A History of Personal Injury Law
May 18, 2016
We can certainly argue that some form of law addressing personal injury has been around for thousands of years. After all, wrongful acts and negligence are nothing new. In Biblical and ancient times, the roots of what are now known as tort law and personal injury law were established. In those times, the law of retribution meant someone who harmed another was required to repay the person harmed. The person responsible had to repay exactly what had been taken — in the same way and the same amount.
It was in ancient Greece and Rome that the professional attorney position was created. Under the laws of those nation-states, plaintiffs could bring a companion to court to help them with their case. These companions were not allowed by law to accept payment for their assistance but in many cases were knowledgeable about the legal system, so they were valued.
By the first century A.D., the rule prohibiting payment to these companions was stricken, and the forebears of today’s attorneys could accept money for their work. By the fourth century, a bar exam had been established to evaluate potential attorneys.
The 15th Century
In the late 1400s, Europe had two systems of law. Most of the continent was ruled by Canon Law, closely linked to the Roman Catholic Church. This system of law relied on the church and on monarchies to establish rules and laws, so often rulings favored the wealthy and powerful.
In England, however, Common Law prevailed. In this type of law, precedents and past rulings determined legal issues. The courts had the power to interpret law. As a result, laws and legal texts tended to be longer than in Canon Law. Since legislators were not the ones interpreting the laws, the system was, in theory, more equitable for those who were not part of the ruling classes.
In the late 1400s, explorers from Europe started to travel to North America, where they discovered continents unknown to them. Since English explorers and eventually others would settle in what is now North America, the countries eventually known as the United States and Canada would have legal systems based mostly on Common Law.
The 17th Century
By the 1500s and 1600s, attorneys had become well-established in Europe and beyond. They were largely considered respectable professionals. However, as early as this time some jokes at the expense of these professionals had been created. For example, a character in Shakespeare’s play Henry VI (Part 1), first performed at in the late 1500s, jokingly says, “The first thing we do, let’s kill all the lawyers.”
In addition to attorney humor, the 1600s were important for establishing an important principle in English Common Law known as Res Ipsa Loquitur:
- Translated from the Latin as “the thing itself speaks,” this principle establishes the idea that some things do not happen as a natural occurrence, and if they do occur someone must be responsible.
For example, if a car crash occurs, this is clearly not a case of spontaneous or natural occurrence, meaning someone must have caused the accident.
- By the 1600s, plaintiffs who had suffered income or wage loss because of someone’s actions could also be awarded compensation for these losses by a court.
In Colonial America, some communities tried to ban attorneys entirely while many more regulated and limited lawyer fees. There was some suspicion of attorneys, usually because of fears of the court system and its links to the wealthy and to government. Typically in court cases during this time period, the losing party would pay legal fees.
The period between 1760 and 1830 is known as the First Industrial Revolution. In North America but especially in Europe, this period saw the rise of automated production. The first factories were built and cities grew. Previously, goods were made largely by hand through individual artisans. Now, products could be produced in much larger numbers by machines.
The Industrial Revolution changed the way people lived their lives. Moves to the cities meant greater crowding and in some cases more crime. In addition, factory workers often faced very unsafe working conditions. Many were injured or even killed on the job because the legal system had not yet caught up and there were relatively few remedies available for injured workers.
Employees were unlikely to be successful in any attempts to pursue justice after a serious injury. In some cases, it was possible for workers to get compensation for their injuries. However, in many cases compensation came from private associations and charitable organizations rather than the court system.
By the 1850s and beyond, the scene had changed slightly, at least in America. Plaintiffs were sometimes able to successfully pursue negligent parties for non-physical losses. By the 1860s, Americans were so eager to pursue claims in court that the now-common idea of frivolous lawsuits was established. During this time period, damages were awarded in cases that today would not have been successful. For example, successful claims from the 1860s involved:
- A man who sued after swallowing a fish bone
- A man who was blown over by a gust of wind
Overall, the power imbalance between wealthy employers or large companies and individual plaintiffs was large. However, corporations and companies could and were sued, in some cases successfully. American laws explicitly ensured individuals could sue any large company at fault, no matter how powerful the organization.
For American attorneys, one important issue occurring in the nineteenth century was the end of lawyer fee limits and regulations, established during Colonial times. Starting in the 1800s, attorneys could start to charge whatever prices the market could withstand.
The Early Twentieth Century
In the early 1900s, personal injury cases were still not very common, and most claims revolved around physical injury. Non-economic damages, such as suffering, were not considered when compensation was awarded. In 1908, the American Bar Association adopted the Canons of Professional Ethics. Among other things, these canons barred attorneys from soliciting or advertising their services. They could use business cards and word of mouth.
In the early 1900s, the Second Industrial Revolution took place, and mass production as well as manufacturing plants were established across America. During this time, authors such as Upton Sinclair wrote about the dangerous conditions American workers faced. Faced with public anger, states eventually started creating workers’ compensation systems, starting with Wisconsin in 1911. By 1948, all states had workers’ compensation laws to offer benefits to injured workers while protecting employers from lawsuits.
The case of Donoghue v. Stevenson (1932) was pivotal and changed the course of personal injury law history:
- The case began in 1928, when Mrs. May Donoghue drank a bottle of ginger beer purchased for her by a friend in a café in Paisley, Scotland.
