Blame, Bava Kamma, and the Santa Monica Driver

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There was very little closure when a judge recently ordered probation for George Weller, the 89 year-old man who three years earlier steered his car on a swath of deadly destruction in a Santa Monica pedestrian mall. Ten people died, and sixty were injured, in what seemed to be a case of pedal error on the part of a driver whose previous mishaps behind the wheel indicated that he no longer belonged there. Weller will do no time, but the finger-pointing will go on. Were there others to blame? Could his family have done more to keep him off the road? Was the City of Santa Monica at liable for not anticipating errant drivers? Most importantly – do Departments of Motor Vehicles around the country pay more attention to aging vehicles than to aging drivers? If they do, are they at fault – or are they locked in neutral by the powerful AARP lobby?

The jury that convicted Weller used an argument that can be lethal when applied – as it is so frequently – to everyday affairs. Jurors reported that they were unanimous from the get-go about Weller’s guilt. They only deliberated whether the negligence was ordinary, or gross. UCLA law professor Peter Arenella said that the jurors’ simply could not accept that “human life can be lost in a tragic accident where no one is at fault.” Stephen Garvey, a Cornell law professor, saw it “just as a matter of human psychology.”

“If something bad happens, there has to be somebody who is culpable for it,” he said. People can’t accept that “bad things happen. There has to be reasons for them.”

Indeed, there are reasons and causes for all natural things. The cause of death for the unfortunates in Santa Monica that day was impact by a vehicle traveling with some velocity. Someone drove the car. Someone made the car. Someone paved the road that the car traveled on, and attracted the victims to positions in the eventual path of the car.

You can’t assign moral blame, however, without carefully weighing factors like foreseeability, authority and responsibility to anticipate and avoid a hazard. None of the factors that contribute to moral blame are all-or-nothing propositions. Reasonable people might disagree about where to fix moral blame. Societaly, we are forced to make another determination – where someone’s contribution is seen as significant enough to be actionable in a court of law.

Students familiar with Bava Kamma are comfortable with the notion that there are often clear and apparent causes of loss which are nonetheless not adjudged to be legally liable. Some parties are just not negligent enough for the court to hold them legally responsible for a tort, even though they are the proximal cause of the damage, and no one else will make restitution if they don’t. For example, if an owner “properly” restrains his animal, and the animal manages to somehow get away and cause damage, the owner is not liable (Bava Kamma 45B). There are many cases in our Shulchan Aruch in which the victim simply isn’t compensated.

Western law drinks from a different font of legal theory. To be sure, it does not find people liable for damages completely unconnected to them. Someone always must connect the dots, and draw a line from plaintiff to defendant. The notion of “deep pockets,” however, often has us using a very flexible bar of responsibility. We can bend that bar much lower if the defendant is in a better position to make good on the damage, and we are very motivated to do so because so many of us believe that Someone Must Pay. We want to think that if we are damaged, someone – we don’t care who – will have to do undo the harm; we are far more concerned with the likelihood that we will be victims than victimizers. The Western attitude, likely as a matter of public policy, is unsparing in ferreting out people and institutions to blame.

Does this affect the performance of jurors. In a legal climate of relatively easy blame – say, on large corporations often two or three steps away from the actual agent of damage – do jurors unconsciously assume the same in criminal cases?

Jury performance may not be high on the worry list of most people. They forget, however, that ordinary people play the role of judge and jury every day – and constantly assign blame to others. One of the most damaging elements in interpersonal relationships is the need to always find someone to blame – the reaction that the experts assumed was behind the Santa Monica verdict.

Little Shimon comes home with a disappointing report card. How many couples will try to affix blame on each other? “You don’t spend enough time with him.” “You are too lax with him, never making enough demands.” The flight is delayed for three hours. “Why didn’t you listen to me when I argued that we should take the earlier flight.” The hotel was a dud. “You never listen to the advice of my friends.”

The worst kind, perhaps, is the self-blame that some people insist upon putting on themselves, thinking themselves naked unless adorned with it. Why did I not attend the other yeshiva, or marry the other guy, or choose the job in another city? These doubts sap us of strength, consume us with needless doubt.

To be sure, there are often reasons – reasons to be avoided in the future – for many mistakes. But there are also mishaps that are simply below the bar of responsibility, for which we ought not feel any blame or guilt. They are understandable and natural.

