Auntie Maim and Nephew Maimer…
Remember the Ethics Alarms post about the favorite aunt who sued her 12-year old nephew for damages based on her injury when he jumped into her arms at his birthday party when he was 8? Remember the indignant plaintiffs lawyer who couldn’t get his mind around the fact that normal people don’t (ande shouldn’t) always see right and wrong like lawyers do, or that “it’s done all the time” (that is, The Golden Rationalization, #1 on the Rationalizations list, “Everybody does it”) and “there are worse lawsuits” ( or the worst of all rationalizations, #22, “Comparative Virtue” or “Its not the worst thing”) are not sufficient ethical defenses of a woman who voluntarily traumatizes a child who trusts her and who just lost his mother?
The Weekly Standard looks at the episode from some different angles, and writer Charlotte Allen does an excellent job providing a balanced analysis of the case (which I am now using in my ethics seminars to explain to lawyers how legal ethics alone is often not enough to make lawyers ethical). I am awash with regret that I didn’t think of the gag “Auntie Maim” in the original post, which admittedly went a bit overboard in its condemnation as it was. Mostly, however, I am gratified that I was quoted in the piece after a well-handled interview with Charlotte, and indeed that she used my perspective to sum up the significance of the episode.
You can read it all here.
Ethics Alarms 
Fascinating.
I’ve been noticing something like this for some time in my own business, but didn’t have the knowledge to articulate it. This from the article really caught my eye: I’d love to hear if you’ve got more to say about it, Jack:
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“People had high hopes that tort law could be a kind of insurance system, so they stretched the concept of liability insurance into a bigger piece of the social system. The idea was that the costs of people’s injuries could be spread painlessly through the system. Whole generations of students in law schools learned that in the absence of European-style social insurance, one way to be progressive like Europe was to use liability insurance as a form of social insurance.”
Of course this transformation entailed a blurring of the traditional notions of duty of care, fault, negligence, and individual responsibility.”
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To my mind, this is all reminiscent of the transformation of the mortgage industry from something we see every winter in It’s a Wonderful Life, over just the course of a few years in the 90s, to the lovely world that led us to the recession – a complete dispersal of accountability, replacement of obligation by markets, and a vacuum where personal ethics used to reside.
I’m not sure why word press decided that my name should be my Email address… But could we please not show that?
It isn’t showing that way on my screen. Weird. I’ll look into it.
She nailed it, and it was a concept I couldn’t articulate the first time around: Tort laws aren’t insurance policies, Tort laws are used when someone has done something they either know to be wrong, or should have known to be wrong. In what universe do we expect children to think before they hug? Do we really want to pathologize hugs from eight year olds? And the trial lawyers who were piling on that just didn’t see it… The profession lost something somewhere.
Yeah, you got to give the final opinion and payoff for the long format! The ‘who pays?’ question is tying us all into a Gordian knot, and that is causing nasty side effects that we need to face as a country. The overheads of all this for medicine and law is killin’ us
And now that the kid has been shown not to be negligent, and the homeowners insurance thereby irrelevant, the aunt can now proceed with the claim against her own personal injury policy – a claim that had been denied as she hadn’t taken all steps possible to recover from a 3rd party.
We used to see this kind of thing all the time in auto insurance.
If she doesn’t have a personal injury policy, and an insurer holding a financial gun to her head, then she’s just being a… not very nice person.