child victims or asymmetrically altering procedural rules. This would increase aggregate payouts for child victims and thereby increase investments in child safety.

  2. That seems fair. And apologies for misreading your argument. (I was thrown off by some of the examples and because I haven’t yet read your paper). Four thoughts:

    1. It seems like one benefit of your project is that you are doing more than saying that children should be treated differently in Tort law. Because there are some cases where Tort law, expressly or practically does treat children differently. Rather, you are justifying some of the limited doctrines in Torts, and elsewhere, that already treat children differently, and invite a conversation about whether those doctrines should be expanded (and whether those competing doctrines that work at cross-purposes with child-friendly doctrines should be curtailed). Some express areas where Torts recognize children are different include some duties (like the traditional duties of property owners to child trespassers) and defenses (like the standard for comparative negligence involving child plaintiffs, which take into account the “age, wisdom and experience” of like-minded children). Some practical areas include general affirmative duties, like those involving custodial duties to people “otherwise deprived of the ability of self-protection,” and express assumption of risk, which will tend to benefit children in cases against day-care facilities, summer camps, and schools. Finally, we have experiments with tort reform that target children, including the National Vaccine Act, state laws recent experiments with post-natal neurological injuries and other similar no-fault funds, and expansions of statutes of limitations involving DES children. I don’t know if you already discuss these doctrines, but I suppose they may be important because they could already have a practical impact on liability and property insurers, who may already be passing the costs associated with such claims to their insureds (with some impact on ex ante deterrence).

    2. Apologies if you already address this, but on the federal regulatory side of things, it may be worth digging into Bill Clinton’s Executive Order 13045 (http://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf), which among other things requires all federal agencies to identify health and safety risks that disproportionately impact children. The order was inspired by growing scientific evidence demonstrating the vulnerability of children to environmental health risks–rather, as you argue, a different valuation of child safety versus adult safety–but I believe the EPA and other agencies, like the CPSC, to address child-specific safety concerns. Whether our regulatory bodies effectively interact with tort law to produce optimal safety still is an important question, and your research may demonstrate why courts should still permit lawsuits in Tort, even when a regulator recalls goods or requires a defendant to refund consumers for producing a defective product that injures children. (This is becoming a hot topic in class action law. See In re Aqua Dots Prods. Liab. Litig, 270 F.R.D. 377, 379, 384, (N.D. Ill. 2010) (refusing to certify class of consumers who purchased toys that produced comas when swallowed by children because of voluntary recall and refund program).

    3. Beyond the questions of optimal deterrence, which may always be very difficult to establish by tweaking standards and care and damages, it seems that another side benefit of your project is that you are developing a coherent explanation for why childhood injuries and, for that matter, childhood itself, should, as a societal and expressive matter, be treated differently. If so, this may not only mean a different calculation for punitive damages, but as you suggest, different implications for corrective justice accounts of tort law. If this is a tack you’d like to take, there is a growing body of literature that is trying to take a more holistic account of the law for children based on cultural conceptions of what childhood is and means. See Jonathan Todres, Maturity, 48 Hous. L. Rev. 1107 (2012).

    4. Your original post reminded me of a problem we confronted in the September 11 Victim Compensation Fund. Standard measures of economic damages privilege married adults with children and while devaluing single, unemployed children, which was a problem as we tried to create a fund that was both modeled on the Tort system, but also served other important public and distributive justice goals. In the end, the Fund adopted more generous assumptions about the economic value of children than standard forensic economic models, but there were still significant differences (I think this is discussed in a lot of the scholarly literature about the Fund). Maybe this is another argument for the expansion of hedonic damages (which unlike other damages that measure lost income or services, could conceivably take into account the lost value of a child’s life).