If you are looking for the culprit in the undermining of relationships and happiness, you often can blame the obvious – the search for blame itself. Perhaps this is part of the wisdom of Bava Kamma.

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8 Responses

  1. Yitzchok Adlerstein says:

    Baruch –

    Your comments are fascinating, and should be read and considered by all. They are probably far more important than the points I was making. Still, I have no idea what they have to do with the cogency of my argument.

    I cited two law profs in the LA Times article who attributed the jury verdict to a predisposition of jurors in multiple death cases to insist on blaming someone. They may or may not be correct, but they were the jumping off point of my essay on the extension of this tendency to interpersonal relations. Along the way, I contrasted the rather fixed standards of assessing liability in the Gemara’s system with the more fluid ones in a deep pockets system.

    I never implied that forseeability etc were not part of Western tort law.

    Your experience with malpractice juries may or may not be a counterexample of what the two law profs argued. The tendency to blame may be there; it may be offset by numerous other factors, including the skill of talented attorneys like yourself, or the skepticism of juries about litigious plaintiffs, especially in PI cases.

    Blaming the victim may or may not be a countervailing factor in jury decisions, but even if it is, it would not prove in any way that a tendency to blame was also at work.. The overturning of large jury awards has nothing to do with how the juries arrived at their decisions in the first place.

    I have no interest in giving a free ride to corporations. None was intended.

    You seem to have turned this into a trial of Choshen Mishpat itself, and I detect a note of derision for the halachic system. Forgive me if I am wrong. For the record, I was not attempting to show the superiority of our halachic system to Western law. (See Derashos HaRan #11 pgs. 190-192 who argues that there is no reason to assume that halacha is innately “better” than any secular system; its value is that its thinking and operating principles dovetail with the rest of Torah thought and life-style.) Do I think that it has something to say about all contemporary situations? Yes I do. Do I think that Shulchan Aruch alone will do the trick? No I don’t, and no one else for hundreds of years did either. Halachic literature from the time of the Gemara and on is full of takanos, large and small, that were necessary to accommodate changed conditions. (Think of copyright protection, for which the majority of poskim for hundreds of years saw no “natural law” solution – with the possible exception of the Bais Ephraim – and required a new remedy.) I am reminded of a quote of a major posek of the previous generation that I saw recently (and unfortunately promptly forgot his identity), to the effect that paskening by Shulchan Aruch alone (without recourse to remedies imposed by Bais Din) will bring chaos to society.

    If there is some coolness on your part to the application of halacha to contemporary society, I do not share it. I must agree completely, however, with what seems to be your main point. Corporations can and do get away with murder. I have not looked into the way halacha treats them adequately enough to be able to say whether classic halacha has what it takes to tame the beast. Poskim differ about the status of corporations. Some would deny their special status altogether; others regard them as elaborate partnerships; some see them as halachic entities with shareholders seen just as investors without ownership rights or responsibilities.

    It doesn’t really matter. More needs to be done about them. The issue is not here in America, but in Israel, where corporate behavior is just a part of the picture of the growing gap between the haves and the have nots. The yeshiva world has never really applied itself to solving the problems of the modern Jewish State, in part because it doesn’t want to recognize it. It is bad enough that there is often so little consciousness of social issues here in America; I find it very hard to accept in Israel, in our own Jewish community. The teachings of the Chofetz Chaim and Rav Shlomo Wolbe do have relevance to social issues, but few people that I am aware of in the haredi world are drawing the lines connecting the dots.

    Outside of the haredi world, there is a notable exception. Rav Aharon Lichtenstein, shlit”a, of Yeshiva Har Etzion has spoken forcefully about the need for “teshuva” regarding economic policies in Israel that maintain and deepen poverty for a growing number of Israelis.

  2. Baruch says:

    By the way, bava Kamma and all of the talmudic text concerned with civial and criminal matters are all-consumed with figuring out who is to blame in myriad situation, from one negligently swinging an axe in the civil realm, to extreme hypothetical cases, such as in tractate Sanhedrin, where they debate whether one who kidnaps a pregnant woman but doesn’t sell her, is chiuv for “stealing” if that person uses the woman’s belly to shield him from the wind!

