Tort law defines the conditions under which a person is entitled to damage compensation if his or her claim is not based on contractual obligation. Damage result from the loss or impairment of property, health, life or limb, from the infringement of rights or from pure financial or non-financial losses. Economically speaking every reduction of the individual’s utility level caused by a tortious act can be regarded as the damage. Tort law rules aim at drawing a just and fair line between those noxious events that should lead to damage compensation and others for which the damage should lie where it falls.
In common law countries tort law has developed from a large body of formerly unrelated doctrines such as conversions, trespass, nuisance, defamation, negligence, deceit and rules from case laws. On the European continent a more systematic and rationalistic approach resulted in the formulation of some basic concepts of tort law. This made it possible to formulate abstract and flexible principles and integrate them into the codifications as in the French code civil. Similar general rules were laid down in the civil codes of other continental countries. The twentieth century brought a further expansion of tort law like product liability, liability for medical malpractice, environment liability, liability for torts in the market place, extended liability of the corporation. Some of the modern developments in tort law were made possible by improvement of information technology which facilitated the attribution of damage to a tort feaser even over long distance and time. With traditional information technology such damages had to be regarded as arising from the general risk of life and were consequently not shifted from a victim to a tort feasor.
A tort suit enables the victim of some injury to make her problem someone else’s problem. Unlike a criminal case, which is initiated and managed by the state, a tort suit is prosecuted by the victim’s survivors. Moreover, a successful tort suit results not in a sentence of punishment but in a judgment of liability. Such a judgment normally requires the defendant to compensate the plaintiff financially. In principle, an award of compensatory damages shifts all of the plaintiff’s legally cognizable costs to the defendant. (It is controversial whether tort really lives up to this principle in practice). On rare occasions, a plaintiff may also be awarded punitive damages, defined as damages in excess of compensatory relief. In other cases, a plaintiff may obtain an injection: a court order preventing the defendant from injuring her or from invading one of her property rights (perhaps harmlessly)
The law does not recognize just any injury as the basis of a claim in tort. If you beat me in tennis or in competition for the affections of another, I may well be injured. Yet I have no claim in tort to repair my bruised ego or broken heart. Since you lack a legal duty not to beat me in tennis or in competition for the affections of another, you do not act tortuously when you succeed at my expense.
TYPES OF DUTIES
Tort distinguishes between two general classes of duties: (1) duties not to injure “full stop” and (2) duties not to injure negligently, recklessly, or intentionally. When you engage in an activity the law regards as extremely hazardous (e.g. blasting with dynamite), you are the subject to a duty of the first sort- a duty not to injure “full stop”. When you engage in an activity of ordinary riskiness (e.g. driving), you are subject to the second sort- a duty not to injure negligently, recklessly, or intentionally. Your conduct is governed by strict liability when it flouts a duty not to injure “full stop”. Your conduct is governed by fault liability when it flouts a duty not to injure negligently, recklessly, or intentionally.
THE SCOPE OF TORT LIABILITY
Even after a long debate on the economic effects of tort law there is still much disagreement as to the legitimate place of tort law in modern society. Should tort law be a comprehensive and expanding deterrence system, regulating securities and other markets, old and new hazards and then be open to all kinds of legal innovations necessary for optimal deterrence? Or should its domain be more restricted to the classical cases and leave complicated risks and hazards to other social institutions? This depends to a great extent on two great factors, the availability of private insurance against hazards and the capacity of civil to obtain and process in information. If private insurance is easily obtainable for both victims and tort feasor, secondary costs are independent from the loss eventually.
Consequently accident law can then focus on deterrence and on the reduction of administrative costs. Societies in which insurance markets are underdeveloped, however, might develop a tendency to shift the costs of accidents to the deepest pocket, which is often a large company. Some demands to shift the risk to the deep pocket make sense as long as first-party insurance coverage is not obtainable for victims. The rise of public compulsory social insurance in nineteenth-century especially with special respect to work place accidents is another way of dealing with problem caused by under developed private insurance markets. In modern market systems, however, it is argued that both first-party insurance and third party insurance are in most cases easily obtainable and that tort law can concentrate on optimal deterrence.
All in all there is little doubt that tort law can play an important but limited role in deterring and insuring accidents. In the USA tort law counts for only nine percent of all loss shifting. Private and public first party insurance, workers compensation schemes, no fault liability schemes, green taxes and other institutions compete with tort law in reducing the cost of torts.
THEORITICAL PERSPECTIVE ON TORT LAW
ANALYTICAL AND NORMATIVE
Analytical theories seek to interpret and explain tort law. More specifically, they aim (1) to identify the concepts that figure centrally in tort’s substantive norms and structural features (the latter being the procedures and mechanisms by which the institution of tort law enforces its substantive norms) and (2) to explain how tort’s substantive norms and structural features are related. Key substantive norms include the rules of strict liability and fault liability. Key structural features include the fact that tort suits are brought by the victim rather than by the state and the fact that such suits are ‘bilateral’: victims (plaintiffs) sue their putative injurers instead of drawing on a common pool of resources, as in New Zealand (a unique outlier).
Normative theories seek to justify or reform tort law. Justificatory theories aim to provide tort with a normative grounding, often by defending the values tort embodies or the goals it aims to achieve. Reformist theories seek to improve tort law, say, by recommending changes that would bring the institution closer in line with its core values or would help it do a better job of achieving its goals.
