- The Washington Times - Saturday, July 15, 2000

Who is to blame in the following incident? Two cars are heading down a thruway in Western New York. The driver of one car provokes the driver in another vehicle. Road rage consumes both drivers. Like two combatants, they challenge one another, tailgating and cutting in front of the other's vehicle. In one of these reckless moves, one driver loses control of the car and crashes into an embankment. A friend, riding with him, is left critically injured, severely brain damaged and hooked to a feeding tube for more than two years.

Who is to blame for the injuries to the innocent passenger, a young man who had just completed his first year of law school?

The justice system decided that both drivers were to blame, and both were sentenced to jail time.

But in a Civil Court proceeding, a New York jury placed the financial responsibility not on the reckless participants but on the owner of one of the vehicles, whose only involvement in this tragic incident was to legally rent a car to one of the drivers. The jury ruled that the injured student should receive $47 million. While one cannot help but sympathize with the hardship the student and his family now endure, the fact remains that parties not at fault were held liable and told to pay damages at a level that defies comprehension.

New York is one of only five states and the District of Columbia with so-called vicarious liability laws, which allow lawyers to come after the owner of the vehicle even though there is absolutely no evidence of negligence or responsibility on the part of the owner. In 45 states, laws recognize that individuals should be responsible for their own actions and do not give legal sanction to such raids on the blameless. Connecticut, Iowa, Maine and Rhode Island are the other states that have not eliminated outdated vicarious liability laws from their books.

In this particular New York case, which occurred in July 1998, the car was owned by a rental company. But because of New York's vicarious liability laws, any innocent car owner could find himself or herself in the same financially devastating situation. You lend your car to a friend who behaves irresponsibly, wrecks the car and hurts someone in the process. Despite the fact that your friend is a legally licensed and insured driver, you could be held liable for the actions of another, and the consequences could result in your financial ruin.

No individual or business can easily absorb judgments of this magnitude. In New York State alone, more than 300 small to medium-sized car rental companies have been forced to close since 1990 rather than risk such liability. Reform measures would in no way excuse the car owner from liability when there is evidence the owner is at fault. But if the fault clearly lies with the driver and not the owner, why do we insist on punishing the owner? Our system works best when blame and responsibility are properly assessed.

The greatest justification for correcting these laws, however, is their basic unfairness. This is the spirit behind legislation pending in Congress via a bill, sponsored by Rep. Ed Bryant, Tennessee Republican, and Sen. John McCain, Arizona Republican. Our nation's liability system is based on fault. If a person is not at fault, then he or she should not be held liable. The Bryant-McCain bill would ensure no liability without fault and should be supported out of respect for the vast majority of people who accept responsibility for their own actions.

Don Nickles, Oklahoma Republican, is the assistant majority leader of the U.S. Senate.

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