Thousands of families have recently been displaced by cheap Chinese drywall which, after being installed, begins to rot and emit a sulfur-like smell so pungent that the homeowners can’t stay inside. Worse yet, the price of removing it is almost prohibitively high, turning new homes into tear-downs. The problematic drywall was imported following an increase in drywall demand as a result of Hurricane Katrina. The families affected by this product are now bringing tort claims against the drywall’s manufacturers in China.
The modern law of torts has had an interesting and bizarre history. Looking at the beginning, one would never guess things would end up the way they are. In the Middle Ages, torts were negotiated between the victim’s family and the tortfeasor’s family. Punishments were figured out mostly along guidelines set by the king and by local custom. The owner of the Chinese drywall would have called up the manufacturer and demanded the CEO’s head. The company would have offered something less and the two parties would negotiate something mutually satisfactory, in the hopes that they would not start a feud.
Some of the earliest written English “laws” involved torts and comes from King Alfred, who wrote a book of “Dooms” around the year 900, in the hopes of making some guidelines to make negotiation easier. The Dooms of Alfred included a 120 shilling fine for stealing a nun. Half the fine was supposed to be paid to the king and half to the bishop. Another of Alfred’s Dooms said that if two men were cutting down a tree, and the tree fell on one of them, the dead man’s widow got to keep the wood. A third levied a fine for knocking out someone’s eye but noted that only one third of that fine would be due if the eye was blinded but remained in the head.
The next big development in the law of torts came in the 1150s, with the advent of the writ system. Writs were designed to prevent self help and offered access to the Royal Courts, where juries could award tailored damages based on their own assessment of the case, rather than a negotiation between the parties. The writ of trespass eventually became the mother of all modern torts, as its language was slowly stretched to cover new causes of action and get more and more people into court.
By 1610, the writ of trespass has been stretched to cover everything from wrongful eviction to assault to private nuisance. It was a writ of trespass which started William Aldred’s famous case (credited with being the root of all environmental law), in which he claimed that his neighbor’s stinky pig sty deprived him of his property. The Court said that Alfred’s neighbor had “no right to maintain a structure upon his own land, which, by reason of disgusting smells, loud or unusual noises, thick smoke, noxious vapors, the jarring of machinery, or the unwarrantable collection of flies, renders the occupancy of adjoining property dangerous, intolerable, or even uncomfortable to its tenants.”
What does this have to do with Chinese drywall? Nothing- but that’s the point. Modern torts are worlds apart from their medieval forebearers. The reasoning of Alfred’s Case, however, is alive and well. It is being employed today, four hundred years later, in cases about Chinese drywall in Louisiana. As unintuative as it seems at first, a pig sty that makes property worthless is no different from smelly Chinese drywall that makes property worthless. The plaintiffs could practically cite to Alfred’s Case and say “ipso facto, we win.”
Of course, the Chinese drywall manufacturers are none too excited about being bound by laws which were derived by thousands of years ago from across the globe. In fact, they’re claiming that American courts have no jurisdiction over them because they are Chinese companies. Unfortunately for them, that’s completely untrue. Even if the Chinese government were selling the drywall in its sovereign capacity, American courts would have jurisdiction.
If you fear that you have Chinese drywall, contacting an attorney and a doctor is essential. There are a wide variety of ailments that those with the unwanted material are now experiencing and calling a lawyer is the only way that many will be able to receive the compensation and fixed building elements they deserve.