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Strict Liability Should Govern Tort

-- 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, such simplistic reductions are tiresome. 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'd know it captures law at an essential level. 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 manner. Private settlements were not pretty. As such, medieval law 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'd 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 legal systems shared a basic notion that when it came to private harm, intent did not excuse injury. So long as causation could be proved, recompense was required. Jewish law? Strict liability. Code of Hammurabi? Strict liability.

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 a word barely uttered in the legal academy. If the behavior isn't abnormally dangerous, the notion that people should be liable regardless of their intent doesn't meet a welcome audience. In 1951, across the pond, Bolton v. Stone got it wrong. Now, in 2010, most of my peers 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 safe and professional backyard shooting range. If you fire your gun, and you maim Little Timmy from across the street, it shouldn't be that Little Timmy has to pay out of pocket for a lifetime of corrective surgery, physical therapy, and prosthetic appendages. Yet, that's how negligence works.

Theoretically, your almost-effective shooting range excuses you from liability. Because you tried to make it safe, and took a "reasonable" level of precaution, Little Timmy is not able to recover from you. That you can do harm and not be negligent seems to demand a redefinition of negligence. But as it stands, Little Timmy 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's better to shift 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 Would 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 wouldn't be a paradigm shift. Free enterprise would continue to exist. It'd just be safer at the margins.

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

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

If capitalism is good at anything, it's 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 isn't a new phenomenon. Example: Eben's story of the Goodyear tire rims.

The only real difference is that under strict liability, companies will always be liable for the injuries they cause, and those that get injured will have full recourse under the law for any damage they suffer.

Conclusion

An injury creates a grievance. Under negligence, we are occasionally leaving injured parties to suffer--grievance unsatisfied--while the perpetrator of the injury is excused for having taken insufficient precautions. This is not right.

Ultimately, tort is about harm. As such, strict liability is the proper way to assess tort--what matters is the result, not the thought process.