For most of our history, we followed the British system of common law, including laws dealing with tort liability. This heritage has been attacked by courts and plaintiff attorneys so much that it is barely recognizable.
One such doctrine of tort liability is the assumption-of-risk doctrine. Simply put, the assumption-of-risk doctrine holds that if the user of a product or service is aware of the danger, and nevertheless proceeds to make use of the product or service and is injured by it, he is barred from recovery. In other words, assumption-of-risk doctrine holds that people bear some accountability for the results of their actions.
As a result of the successful lawsuits against tobacco companies, assumption-of-risk doctrine is a skeleton of its past. For decades, under our traditional tort regime, if a plaintiff knows the risks of smoking, yet still smokes and contracts a tobacco-related illness, he had no claim against the tobacco manufacturer. That's all changed. The courts have all but said that it's the tobacco company, not the smoker, who's responsible for the smoker's plight.
Americans are quite pleased with the success of the political and legal attack against an unpopular industry. They're pleased by smoking regulations and the near confiscatory cigarette taxes levied in the name of protecting children and recouping health-care expenses. In some jurisdictions, taxes have made a pack of cigarettes sell for $7, and predictively a flourishing black market, along with its associated violent crime, has emerged. The question I ask is: Will Americans be just as happy if the cigarette attack is carried to other products?
Sam Katzman, attorney for the Washington, D.C.-based Competitive Enterprise Institute, says, "The tobacco litigation campaign's most significant impact may well be not its effect on the tobacco industry or on smokers, but its creation of a template for attacking other industries."
The tobacco litigation made the case for diminished personal responsibility and the "social costing" of products. In other words, all a lawyer has to successfully argue is that a product such as tobacco, hamburgers, casinos, cars, etc., are addictive. That means individual responsibility for his lifestyle choices is out the window. Lawyers then hire "expert" witnesses to argue that the product imposes costs on society. Attorney generals and politicians come out of the woodwork calling for taxes to recover those costs. The icing on the cake is to somehow argue that America's precious children are harmed by the product. Success is nearly a foregone conclusion.
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