Righting Wrongs in Texas Without Litigation

The doctrine of “assumption of risk.”

Everyone agrees there is too much litigation, except for a few malcontents and trial lawyers; and who cares what they think anyway? People sue when doctors operate on the wrong limb or when a pothole has been neglected so that the front of the car sinks into it out of sight. Lots of people think that the way to prevent potholes or medical mistakes is to sue. These people are vindictive and often out to make a fast buck by holding someone responsible for their misfortunes. “Pain and suffering” is sometimes invoked as justification for getting more money. What is “pain and suffering?” Isn’t all life pain and suffering to some extent? You can’t go around suing every time you spill hot coffee on yourself or find a loose tooth in your Jello.  A legal doctrine embodying that point of view is called “assumption of risk.” I will explain “assumption of risk.”  (I am not a lawyer, but I hang around with lawyers. It’s that kind of neighborhood.)

“Assumption of risk” states that when you engage in certain activities, or go to certain places where there is known risk, you cannot hold anyone responsible for the injuries you incur. For example, if you go skiing down a wooded area, you cannot hold legally (financially) responsible the person who owns the trees on the property when you ski into them. You should have known better. Neither can the owner of the tree sue you for damage to the tree since he was aware that he was growing trees where skiers were wont to ski headlong. Anybody can see that this is fair. Otherwise no one would venture to ski or grow trees on skiing slopes.

A better example, perhaps, is attending a baseball game. Someone who gets knocked unconscious by a foul ball at a baseball game cannot sue for damages because he, or she, should have known that there was that sort of risk inherent in attending such a game. That is why sophisticated fans bring gloves to the game—so that they can prevent an injury to themselves or to a loved one sitting next to them. Such things happen. I am a Met fan; and I can tell you that I have scarcely seen any balls hit into fair territory. In fact, when I attend a game, I bring along a tennis racket since I am not very adroit with a catcher’s mitt; and I suspect the players are aiming at me.

It has recently come to my attention that the inclination to sue has cropped up even in places uncongenial to that sort of thing, namely, Texas. Texas is full of independent types who are used to taking care of themselves and not inclined to blame anybody else if someone shoots them while cleaning their guns or otherwise inadvertently injures them—or advertently injures them, for that matter. If someone beats them to the draw—fair enough. They should have practiced more at the range. Or they should have gotten hold of one of those new AK-47s that you can carry around comfortably on a sling and that tend to deter those guys who are always looking for a good time. But not all Texans are true Texans.

Every once in a while I read about someone trying to sue somebody else in Texas because a factory blew up while they were working there, or because their water became flammable as the result of fracking or because somebody shot somebody who had a threatening look to him. Somebody living within a block of the most recent factory blast is claiming injuries from flying glass and is thinking of suing the owners of the plant. This is hard to believe. This is not the Texas way. He knew his house was within the range of a possible blast. He knew he was living in Texas, the state most congenial to new business and, therefore, least inclined to invent regulations that get in the way. What did he expect?

Similarly, if someone is planning on getting sick, they should not move to Texas, which has the highest uninsured rate in the U.S. If they were born there and, therefore, do not have enough money to leave the state, they should make plans when they are sick to sneak across the border to Mexico where the medical care is exemplary. Mexicans are gracious. You never hear them complaining about “medical immigrants.” And they don’t have guards stationed at the border to shoot you if you don’t look Hispanic enough. Besides, most medical problems go away more or less after a period of time even without treatment. Even in places like New York, they did not have any good medical care until about 100 years ago, and people made do.

I don’t want to sound like one of those “uber-liberals” who live in the Northeast and look down on Texas. I know Texas. I was stationed in San Antonio for a week in 1962 after the army drafted me. I learned how to salute when I was in Texas, and march, and how to cross the desert at night alone with only a compass—all the sort of things an army psychiatrist might be called on to do if war broke out. While I was there, I visited the Alamo, which I liked very much. I even liked the wildlife, which is tough, just like Texans. I met an Armadillo while I was crossing the desert, and it looked just like a small tank—although I suspect it might not do so well matched up against the rabid raccoon that lives in the sewer at the edge of my property. So, I know Texas.

In all fairness to Texans, some of their reputation for racial bigotry is not deserved. They just have more than their share of suspicious-looking Blacks. Now, I don’t want to sound like a racist here. I haven’t used the N-word in so long, I don’t remember what it is. (Nincompoop? Ne’er do well? Know-nothing?) But, let’s face it, sometimes these Black kids go around in gangs of three or four talking loud and playing “gangster-style” music on their radios. And hogging the sidewalk. If they were more willing to step off the curb when white folks walked by, those white folks would not feel threatened and forced to “stand their ground” with unfortunate results.

Texans also know Texas. Despite what everyone thinks, they know they are not first among the states in the number of people murdered by firearms. They are second. They are number one in getting even though, having the highest rate of executions.

They know that their education is not all it could be. Texas ranks 51 out of all the states in high school graduation rates (Ha. You forgot to count Puerto Rico.) Otherwise their education is fine, unless you want to know something about biology.

They know that they are number 3 among the states in teen pregnancies. That is not good. And they are number 1 in repeat teen pregnancies—this despite the intensive programs they offer in abstinence. (Abstinence is a sure preventative of teen pregnancy.)

Overall medical care is not so bad. (Number 41 out of the 50 states.) But pollution is number four from the bottom. Poverty rate: number 5. Etc.

You see what I’m getting at here. Texas has lots of advantages: a great climate. (It was nice and warm every day I was in San Antonio, about one hundred and two.) They got all that great open space. And I like their style. The food isn’t bad at all if you like “Tex-Mex,” which I do. But sometimes bad things happen in Texas. Anybody living in Texas knows all this. This is where “assumption of risk” comes in. If somebody goes someplace where they know certain dangerous things can happen, they are deciding after weighing all the pluses and minuses to take on that risk. Therefore, nobody in Texas should be allowed to sue under the “assumption of risk” doctrine. And they shouldn’t complain either. If you live in Texas, you’re asking for it.

P.S. If someone living in Texas is offended by my remarks, I apologize.    (c) Fredric Neuman