How to survive under tort-alitarian rule

It all started in Albuquerque with an English grandma, a McDonald’s drive-thru, and a molten cup of coffee. It was the early ’90s, and 79-year-old Stella Liebeck just wanted to add cream and sugar to her coffee. Sitting in the passenger seat of a parked car, she loosened the lid on the Styrofoam cup, causing the flimsy container to tilt, spilling steaming hot coffee onto her lap. The near-boiling liquid—around 190 degrees F—soaked into Liebeck’s skin, leading to horrific third-degree burns to her thighs and genitalia that would require skin grafts and years of rehab. She died in 2004.

What followed that set-up was a civil case in 1994 and a sensationalized punitive award of nearly $3 million that became a punchline for late-night talk show hosts—and a cautionary tale for how out of control America’s tort system was. How could a woman who spilled coffee on herself deserve that much money?

It should be noted Liebeck’s lawyer attempted to settle for $20,000, but some burger-brained McDonald’s lawyer low-balled her with $800—essentially $100 for every day she was in the hospital. And in court, it was revealed that 700 other people were burned by McDonald’s coffee, which was around 40 degrees hotter than your typical cup of joe. The punitive damages were deemed excessive and reduced to $480,000 by the judge, who noted the “callous” fast-food chain showed no attempt to mitigate the danger.

Since this infamous McDonald’s Coffee Incident, personal injury lawyers have exponentially poured out of every dark recess of the legal system to follow suit. Whatever the accident, and whoever was at fault, if it involved a big recognizable brand, no injury was too small, and no damages were too excessive.

Looking back, this pivotal moment in the New Mexico desert was the Manhattan Project of the nuclear verdict age, kicking off a war that rages on 30 years later, with one of the largest fronts being the trucking industry. In accidents involving commercial vehicles where someone is hurt or killed, fleets and manufacturers alike may be subject to such a verdict, when damages exceed $10 million.

The data suggests nuclear verdicts are indeed out of control. A study for the U.S. Chamber of Commerce, “Tort Costs in America,” found in 2022 that costs and compensation related to torts exceeded half a trillion dollars. One of the paper’s authors, David McKnight, a principal at consulting firm The Brattle Group, revealed $58 billion of that involved a commercial vehicle. That same year, 5,936 people were killed in large truck accidents and about 160,000 injured, according to NHTSA. That’s about twice the number that died 10 years earlier.

Now here’s the problem: Punitive damages, as the name suggests, are meant to punish the liable party and force changes to whatever industry practices led to the malfeasant actions. Providing financial justice to the alleged victim is secondary to sticking it to the man. But nuclear verdicts have seen a 10% annual growth rate since 2016, according to McKnight, so if that were true, fatal crashes involving commercial vehicles would go down.

They are not. But how could that be?

My theory is it’s because trucking must abide by a never-ending list of rules and regulations, and lawyers need only to expose and exploit ones that weren’t followed to the letter. Then they use reptile theory to manipulate jurors.

As Rachel York Colangelo, national managing director of jury consulting for Magna Legal Services, explains it, “We all have this reptilian brain… [an] innate need to feel safe and secure in our world and our communities.” And by “inciting fear in the hearts and minds of these jurors,” plaintiff lawyers get the nuclear result they want.

Read more: Best nuclear verdict deterrents: Fleet technology and planning

They get paid and everyone else covered by the insurer deals with the fallout. And when trucking insurance goes up, we all pay.

To make matters worse, some lawyers have even teamed up with disreputable doctors and criminal gangs to stage accidents. One outfit busted up in the New Orleans area specifically targeted tractor-trailers.

So what can you do when justice is blind? You can provide a real vision of events with dashcams.

They clearly capture what happened in the case of an accident, and the benefits get even better when using a dual-facing camera enhanced by AI. The forward-facing lens can pick up on posted speed signs, and when the accelerometer senses a speeding event, it can alert the driver, and eventually the fleet if the behavior continues. This is true for lane departure and tailgating, as well.

Inward-facing cameras, meanwhile, can identify drowsy or distracted driving, and again, warn the driver and inform the fleet.

Dashcams do three major things to fight those billboard lawyers. First, they provide autonomous coaching to deter unsafe driving in general. Second, both good and bad behaviors can be captured and used for training all drivers. And lastly, the video speaks for itself when an accident occurs. Whether it’s a staged accident or a real one, the video shows what happened.

The video can also help reduce legal costs when the blame lies with your driver.

“Even if it is our fault, we know right away,” explained Jon Somerville, fleet safety manager at Veit. “We can say, ‘Yes, it was our fault in this accident,’ and that can save a long time of litigation, versus the old way, which was it would get litigated out.”

Efforts are being made to enforce stricter federal penalties for staged accidents, and states are in various stages of tort reform, but that is out of your control. The best course of action is to research the myriad dashcams available and find one right for your fleet. And of course, spec braking systems suitable for your application, and keep up with your preventive maintenance and driver and technician training. Lawyers are still gonna’ lawyer, so you might not win every battle. But at least you’ll make progress in the war.