  3. That seems fair. And apologies for misreading your argument. (I was thrown off by some of the examples and because I haven’t yet read your paper). Four quick thoughts:

    1. It seems like one benefit of your project is that you are doing more than saying that children should be treated differently in Tort law. This is because there are some cases where Tort law, expressly or practically does treat children differently. Rather, you are justifying some of the limited doctrines in Torts, and elsewhere, that already treat children differently, and invite a conversation about whether those doctrines should be expanded (and whether those competing doctrines that work at cross-purposes with child-friendly doctrines should be curtailed). Some express areas where Torts recognize children are different include affirmative duties (like the traditional duties of property owners to child trespassers) and defenses (like the standard for comparative negligence involving child plaintiffs, which take into account the “age, wisdom and experience” of like-minded children). Some practical areas include general affirmative duties, like those involving custodial duties to people “otherwise deprived of the ability of self-protection,” and express assumption of risk, which will tend to benefit children in cases against day-care facilities, summer camps, and schools. Finally, we have experiments with tort reform that target children, including the National Vaccine Act, state laws recent experiments with post-natal neurological injuries and other similar no-fault funds, and expansions of statutes of limitations involving DES children. I don’t know if you already discuss these doctrines, but I suppose they may be important because they could already have a practical impact on liability and property insurers, who may already be passing the costs associated with such claims to their insureds (with some impact on ex ante deterrence).

    2. On the federal regulatory side of things, it may be worth digging into Bill Clinton’s 1997 Executive Order 13045 (http://www.gpo.gov/fdsys/pkg/FR-1997-04-23/pdf/97-10695.pdf), which among other things requires all federal agencies to identify health and safety risks that disproportionately impact children. The order was inspired by growing scientific evidence demonstrating the vulnerability of children to environmental health risks–rather than, as you argue, a different valuation of child safety versus adult safety–but I believe the EPA and other agencies, like the CPSC, have since adopted regulations to address child-specific safety concerns. Whether our regulatory bodies effectively interact with tort law to produce optimal safety still remains an important question, and your research may demonstrate why courts should still permit lawsuits in Tort, even when a regulator recalls goods or requires a defendant to refund consumers for producing a defective product that injures children. (This is becoming a hot topic in class action law. See In re Aqua Dots Prods. Liab. Litig, 270 F.R.D. 377, 379, 384, (N.D. Ill. 2010) (refusing to certify class of consumers who purchased toys that produced comas when swallowed by children because of voluntary recall and refund program).

    3. Beyond the questions of optimal deterrence, which may always be very difficult to establish by tweaking standards and care and damages, it seems that another side benefit of your project is that you are developing a coherent explanation for why childhood injuries and, for that matter, childhood itself, as a societal and expressive matter, should be treated differently. If so, this may not only mean a different calculation for punitive damages, but as you suggest, different implications for corrective justice accounts of tort law. If this is a tack you’d like to take, there is a growing body of literature that is trying to take a more holistic account of the law for children based on cultural conceptions of what childhood is and means. See Jonathan Todres, Maturity, 48 Hous. L. Rev. 1107 (2012).

    4. Finally, your original post reminded me of a problem we confronted in the September 11 Victim Compensation Fund. Standard measures of economic damages privilege married adults with children, while devaluing single, unemployed children, which was a problem as we tried to create a fund that was both modeled on the Tort system, but also served other important public and distributive justice goals. In the end, the Fund adopted more generous assumptions about the economic value of children than standard forensic economic models, but there were still significant differences (I think this is discussed in a lot of the scholarly literature about the Fund). Maybe this is another argument for the expansion of hedonic damages (which unlike other damages that measure lost income or services, could conceivably take into account the lost value of a child’s life).

    • Sean Williams says:

      Adam, thanks so much for your thoughtful follow-up comments! Your reference to the potential Aqua Dot class action made me wonder whether judges might be more likely to certify classes if they consist predominantly of injured children rather than injured adults. I have no idea what the answer is, but this might be an additional site to examine whether widespread intuitions about the value of child safety already influence legal outcomes.

      In case you are interested, in a previous article I wrote about how the EPA and other federal agencies treat children in cost benefit analysis. That article did not discuss the CPSC, but I hope to do so in future work. I have also written on hedonic damages here, albeit not in relation to children. Thanks again for your comments!