- After drinking much of the bottle, she became aware there was a snail decomposing inside. Because the bottle was not clear, she was not able to see the snail.
- After drinking the beverage, she became ill and a doctor confirmed the illness, which he diagnosed as gastroenteritis.
- As a result, Mrs. Donoghue sued the manufacturer of the drink, Mr. David Stevenson, seeking £500 in damages.
Since the bottle had not been purchased by Mrs. Donoghue, she could not sue for breach of contract, which is the typical argument in such a case. Instead, she and her attorneys argued the injury had been caused by negligence and a breach of duty on the part of Mr. Stevenson. After the initial claim failed and the case was appealed before the House of Lords, Lord Atkin delivered a judgment establishing Mr. Stevenson did in fact owe the plaintiff a duty of care and did breach that duty.
The case was a watershed moment in personal injury history. It established the idea of duty of care, still an important element in personal injury claims today. This case also established negligence as a tort with remedies under the law. Finally, the case also created a precedent for the “neighbor principle,” or the idea negligence as a tort could affect parties beyond just the immediate parties involved. Therefore, even though Mrs. Donoghue had not purchased the drink, Mr. Stevenson’s negligence still impacted her and she could seek remedies.
The Late Twentieth Century
By the late twentieth century, attorneys were seeing strong business with personal injury claims. Donoghue v. Stevenson created a precedent, allowing others harmed by defective products or negligent acts to come forward.
In 1977, middle-class individuals in America saw an attorney only 2-3 times in their lives, according to an American Bar Association study. While personal injury law had grown, it had not grown rapidly for the middle class. In fact, the middle classes were only seeing attorneys for less than one third of all possible issues where they could have sought legal counsel.
One law firm decided to do something about it. Personal injury attorneys Jacoby & Meyers wanted to create a law firm similar to the professional services seen in dentists’ and orthodontists’ offices — professional and accessible services Americans of all walks of life could use. The firm automated processes for basic services such as wills, allowing it to charge less for consultations and services such as divorce.
Since it wanted to reach a wider market, the firm also became aggressive about advertising. It handed out business cards and set up storefronts. At a time when most attorneys advertised in the phone book, Jacoby & Meyers talked to the press. The State Bar of California contacted the law firm, alleging it had violated a ban on advertising.
The firm was not alone in trying to find commercial success. In 1977, Bates v. State Bar of Arizona examined the issue:
- In that case, two attorneys seeking to set up a legal clinic in Arizona had advertised their services in a newspaper.
- When their state bar association alleged they violated rules prohibiting attorneys from advertising, the attorneys claimed the advertising ban violated their freedom of commercial speech rights.
- The courts eventually sided with the attorneys, finding lawyers and law firms could advertise.
As a result of that court decision, attorneys were free to advertise their services. In 1979, Jacoby & Meyers became the first law firm with a television advertisement spot.
The Frivolous Lawsuit
By the 1990s and 2000s, there was concern over the idea of the “frivolous lawsuit.” In 2010, for example, British Justice minister Jonathan Djanogly criticized referral fees for personal injury attorneys, alleging they offered a “perverse incentive” for people to file claims, claiming it led to a “rotten suing culture.”
This attitude was exemplified in public reactions to the 1992 case involving Stella Liebeck, the Albuquerque woman who received $3 million in damages after spilling coffee on her lap and suing McDonald’s. The case was widely reported in the media for years, and comedians used the lawsuit to poke fun at media culture. HBO created a documentary about the event, Hot Coffee, which detailed the facts of the case — that the elderly woman had suffered extensive and serious burns because the coffee was much hotter than necessary and even safe.
In the 1990s and 2000s, personal injury law veered between these two points. On the one hand, consumers wanted the right to fight back against obvious cases of negligence, such as:
- Imported children’s toys containing lead paint
- Chinese drywall causing health concerns and property damage
However, the insurance industry and some legislators alleged so-called frivolous lawsuits were costing taxpayers and consumers a lot of money. Some states tried to place caps on medical malpractice claims and other claims, alleging instances of high rewards led to prohibitively high insurance costs in some industries.
In addition to questions about frivolous lawsuits, another issue would affect personal injury law during this time period — the Internet. The advent of home-based Internet services in the 1980s and into the 1990s changed the handling of way personal injury cases. Attorneys could now advertise online as well and communicate with clients via email, leading the ABA to release new guidelines for this type of communication.
Social Media and Personal Injury
In the second decade of the 2000s, social media became a part of everyday life. Sites such as Facebook, Twitter, and others gave attorneys a new platform to advertise. In many ways, these platforms also reduced privacy and gave attorneys a new way of gathering information about plaintiffs and defendants.
Cases emerged of plaintiffs accused of posting holiday photos when they were allegedly injured. Forman v. Henkin (2015) explored the idea of whether social media posts set to “private” were still discoverable in court cases. As more and more individuals of all ages shared significant amounts of personal information online, the status of social media in personal injury cases became increasingly of interest.
At KBG Injury Law, we are proud to be part of the rich tradition of personal injury law. For more than 30 years, we have served plaintiffs and seen changes to our industry. We look forward to being part of precedent-setting cases in the future. If you need a personal injury attorney, you can always contact our law firm for a consultation.