    In fact, isn’t it you who has popularized the idea that Western law oftentimes drinks from the “font” of Jewish law? Wasn’t it the gemara and mishna that first iterated all the different forms of personal injury damages, from loss of reputation, to humiliation, to disfigurement, and of course pain and suffering and lost wages?

    Clearly, chazzal were nearly obsessed with laying out the framework of blame and compensation of the victims. Of course they have some threshold for blame, but as I pointed out above, so does Western law, and perhaps that comes from the font of Jewish law as well.

  3. Baruch says:

    R. Adlerstein,

    As a medical malpractice trial lawyer who has worked for both defendant doctors and patient-plaintiffs, I must point out how wrong you are about how the justice system really works in America. Apparently, the “tort reform” McDonald’s coffee headlines have gotten to you, but medical malpractice cases- where the victims are always presumably innocent patients going for treatment whether the doctor was negligent or not- provide a great factual counterexample to your broadbrush argument.

    Medical malpractice trials nearly always result in verdicts for the defense. The ratio is at least 9:1 in favor of defendants. I have defended, successfully I might add, an anesthesiologist who negligently overdosed a teenaged high school athelete during a routine dental surgery, killing him. She admitted it to me. Meanwhile, she had to take off time from the trial to attend a medical board hearing in another case where she’d killed a patient. She got off in both instances, to my utter amazement, and she could be the anesthesiologist on one of your family members’ next surgeries, cv”s. These are anecdotes, of course, but just to show a different viewpoint.

    But here is why medical malpractice so perfectly refutes every point you make:

    1. Doctors are obvious deep pockets to jurors. The juries always know the doctors have insurance, and doctors are typically affluent. this has no effect on the verdicts.
    2. Injuries are typically horrific, often including death. Of course, many deaths and injuries are unfortunate, but non-negligent outcomes in difficult cases, but the followin statistic illustrates that this is the exception, not the rule, yet doctors prevail more often than they shoudl in court.
    3. We know doctors must be wrong more than one in ten instances based on the statistics: Medical errors are the 3rd leading cause of death in the US! That’s 225,000 per year that didn’t have to die. See, “Is US Health Really the Best in the World? Starfield JAMA.2000; 284: 483-485.” This study only applies to deaths, not maimings, wrong-leg amputations, hideous, but non-lethal results, such as brain damaged infants, etc. The costs to society of all of this are staggering in terms of dollars and the human suffering of entire families.

    4. Your Bava kamma implies that western law fails to take into account the concepts of foreseeability and proximate cause. Please walk down the hall to the Torts professor at Loyola and he’ll tell you western jury instructions in all states and federal court do in fact account for such concepts. (I know you knew this, so I wonder why you’d imply otherwise).
    5. Your “someone must pay” reasoning flies in the face of current social psychology theory, that more often, when people hear something bad happening, in an effort to feel the world makes sense and that if they’re careful such bad things won’t happen to them, they oten blame the victim, trying to figure out how the person “asked for it” or “could have avoided it.” When you heard the news of this car plowing into the crowd, did you catch yourself thinking for just a second “I would have jumped out of the way.” or “I always try to look around, so I’d probably have seen him coming and stepped aside.” Perhaps not, but many people did think thusly, I would venture.
    6. In veering away from your initial example of the old fella, and turning to the “big pockets,” you rush to the defense those who need no defense, powerful corporations.

    I’m sure, as a law school professor, you know that “runaway verdicts” are quite often minimized or reversed on appeal, if the appellate court finds the verdict to be the product of passion. There are no appeals in Jewish Law. Does this lead to more justice or less?

    Corporations don’t need you to parrot their self-serving canards. Take, Kaiser Permanente, for example. Did you know that they, as both insurer and medical provider, insert an arbitration clause into the subscriber’s contract? That applies to malpractice claims as well.

    The contact also provides for complete secrecy of any awards, so the public will never know just how lousy Kaiser is, thus allowing more potential victims to sign up for cheap Kaiser insurance. Moreover, who do you think the arbitrators side with most often, the plaintiff who files one lawsuit or Kaiser, the source of repeat business? All of this is so obvious, the individuals are underdogs. Large corporations are unique and, since you believe that the Talmud has application to all our modern moral concerns, I challenge you (out of keen interest on my part) to demonstrate how the whole concept corporate personhood and limited liability would be dealt with by chazzal.

