The American Museum of Exploding Cars and Toys That Kill You
Everyone in tech should visit this museum, and so should you.
How do lawsuits grow our understanding of the risks and harms of new technologies? What incentives do they offer corporations to ensure the safety of their products?
To find out the answer, Nikki Bourassa (@nikkiboura) and I organized a road trip from Harvard’s Berkman Klein Center for Internet and Society to visit the American Museum of Tort Law in Winchester Connecticut– the only museum in the U.S. dedicated to any part of the law.
(I am deeply grateful to Berkman-Klein Fellow and lawyer Salome Viljoen for reviewing this post and suggesting edits to make the legal information more accurate)
On the drive, we listened to a podcast by 99% invisible that told the fifty-year story of research and activism on the idea that car design influences people’s safety. I learned that the Egg Drop science fair project has its origin in the safety crusade of engineering professor Hugh DeHaven, who used the stunt to show that engineers were better at protecting eggs than protecting human bodies. DeHaven also pioneered crash testing, invented the three-point seatbelt, and laid the groundwork for today’s focus on vehicle safety.
research can’t change the world on its own; we need activists, lawyers, and courageous citizens who work for the public good
As a researcher, I’ve tended to focus on people like DeHaven, who changed how we understand, measure, and improve societal problems. I’ve written about the science behind public-interest environmental safety, food safety, and digital safety. But research can’t change the world on its own; for that, we need activists, lawyers, and courageous citizens who work for the public good. Our trip to the Museum of Tort Law gave me an introduction to the legal systems that make research meaningful to people’s lives.
What is a Tort?
Tort law, which is governed by civil law, covers injuries that may not be covered in criminal law, but which still involve some kind of harm or wrong to the injured party: anything from a faulty product to defamation. Torts in the English tradition were developed as an alternative to duels: In the late 17th century, more than a fifth of duels ended in death and 49% of duels involved significant injury. Lawsuits were a safer alternative to rapiers, and while you can’t shoot pistols at dawn with an institution, you can definitely sue them.
while you can’t shoot pistols at dawn with an institution, you can definitely sue them
Salome writes: A lot of torts overlap with things that are also crimes, but torts are governed by civil, not criminal law. Think of it this way: criminal law involves the state prosecuting individual defendants for harms we call crimes. Criminal law is not really “about” the victim — it’s about a defendant’s violation of the general social contract. Tort law allows a private individual (the plaintiff) to sue another private individual (the defendant) for a wrongful injury. It is a civil (as opposed to criminal) process that allows the plaintiff to make his/her case of injury and seek some redress from the party who wronged them.
How do you make the legal system interesting to a public audience? When we arrived, museum director Richard Newman explained that tort law is a particularly-democratic part of the law: when new products, technologies, or societal issues emerge, they might not yet be regulated. Tort cases provide a powerful way for any citizen to draw attention to a problem that affects them. Since the cases are heard by a jury, torts offer a powerful lever for citizens to create change. But this powerful tool only works if citizens are willing to use it; educating citizens is central to the value of tort law to society.
Since cases are heard by a jury, torts offer a powerful lever for citizens to create change
To teach our group about tort law, Richard used the same method used with law students: he told us about famous cases, the legal principles they reveal, and how they shaped the laws we have today.
Intention, knowledge, recklessness, and negligence: how do we determine if someone should be responsible for harm that occurred? In Brown v. Kendall, a man accidentally struck a bystander while attempting to use a four-foot board to break up a fight between dogs. The case ultimately hinged on whether his behavior was negligent or not.
Because he didn’t intend to cause harm to the bystander, he should only be considered responsible if he did not act with “ordinary care.” This case established the rule that responsibility for negligent harms — harms that are not intended — depends on whether the actor behaved as a “reasonable person” would; namely, with ordinary or reasonable care.
