The Remedy for Frivolity in Our Courts

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By addressing the implications of duty, judges might be able to more soundly dismiss meritless lawsuits.

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The ongoing debate over frivolous lawsuits often addresses procedural reforms that would empower judges to screen out meritless claims. Existing procedures, however, already enable judges to dismiss these lawsuits (whether they choose to use them or not is another issue). The less-discussed aspect of "frivolous" suits are those claims that are simply not worth litigating from the standpoint of sound social policy, even if they have some chance of winning on the merits. Here too judges already have the capacity to remedy this problem in the formulation of "duty."

In tort law, duty refers to the legal obligation owed by one party (the dutyholder) to another (the rightholder) -- it is the first substantive element of any tort claim. Without an existing legal obligation between the parties, there is no legal basis for making a defendant liable for a plaintiff's injuries.

Although duty is a necessary predicate for tort liability, the concept was surprisingly neglected within tort law until the 20th century was well under way. Courts largely assumed that membership within civil society obligates one to avoid foreseeably injuring others through unreasonably dangerous behavior. But as society has become more complex, the conception of duty has changed considerably. Courts increasingly rely on various policy factors for determining the conditions under which one owes a duty to another, issuing no-duty rulings that have foreclosed tort claims in entire categories of tort cases. The jurisprudence in this area can be maddeningly vague, but there has been a clear increase in the importance of judicial no-duty rulings as a means for limiting tort liability.

No-duty rulings attempt to account for the society-wide effects that can be produced by individual tort claims. Due to the ongoing growth of mass markets and other scale effects produced by our increasingly interdependent society, tort claims involving a pair of litigants often have widespread consequences for other similarly situated parties. The only point in the tort inquiry that can account for these categorical effects occurs within the element of duty.

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A good example is provided by cases that must determine whether social hosts can incur tort liability for automobile accidents caused by their inebriated guests. In a leading New Jersey case, the plaintiff was seriously injured in a head-on collision with an automobile driven by a friend of the defendants who had been drinking alcohol with the two of them at their home prior to departing in his car. The plaintiff's evidence showed that the defendants' guest had consumed the equivalent of thirteen drinks and was clearly intoxicated when he got into his vehicle. In a case like this, the question of liability for the jury is straightforward: Did the defendants, by supplying their inebriated friend with copious amounts of alcohol before escorting him to his car, create an unreasonable risk of foreseeable harm to others, like the plaintiff, on the highway?

The issue of liability is not so straightforward in truth, however, because the jury does not consider how such an obligation might affect other dutyholders in future cases. That categorical issue must instead be resolved by the judge, who is empowered to decide the threshold legal question of whether social hosts even have a duty to prevent their guests from driving home drunk in the first place.

Courts around the country have split on the matter, disagreeing about whether such a duty would create safety and compensatory benefits that adequately justify the ensuing burden that would be placed on social hosts. Alcohol is provided in myriad social situations. Can a host really supervise the amount of alcohol consumed by guests at large gatherings? Short of counting drinks, how reliably can a host monitor another's intake of alcohol? What about the difficulties of preventing an inebriated guest from driving home? To avoid these problems, will individuals decide not to host such events in the first instance? None of these issues would be considered by a jury tasked with the responsibility of resolving the individual dispute in the case at hand. The categorical implications of such a tort claim must instead be addressed by judges in the context of a duty determination.

For this reason, the element of duty can address the problem of frivolous claims. Because various procedural mechanisms enable judges to toss out (and sanction) individual cases utterly lacking merit, any remaining problem of frivolousness reduces to the issue of whether the remaining cases constitute a category that society deems is worth litigating in the first instance. A categorical question like that falls within the domain of duty.

This question of social value is an important one. To see why, suppose that for every 100 automobile accidents caused by an inebriated guest driving home from a party, only ten involved negligence on the host's part. A duty to exercise reasonable care would subject the social host to liability in those ten cases--a desirable outcome--but a host would not necessarily be sued in only these circumstances. Anyone who was injured by a drunk driver leaving a party could readily sue the social host by adding those claims to the impending suit against the drunk driver. The social host will routinely prevail (ideally in nine of ten cases in our example), but defending a tort suit is still quite burdensome. The burden of legal defense factors into duty analysis, which considers the social host's interests across the entire category of cases and not merely those involving meritorious claims. A duty that results in too many lawsuits relative to the number of meritorious claims can be disproportionately burdensome for dutyholders, justifying a limitation of the duty.

Whether judges actually analyze duty in these terms is an open question. The newly promulgated Restatement Third of Torts exhorts judges to fully specify the policy reasons for limiting duty. So far, courts have responded favorably to the invitation. As the analytics of duty become more developed, judges will be able to see more clearly how this inquiry accounts for lawsuits that are not adequately meritorious. When properly formulated, the element of duty can help to foreclose entire categories of lawsuits that are not worth litigating as a matter of social policy. American judges should embrace this power--you might even say it's their duty.

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Mark Geistfeld is a professor of civil litigation at New York University School of Law, where he has been a member of the fulltime faculty since 1991.

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