    To put a fine point on it, corporations are treated as people are under our civil justice system. However, if a corporation were a person, it could only be likened to a sociopath, acting without regard for any consequences except those that will adversely affect the bottom line or the interests of the shareholders. This is not to say that corporations don’t provide many necessary social benefits, they obviously do. However, they wield tremendous power and have no moral guidelines or instincts as people do.

    Thus, any kind of environmental depredation by oil companies, or say carcinogenic effects of Phillip Morris’ cigarettes, or Kaiser’s use of its doctors as the front line *against* its patients, by denying services outright or delaying kidney transplants until the transplantee is dead (http://www.latimes.com/news/local/la-me-kaiser4may04,0,335770.story?page=1&track=tothtml )- all of these are non-events to a corporation, unless they result in bad press, fines, or yes, large verdicts. Even then, the verdicts are the cost of doing business, or the company files Chapter 11. No morality, no tshuva. In fact, the lesson learned is usually more like “let’s increase our lobbying budget to get that law changed, or to get a new Proposition, so we don’t have to go through *that* again!” There is no parrallel in Jewish thought or philosophy, no Chofetz Chaim, no Shlomo Wolbe sermons for corporations.

    Thus, to suggest the problem with western societies is the victim’s fault only adds insult to injury.

    Perhaps you could look elsewhere in the gemara to provide corporate board members or at least Jewish businessmen some guidance on how to conduct business in a moral way. We know they shouldn’t cheat on their taxes or use crooked weights and measures, but what other guidance does the Torah provide to the captains of industry that head the monolithic corporations. Perhaps Jews, who for so long were relegated to professions and excluded from the Old Boy Network corporate world, haven’t had to confront such questions. However, for a while now there have been Orthodox Jews high in the corporate ranks. Perhaps without getting them fired, you could provide them with a little mussar. And if your approach is deft enough, still get those Wiesenthal donations every year, too. ;)

  4. Ahron says:

    I think our culture does have an almost compulsive drive to find “SOMEBODY” who is responsible for….virtually everything. Regardless of the ultimate scholarly conclusions many people appear convinced that humans, and only humans, are causing a phenomenon of global warming. Almost entirely absent the public debate on this issue is a discussion of the profoundly complex and stochastic system that we term “climate” “weather” and “nature” and the many powerful inputs into that system that have nothing at all to do with humanity.

    Other examples abound of issues in which we inappropriately claim responsibility for things we do not control, matched with other situations of avoiding responsibility for the things we can. Are we afraid of being faced with the consequences of our own powerlessness? With the consequences of our responsibility? One other thought is that a human court’s self-recusal from issuing judgments on certain cases might well sharpen the questions that the parties to that case must then face regarding the role and will of God in the situation at hand.

  5. Ori Pomerantz says:

    I see two factors here:

    1. These days we have a lot more control about our environment that our ancestors did. We still pray for G-d to bless the year and its grain harvest, but we don’t really expect to starve if the harvest is bad. We expect to see all of our children grow up, not lose many to infant mortality. Because we are a lot less used to bad things happening to us, when something does happen it is a lot harder to accept it, and therefore there is a much greater motivation to search for restitution.

    2. More “deep pockets” to plunder, at seemingly no loss to anybody. Publicly owned corporations and insurance companies are faceless in a way that a human being or a partnership are not.

  6. Mordechai says:

    as a pithy way to remeber: I just saw a quote in the ARtscroll Rav Pam biography quoting his mother – How he died is irrelevant, he died because of u’nasane tokef….

  7. ben meir says:

    While I am not that familiar with the case, it seems the fundamental rule of Adam Muad Leolam should apply. The jury’s outlook “Jurors reported that they were unanimous from the get-go about Weller’s guilt. They only deliberated whether the negligence was ordinary, or gross” sounds pretty consitent with our law. Getting at the gov’t or the manufacturer might be into Tzroros or Garmi, but as far as the individual, i think the jury stands on fairly firm turf.

  8. joel rich says:

    I was taught that the fact that a jewish court will not award monetary compensation or punish a party does not necessarily imply lack of culpability but rather that the earthly court, by the rules set by the divine judge, says we can’t deal with it but leave it to the divine judge (generally one would be better off if the earthly court could deal with the issue rather than requiring HKBH to deal with them)

    KT