Who’s required to prove that the defendant caused the harm? Normally, it’s up to the injured person (the plaintiff) to prove that the defendant caused the harm. In Bryne v. Boodle, a barrel of flour fell from the second story and struck a person on the head. While several people saw the injury, no one saw exactly how the barrel fell, therefore the plaintiff couldn’t prove the flour shop owner actually caused his injury.
the barrel clearly didn’t jump on its own
The court decided that in this case, since the barrel clearly didn’t jump on its own, the flour shop owner was still negligent. This case established the rule that negligence can be presumed in accidents that wouldn’t normally occur unless someone was negligent. In these cases, the burden falls on the defendant to show that they are not to blame for the injury.
You can’t make dangerous things attractive to children: In Sioux City & Pacific Railroad Co. v. Stout, the railroad company knew that children liked to play on the tracks, and that their train turntable was dangerous. But the traditional rule was that companies were not responsible for the injuries of trespassers — even children.
The court created an important exception: landowners may be responsible for injuries to children trespassing on their land, if the injury is caused by an object likely to attract children. Since the children were probably unlikely to understand the danger, and since the company hadn’t taken steps to increase safety, the company was responsible for the children’s injuries, even though the children were trespassing.
Manufacturers are responsible for the harms from defective products: When Donald Macpherson was injured in a car crash that resulted from a defective wheel, Buick Motor Company argued in Macpherson v. Buick that they weren’t responsible, since they were the manufacturer, not the seller and therefore had had no personal relationship with Macpherson on which to base responsibility for his injury.
In this case, the court abolished this requirement of a personal contractual relationship when it comes to manufacturing defects. Manufacturers are held responsible for the outcome of their defective products, an obligation that has been part of U.S. case law ever since.
Manufacturers are responsible for harmful products that were made correctly too. Apparently, this actually had to be debated. In Greenman v. Yuba Power Products, the courts found that the maker of a wood lathe had to pay damages to someone who was injured through fundamental flaws in the design of the product, even though the lathe was manufactured correctly. This extended the idea of manufacturing defect liability to also cover dangerous design flaws.
Informed Consent: Until the 1960s, doctors routinely withheld information from patients about their condition or their treatment. In the second half of the 20th century, this expectation allowed the Tuskegee Syphilis studies and other horrifying abuses of medical power. In 1958, Jerry Canterbury was paralyzed while in the hospital for treatment, after his doctor lied that the treatment would result in “weakness” lest he decline treatment. Canterbury sued his doctor in Canterbury v. Spence, and the jury agreed that the doctor should have told him what to expect from the treatment.
This case established the rule that doctors may not withhold information from patients, especially regarding potentially negative or dangerous side effects of treatment, but must instead receive the informed consent of patients.
The SRSLY!?!?!? GUIDE TO TORT LAW
After hearing about foundational ideas in tort law, we then entered what I will call the !?!?!?! section of the museum. Here are some of the stories we heard:
- The makers of the Ford Pinto, who ignored their engineers’ suggestions to improve safety. Crashes at moderate speeds caused it to burst into flames, and the company produced it anyway (legal researchers have questioned some details of the story over the years, upholding this core element of the case).
- The Dalkon Shield, a widely-used IUD contraceptive that hospitalized thousands of women, made hundreds of thousands of women ill, and caused infertility.
- General Motors, who hired detectives and prostitutes to entrap and discredit Ralph Nader for his advocacy for safer cars, including the Chevy Corvair, in which a friend’s family had died when it failed in a well-understood way
- At this point, as I heard about how many people had been impaled by car steering columns, I could only describe my feeling as “shocked but unsurprised.”
- Asbestos. I can’t even. The asbestos mining companies knew that it was harmful, but their doctors lied to the miners for years. Tort law has been one of the major battlegrounds for safety from inhaled asbestos.
- So many toy makers have not thought about how children will actually use them.
