Document Type

Article

Publication Date

2003

Keywords

Personal injury plaintiffs, Whiplash plaintiffs, Jury decision making, Civil liability, Responsibility assessments

Disciplines

Civil Procedure | Litigation | Torts | Transportation Law

Abstract

Tom is sitting in his car at an intersection, waiting for the red light to change. Without warning, the car behind him, driven by a distracted mother named Elaine, slams into the rear of Tom's car. After the accident, Tom experiences severe neck pain, which interferes with his work and family life. Who's to blame?

If Tom suffered physical injury as a result, then under current legal principles she is responsible for compensating him for his injury. However, research on jury decision making in civil cases suggests that a constellation of psychological, legal and political factors operate together to focus a surprising degree of attention, critical scrutiny, blame and responsibility on Tom, our hypothetical victim.

Attention, blame, personal responsibility and legal liability are conceptually distinct phenomena. Attention does not necessarily lead to blame. Legal responsibility does not attach to all morally blameworthy conduct. Yet, as a practical matter, they are often intertwined. In reality, from both moral and legal perspectives, not all plaintiffs are blameless and not all defendants are culpable.

Our interest is in analyzing a striking tendency to blame the victims of personal injury, even in instances where they are legally blameless. Therefore, this Article focuses on the related phenomena of attention, responsibility assessments, blame and legal judgments in the context of the personal injury plaintiff.

Publication Citation

Published in: Brooklyn Law Review, vol. 68, no. 4 (2003).

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