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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 "reasonable" people aren't responsible 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

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 "reasonableness" and negligence subvert this fundamental standard.

Strict Liability Will Work in the Real World

If the U.S. ran on a strict liability system, life wouldn't change much. Baseball stadiums might have more enclosed roofs. Hockey games might be shielded by higher glass. Insurance would be a lot more extensive and widespread. But strict liability would not be a paradigm shift. A legal system based on strict liability will create economic incentive to invent cheap and effective ways to prevent harm. Free enterprise will continue to exist. It will just be safer.

I have heard the argument that strict liability would create incentive for companies to flout the law more often, and simply pay damages. I think it is a stupid argument, for two reasons.

Increased demand for safety will likely make the cost of precautions cheaper than the cost and risk of litigation.

If capitalism is good at anything, it is exploiting opportunity. Manufacturers will be fighting tooth and nail to design and sell cheap and effective safety measures.

Companies already flout the law

When legal damages are less than the cost of precautions, companies behave negligently. This is not a new phenomenon. Example: Eben's story of the Goodyear tire rims. The only real difference is that under strict liability, companies will always pay for the injuries they cause. Likewise, those that get injured will have full recourse under the law for any damage they endure, rather than being barred from recovery in situations where the perpetrator acted "reasonably."

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