The Litigious Distemper of Our Times

Verna Goodden (1920–2009) in her bike-riding prime

LONDON, ONTARIO – This week I set before you a series of snapshots which I believe are not unrelated, outlining the gradual fraying of our social fabric. Let's start with the very earliest of them all; recounting a hot afternoon in my 13th year when I was taking temporary leave from my most constant companion that summer to go home for supper.

We had decided to run an experiment. My friend stood on the sidewalk in front of his house on the south side of Baseline Road as I walked backwards up the very long block to Wortley Road, and every ten feet or so I would call out “goodbye” and if he could still hear me, then he’d wave his arms and holler back. We were testing to see whether we would first move beyond one another’s range of sight or sound.

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Being savagely callow ignoroids, we were, of course, utterly insensible to just how obnoxious our experiment would quickly become to anybody else in our immediate – and not so immediate - vicinity. Eventually my friend was no more than a vague, dark smidgen on my horizon and I was having to perch on tiptoes and strain the muscles in my neck to aid in the projection of my bellowed goodbyes. And that was when an undetected stranger approaching from behind delivered a sharp, censorious cuff to the back of my head.

Startled in mid-word, I swerved around to see a rather exhausted-looking man in a sweat-stained shirt, holding his suit jacket in the hand he hadn’t just smacked my head with. “Knock it off, will you?” he said, glaring at me in stark disbelief. “Just give it a rest. Nobody needs to hear this.” Instantly recognizing the validity of his complaint, I apologized and silently made my way home where I did not report my assault at the dinner table because I not only felt a little sheepish about it, I knew my parents would have entirely backed up my assailant. He was a full grown adult and it was implicitly understood that he – and every other grownup in the land - had my parents' permission to act as a sort of stand-in disciplinarian if I was misbehaving when they weren’t around.

I remembered that smack-down about ten years ago when I was in the dairy aisle of the grocery store and a woman who must have been in her 70s had gently but firmly taken hold of a three or four year-old girl’s hand and told her to stop knocking over containers of yogurt. Not only did the girl give the old woman lip but the girl’s mother then arrived on the scene and berated the woman in frankly hysterical terms for daring to discipline her child. “You have no right,” she bellowed at her, over and over again. I was tempted to ask the mother why she had so signally failed to exercise her right to instill a little discipline but knew that was only likely to escalate so unhinged a temperament as hers even further and settled instead for consoling the humiliated woman after the mother and child had stormed off in a self-righteous huff.

What particularly troubled me about that incident was that I had seen what the girl was up to before the woman had and instinctively declined taking any sort of action. Partly I held back because I knew that a strange man stepping in to modify a child’s behaviour would be even more likely to rouse suspicion and resentment. But the hopelessness of the situation went even deeper than that. When this woman stepped in instead of me, I wasn’t at all serene that she was all that much more unlikely than me to catch hell from an unleashed Medusa of a mother. And that was when I realized the sad sea change that had taken place in our society. A generation before, citizens-at-large were designated to gently correct misbehaving children. But in this situation the most helpful thing I could have done would have been to warn that well-intentioned lady to not bother trying to make things better; to counsel her for her own well-being to let a bratty child carry on being a pill lest she provoke the wrath of her even more irresponsible mother.

One afternoon in her early 60s, my mother was cycling home from a shopping trip downtown which necessitated a quick zip through the CN railway underpass on Wellington Street just south of York. Being a stickler for following the rules and understanding that you weren’t supposed to cycle on the sidewalk, Mom always took the roadway through there instead of the commodious pedestrian walkways to the left and right. I and everyone else I knew always took the sidewalks because a) they didn’t dip down as low, thus saving you effort while ascending to Horton Street and b) it was much easier on the nerves when a big truck or bus zoomed past through that acoustically resonant tunnel and you could swear that you were about to be smeared against the subway wall like a bug on a windshield.

The City was in the process of re-cementing the western wall on the day of Mom’s trek and when some rubble on the roadway forced her front wheel to sharply veer right, she threw out her right arm to keep her balance and an exposed re-enforcing rod poking out of the wall dug into the underside of her arm just above the wrist and ripped a bone-deep gash halfway up to her elbow. Bleeding like nobody’s business, she managed to haul herself and her knackered bike out of the subway and went into the cigar store next door to Rae J. Watson Cycle and Sports to phone my dad to come and get her.

Frankly the severity of her wound was such that an ambulance wouldn’t have been out of order but, as ever, Mom didn’t like to make a fuss. So Jack showed up, loaded her bike into the trunk and drove Mom to the hospital. She was released the next day with her arm wrapped up in gauze and was soon outfitted with this metal and elastic contraption on her right hand which she used over the next three or four months to successfully build back the muscles in all of her fingers.

She was given no guarantees that full use of those fingers would return and, aside from the pain and discomfort she endured, her prospects initially looked quite daunting. We all visited with her a lot those first couple of weeks, running errands and helping out by improvising potluck-style meals. At one of these gatherings she told us that an ambulance-chasing lawyer had contacted her to see if she wanted to sue the City for failing to properly clean up and seal their work site. “No,” she answered him straight away. “I couldn’t do that.”

