No Harm Intended

I taught “Torts” for the first time this year at my Midwestern law school. Torts is a term used to describe injuries to persons and property that occur because of the intentional or negligent act of another. The first-year class of the same name focuses on the laws of the various states that determine who is liable to whom for such negligence and how to assess the physical, emotional, and economic damage that results.

At the beginning of the semester, I would have told you that “Torts” was an incredibly fun class to teach. The facts are fascinating and often gruesome; the cases we discussed had blood and guts and crazy freak accidents. We had a lot of guffaws at the expense of some of the plaintiffs and defendants in our cases, who either undertook actions that were incredibly ill-conceived or who met with unpredictable consequences.

One case involved a service-station waiting room and a cast of characters including a dim-witted attendant, a space heater, and a customer wearing a purple fake-fur coat. When the gas attendant decided to blow gasoline out of a hose in front of the space heater, that action produced ghastly results for the coat wearer, whom we then referred to as the “human torch.” Other cases involved car wrecks, train wrecks, gun accidents, swimming accidents, staircase accidents, fraternity parties, medical malpractice, and mean dogs. We laughed and laughed, in the way that people do when they spend large amounts of time talking about horrible tragedies.

It might not sound like it, but I was very conscientious in teaching my class. We discussed legal doctrine, but we also discussed underlying public policy. I wanted my students to be aware of the economic effect of assigning liability to classes of individuals, businesses, or industries and also the personal effect of limiting liability. I wanted my students to be able to discuss these topics openly and well, without reliance on general propositions made either by tort-reform or by plaintiffs'-rights groups.

I teach at a Jesuit institution that prides itself on teaching the whole student, and I pride myself on viewing each one as an individual, with particular needs and gifts. A phrase that we bandy about quite a bit here is cura personalis, which means to treat each individual holistically. I made myself accessible to my students, treated them respectfully in class, and tried to establish good relationships with them.

By midsemester, I thought things were going great. I loved my students, they seemed to love me, and everyone was learning. I had accommodated several students who ran into problems, including one with a chronic illness and another who told me the first week of class that he had had a “tragedy in his immediate family.” In the latter case, I didn’t want to pry, so I had assured the student that he was needed more at home than at law school at that time and patted myself on the back for being so understanding.

The last week of the semester, I found out the nature of the student’s tragedy and was floored by my inadvertent, semester-long insensitivity to him.

I had negligently injured my student every time he came to class. Let me explain.

My student (I’ll call him David) had two siblings. In August both siblings were in a car accident. One died instantly. The other remained in a coma until he died two months later. Between the two deaths, David sat through my class four hours a week while I made up an infinite number of hypotheticals beginning with “Say you hit someone in your car, and they die/they are in a coma/they are paralyzed/they are disabled. . . .”

For four hours a week, David heard me and the rest of the class speak in embarassingly cold terms about what the value of a life is in calculating damages: Can someone in a coma recover damages for pain and suffering when the person has no awareness of pain? How much are the expected lost wages of a college student when we don’t know for sure if he would have graduated or been successful in a particular field? Should a parent who loses a child recover damages for the mental anguish?

I distinctly remember one student making an argument that the mental pain that a parent experiences for the loss of a child is nothing compared to physical pain. (I intentionally let that argument go unrebutted, but reminded myself to call him in 10 years and see if his answer was the same.) I replayed 13 weeks of class in my mind, occasionally wincing as I was reminded of insensitive things that I had said or that I had prompted other students to say. I was ashamed thinking of the repeated injuries that I had inflicted on David, on top of the tragedy that life was handing him and his family at the same time.

In the end, I invited David to my office the last week of class, and apologized profusely. He was very gracious and attempted to wave off my concerns, but I felt he was being too kind.

In fact, he was treating me with cura personalis, taking my occasional insensitive remarks in the context of my entire persona, which he had learned to trust. He assured me that I had done no lasting damage, chiefly because of his unhealthy ability to compartmentalize school from his family tragedy.

On the last day of class, as I was wrapping up, I attempted to rectify the situation somewhat. I reminded my students that every person in our textbook’s cases, whether plaintiff or defendant, was a real person who had either been injured, or caused injury to others, and would therefore never be the same.

I admitted that in the interest of being able to discuss theoretically the issues posed by the cases that we had distanced ourselves from these people and had even used humor to disarm both the physically grisly and emotionally wrenching scenarios. However, as lawyers, we have to be sensitive to the fact that we are not dealing with fictional characters but real human beings. No one ever anticipates being a tort victim, I told them, but obviously some of us will be.

New professors learn a lot the first time that they teach a course, and my first semester in “Torts” was no exception. So as I swap topics around in my syllabus for next year, I am putting that speech into my notes for the first day of class.