Fairness

 

For many athletes, being tough, or standing firm – in the face of injury, or stress, or problems – this is admirable, yes? And, it has helped to carve out many individual identities. And, maybe this is still true, to some noticeable degree. But – the truth of the matters is – being tough is no longer admired as it once was – which is due, in part, at the very least – to our societal re-definition of fairness.

Historians agree that there was a time, during the second half of the 20th Century (and perhaps prior to then, as well) when fairness was defined, for the most part, in adherence to the seat of power. As in, if you have the power, then what’s fair is that – whatever happens – you keep the power. And, where history is concerned, the people in power write or report the history that they want remembered.

Upon reflection – people of today’s youth generation may consider it sad – that the power to blame rested almost exclusively with the very people who often were to blame, and fault, or

Justice, or right, or wrong, these were often rather fluid concepts. In American tort law though, this was manifested as something a bit more concrete: The contributory negligence rule. This legal axiom suggested that, if a defendant contributed at all, in any way, to their own injury, well, then, they were precluded from recovery for damages. 100% precluded. As in, they got nothing. Nada. Zip. Zero. Zilch.

But, sooner or later, then came the 80s. It is important to note, however, that the movement to redefine fairness in the 80s was actually predicated on societal attitude shifts of the 60s and 70s. “Make love not war” became a commonly understood, appreciated, and adopted value system. The conflict in Vietnam was confusing on so many levels – people were generally less likely to accept the status quo, particularly if the status quo continued to disadvantage them…so, then, enter the 1980s, ushered in with perhaps the single greatest athletic event of all time – The Miracle on Ice – and this athletic event was heightened by three things:

  • Our childhood notion of the “good guys” vs. the “bad guys” was at a premium – good vs. evil, right vs. wrong – all that, was at its almighty peak, and…
  • Every single patriotic American was rooting for our boys – who were underdogs! And what did this do? – it validated an American societal disposition for unseating the power force.
  • The geo-political climate at the time was so thick and heavy that the citizenry of the world could barely breathe – people felt the press of the Cold War at its crux.

Mike Eruzione and his USA mates won that hockey match, Americans everywhere went crazy in celebration, and the world breathed its first sigh of relief in a long, long time…

And then it became, as if the children of yesteryear heard the message that “life’s not fair” – and they replied, collectively, and in kind, “Well then, that is just unacceptable.”

Later in the 80s, states began to abandon the contributory negligence rule, in favor of some version of the comparative fault rule – where attribution for contributions to injury is distributed among all the wrongdoers, and each according to the severity of her or his wrongdoing. Effectively, blame goes to each, according to their blameworthiness.

An earthquake then occurred in the law, again, shape-shifting as a reflection of societal values. Circa 1992. McDonalds. Hot coffee. Oh, yeah! We forgot about that case. Some young readers may have never even heard of it.

Summarily, perhaps it was the most mischaracterized case in the history of the law. For helpful reference to an accurate account of the case, please visit the following link: McDonalds scalding coffee case

But in the end – yup – McDonalds lost.

And the floodgates were opened. Litigation just poured onto the scene! Soon, even law schools started to overflow – to meet the high demand required to handle the case load. Cases and cases, and cases of negligence law litigation sailed into courtrooms across the country.

And so now, after we’ve had a couple-two-tree decades of suit-happy people, some say we’ve gone too far, and tort law again needs serious reformation – and maybe they’re correct. But as to fairness…

When blame is spread across all the wrongdoers, this is fairness framed differently, yes? To some, this is not enough. But – it is progress. Progress toward what? It seems that we are talking about progress toward greater understanding of, and full appreciation for – one another. Still…

Still – life is not fair, for everybody, all the time. And maybe life’s not fair for anybody, sometimes. What then shall we teach our children now? About fairness? About equality? About using your voice? About being tough? About standing firm? About something to believe in?

We cannot solve all the problems in the world. But those we can, we must. – Bono

We’re a long way from where we’ve been – and we’re a long way from where we need to be… – Bono

One more question – but this one, with an answer: Why should we give people the benefit of the doubt? Because each of us – all of us, at some point down the road, sooner or later – will be the one wanting and needing the benefit of the doubt. From someone else.

By Dr. Rodney J. Blackman

Dr. Blackman is the Chair of Recreation Management at the United States Sports Academy, and can be reached at rblackman@ussa.edu.

 

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