By Jennifer Wriggins, Sumner T. Bernstein Professor of Law
This blog post was also published on the Race and the Law Prof Blog
Overt racism is unquestionably on the rise in the U.S. Scholars and leaders are calling for a reckoning of U.S. racial history that has not yet happened. [1] Part of this reckoning involves thinking and learning – and teaching – about how different areas of law relate to race and racism, both historically and now. This kind of inquiry is essential for gaining a thorough understanding of whatever area of law is being examined – as well as being important for many other reasons.
Torts is a required first year law course, and scholarship such as mine and others’ illuminates the relationship between race, racism, and torts. [2] Casebooks now sometimes touch on issues of race and racism in torts and include some cases that raise issues of race. But there is much more to do. It’s important that law students graduate knowing something about how the torts system dealt with race and injuries to African-Americans. [3] The story is complicated and still being uncovered. Issues of race and racism belong in Torts courses, not just in Constitutional Law, Criminal Law, and ‘Race and the Law’ courses.
A few areas merit attention. I’ll touch on three. First, I suggest a few cases that I encourage professors to include in their courses and casebooks. Second, I discuss liability insurance, race and torts, casting the famous chair-pulling case of Garrett v. Dailey in a new light. And third, I outline two important points about the torts system and African-Americans: it utterly failed to deter or compensate for lynching, and second, African-Americans brought and won tort cases starting at the end of slavery but the compensation they received was much less than the compensation whites received.
First, I suggest several cases for possible inclusion in torts courses. One is Gulf v. Luther, 90 S.W. 44 (Tex. Civ. App. 1905), involving an interaction between an African-American woman employee of a railway and a white woman in a white women’s railway waiting room which resulted in a judgment against the train company. Doctrinally, the case is an early precursor of the Intentional Infliction of Emotional Distress tort; common carriers like railways were liable for insults to travelers by their employees even in situations where there was no battery or assault. Torts casebooks and cases often discuss the common carrier precursors to the independent Intentional Infliction of Emotional Distress tort. State Rubbish Collectors Association v. Siliznoff, 250 P.2d 282 (1952), the foundational case for the Intentional Infliction tort, is an example. Race and gender play critical roles in Gulf v. Luther, illustrating the importance of the context and power dynamics to the injury in powerful ways. The court’s language in referring to the white woman ‘victim’ and the African-American woman employee demonstrates how much race and gender matter to the social construction and recognition of the injury. The case recognizes a racialized harm and underscores racial hierarchy which is disturbing but not the least bit surprising.
Bullock v. Tamiami Trails Tours, 266 F.3d 326 (5th Cir. 1959), involving a white bus passenger’s assault on an apparently interracial couple, belongs in materials about negligence. In this case the Fifth Circuit, through its analysis of duty and foreseeability, challenged racial and gender hierarchies. A white bus passenger attacked the married couple sitting in the front of the bus soon after interstate buses were desegregated. Per the Court, the husband “was dark or black, while the wife, though a Negress, appeared to be a white woman.” 266 F. 2d. at 332. When the couple sued, the bus company claimed it was not liable for a fellow passenger’s attack although it would have been liable if the attack had been by one of its employees. The Court, reversing a trial court’s ruling in favor of the company, provided an instructive discussion of duty and foreseeability of risk in the context of bus desegregation in Florida. The decision holding the company liable for a racially motivated attack put interstate bus companies throughout the South on notice of their duty to protect all passengers, a duty that tort law would enforce through money judgments for damages. It undermined racial hierarchy, in stark contrast to Gulf v. Luther, although in a somewhat equivocal way, as students discover. Both decisions feature rich narratives about race and are compelling examples of how context shapes concepts like foreseeability and injury in torts. Both cases have pedagogic value in terms of tort doctrine. They also illustrate how torts and race intersect.
Second, liability insurance. Access to liability insurance equals access to the tort system. When plaintiffs in the tort system receive money for damages, the money generally comes out of a defendant’s liability insurance policy, rather than out of the defendant’s pocket. Liability insurance also pays the bills for defense and plaintiff lawyers-either directly (defense lawyers) or indirectly (plaintiffs’ lawyers). Torts casebooks have begun to emphasize the significance of liability insurance. But they generally leave out how unequally liability insurance has been distributed. It has been unequally distributed by race – as a result at least in part of deliberate racism by institutions, individuals, and governments – in several different ways. One way is that after World War II, the GI bill gave valuable benefits and low-cost home loans to returning white GIs while in practice denying benefits and home loans to African-American returning GIs. Homes purchased with the help of the GI bill had to have liability insurance. Thus, as housing was unequally distributed by race, so was liability insurance [4] A second way is that insurance companies refused to issue policies in urban neighborhoods with large populations of African-Americans; this practice, known as ‘redlining,’ contributed to neighborhoods’ decline. [5]
Garrett v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (1955) a classic torts case, looks a bit different with this background. Ruth Garrett sued a five-year-old boy, Brian Dailey, for injuries she received when he pulled a chair out from under her as she was starting to sit down. Generations of law students ponder the intent Brian did or did not have. Ruth Garrett won $11,000 (about $105,474 in today’s dollars) for a fractured hip and serious injuries. Brian, of course, did not have the money to pay $11,000 for the injuries he caused. But as a resident of his parents’ home, he was an ‘insured’ under their homeowners policy, one casebook tells us. Thus, Ruth Garrett got the $11,000 compensation for her injuries from Brian’s parents’ homeowners policy.
