Chapter 5: “The Nature and Aims of Tort Law”

[1]

Remember this?What distinguishes criminal law from other fields of law is that those who

violate its norms are subject to punishment.

Tort v. Crime [2]

• To commit a tort is to commit a civil wrong.

• One violates a legal standard, but the authorized response to a tort typically is the payment of damages.

• To commit a crime is to injure a person or the public.

• What distinguishes criminal law from other fields of law is that those who violate its norms are subject to punishment.

3 Types of Torts [3]

There are 3 types of Torts:1. Torts of Negligence2. Intentional Torts3. Torts of Strict Liability

• We will focus on Torts of Negligence for most of this Seminar

Negligence Tort [4]

A Negligence Tort consists of four elements:1. ‘A’ has a legal duty to show care and respect

for ‘B’2. That duty is breached: ‘A’ did not live up to his

duty towards ‘B’3. which causes loss: ‘B’ suffered a loss4. or suffered damageBut why should those who injure others paydamages?

Two Theories [5]

The two main theories for why tort law awards damages:1. Forward looking: emphasizes the way common good is

better furthered by the tort system [the economic account]

2. Backward-looking: suggesting that the common good includes appropriate responses to injustice [the justice account].

[Sound familiar? Utilitarianism and Retributivism are the two competing theories of criminal law justifications for punishment.]

The Economic Account [6]

• Accidents causing harm set back the common good. • The economic account* reasons that by internalizing the costs of accidents to those who cause them, parties will be motivated to prevent accidents that set back the common good. • This is similar to the idea of deterrence in criminal law.

* Forward looking: emphasizes the way common good is better furthered by the tort system [the economic account]

The Coase Theorem – Economically, it doesn’t matter [7]

• Ronald Coase [1910-present]• In many cases there is no loss of economic efficiency

(measured purely in terms of dollars) in choosing the agent who caused the accident to be liable for damages rather than the victim

• In either case, each will act in his or her own economic interest,

• Regardless of who shoulders the loss – if the loss is economically worth preventing, it will be prevented.

• Thus, if the common good is defined in terms of economic efficiency, it will be achieved regardless of who shoulders the burden of liability.

Coase Theorem continued [8]

• Does the fact that parties act in their own economic interests mean that imposing liability on one party rather than another is irrelevant?

• Are both parties equally able to prevent?

Coase theorem continued [9]

• However, we do not live in an ideal world. There are transaction costs in implementing any economic transaction.

• Coase observes that differences in each party’s transaction costs can affect efficiency.

• For example, information (or the lack thereof), the cost of bargaining, and the cost of enforcement will not be the same for both parties.

Therefore [10]

• The forward-looking view:Tort liability is imposed in a way that enables the most efficient accident prevention –

• Imposes liability for the cost of accidents so those in a better position to prevent the accidents efficiently have an incentive to do so.

Example:• A factory that makes a product is probably in a

better position to efficiently prevent defects in a product than are the consumers who use the product.

Comparison to Utilitarianism [11]

• The economic account* resembles the Utilitarianism account of punishment.

• But in tort law, the economic view is that the measure of the common good is wealth, and is understood as willingness to pay.

• It is assumed that wealth can serve as a measure of social value and thus something worth maximizing.

*Forward looking: emphasizes the way common good is better furthered by the tortsystem [the economic account]

The Justice Account [12]

• The justice account* holds that the point of tort law is to rectify an injustice that exists because of a party’s tortuous act.

• Instead of looking at tort from overall societal good (measured in wealth), the justice account focuses on the nature of the interaction between the victim and the tortfeasor [the wrongdoer who committed the tort]

* Backward-looking: suggesting that the common good includes appropriate

responses to injustice [the justice account]

Do you agree? [13]

• Everyone has a moral right not to have his/her interests set back through the carelessness of others

• There is a corresponding duty of others not to set back another’s interest through carelessness.

• Stephen Perry says that this moral right and duty are two aspects of the same idea.

• The reason not to injure is forward looking.

• The duty to compensate is backward-looking.

• It is an attempt to undo the injury, to make it so that the victim is not worse off through being injured.

• This undoing of injury is the ideal aim of compensation in tort actions. Is this possible?

Duty (It’s a Negative Duty) [13]

• Legal duty is one imposed by law and is not necessarily the same as moral duty, which could be much broader.

• Generally, in tort, one does not owe an affirmative legal duty of care to others.

• One only owes a negative duty of care, that is, to not commit misfeasance that harms others, and owes no affirmative duty, the breach of which would be nonfeasance.

Definitions • Misfeasance is to perform a legal action in a way that is mistaken or

wrong.• Nonfeasance is to ignore and take no indicated action.• Malfeasance is hostile, aggressive action taken to injure the client's

interests.

No affirmative duties [15]

• This is true even when an affirmative duty would be a small sacrifice compared to the large good to society resulting from such duty.

• An example would be throwing a life preserver to someone who was drowning (a small individual sacrifice) to save the person’s life (a large gain for the common good).

Why? [16]

• Why does tort avoid imposing affirmative duties, even where a small sacrifice could provide a large gain to society?• One reason is that once law begins imposing affirmative duties, such duties

would multiply and have no clear logical ending.

