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

2. Tort v. Crime To commit a tort is, like crime, to violate a legal standard, but the authorized response to a tort typically is the payment of damages. Negligence torts consist of four elements – a legal duty to show care, breached, which causes loss or damage. But why should those who injure others pay damage?

3. Two theories… As in the two competing theories of criminal law justifications for punishment – utilitarianism and retributivism – the two main accounts for why we award damages in torts are either (a) forward looking, emphasizing the way the common good is better furthered by the tort regime [the economic account] or (b) backward- looking, suggesting that the common good includes in part intrinsically appropriate responses to injustice [the justice account].

4. Economic Account 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. Does it make sense?

5. The Coase theorem – economically, it doesn’t matter…. Ronald Coase argues that, under ideal conditions, in many cases there is no loss of economic efficiency (measured purely in terms of dollars) involved in choosing the agent who caused the accident rather than the victim to be liable for damage. In either case, each will act in his or her economic interest, so - regardless of who is made to shoulder the loss – if the loss is economically worth preventing, it will be prevented. Thus, in an ideal world, says Coase, if the common good is defined in terms of economic efficiency it will be achieved regardless of who shoulders the burden of liability.

6. Coase theorem continued…(6 of 25) Does the fact that parties act in their economic interests mean that imposing liability on one party rather than another is irrelevant? Are both parties equally able to prevent? (Coase uses some particular, limited examples to support his theory)

7. Coase theorem continued… 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.

8. Therefore…… Therefore, the forward-looking view suggests that tort liability be imposed in a way that enables the most efficient accident prevention – that imposes liability for the cost of accidents such that those in a better position to prevent the accidents efficiently have an incentive to do so. Thus, a factory that makes a product is probably in a better position to efficiently prevent defects in a product than are consumers who use the product.

9. Comparison to utilitarianism The economic account resembles the utilitarianism account of punishment. But in the case of tort law, the economic “spin” 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.

10. Justice Account (10 of 25) 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 tortfeasor and the victim.

11. Do you agree??? Everyone has a moral right not to have his or her interests set back through the carelessness of others, and there is a corresponding duty of others not to set back one’s interest through their 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, and the duty to compensate, backward- looking, 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.

12. Duty (it’s a negative duty) Legal duty is one imposed by law and is not necessarily the same as moral duty, which could be much broader. It is well established that, generally, in tort one does not owe an affirmative legal duty of care to others as such. One only owes a negative duty of care, that is, to not to commit misfeasance that harms others, and owes no affirmative duty, the breach of which would be nonfeasance.

13. No affirmative duties…(13 of 25) 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).

14. WHY? Why does tort avoid imposing affirmative duties, even where a small sacrifice could provide a large gain to society? One reason given is that once law begins imposing affirmative duties, such duties would multiply and have no clear logical ending. A response to this argument would be to distinguish between emergencies, in which the danger posed cannot be equitably distributed among all those with reason to prevent it, and 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.

15. Exceptions…. Affirmative duties can arise through certain special relationships, such as engaging in a joint dangerous venture, innkeeper-guest, or 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 thought to be policy reasons to leave these relationships free from regulation by tort law.

16. Duty and breach and “reasonable person” 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?

17. Why??? (17 of 25) Oliver Wendell Holmes supposed that 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 folks be held to an equal and impartial norm. The reasonable person standard is a community standard, in that it is the actual standard accepted by the community as correct. 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.

18. The Learned Hand formula…. Judge Learned Hand expressed in a formula the breach of duty. The Learned Hand formula is an algebraic formula (B = PL), according to which liability turns on the relation between investment in precaution (B), the product of the probability (P), and magnitude (L) of harm resulting from the accident. If PL exceeds B, then the defendant should be liable. If B equals or exceeds PL, then the defendant should not be held liable. This formulation is an efficiency standard of reasonable care and Richard Posner says it was an attempt to make explicit the standard courts had long applied.

19. Problems with Hand…. The Hand formula has presuppositions that can be disputed. It supposes (1) that 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) that we can get a clear sense of probabilities of loss and costs of preventing loss; (3) that in assessing reasonableness of conduct losses that accrue to the agent should be treated as equivalent to the losses that accrue to the victim. 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.

20. Causation… “But for” or “cause in fact” test for causation 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.

21. Forseeability….21 of 25 Justification for limiting liability in this way leads to an alternate idea of proximate cause – in which 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?

22. Non-economic Damages…. 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.

23. The problem…. “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, and the like. These damages are not commensurable with money but can be among the most important losses cause by the tort.

24. Theories on measuring…. An “indifference measure” holds that one can 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 (and thus lack adequate information to impose the test), and there is a difference between loss voluntarily accepted and forced loss. Another approach might be 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.

25. Intentional torts and strict liability (25 of 25) A tortfeasor’s responsibilities for harms caused by his or her intentional actions extend further causally 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 as 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.