But let’s not stop there. Consider for a moment the same facts and injury if Brian’s parents did not own their house. If they rented rather than owned, it is very unlikely they would have had renters’ insurance that would cover Brian and the injuries he caused by his chair-pulling. And with no liability insurance covering Brian, Ruth Garrett would not have been able to find a lawyer, there would have been no lawsuit, and her injury would have gone uncompensated. The same outcome – no lawsuit – would result if his parents owned a house but had no insurance. The parents would probably not be liable for Brian’s actions. And even if they were, it would have been difficult or impossible for Ruth Garrett to find a lawyer to pursue the case unless Brian’s parents were very wealthy and had collectible assets. Liability insurance has a central place in torts regardless of the race of the participants, but distribution of liability insurance – and the extent to which plaintiffs are compensated – has been influenced by race and racism.
Finally, two broad points about the torts system need to be made. First, the torts system is part of the white racist legal system that utterly failed to deter or compensate for lynching and many other injuries suffered by African-Americans. Although at least 4743 people were lynched between 1882 and 1968, [6] civil lawsuits seeking compensation for lynching were extremely rare. [7] Second, African-Americans started filing and winning tort cases as soon as slavery ended, usually against large defendants like railroads, but their compensation tended to be much less than that of whites. Structural features of the torts system made access to the legal system possible for African-American plaintiffs but also made devaluation of their injuries inevitable. Lawyers (who would have been all white and male, very likely) represented them using contingent fee agreements, and juries and judges (also all white and male, very likely) sometimes decided in their favor. And yet, injuries to African-Americans mattered less to decision-makers in the legal system; one of the reasons we know this is that damages awarded were generally much less. Damages is taught in every torts course and presents a fine opportunity, with well-developed scholarship, for classroom discussion. Torts professors often talk about how subjective damages are in torts; racist devaluing of damages to African-Americans could and should be part of that subject. Published cases and legal scholarship make this very doable. See, e.g., The Saginaw and the Hamilton, 139 F. 906 (S.D.N.Y. 1905), GMM v. Kimpson, 92 F. Supp.3d. 53 (E.D.N.Y. 2015), CHAMALLAS & WRIGGINS, The Measure of Injury 155-170, sources cited in note 2.
Conclusion
Racism is becoming stronger in the U.S., despite the long struggles for racial justice in the U.S. and despite the fact that it is so deeply wrong. Our country has not completely addressed the history of race and racism in law. And this definitely is true in the teaching of tort law. Now is the time to make a serious start on this essential project.
Notes
[1] See e.g., Sherrilyn Ifill, Loretta Lynch, Bryan Stevenson, Anthony C. Thompson, A Perilous Path: Talking Race, Inequality, and the Law (2018), Sherrilyn Ifill, On the Courthouse Lawn: Confronting the Legacy of Lynching in the Twenty-first Century (2007). [2] See e.g., MARTHA CHAMALLAS & JENNIFER WRIGGINS, THE MEASURE OF INJURY: RACE, GENDER, AND TORT LAW (2010), Jennifer Wriggins, Constitution Day Lecture: Constitutional Law and Tort Law: Injury, Race, Gender, and Equal Protection, 63 Maine L. Rev. 263 (2010), Jennifer Wriggins, Torts, Race, and the Value of Injury, 1900-1949, 49 How. L. J. 99 (2005), Jennifer Wriggins, Damages in Tort Litigation: Thoughts on Race and Remedies 1865-2007, 27 Review of Litigation 37 (2007), Jennifer Wriggins, Toward a Feminist Revision of Torts, 13 Amer. U. J. of Gender, Soc. Pol’y & Law 139 (2005), Camille A. Nelson, Considering Tortious Racism, 9 DePaul Jnl. of Health Care Law (2005), Alberto Bernabe, Do Black Lives Matter? Race as a Measure of Injury in Tort Law, 18 The Scholar: St. Mary’s Law Review on Race and Social Justice (2015), Donald G. Gifford & Brian Jones, Keeping Cases from Black Juries: An Empirical Analysis of How Race, Income, Inequality, and Regional History Affect Tort Law, 73 Wash. & Lee L. Rev. 557 (2016), Ronen Avraham & Kimberly Yuracko, Torts & Discrimination, 78 Ohio St. L. J. 3 (2017), Ronen Avraham & Kimberly Yuracko, Valuing Black Lives: A Constitutional Challenge to the Use of Race-Based Tables in Calculating Tort Damages, 106 Ca. L. Rev. 328 (2018). [3] The focus of this piece, and most scholarship in the area, is on tort law and African-Americans, which does not comprise the whole picture of the role of race in tort law. Hopefully further research can expand the lens further and also increase understanding of class as well. [4] See, e.g., www.History.com/news/gi-bill-black-wwii-veterans-benefits (visited Feb. 10, 2020), KENNETH ABRAHAM, THE LIABILITY CENTURY 177 (2008). [5] For brief discussion of lack of insurance in urban areas and reforms to deal with access issues, see Jennifer Wriggins, In Deep: Dilemmas of Federal Flood Insurance Reform, 6 U.C. Irvine L. Rev. 1443, 1457-1458 (2015). [6] RANDALL KENNEDY, RACE, CRIME, AND THE LAW, 47-49 (1997). [7] See e.g., James Harmon Chadbourn, Lynching and the Law, 78-80, 119 (1933).