Tort Law

The Nature of Tort Law

A. The Nature of Tort Law
Tort law is basically about collisions. Often
the collision is literal, as where two cars collide in
an intersection,1
or a defective Coke bottle
explodes in the hand of a waitress,2
but even
where the collision is less literal it is no less real.
For example, in defamation (libel and slander)
cases,
3
plaintiffs sue to recover for injury to their
reputations. Tort law must resolve the conflict
between competing claims of the individual’s
interest in his reputation and the public’s interest in
free expression. Just as cars on the highway
usually pass one another without incident, so
newspapers and individuals can – usually – carry
on their respective activities in harmony.
Occasionally, however, collisions occur and
someone is hurt. When that happens we turn to
tort law to decide who must pay for the injury: is
the injured party entitled to have the party that
caused his injury compensate him, or should the
loss “lie where it falls”4
?
What makes tort law so interesting (and at the
same time so difficult) is that there are no absolute
formulas by which such questions are resolved.
The rules of tort law are rough approximations of
the balance our society wants to strike between
competing values, and the “correct” decision
frequently depends upon the facts of the particular
case. For example, we make automobile drivers
liable for the injuries they cause, but only when
they are “at fault,” or negligent. Manufacturers, by
contrast, are liable for the injuries caused by a
defective product, even if they have exercised all
reasonable care. Newspapers, to take another

1
Li v. Yellow Cab, infra Chapter Five.
2 Escola v. Coca Cola Bottling Co., infra Chapter
Eight.
3 This subject is covered in Chapter Twelve.
4
“The general principle of our law is that loss from
accident must lie where it falls, and this principle is not
affected by the fact that a human being is the instrument of
misfortune.” OLIVER WENDELL HOLMES, THE COMMON
LAW 88 (1881).
example, are not liable for injuries to the
reputation of “public figures,” even the newspaper
acts negligently, so long as it does not exhibit
“reckless disregard” for the probable falsity of
what they are publishing.
The primary problem in striking the proper
balance lies in determining the standard for
imposing liability. Should the defendant be liable
irrespective of negligence (strict liability); liable if
negligent; or liable only his behavior is even more
culpable than mere negligence (e.g., intentional
torts)? In addition to the thorny questions about
when to impose liability, tort law must also
address issues of how to determine whether a
plaintiff’s harm was caused by a defendant’s
conduct, how to calculate the proper amount of
damages, the availability of special immunities or
defenses to liability, etc.

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