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Tort Is About Harm

-- By RonMazor - 19 Feb 2010

The Middle Ages Had It Right

Medieval law gets a short shrift. Too often, it is reduced to some primitive, bloody, superstitious, and inherently unjust monstrosity--a dark age of ordeals and inquisitions. Having majored in Medieval History, with a particular focus on Medieval Legal History, such simplistic reductions make me cringe. Monty Python is not an accurate secondary source, and law professors should know better. Especially those who teach tort.

If they were more familiar with Medieval law, they would know it captures law at its most basic. It reflects a time when people did not rely exclusively on courts to resolve their grievances. If a court couldn't give a satisfactory resolution, the dispute would be settled in a private, often violent manner. The result was a body of law that possessed great awareness of the limits of its own power, and of the intense need to lay out a law that people would choose to follow. As a basic prerequisite, Medieval tort could not leave harms unsatisfied. Its operating principle: strict liability.

If Tort professors knew more legal history, they would also know that Medieval law did not appear in a vacuum. For much of Europe, Medieval tort was based on Roman law, preserved with surprising fidelity by the Byzantines and the Barbarians who inherited Rome's shattered empire. The strict liability of Salic and Visigoth law, not too mention the Corpus Iuris Civilis, came from decidedly ancient sources. And in fact, many ancient law sources share a basic notion that, when it comes to private harm, intent will not excuse injury. So long as causation can be proved, recompense is required. Jewish law? Strict Liability. Code of Hammurabi? Strict liability. The reason? Ancient societies simply couldn't have people running around doing harm and getting away with it, even if the harm was unforeseeable.

Yet, despite its rich and distinguished history, strict liability is usually a dirty word in the legal academy. If the behavior is not abnormally dangerous, the notion that people should be punished, regardless of their intent, does not meet a welcome audience. Fifty years ago, across the pond, Bolton v. Stone gets it wrong, and now all of my peers in 2010 agree people aren't responsibly for the consequences of their actions. A good effort can get you off with nary a pecuniary wrist-slap, even if you give a pedestrian a concussion because you didn't buy a tall enough fence for your ballpark. Almost not harming someone becomes the same as doing no harm, so long as you try really hard. Hold people liable for damages, even if they made a reasonable effort to avoid them?

Yes.

Why Reasonableness And Negligence Have No Place In Tort

Somehow, in the smoke and fire of industrialization, American jurisprudence lost sight of an ancient truth. Tort is not about blame, but harm. It is about making injured people whole, as best as the law can approximate. It should not matter if, by all accounts, you built a really solid backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it should not be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. But this is how negligence works.

Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and "reasonable" people would agree that it would usually be safe, Little Timmy is not be able to recover from you. He has to swallow the cost of his injury so you can enjoy your "right" to build a shooting range. He pays a leg, and you get to enjoy your freedom to participate in semi-dangerous behavior with impunity. In essence, our society has decided it is better shift the costs to the random injured individual than to stifle free enterprise with the occasional award of monetary damages.

Damage without compensation is a bad way to conduct tort law

At its most elemental level, law is meant to provide means of redress for grievances, so as to avoid people taking private revenge. An injury creates a cause for revenge. By not compensating it, we are leaving injured parties to suffer. Every time negligence excuses a harm, the law perpetrates injustice.

Ironically, such a barbarity is only possible in civilized society. Some time ago in the mythic past, the law and the private citizen struck a bargain. The private citizen would cease his vendettas and vigilantism, ceding "police powers" and law enforcement to a centralized authority, and in return, the law would make sure that the private citizens' traditional grievances would not go unpunished. Few grievances are more traditional than getting injured, and the law, since ancient times, has resolved such disputes through compensation. The private citizen trusts the law to protect his person. For the law to create a loophole based on reasonable effort is to leave the private citizen hanging in the wind, with no way of mitigating an unexpected, and certainly unmerited, calamity.

It should not be a controversial proposition that the law should compensate a person who, through no fault of his own, is injured by the acts of another. It is a travesty that the "reasonableness" test subverts this fundamental standard.

Why Strict Liability Will Work Out Fine in the Real World

Fear: Won't strict liability lead to situations where people don't bother to take precautions and just pay damage, because its cheaper?

Answer 1: No/Not necessarily.

A legal system based on strict liability will create economic incentive to invent cheap ways to prevent harm.

Answer 2: It doesn't matter.

Companies already do this under negligence/current tort. They make dangerous things, and accept the danger of a lawsuit as an occasionally and controllable cost. Example of the semi-trailer rims. The only difference is that now, instead of allowing companies to not be held liable when they do damage while acting reasonably, they will always pay for the injuries they cause.

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