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Article Excerpt
I. INTRODUCTION
The tort system is causing havoc, we are told. Skyrocketing malpractice premiums are driving physicians from practice. (1) Litigation is chilling the development of desperately needed new medicines, (2) enriching people who stupidly spill hot coffee on themselves, (3) and imposing a "tort tax" on consumer products that is putting American companies at a competitive disadvantage in the global economy. (4) And the tort system is even squeezing the fun out of everyday life. As Judge Edith H. Jones put it at this symposium's conference at Vanderbilt University: "I would say, I think there have been dramatic changes in behavior as a result of lawsuits. We can't get hot coffee at McDonald's anymore. On playgrounds they don't have seesaws, they don't have sliding boards, they don't have real high swings that we used to enjoy. We don't have diving boards on swimming pools; a lot of fun is taken out of life." (5)
It is easy to understand why Judge Jones believes the tort system is taking the fun out of life. Claims that the tort system is driving the diving board into oblivion have been made repeatedly by tort fear mongers, (6) journalists, and even scholars. The Washington Post, for example, has reported:
Prompted initially by exponential increases in insurance rates and liability exposure--and then, in many cases, an inability to find coverage at any cost-public and private pools across the country have closed their three-meter boards. Some also have taken down one-meter boards, as well as slides, leaving only rafts, noodles, and repetitious gaines of sharks and minnows as diversions in the water. (7)
Is it indeed true that the tort system is depriving us of the joy of springing off diving boards? Does the tort system seek to ruthlessly extinguish activities that involve any risk--even small risks that provide more joy than pain--with crushing liability costs? Is the tort system a mindless agent of the "nanny state"? (8)
I have elsewhere made the bold claim that the tort system works so well--among other things, because it benefits from so many self-correcting mechanisms--that "while it can and occasionally does produce wrong results, it is almost incapable of flatly irrational results." (9)
It was, therefore, no surprise to those who knew my work that I expressed some dubiousness about Judge Jones's claims, (10) However, my co-panelist, Professor George L. Priest of Yale Law School, declared:
I have looked at diving board injuries and Judge Jones is right. Diving boards have been removed from all public pools. The leading diving board manufacturer, Duraflex, went out of business. I talked to their officials and it was because of lawsuits. Prior to the increase in lawsuits against the diving board manufacturers and the diving board industry generally, there was no increase in accidents related to diving boards. Actually, the number of diving board accidents has been declining steadily since World War II because diving boards were getting better and they were installing them in better ways, but liability increased and companies went out of business. (11)
In the face of this authoritative onslaught, Judge Jones asked whether I wanted to concede my position on diving boards. (12) I demurred, but promised to review what Professor Priest had written and look at the area more closely.
This article is my report. I think the reader may find that the reality is both more complicated--and far more sensible--than what we have been led to believe.
II. DIVING BOARDS
A. Litigation
Litigation resulting from injuries involving swimming pools and diving boards is not new, (13) not extensive, and--contrary to Professor Priest's claim--not increasing. According to an exhaustive survey by Professor Gregory S. Munro of the University of Montana School of Law, t4 in the last half of the twentieth century there were a total of 52 reported case decisions involving diving boards in all courts in the United States, both state and federal. (15) Professor Munro observes, "[s]ome years the courts handed down no decisions involving diving boards. In other years, the courts issued between one and three decisions with no apparent pattern to the variation." (16) Plaintiffs obtained judgments in somewhere between 25 percent and 42 percent of the cases reaching appeal, (17) The number of diving board cases resulting in reported decisions may be a small fraction of the total number filed. After all, something in the neighborhood of 95 percent of civil cases are resolved before trial, and many that are tried to conclusion do not result in reported decisions. Nevertheless, the small and steady number of reported decisions strongly suggests that there has not been an avalanche of such cases.
For reasons that will become clear shortly, the industry's trade association, the National Spa & Pool Institute (NSPI), has become a prime target of plaintiffs who were injured while diving into swimming pools. Yet from approximately 1950 to 1990, NSPI has been sued only 17 times, and a plaintiff won a judgment against NSPI in only one case. (18)
Moreover, litigation has almost certainly decreased--indeed, decreased dramatically--in proportion to swimming pools and diving boards. Professor Munro reports that, over the past fifty years, the number of swimming pools in the United States has increased from 10,800 to 2.3 million. (19) Thus, it appears that, over the past fifty years, litigation has remained roughly constant while the number of swimming pools has increased by a factor of more than 200. The ratio of lawsuits to the industry's products--swimming pools and accessories, including diving boards--has certainly shrunk substantially. If the industry were robust enough to successfully absorb litigation costs fifty years ago, it should be far better able to do so today.
Yet, as Judge Jones and Professor Priest claim, diving boards are increasingly harder to find. If there are not fewer diving boards in use in the United States today, there is a smaller percentage of swimming pools with diving boards. One research firm reports that, over the past five years, the percentage of swimming pools with diving boards has declined from 50 percent to 38 percent. (20) Litigation is blamed as the villain, but if litigation has not increased, why are diving boards disappearing?
Solving this mystery requires understanding something about the underlying injuries, the history of litigation resulting from those injuries, and the industry's response to injuries and litigation.
B. Injuries
Because we are focusing on diving boards, we need only concern ourselves with injuries resulting from two causes: (1) diving from a diving board and hitting the bottom of the swimming pool or, if the board is on a pier or raft in open water, the bottom of the lake or pond; and (2) diving from a diving board and hitting a swimmer. Divers do, of course, sometimes leap into the air and hit the board itself on the way down. These accidents can result in cuts, bruises, and broken bones. But in the total scheme of things, these are relatively minor injuries, and they seldom result in litigation.
The first category--divers who strike bottom--is the most significant. Too many of these accidents result in spinal cord injuries (SCI) that leave the victim permanently paralyzed; half of these SCI result in quadriplegia. (21)
Such accidents are surely as old as humanity itself. Long before swimming pools or diving boards, people dived from cliffs or rocks into oceans, lakes, ponds, and rivers, struck their head on the bottom, and suffered spinal cord injuries. There is even the occasional calamity that happens to someone performing a "run and plunge," that is, running from the beach into open water and plunging headfirst into the water. (22)
Diving in shallow water is riskier than many people think. People tend to underestimate the velocity and distance they will travel through water. (23) They also mistakenly think that their arms, extended out in front of them, will protect their head. But on the slimy and slippery bottom, their arms often slide easily apart and their head crashes, unprotected, into the bottom.
The National Spinal Cord Injury Statistical Center reports that 800 Americans are permanently paralyzed as a result of diving accidents every year. (24) This is about 7.3 percent of the 11,000 SCI occurring from all causes in the United States. (25) Diving accidents pale in comparison to motor vehicle accidents, falls, and violence, which respectively account for 50.4 percent, 23.8 percent, and 11.2 percent of all SCI since 2000. (26) But diving is the largest single cause of sports-related SCI. By comparison, about forty football players from all levels--including professional, college, and high school--sustain SCI every year. (27)
Hospitals do not routinely collect data about where or how diving SC| occur. We do not, therefore, have exact counts about how many diving SCI occur in swimming pools, as opposed to open water, or how many...
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