• A response to this argument:– Distinguish between emergencies, in which the danger posed

cannot be equitably distributed among all those with reason to prevent it.

– Non-emergencies, where there is time for collective action and distribution of responsibility.

– However, this leads to the difficulty of determining what counts as an emergency and could still result in unfair distribution of the burden as some persons might come into contact with more emergencies than others.

Exceptions [17]

• Affirmative duties can arise through certain special relationships, such as:• engaging in a dangerous joint venture• innkeeper & guest • property owner & invitee. • These special relationships can be defined with reference to social roles, social expectations, individual expectations, or political or moral arguments. • Special relationships also have been used to justify less

liability, such as spousal and parental immunity, where there were policy reasons to leave these relationships free from regulation by tort law.

Duty, breach and “reasonable person” [18]

• Duty is a question of law decided by judges. • Breach is a question of fact decided by juries.• An objective “reasonable person” standard is

used.• Irrelevant are mental conditions such as

whether the person is impulsive. • Why use an objective standard?

Why? [19]

• Oliver Wendell Holmes: It is for the general welfare that an objective standard is used.• How could it be for the general welfare?

• Arthur Ripstein argues that an objective standard is justified because corrective justice requires that people be held to an equal and impartial norm.

• The reasonable person standard is a community standard; it is the actual standard accepted as correct by the .

• However, juries are generally instructed that noncompliance with custom or statute is evidence of, or can create a presumption of, negligence but is not decisive.

The Judge Learned Hand Formula [20]

• Judge Learned Hand expressed in a formula the breach of duty.• The Learned Hand formula is an algebraic formula (B = PL) Liability turns

on the relation between:B = investment in precaution P = the product of the probability L = magnitude of harm resulting from the accident

B = PLIf PL exceeds B, then the defendant should be liable. [$5,000 = $12,500]

If B equals or exceeds PL, then the defendant should not be held liable. [$15,000 = $9,500]

This formulation is an efficiency standard of reasonable careRichard Posner says it was an attempt to make explicit the standard thatthe courts had long applied.

Problems with Hand’s Idea [21]

The Hand formula has presuppositions that can be disputed. It supposes: [1] The cost of preventing accidents can be measured with the

“cost” (including damages such as pain and suffering or death) of the accidents themselves.

[2] We can get a clear sense of probabilities of loss and costs of preventing loss.

[3] In assessing reasonableness of conduct, losses that accrue to the agent should be treated as equivalent to the losses that accrue to the victim.

[4] Posner points out that under this approach, a defendant would be willing to risk accidents and pay damages if the cost of preventing them was higher than the loss to the victim.

Causation [22]

• Test for causation: “But for” or “Cause in fact” states that ”but for the breach of duty, the accident would not have happened.”

• However, this type of causation could extend out indefinitely, so an additional test is required –

• That the breach be the “proximate cause.” H.L.A. Hart and A.M. Monroe hold that proximate cause exists if the effects are those that follow from one’s action in the ordinary course of nature, but not if the effect is the result of interventions by other humans or nature.

Forseeability [23]

• Justification for limiting liability in this way leads to an alternate idea of proximate cause – proximate cause exists if the results of one’s actions were foreseeable.

• Defining predictability is difficult because it’s almost always possible that a certain effect could happen, but rarely is it more likely than not that the effect will happen.

• Another issue is why should liability be limited to situations where harm is foreseeable? Why not, as Elizabeth Anscomber argues, make liability apply to all consequences of where duty is breached, foreseeable or not?

Non-economic Damages [24]

• It is not undisputed that injury to one’s body or property is loss.

• More controversial are damages for pain and suffering, emotional harm, or loss of consortium.

• One concern is proof. However, as tort law has evolved, damages of this type have, within limits, been recognized as the bases for tort claims.

The Problem [25]

• “Make the victim whole” is the general principle by which tort law has measured damages.

• A difficulty arises when applying this to losses not easily translated into economic terms, such as loss of life or bodily integrity, emotional distress, pain and suffering, loss of consortium.

• These damages are not commensurable [measurable by a common standard] with money but can be among the most important losses caused by the tort.

Theories on Measuring [26]

• An “indifference measure” says to measure such damages by estimating what one would accept in money to be indifferent between his condition before and after the accident.

• Problems with this hypothetical test is that juries likely have not experienced such damages (they lack adequate information to impose the test)

• There is a difference between loss voluntarily accepted and forced loss.

• Another approach: • awarding the cost of providing

services or goods that can make one’s life as it had been before the loss.

• but there may be losses for which this is impossible.

• What do you think?

Intentional Torts and Strict Liability [27]

• A tortfeasor’s responsibilities for harms caused by his/her intentional actions extend further causally [caused by] than is the case for harms caused by negligence. Why?

• Strict liability can be explained well from an economic viewpoint but less so from a corrective justice viewpoint because fault is not an element.

• Strict liability can be compared to assumption of risk in that by choosing to engage in the activity that is subject to strict liability you assume the risk of liability for harms resulting from that activity.