A few days ago, I was walking in Kostava Street towards the Philharmony when I passed a construction site that was separated from the sidewalk by a wooden fence. Suddenly, I heard the ugly sound of fabric torn apart. Yes, it had happened! My nice winter coat was ripped up by a rusty nail that stuck out of the fence, causing a huge hole in the coat that went down to the lining.

Was it my own fault? Well, it was already dark and the nail could hardly be seen, and I was speaking with somebody walking next to me. Therefore, I think I am innocent. One rather has to curse the anonymous moron who erected a fence with a rusty nail sticking out next to a sidewalk where thousands of people are passing every day.

Negligence in every-day life haunts me since my very arrival to Tbilisi. When three years ago I was looking for an apartment, my agent took me to a house that was still under construction while the apartments were already being rented out. The apartment she wanted to show me was in the tenth floor, but the elevator was arguably not made for the transportation of people but for building material and machines. It was embedded into a provisional metal scaffold in the staircase, loosely attached to the walls, with a rusty motor and electric wires sticking out. While the apartment agent stepped into the elevator with somnambulistic certainty, I insisted to walk to the tenth floor. She was pretty surprised about my fear, even seemed to find it funny, but when I pointed out the various issues of the elevator she agreed that “it might not be according to the regulations”. Moreover, after I described some of the scenarios that could happen with such an elevator, she admitted: “I have never thought about that”. Then she walked up with me to the tenth floor.

A few weeks later, I was shocked again. Every 5 minutes a crowd of people leaves Marjanishvili Metro station and pours onto the square where Marjanishvili crosses Agmashenebeli. At that time, major renovations and building activities were taking place on that square, and the people who left the metro station had no choice but to pass through the huge construction site. There was no pedestrian passage and not even a protective fence with rusty nails – everybody had to go directly through the construction site. This was really scary, as giant construction vehicles were passing, excavators were digging holes, and there were trenches that had to be passed on wooden planks. Letting crowds of people, among them old persons and families with children, pass through that dangerous area was highly negligent. Obviously, the operator of the construction site seemed to be not concerned about the safety of anybody.

NO LITIGATION TRADITION

By coincidence, a day after my coat was ripped up I met with a Georgian friend who happens to be an attorney. Based on my experiences with lawyers in other countries, I expected that he would urge me to initiate a lawsuit because of my damaged coat. Yet to the contrary, he told me that it would be difficult to find a lawyer who would work for me if I would bring my coat to court. A damaged coat would not be considered a serious case in Georgia (this is very much different than in the United States, where I could not only expect money for buying a new coat, but also receive punitive damages, which I will discuss a bit further down).

But when is an issue serious enough to be taken to court in Georgia, and what happens then? In the conversation with my friend, it became clear that there is a problem that prevents litigation from being effective in Georgia.

To describe the point, let me provide yet another example (there are so many). In Vera there are several houses which have stairs that lead from the sidewalk to entrances of cellars. Sometimes, e.g. in Belinski Street, there is no railing around those stairs, so that one can easily fall down about 2 meters, in particular when it is dark.

If I would fall down, a Georgian court would clarify whether any party, the owner of the house or the municipality owning the sidewalk, was negligent in not installing a railing. The court process could be lengthy and it would not be clear what would be the outcome. The same with the hazardous construction site and the elevator – at court one would have to determine whether anybody is guilty of negligence, and the outcome would not be clear.

Unlike in other countries, there is not much of a tradition in such litigation cases in Georgia, so that many of such issues would be brought to court essentially for the first time. Elsewhere, in particular in countries with a legal tradition that was not interrupted by foreign occupation and integration into the Soviet Union, almost all litigation scenarios were already discussed at some point in the past. There were so many coats ripped open in Western European countries in the last decades that there is a well-established standard how such cases are to be assessed by a court. Therefore, in most cases one would not have to go to court at all. In a standard case, the party who was negligent would anticipate that there was no chance to win the legal battle and pay compensation right away without involving a court and lawyers, or the victim would refrain from going to court.

Consequently, it will be more difficult to find rusty nails sticking out of wooden fences in those countries, because negligence will almost surely lead to compensation payments if there is a damage. Only unusual cases, like my coat being ripped up by a nail while walking on a way where I was not allowed to walk, would have to be legally fought out.

In winter, owners of houses in Germany are obliged to remove the snow from the sidewalks in front of their houses. This works pretty well in as there are few houses where the snow is not removed. The reason is that if I would slip on the sidewalk in front of such a house and break my arm, I would not even have to go to court – the “perpetrator”, the person who did not remove the snow, would be told by their lawyer that this is a hopeless case. They would pay my hospital stay and other compensation without a legal battle.

THE SMARTEST SOLUTION

If the government wants to ensure that safety standards are fulfilled, it could send inspectors to the construction sites, manufacturing plants etc. and do direct controls of the safety standards. This is, however, not only costly but has limited effectiveness, because the inspectors can only spot-check and it is easy to fool them. An effective litigation practice, on the other hand, does not cost anything and the fear of lawsuits effectively incentivizes everybody to abide by safety standards. Thus, even if controls are carried out additionally (which may be necessary with activities where a damage could not easily be attributed to a particular company or person), effective litigation is the method of choice to enforce safety standards.

The United States exploit the advantages of litigation to the maximum. Stella Liebeck had arguably one of the best days of her life when in 1994 she poured McDonald’s coffee over her lap. At court, she was awarded a payment of 2.86 million dollars from McDonald’s, 2.7 million of which were not paid for her medical expenses but as punitive damages.

Punitive damages are no compensation for the damage that was inflicted, but serve to deter the offender from being negligent. To incentivize people to go to court also with minor issues and in this way to quickly create legal practice which makes litigation efficient, Georgia would be well-advised to introduce sufficiently high punitive damages into their legal system.

If there were substantial punitive damages in Georgia, then the construction company in Kostava Street would have made sure that there are no rusty nails sticking out. Because then I would have gone to court, and in addition to the $100 for my coat I would have received, say, $10,000 in punitive damages!