Three towering hickory trees in Milford, are the latest casualties of America’s lawsuit culture.
The particular trees, part of a group that line Wildemere Avenue, spread their branches over the back yard of Una Glennon, a grandmother of 14 who recently put in a pool for their enjoyment. Mrs. Glennon demanded that the trees be removed because one of her grandchildren is allergic to nuts and can’t play in the pool with the other children when the nuts are falling.
Earlier this month, the mayor of Milford announced that the trees would be chopped down: “It really came down to taking a risk that child may be sick or even die.” Mrs. Glennon said that she hoped the town would plant azaleas or “something pretty.”
Allergy to nuts is indeed a serious risk to those who have it and requires that parents or caretakers of children always carry a shot of epinephrine to counteract the reaction when there is unintended exposure. On the other hand, the decision is ominous news for trees that reproduce themselves with nuts — walnut, chestnut, pine, pecan and hazelnut as well as hickory trees. According to the Food Allergy and Anaphylaxis Network, about 0.6 percent, or 1.8 million Americans, are allergic to tree nuts. Making all their neighborhoods safe from nuts could spawn a new logging industry.
Public choices always involve trade-offs, weighing risks and benefits, but in the last few decades there’s been an almost obsessive effort to purge risk from our lives. What were once viewed as normal and healthy activities have steadily been removed. In 1997, the town of Bristol removed seesaws and merry-go-rounds from its playgrounds, prompting one disappointed youth to note, “If you play right, you’re not going to be hurt.”
Two years ago, after a $6 million verdict from a sledding accident in Greenwich, towns and golf courses across the Northeast banned sledding on their property. Running at recess was banned last year in Broward County in Florida. Portland, Ore. recently got rid of swings. Milford establishes a new frontier of risk avoidance — from activities that are optional to intrinsic features of nature.
Whose interest should prevail here? The philosopher John Rawls famously suggested that social choices should be made behind a “veil of ignorance,” where the decider imagines that he could end up in the position of either a tree lover or someone with a nut allergy. Reasonable people, I suppose, could take either position. Democratic government exists in part to make these choices. Under Connecticut law the job of making this decision falls to the tree warden of each town, and Milford’s mayor said the decision was approved by his tree warden. After the mayor’s announcement, however, the warden resigned.
What actually happened, according to town officials, is that the decision was driven by fears of legal liability. Mrs. Glennon, they say, sent a doctor’s note suggesting possible dire effects to the child, which the town lawyers interpreted as a threat that the town might be legally responsible. While state law limits municipal liability, the letter put the town officials on notice, and they worried that they might somehow find themselves on the receiving end of a civil or criminal proceeding. Why take the risk?
Legal risk is different from the balancing process that Rawls suggested. It forces people to focus on the lowest common denominator — the claim of any one person drives social policy. It doesn’t matter if the risk is remote and manageable, and society is better off keeping mature trees — people will do almost anything to avoid the possibility of a lawsuit.
Once a legal risk has been publicly identified, it sweeps away otherwise productive activities like wildfire. That’s what happened to America’s playgrounds — just try to find a good old-fashioned seesaw in your neighborhood. There is no logical stopping point either. The town of Milford is filled with hickory trees. Since the decision to remove the trees was announced, the town has received about 40 calls from residents asking whether they too should get rid of their hickory trees.
The power of legal fear is matched only by its disutility. The effort to avoid risk in playgrounds and recess has been almost perfectly counterproductive — play is so boring that children spend an average of six hours per day in front of a television or computer screen, contributing to the crisis of child obesity. The effort to shield the child here from the dangers of nuts might also be counterproductive. The child will have to learn to cope in a world full of nuts, if not in his grandmother’s backyard, then with the remaining hickory trees that line the street.
Running a society requires the ability to make choices based on an honest assessment of the tradeoffs in each case, often balancing an individual’s predicament against the common good. Marshalling resources in health care, maintaining order in the classroom, or keeping children vigorous by letting them take risks, all require balancing these different interests. Legal threats put a thumb on the scale, and drive decisions toward the lowest common denominator.
There’s a moral here — until we restore stability to American justice, defusing legal threats and letting representative government make these choices on behalf of the whole community, people will continue to go nuts.
Originally published at www.nytimes.com on July 30, 2006.