The law of torts is a very, very old practice, with the word “torts” dating at least to the 1580s and the law itself possibly even to the 1100s. (This explains why the word to modern English speakers may seem strange — it comes from the Latin “torquere”, meaning to “turn, turn awry, twist, wring, or distort”. A tort, in essence, is taking the rightful situation and making it wrong.) Initially, it was not a civil law but part of the criminal code — torts were used to be compensated for criminal wrongs against us (such as medical bills after a punch in the face).
It was thought that torts was an important part of the criminal law not simply because it was fair, but because it served two basic functions: reducing revenge and retaliation, and enticing the victim to cooperate with authorities. If going to the police resulted in an offender getting jail time but paying no compensation, the thought was that a victim may be less likely to report it and take matters into his own hands. If a compensation was paid out, rather than just a fine to the government’s coffers, victims actually had a good reason to get the state involved.
The United States took their concept of tort law from England (for obvious reasons) and as the colonies wrote their legal codes between 1776 and 1784 they would often copy over the old British laws verbatim. For the first fifty years, America had no system of torts as we know it today and there is still no mention of it in the Constitution.
Lawrence Friedman has explained when the law shifted from criminal to civil courts. “In preindustrial society, there are few personal injuries, except as a result of assault and battery. Modern tools and machines, however, have a marvelous capacity to cripple and maim their servants. From about 1840 on, one specific machine, the railroad locomotive, generated, on its own steam (so to speak), more tort law than any other in the 19th century.” [Friedman: 300]
Economic v. Libertarian View of Torts
Gregory Keating says, “Economic conceptions… suppose that accident law should promote the general welfare, conceived as the satisfaction of people’s preferences for their own well-being, and counted as wealth.” [Postema: 22]
The concept of “strict liability” favors an economic view and fits in with the philosophic concept of the social contract. (Strict liability puts the imposition of liability on a party without a finding of fault. The claimant need only prove that the tort occurred and that the defendant was responsible.) The idea of strict liability and the social contract both emphasize the security of a person and his possessions. In a world of laws where we are held responsible for our actions regardless of “fault”, we are more likely to provide a safe environment for those around us. For example, a store manager would be more likely to clean up spills in a world of strict liability than a world where shopping is “at our own risk”.
The case Helling v. Carey (1974) emphasizes the idea that the general welfare ought to be promoted, even if the immediate cost may not appear to suggest it. In the case, a patient under 40 had glaucoma but her ophthalmologist did not test for it because in her age group the odds were only one in 25,000 of such an occurrence. As a result of not testing, she suffered permanent visual damage and sued the doctor. The court decided in her favor, arguing that “the high magnitude of the harm, the low cost of the precaution, and the high efficacy of the precaution offset the low probability of the harm, and require the precaution to be taken.” [Postema: 49] For most patients, the cost of the glaucoma test will result in them finding they do not have glaucoma, and it will be a seemingly unnecessary cost. But for that one person who does find they have glaucoma, the value to them far outweighs the minimal cost to everyone else. (Today, of course, glaucoma testing is standard and is a one-second procedure where a puff of air is shot at the pupil by a “Non-Contact Tonometer”.)
Keating contrasts the economic view with what he terms the libertarian view. “Libertarian conceptions… start from an apparent opposite premise — from the conviction that the law of accidents should protect individual rights, not promote the general welfare. They suppose that we each have a natural right to the integrity and inviolability of our persons, and that this right entitles us to be free of injuries inflicted by others. The task of accident law is to protect the inviolability of our persons, by requiring either ex ante consent to risk as the precondition for, or ex post compensation for harm as the price of, accidental injury.” [Postema: 22] This latter view is perhaps best expressed by philosopher Robert Nozick.
George Fletcher favors the libertarian view and stresses the “reciprocity of risk” in a given situation. He says that “ex post compensation is unnecessary when reasonable risks are reciprocal.” [Postema: 35] This view is too basic, emphasizing risk reciprocity and minimizing harm reciprocity, and ultimately fails. When we drive an automobile on public roads, we are aware of the risks involved. But simply because we are all taking the same risk does not absolve us from our actions on the road. If we are harmed, we should rightly expect to be compensated to some degree for the harm done to us. (This is not to say that the libertarian view is wrong, but simply that Fletcher’s expression of the view is too simple.)
As with any two opposing views, the solution likely lies somewhere between the poles. Few of us would want to live in a world where everything is at our our risk. But the other side, if taken to extremes, is just as terrible. Do we want to live in a world where many of our actions could lead to lawsuits or a world where we are not allowed to take even small risks?
Ascribing v. Assigning Responsibility
According to Stephen Perry, “If tort law serves corrective justice… then tort law assigns responsibility — that is, liability and hence duties to repair — on the basis of judgments of ascribed responsibility.” [Postema 10]
Negligence and Recklessness
Why is negligence an important philosophical issue? As Richard Posner has pointed out, “Negligence cases constitute the largest item of business on the civil side of the nation’s trial courts.” [Posner 1972]
Recklessness is defined as “flying in the face of an apparent and apprehended risk”. [Hart and Honore 214]
Negligence is “merely failing to adhere to a low standard of care”. [Postema: 69] Or defined as when a person knowingly and willingly puts others in danger when “engaged in his ordinary affairs, or in the mere protection of property”, as laid out in Eckert v. Long Island Railroad (1871). For example, driving a car whose tires are worn through to the fabric, as in Delair v McAdoo (1936).