“Why not?” the shyster wanted to know.

“Because I’ve lived in London all my life,” she said.

My God but I was proud of her. At its simplest level she was acting in accordance with the old maxim that you should not soil your own nest. But at a deeper philosophical level, there was a recognition – an almost Spartan acceptance – that sometimes bad things happen with repercussions that simply have to be borne; that even if a reasonable case can be developed that some calamity wasn’t your fault, that doesn’t mean that the community in which you live, or your own character, will be in any way improved if you legally devise a way to make somebody else pay for the mishap.

Just as destructive to our civic health as our mania for litigation are the measures we are thereby forced to undertake in a futile bid to safety-proof our world. Right around the time of my mom's accident – we’re talking the early ‘80s here – I landed a job as a night attendant, regularly checking up on eight or so mentally disadvantaged kids in their teens who lived in one of six group homes at the Salvation Army Children’s Village. In addition to hourly checks on their sleeping forms, I cleaned all the washrooms, did some laundry and made sandwiches for their next day’s lunch. It wasn’t terribly labour-intensive work so I kept a typewriter on site and, except for those nights when there was an outbreak of flu and I seemed to be mopping up puke from 11 p.m. to 7 a.m., I was able to crank out articles, short stories and plays, completely overhauled my second novel, and only left in 1988 when I had built up enough contacts in the publishing world to make a go of that full time . . . which sort of worked out until digitization decimated that industry about 15 years later.

The Sally Ann was a sweet gig and I liked all the kids and my fellow staff members. But by the end of my employment there, things didn’t have the same free and easy swing as they did at the beginning. There was an in-ground swimming pool behind the cottage next door that saw heavy use through my first summer but wasn’t repaired when some problems developed with its lining. There would have been some costs to repair the pool but the real financial obstacle was sky-rocketing insurance rates to cover injury or death – neither of which had ever been regarded as particularly significant threats before. They soon filled in the pool and grassed it over and except for an occasional outing to a public pool one mile to the north, our young charges had to tough out subsequent heat waves without easily accessible relief. 

Another summer night early in my stay, I was told I didn’t need to bother coming in. A lot of the kids were away with their families that weekend and one of the women on the shift before mine decided to pack up the only two who were left and take them to her house for a sleepover with a couple of rented videos and popcorn all round. A splendid time was had by all but that woman was soon persuaded that what she had done out of the goodness of her heart for these kids she loved was way too risky. What if there’d been a car accident on the way to her place? What if a kid had choked on popcorn, fallen down her stairs or been wounded when her VCR went on the fritz and ejected Ernest Goes to Camp with maniacal vehemence and bopped some poor little kid on the noggin? Really, you can’t be too careful, can you?

In the main I’m grateful to live in a time when provision is available for those who – through no fault of their own – suffer calamitous misfortunes. But I don’t think one has to be a cold-hearted monster to detect a civilly deleterious aspect, a ‘gaming of the system’ and a playing one’s self up as a victim (rather than an idiot or someone who’s just endured a stretch of bad luck) in much of the litigious activity that currently crams our courts of law and blights our communal life.
 
About fifteen years ago I briefly sat on a jury which was called to adjudicate the case of an over-refreshed young man who tried to sue the owners of an aquatic park for injuries incurred when he broke into their facility after they'd shut down for the night and badly injured himself riding down a long slide into a concrete pool that he was too drunk to notice had been drained. After one morning’s worth of testimony (which included the passing around of photographs of this young man’s shattered lower legs which had since healed far better than might have seemed likely) the plaintiff’s lawyer astutely sensed the jury’s steely indifference to his client’s self-generated plight, and when we returned from lunch we were told that the case had been quietly settled and our services were no longer required. The poor chap’s gall was impressive indeed (like suing the estate of the parents you've murdered for making you an orphan) but I think you can see where he got the idea that his shameless scheme just must might work.

It sometimes seems to me that for my first thirty years, I lived in a sane world where it was understood that being alive, working a job or just having fun sometimes carried risks; that of course we have to watch out for ourselves and each other but it would be a cowardly waste to cut ourselves off from potentially rewarding experiences and encounters just because we couldn’t guarantee a totally happy outcome every time we did something. And more recently I live in a miserly and faint-hearted world where even something as banal as a takeout cup of coffee or an apple turnover comes with a warning that this heated product might indeed be hot, lest the provider get sued for burning the lips of an irresponsible moron.

Litigation-happy lawyers and ass-covering legislators may be leading this demoralized slide into an abyss where everyone’s culpable and no one’s responsible. But we all share the blame by heeding their cowardly and demeaning counsel; infantilizing ourselves and destroying the bonds of community as we try to turn our every mishap into a windfall where somebody else – and ultimately everybody else – has to pay for our bad luck and our stupid mistakes.