Torts

Torts

Description

Tort law determines when a person who suffers injury can obtain redress from the actor who caused the harm. Torts are private legal actions in which one person seeks a remedy, usually money, for damages caused by another. As Professor Hughes observes in Chapter 1, tort law is the classic common law subject, developed by judges in the context of resolving concrete disputes. The common law tradition is built upon social custom and experience, rather than upon abstract ideals or universal principles. The creation of tort law is highly decentralized and dynamic. Diversity amongst the states is far greater in tort law, than, for example, in contracts or criminal law, where national uniform acts and model codes, promulgated by national professional associations and adopted by state legislatures, now dominate the law. The harms people cause one another are as diverse as human experience. The losses currently protected by American tort law include injury to life, health, family members, physical integrity, property, peace of mind, reputation, procreative capacity, and opportunity for advantageous trade relations. The concept of injury, like all of tort law, varies from state to state, and it has contracted and expanded in response to changing social experience and perception. The central question in each tort case is: ‘when should the law require people to pay for injuries they cause to others?’ In answering that question, the law takes into account the many purposes served by tort liability including: (a) compensation for the person injured; (b) deterrence of accidents or behavior thought to be socially unreasonable; (c) assigning costs of accidents to the activities that generate them; (d) social recognition of moral right and wrong. These objectives of tort law often conflict. If compensation is the primary goal, the law should not necessarily care whether or not the actions causing the injury were reasonable or moral. A child injured at birth is no less deserving of compensation to care for her in the future because the doctors and hospital exercised great care than if they acted carelessly. In either case, someone will have to bear the costs; the question is who should it be. If compensation is our sole social purpose, it is probably more efficiently achieved through social insurance. Conversely, if deterrence of unreasonably risky behavior is the law's primary goal, social response should turn on the probability of injury rather than the happenstance of whether the injury happens to be unusually grave or fortunately trivial. Further, all of the reasons supporting tort liability conflict with a social desire to promote enterprise, innovation, and economic progress, free from excess concern about potential liability for injury to others. Although most tort law is developed by judges in the process of deciding disputes about particular injuries, legislatures, both state and federal, also contribute to the development of tort principles in several ways. First, legislatures set regulatory or criminal standards for reasonable behavior, and those standards are adopted by common law courts. For example, at one time there were no fixed speed limits for carriages and autos. Common law judges and juries made individualized determinations about what was reasonable in all circumstances. As state legislatures adopted rules for the regulation of traffic, common law courts used those legislative rules to determine what was reasonable. Legislation impacts on tort law in yet a second way. Legislatures can reverse common law courts' judgments, rejecting either particular rules or supplanting a whole area of the law. For example, as we discuss later, in the 1920s most state legislatures rejected the common law approach to workplace accidents and substituted an administrative system of workers' compensation. In the federal system, Congress can override both state legislatures and state courts. For example, when Congress sought to promote the private development of nuclear power, it encouraged business to undertake this project by providing a system of limited no-fault compensation to replace state tort liability. For another example, when Congress requires uniform federal warnings about the dangers of particular products, it sometimes preempts state laws that impose different warning requirements. American tort law includes three basic types of conduct giving rise to liability: negligence, intentional torts, and strict liability. In each area, tort law has been an historic battlefield of changing social concepts of a good society and strong economy. While the branches intertwine, each classically grapples with particular questions, and each typically is invoked to deal with distinctive human problems. The rest of this chapter will discuss these three major branches of tort liability and then consider some contemporary disputes about tort law.

Source Publication

Fundamentals of American Law

Source Editors/Authors

Alan B. Morrison

Publication Date

1996

Torts

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