- The famous McDonald’s case Liebeck v. McDonald’s, where the company’s policy was for coffee to be kept at 190 degrees Fahrenheit, hot enough for it to create severe, third-degree burns in 2–7 seconds. McDonald’s argued that they did it to keep the coffee warm on long drives, but their own market research refuted that idea.
people and organizations who deliberately or negligently cause harms should be responsible for the consequences of their actions
What Does Tort Law Achieve?
The world is a risky place; the people and organizations who deliberately or negligently cause harms should be responsible for the consequences of their actions. How does Tort law create change? While people often think of lawsuits purely in terms of the two parties, that view doesn’t acknowledge the widest outcomes of tort law, according to our tour guide:
- Disclosure. When people or companies are sued, they often have to disclose information that explains the reasons for their actions. Disclosure can be meaningful to victims and their families. Disclosure can also reveal information that’s useful for holding organizations accountable, especially where a company’s decisions affect risks faced by thousands or millions of people.
- Compensation. If someone succeeds at a tort case, they often receive compensation for the direct costs such as medical bills or how much it will affect their future employment.
- Deterrence. Juries are also allowed to award victims for costs that can’t be quantified; how can you put a value on the death of your child, for example? Punitive damages are designed to change the behavior of the party that caused the harm. For example, in Liebeck v. McDonald’s, seven hundred other people had been burned by McDonald’s coffee, just like Mrs. Liebeck. Since the company intended to continue its policy of serving coffee that could cause third-degree burns, the jury decided to award damages equal to two days of McDonalds’s coffee sales, as a way to convince the company to change its policies
- Dismantling. In 1981, two members of the United Klans of America murdered nineteen-year-old Michael Donald by lynching. Michael’s mother Beulah Mae sued the United Klans of America, who had encouraged its members to carry out lynchings. Together with the Southern Povery Law Center, Beulah Mae won a $7 million verdict. When the hate group couldn’t possibly pay that much, they were forced to hand over all their assets, including their headquarters. Beulah Mae, who now owned all of their assets, used the case to effectively shut down the organization.
Why Every Engineer and Designer Should Visit the Tort Law Museum
During my design, engineering, and startup education, I was misled that the law was there to trip up well-meaning professionals and destroy our careers. Over the years, I’ve come to see how wrong we were. The law is an imperfect tool for public safety and justice, something that can certainly be turned and abused to restrict rights. At the same time, the law is also one of the essential tools through which citizens achieve justice and hold power accountable.
law can be a powerful tool for the common good if it’s guided by people with integrity and informed by high quality research
To creative innovators, the law can feel like an unhelpful, scary restraint, especially if the legal system doesn’t yet understand the new products that we’re putting into the world. And I’ve seen plenty of cases where opportunistic lawyers or prosecutors risked destroying someone’s life over a technical misunderstanding or overreach of law. Yet I’ve come to see that law can be a powerful tool for the common good if it’s guided by people with integrity and informed by high quality research.
Right now, as we talk about the ethics of software and AI, many hope that we can improve the tech industry by making ethics a core part of education. The Ford Pinto story reminds us that we need forces of justice that also influence companies from the outside. When Ford’s own engineers argued that the easily-exploding car should be made safer, they lost the internal debate. Had the engineers been familiar with tort law, they might have been able to make a stronger case for safety. Instead, dozens to hundreds of people burned alive before the courts stepped in.
Democratic Innovation in the Law
At the end of our tour, museum director Richard Newman talked to us about the role that tort law plays in the growth of the law. As society creates new technologies and new kinds of risk, we’re often slow to pass laws to regulate them. Tort law is a democratic tool for people who experience harms to seek redress and to make a difference that benefits others: prompting new discoveries, clarifying the nature of the harms involved, and deterring powerful organizations from propagating those harms.
Torte image cc-by-2.0 by stu_spivack. Asbestos image via Eglin Air Force Base. Pinto video via U.S. National Highway Traffic Safety Administration. Torta image CC-By-SA 3.0 by Nsaum75 on Wikipedia