The Myth of Choice_ Personal Responsibility in a World of Limits - Kent Greenfield [4]
But there’s nothing wrong with Holmes’s logic. Henry Lamson knew and understood the risk he was taking when he stood under that rack every day. He had a way to avoid it, namely quitting. It wasn’t a pleasant or easy choice, but it was a choice. And Holmes thought he should bear personal responsibility for his choice.
Do our modern sensibilities about that reasoning differ, and if so, why? Let’s turn from the hatchet in the head and compare it to a baseball in the face.
In 1998, a woman named Jane Costa went with some friends to a Boston Red Sox game at Fenway Park. It was her first time attending a baseball game. Most people who go to Fenway remember it for great baseball—yes, I’m a Sox fan—and cramped, ancient seats that may or may not give you a view of the action and may or may not be covered by sticky substances with a nuclear half-life. Jane Costa will never forget her first game for a different reason. Arriving late, she had just taken her seat behind the home dugout when Red Sox batter Darren Lewis hit a foul ball directly at her. Since the ball was going more than ninety miles an hour when it left the bat, Costa had about a second to move out of the way. She didn’t. The ball crushed her face, causing permanent and disfiguring injury. Costa spent many days in the hospital, running up nearly $500,000 in medical bills.
She sued the Red Sox in a Boston court. That’s like suing the Pope in the Vatican, and she received about as much sympathy. The court denied her suit, saying that she should have known the risks of watching baseball, even if she had never been to a game before.3 The court held that the Red Sox had no duty to protect her. She should have taken care of herself.
Here, too, our sense of the case depends on a notion of choice. Most people’s reaction is: Everybody knows you can get hit watching a baseball game. It even says so on the ticket. Costa had made her choice, and she had to accept the consequences.
But there’s something illogical in this. Compared to Henry Lamson’s choice in going to work, Jane Costa’s so-called choice was much less genuine. While Lamson had a pretty good idea of the risks he faced at work, Costa had very little understanding of the risks she faced when she entered the ballpark. Most people know that balls can go every which way, and that some will fly into the stands. But few understand how dangerous they can be, and even fewer know that about 300 people are seriously injured each year at American baseball games.4 And as for the warning and waiver of liability on the back of the ticket, get real. I’m looking at an old ticket as I write this, and to call the warning “fine print” overstates the size quite a bit. I am reading it with a magnifying glass. Anyway, the last time you were at a baseball game, how many of the people sitting around you were in any condition to perform a sophisticated risk analysis? By the seventh inning, most of us at Fenway are lucky to find our way to the restrooms.
I am not saying that Costa should have won her suit. But the simple act of showing up at the game doesn’t mean she understood the risk of getting hit in the face by a baseball. If she bears responsibility for her injuries, it’s not because she chose to accept the risk in the same way as Henry Lamson chose to accept the risk of getting hit in the head by a hatchet.
I know of these two cases because I’m a law professor and have discussed them with students for many years. Most of them think Costa should have lost and Lamson should have won. In other words, the guy who actually knew, understood, and chose the risk of being injured should be able