Litigation

Consider the elevator

By Ted Frank

It's unquestionable that the elevator is one of the great inventions of the last two centuries. Skyscrapers—even the seventeen-story proto-skyscrapers of the late nineteenth century—would be infeasible without elevators. It's hard to imagine modern society without the elevator.

But elevators were unsafe by modern standards. In 1925, in the city of New York alone, 87 people died in elevator accidents, including 47 from falling into empty shafts and 36 crushed by closing doors. ("5,581 Deaths in 1925 Classed as Violent", New York Times, Oct. 19, 1926, via Deborah Blum's The Poisoner's Handbook).

Even if you were to believe every plaintiffs' lawyer's claim about Toyota sudden acceleration, it would mean that a Toyota owner would have less than a 1-in-a-million chance/year of dying in a Toyota sudden acceleration accident; the (false!) allegations have resulted in Congressional hearings, front-page headlines, regulators forcing recalls, hundreds of millions of dollars of litigation, and mass panic. Meanwhile, in 1925, a New Yorker had a greater than 1-in-100,000 chance/year of dying in an elevator accident, but no one even suggested abolishing the elevator; the carnage didn't even make the headline of the newspaper story where one can find the statistic.

Decades later, simply from market pressure, American elevators are safe (the modern safety elevator was developed decades before the litigation explosion). Searching Google News for counterexamples, I could only find an occasional injury (for example, a shaft fall in Wichita where the news coverage notes how unusual it is) and no deaths in recent months. In 2004, there were four deaths in New York City elevators, though the number of elevators had surely increased in 80 years, and at least some of those deaths involved passengers deliberately overriding safety equipment.

But I have to wonder if we would have had elevators at all if there had not been that transitional period when the safety kinks were worked out. In 1925, elevator manufacturers' and premises liability was constrained, even in New York, with the most liberal tort laws of the time: defendants had absolute defenses of assumption of the risk and contributory negligence; any victorious plaintiff would have proportional damages, rather than the outsized jackpot awards of today. (For example, one elevator accident I covered in Overlawyered had a $25 million claim. And that wasn't a death, but someone trapped in an office elevator for 42 hours over a weekend. Then there was the federal judge who wanted $21 million for falling on an escalator.)

How many inventions are we missing out on today because it's impossible to develop a first version that's safe enough to withstand the risk of product liability suits?

Full post as published by Point of Law on August 02, 2010 (boomark / email).