The distinction between analytical and normative theories is not exclusive. On the contrary, few analytical theories are altogether devoid of normative elements and no normative theory is ever devoid of analytical elements. Analytical theories frequently invoke concepts that are fundamentally normative, since such theories (following Dworkin) often seek to portray tort’s substantive norms and structural features in their ‘best lights.’ All the more so, normative theories are always at least partly analytical, since such theories must either provide or presuppose some account of the institution they seek to justify or reform.
INSTRUMENTAL AND NON INSTRUMENTAL
Along another axis, we can distinguish between theories of tort based on whether they are instrumental or non-instrumental. (This distinction cuts across the distinction between the analytical and the normative.) Instrumental theories regard tort’s essential features as explicable in terms of an overarching purpose, typically, the remediation of some social problem, such as the problem of allocating the costs of life’s misfortunes. These theories do not always agree on the specific principles that govern (or ought to govern) the allocation of costs. This is in part because they disagree about the further purposes that tort serves (or ought to serve) in allocating costs. Some theorists believe that tort aims (or ought to aim) at allocating costs efficiently. Others believe that tort aims (or ought to aim) at allocating costs fairly. Both sorts of theorist treat tort instrumentally, as a tool for solving a social problem. In contrast, non-instrumental theorists do not see tort primarily as responding to a social problem. They believe that tort is better understood as a way of giving expression to certain moral or political principles.
Instrumental theorists typically identify tort’s central concepts as accidents, costs, and allocation. Non-instrumental theorists typically identify tort’s central concepts as rights, wrongs, and redress.
DIFFERENCE BETWEEN STRICT LIABILITY AND FAULT LIABILITY
Strict liability Suppose I make a mess on my property and present you with the bill for cleaning it up. Absent some prior agreement, this would seem rather odd. It is my mess, after all, not yours. Now suppose that instead of making a mess on my property and presenting you with the bill, I simply move the mess to your property and walk away, claiming that the mess is your problem. If it was inappropriate of me to present you with the bill for the mess I made on my property, it hardly seems that I have improved matters by placing my mess on your property. I have a duty to clean up my messes and the existence of this duty does not appear to depend on how hard I have tried not to make a mess in the first place. This is the underlying intuition expressed by the rule of strict liability.
Fault liability. Unless we stay home all day, we are each bound to make the occasional mess in another’s life. This being so, it would be unreasonable of me to demand that you never make any kind of mess in my life. What I can reasonably demand is that you take my interests into account and moderate your behavior accordingly. In particular, I can reasonably demand that you take precautions not to injure me — that you avoid being careless with respect to my interests and, all the more so, that you not injure me intentionally. This is the underlying intuition expressed by the rule of fault liability.
People sometimes misunderstand the nature of fault liability because they equate strict liability in tort with strict liability in the criminal law. Strict liability in the criminal law is a form of responsibility without culpability. If you are strictly liable for a criminal offense, you are punishable for the offense even if your conduct is not morally blameworthy. The standard way to express this is to say that strict liability in criminal law is not defeasible by excuse. If we conceived similarly of strict liability in tort, we would then understand fault liability, incorrectly, as liability that is defeasible by excuse, in other words, as liability (only) for one’s culpable conduct. But you can be at fault in tort even if you are morally faultless, that is, even if your conduct is not morally blameworthy. Under a regime of fault liability, you are liable for injuries you cause while failing to comport yourself as a reasonable person of ordinary prudence. It won’t get you off the hook that you are not a reasonable person of ordinary prudence. Nor will it matter that your failure to comport yourself as a reasonable person of ordinary prudence is a failure for which you are utterly blameless. Fault liability is simply not defeasible by excuse.
Strict liability is not defeasible by excuse, either. Under neither regime does your liability for a loss depend on your degree of culpability. What distinguishes the two regimes is this: you can avoid fault liability if you comport yourself as a reasonable person of ordinary prudence — in other words, if you act reasonably or justifiably — whereas you remain subject to strict liability even if you act impeccably. Thus, fault liability alone can be undermined by justification.
Some find it helpful to distinguish between strict liability and fault liability in terms of the content of the underlying legal duty. In the case of blasting — an activity traditionally governed by strict liability — the blaster has a duty not-to-injure-by-blasting. In the case of driving — an activity traditionally governed by fault liability — the driver has a duty not-to-injure-by-driving-faultily. No matter how much care he takes, the blaster fails to discharge his duty whenever he injures someone. In contrast, the driver fails to discharge his duty only when he injures someone negligently, recklessly, or intentionally.
Only if we first get clear on the content of a legal duty can we determine an activity’s true cost. Suppose a rancher’s cows trample a farmer’s corn, causing the farmer a financial loss. To what activity should we ascribe this cost? Is it a cost of ranching or a cost of farming? We cannot answer this question just by determining whether crop damage is something that ranching causes. We must first determine whether the rancher owes the farmer a duty. If the rancher has a duty to prevent his cows from trampling the farmer’s corn, then the resultant damage is a cost of ranching. But if the rancher has no such duty — if it is the farmer’s responsibility to protect his corn crop, say, by building a fence — then, other things being equal, the resultant damage is not a cost of ranching but a cost of farming.
Tort law has consistently given one’s interest in physical security priority over a conflicting liberty interest of another. That priority underlies the evolution of tort law, from the early intentional torts to the subsequent emergence of negligently liability and its modern development. As an analytic matter, this priority yields a compensation rationale for tort liability.