Unit 8
The Nature and Aims of Tort Law
What is a Tort?
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.
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.
Coase
Ronald Coase, however, 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.
Coase
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.
Coase
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.
Coase
 What happens if A and B owns farms along a
stream. A is upstream and B is downstream.
A’s use of his land triggers floods on B land. A
can prevent the flooding of B’s land by installing
special run off devices. B can deal with the
large amounts of water by installing special
draining devices.
 Who shoulders the costs?
Coase
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.
The Justice Account
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.
The Justice Account
 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 Justice Account
The reason not to injure is forward looking,
and the duty to compensate, backwardlooking, 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.
Duty
Legal duty is one imposed by law and is
not necessarily the same as moral duty,
which could be much broader.
Duty
One only owes a negative duty of care,
that is, to not to commit misfeasance that
harms others, and owes no affirmative
duty
Duty
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.
Duty
Affirmative duties can arise through certain
special relationships, such as engaging in
a joint dangerous venture, innkeeperguest, or property owner-invitee.
These special relationships can be defined
with reference to social roles, social
expectations, individual expectations, or
political or moral arguments.
Breach
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.
Breach
Oliver Wendell Holmes supposed that it is
for the general welfare that an objective
standard is used.
Arthur Ripstein argues that an objective
standard is justified because corrective
justice requires that folks be held to an
equal and impartial norm.
Judge Hand
Judge Learned Hand expressed in a
formula the breach of duty. The Learned
Hand formula is an algebraic formula (B =
PL)
Judge Hand
 The most common economic definition of negligence can be seen in
operation in Judge Learned Hand's famous opinion, U.S. v. Carroll
Towing Co., 159 F.2d 169, 174 (2nd Circuit 1947).[3] The event that
gave rise to the case were as follows: Several barges owned by the
Connors Marine Co. were tied together off a busy Manhattan Pier.
The defendant's tug boat, "Carroll," removed one of the lines
connecting the barges to the pier. When the remaining lines broke,
the barges were washed down-river and sank. No one was aboard
the barges when they broke away, and the evidence indicated that
had Connors' barge operator (the "bargee") been on board, the
barges could have been saved. The question for the Court was
whether Connors was liable for failing to have its "bargee" remain
aboard. Judge Learned Hand wrote that Connor's liability for the lost
barge depended on:
http://cyber.law.harvard.edu/bridge/La
wEconomics/neg-liab.htm
Judge Hand
1) The probability that she will break away;
(2) the gravity of the resulting injury, if she
does; (3) the burden of adequate
precautions. Possibly it serves to bring this
notion into relief to state it in algebraic
terms: if the probability be called P; the
injury, L; and the burden, B; liability
depends upon whether B is less than L
multiplied by P: i.e., whether B less than
PL.
http://cyber.law.harvard.edu/bridge/La
wEconomics/neg-liab.htm
Judge Hand
A defendant is negligent if and only if B <
PL. This formulation of the negligence
rule has come to be known as the Hand
Formula. Judge Learned Hand went on to
conclude that, taking into account the
surrounding circumstances (there were
strong winds, the harbor was busy, and
the ship's cargo valuable), the risk (PL)
outweighed the burden of prevention (B).
Consequently, he held Connors liable
http://cyber.law.harvard.edu/bridge/La
wEconomics/neg-liab.htm
Cause
“But for” or “cause in fact” test for
causation states that but for the breach of
duty the accident would not have
happened.
Cause
This type of causation could extend out
indefinitely, so an additional test is
required – that the breach be the
“proximate cause.”
Proximate cause exists if the results of
one’s actions were foreseeable.
Loss and 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.
Loss and Damages
 “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 caused by the tort.
Loss and Damages
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.
Strict Liability
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.