It should be stressed that “knowingly” includes incidents that should be known — a spill in a grocery store sitting out for two hours may not be directly known by a manager, but after two hours it should have been. From a philosophical rather than legal perspective, what one is “capable of foreseeing and avoiding” becomes an interesting question. Simply because someone has the “general capacity” to know does not, in fact, guarantee they do. [Postema: 103]
Larry Alexander says it another way: “If we take the defendant at the time of the ‘negligent’ choice, with what he is conscious of and adverting to, his background beliefs, etc., then it is simply false that the defendant ‘could have’ chosen differently in any sense that has normative bite. For while it may be true that the defendant could have chosen differently… it is false that in that situation, the defendant had any internal reason to choose differently from the way he chose.” [Alexander 1990] Thus, there is a distinct divide between legally responsible and morally responsible — what we do may be both wrong and not wrong!
Actions and Outcomes
In ethics, some moral systems are outcome-responsible and others are action-responsible. The former relates to consequentionalist or utilitarian systems while the latter relates to deontological or Kantian systems. In short, is something ethically wrong because of the act itself or because of what happens after the act?
Professor Heidi M. Hurd has argued that negligence law can only be understood in consequentionalist and not deontological terms. She has written, “Unless deontologists are prepared to say that the myriad of risky activities that support our contemporary lifestyle are categorically wrong, or that the people who engage in them are necessarily culpable, deontologists must admit that even life is not so sacred that it cannot be risked asymmetrically, or substantially, or in an unjustly enriching manner, for good ends”. [Hurd: 265]
Stephen Perry questions Hurd’s view and asks if it is possible for an action to carry “a very high probability of death or serious physical injury” to another person — so much so that the action itself could be considered negligent. [Postema: 77]
An interesting side effect of tort law having a consequentialist view is that what one is “responsible for” may simply be chalked up to “bad luck”, in the words of Arthur Ripstein. [Ripstein 1994] As a tort is only committed when the duty to another person is actually breached, a store manager could have a spill out for four hours and have accidents while another manager has a spill for an hour and have an accident. Another example — perhaps a better one — would be a car accident. Some bad drivers go decades without an accident while some good drivers may be distracted a moment and run a stop sign. It is easier to prevent bad driving than a distraction, but only the one that ends in an accident will end up in civil court.
When speaking of the difference between actions and outcomes, the role of intent may come into play, at least in ethics. In torts, intent is marginalized. If we intend good and bad happens, we are responsible for the bad even with the best intentions. In Vaughan v Menlove (1837), for example, one farmer built a “chimney” in his haystack to prevent the hay from spontaneously combusting. This attempt failed, a blaze ensued, and a neighbor’s two cottages burned down. The intent was to prevent a fire, the action failed to match the intent, and thus the farmer was liable.
Likewise, if we intend evil but fail, we are not held at fault for the intent even if Kant would say our actions were inherently wrong. Furthermore, there is the issue (again, at least in ethics) of how much control we have over the connection between intent and outcome. If we intend to punch someone, it is most likely we will succeed. However, if we “intend” to win the lottery (this is the purpose of buying a ticket, after all) it is very unlikely the outcome will match our intent.
The Role of the State
Arthur Ripstein and Benjamin Zipursky argue, “The state does not appear as a party to a tort action in order to impose a sanction on a wrongdoer. Instead, the state empowers individuals to exact compensation for injuries.” They see a distinct difference between “civil recourse” and “punishment”. [Postema: 222]
Examples of Further Ethical Concerns
In the case Sindell v. Abbott Laboratories (1980), a young woman developed cancer as a result of her mother’s use of the drug diethylstilbestrol (DES) during pregnancy. As the mother had taken the drug so many years before, and many companies made the drug under different brand names, there was no way to determine which company had made the drug. Yet, the case was allowed to proceed and the woman ended up winning on the grounds that all companies that made the drug bore a fraction of the responsibility.
This raises serious ethical issues. If a drug causes cancer, it seems perfectly fair that someone should be held responsible for that. But is it really fair in this particular case? Should someone be able to sue a drug company if they do not know which one actually made the drug that caused cancer? And should a drug company be at fault for a side effect that occurs decades later? Could any reasonable person foresee that? And what of the government? If the FDA approves a drug, do they not bear some part of the burden for allowing such a chemical enter the market? We walk a very tricky path when we can sue for damages when we do not know which company is responsible, and the damages are the result of a chain of events over many years. Should an individual therefore be at fault for setting into motion a chain of events that may someday lead to danger?
The other case that bothers me is Summers v. Tice (1948), wherein a hunter flushed a quail from the bushes and his two friends shot at the quail. One of the shots hit the first hunter (Summers), but as the other two had fired at the same time with identical guns, there was no way to determine who was the one that shot the man. Typically under tort law, you would have to prove that the duty to another person was breached and only the actual shooter would be at fault. However, in this case, the court decided that since neither shooter could disprove that he was at fault, they were both at fault. Is this fair? In some respects, yes. The man who got shot will now be compensated and since either man could likely have been the shooter, they have no way to prove they were not. But this also shifts the fault from the breach of a duty to simple negligence. Were both men negligent? Without a doubt. But that alone is not grounds for a lawsuit without a negative outcome — one that in this case could not be proved.
Alexander, Larry. “Reconsidering the Relationship among Voluntary Acts, Strict Liability, and Negligence in Criminal Law” Social Philosophy and Policy 7 (1990).
Friedman, Lawrence M. A History of American Law Simon and Schuster, 1985.
Hart, H. L. A. and Tony Honore. Causation in the Law Clarendon Press, 1985.
Hurd, Heidi. “The Deontology of Negligence”, Boston University Law Review 76 (1996).
Posner, Richard A. “A Theory of Negligence” Journal of Legal Studies 1 (1972).
Postema, Gerald J. Philosophy and the Law of Torts Cambridge University Press, 2001.
Ripstein, Arthur. “Equality, Luck and Responsibility” Philosophy and Public Affairs 23 (1994).