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Chapter 1



A. No satisfactory definition:  There is no really useful definition of a “tort” which will allow all tortious conduct to be distinguished from all non-tortious conduct. In fact, courts are constantly changing their view of what constitutes tortious conduct (usually by way of expansion of liability). The best that can be done is to identify a few of the main features and purposes of tort law:

1. Not contractual:  Tort law, unlike contract law, is not based on the idea of “consent.” Whereas a contract is an expression of the parties’ consent to be bound, every member of society will be liable in tort if he behaves in certain ways, whether he has consented to such liability or not. Thus an automobile driver who drives carelessly will be liable in tort to one he hits, regardless of consent.

2. Compensation:  The overall purpose of tort law is to compensate plaintiffs for unreasonable harm which they have sustained.

a. Societal standard:  The unreasonableness of the harm is generally measured from a broad “social utility” standpoint. For instance, in determining whether the defendant’s conduct is “negligent,” the social utility of that conduct (e.g., running a railroad) plays an extremely important role.

b. Economic efficiency:  When the law takes into account the “social utility” of the defendant’s conduct, courts are to some extent trying to achieve economic efficiency. That is, they try to impose on the defendant an incentive to make sure that the costs associated with her activities do not outweigh the benefits from those activities. Normally, a defendant will not engage in conduct whose costs outweigh its benefits anyway; tort law addresses those cases where the defendant gets the benefits, but the costs are imposed on third parties.

Example:  Assume that D is a driver who is running ten minutes late for an important – and potentially lucrative – business meeting. If D does not face civil liability for driving at 70 m.p.h., and feels that he is completely protected by his airbag, he is likely to speed – all of the benefits from speeding will accrue to him (he gets to the meeting on time, and gets to make the business deal), and the big potential costs from the activity are likely to be imposed on others (e.g., the pedestrian he may run over). Even if the expected financial benefit to D from speeding in this case is fairly small (say, $1,000), and the expected “cost” to others from the speeding is higher (e.g., $200,000 estimated cost of injury to a pedestrian if one is hit, times, let’s say, a 1% chance of such an accident occurring, for an expected value of $2,000), D will still have an incentive to speed. Making D responsible for the cost to others from his activity thus induces D to behave “efficiently” (here, by refraining from conduct that has an expected “benefit” of $1,000 versus expected “cost” of $2,000).

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