B. The Policies Involved in Tort Law

• Library: The South Carolina Law of Torts (SCBar) (2023 Ed.)

B. The Policies Involved in Tort Law

Because of its dynamism, it is important to consider the underlying policies or goals of tort law, including: prevention of harm, spreading of losses, rights, and institutional considerations.

Notably, compensation is not a goal of tort law.³³ Rather, compensatory damages are the means by which tort goals are typically accomplished.³⁴ This distinction can be illustrated by considering the following: "compensatory damages are also used to remedy a contract breach, but virtually no one asserts that compensation is a goal of contracts. As with torts, contract damages are a means of achieving goals. Similarly, injunctions are sometimes granted as a remedy in tort law and thus are also a means of achieving tort goals. Yet no one argues that injunctions are a goal of tort law."³⁵

Because liability in tort requires that a plaintiff suffer a legally protected injury caused by a wrong in the form of a breach of duty by the defendant, "corrective justice"³⁶ is, perhaps, the basic concern of tort law.³⁷ However, it is important to remember that the principle of corrective justice is limited by the need to determine first what constitutes a tortious wrong, which is generally defined as a breach of duty or a violation of a right.

Once it has been determined that the defendant's act was wrongful and that it has caused injury, then the presumption in favor of liability is both useful and understandable for a number of reasons: First, the potential for such liability provides an incentive to avoid wrongdoing.³⁸ Second, our sense of fairness demands that wrongdoers "correct" their wrongs by restoring the injured party to his or her prior status.³⁹ Finally, the underlying preference for liability helps in those cases where liability would conflict with some opposing right of the defendant.⁴⁰

1. Prevention of Injuries

One reason for making a defendant liable in tort for injuries resulting from a breach of his or her duty is to prevent such injuries from occurring in the first place.⁴¹ Underlying this justification is the assumption that potential wrongdoers will avoid wrongful behavior if the benefits of that behavior are outweighed by the costs imposed by the payment of damages.⁴² This assumption about rational avoidance of liability has been criticized.⁴³ However, the notion that a significant amount of behavior will be deterred by liability is supported not only by theory⁴⁴ and common sense but also by empirical studies.⁴⁵

Punitive damages are available in tort law for certain egregious wrongdoing, particularly where compensatory damages are not large enough to prevent wrongful behavior.⁴⁶ For example, compensatory damages might be an ineffective deterrent in cases involving conversion.⁴⁷

The most effective way to prevent auto accidents would be to stop driving automobiles; however, since the overall benefits of automobiles outweigh their costs, it would be irrational to abandon automobiles completely.⁴⁸ However, if the likelihood of an auto accident could be reduced or prevented by spending money on a safety measure—improved brakes, for example—it would be cost-effective to spend the money and reduce the likelihood of an accident.

This focus on efficient accident prevention is understandable; nevertheless, the concern with efficiency has numerous shortcomings as a guide to liability. An initial problem is that the determination of the efficient approach is not possible in many instances.⁴⁹ For example, how does one determine the probable costs and benefits of a particular automobile design or of a new drug? In such cases, we can only guess at the time of initial design and sale of the product; and such guess may turn out to be very wrong. If so, should we evaluate a defendant's action by his or her reasonable guess or by the actual result?⁵⁰

Another problem is that efficient injury prevention does not answer two basic questions: (1) who should pay for the cost of implementing efficient safety measures; and (2) who should pay for injuries that are too expensive to prevent? In some situations, concern for administrative efficiency may indicate, all things being otherwise equal, who should pay for safety measures. For example, the owner of an automobile should be responsible for auto safety features and for maintenance because there is no effective way to administer a system where pedestrians and other potential injured persons could pay for optional safety features or more careful maintenance of automobiles.⁵¹ However, in many situations, it will not be clear who should pay.

In contrast, where it has already been determined that a person has the duty of adopting safety measures, efficiency analysis indicates that, in general, that person should be liable for failing to adopt safety measures where prevention was cost-effective. However, it does not necessarily follow that a person should be free from liability where it is cheaper to have the accident than to prevent it. In such cases, the person benefiting may be liable for those accident costs even if it would be inefficient to prevent them.⁵²

This limitation on efficiency as a guide to tort decision can be expressed more generally: Prevention is only one of several goals. In other words, the definition of legal wrong—and thus the imposition of liability—is not based solely on the goal of promoting efficiency. As a result, a person may still be liable in tort even if that liability will have no impact on the level of injuries resulting from his or her conduct. Consider a seller who is liable for a defectively manufactured product even though that liability may have little or no impact on the quality control used by the manufacturer.⁵³ On the other hand, there are situations where a person is not liable for accidents even though it would be cost-effective to adopt safety measures to prevent the accident.⁵⁴

2. Spreading of Losses

Since accidental injuries are often sudden, unexpected, and substantial, they can result in extreme losses to an injured party. Such large "lump sum" losses can have significant secondary impacts—for example, a breadwinner's sudden loss of income can affect his or her entire family.⁵⁵

As a result, the "spreading" of losses among a large population may be preferable to "lump sum" losses to a single person. This preference for "spreading" losses underlies virtually all private insurance schemes. It is also involved in many legislatively adopted loss allocation decisions, including legislative programs like workers' compensation and no-fault automobile insurance. Courts generally (but not always)⁵⁶ refuse to impose liability simply on the basis of the ability to spread a foreseeable risk because spreading is generally considered a matter for the legislature. This refusal is reflected in the frequent statement that it is not appropriate for a court to impose liability in a way that makes the defendant an insurer.⁵⁷ Instead, the ability to spread more often serves as simply an additional factor to support liability that is based on a concern like prevention of wrongdoing by abolishing an immunity.⁵⁸

3. "Background Rights"

"Background rights" are those independent rights that the legal system ought to protect.⁵⁹ For example, when courts became convinced that a person's background right to privacy ought to be protected, the courts recognized a cause of action for breach of that right.⁶⁰ Similarly, the social concern with protecting a person's background right to reasonable expectations has shaped the development of doctrines in products liability.⁶¹ This concern with expectation also underlies the doctrine of stare decisis⁶² and reluctance to apply significant legal changes retroactively.⁶³

a. Fairness

One of the most important background rights in tort law is reflected in the concern with ensuring that our intuitive sense of "fairness" is satisfied.⁶⁴ For example, general notions like estoppel and waiver bar claims or defenses that would be unfair to allow.⁶⁵ Similarly, public policy prohibits adopting liability rules that would make it difficult for a reasonably careful person to choose an option that would not result in liability to someone no matter what choice was made.⁶⁶ The various ways that fairness affects tort law are addressed in the following subsections.⁶⁷

(1) Proportionality

Fairness is also considered in the notion that tort liability, like criminal punishment, should be proportional to the extent of the defendant's wrongdoing.⁶⁸ Thus, for example, intentional and reckless tortfeasors are subjected to greater liability than negligent tortfeasors in terms of both compensatory⁶⁹ and punitive damages,⁷⁰ as well as application of concepts like proximate cause,⁷¹ and defenses.⁷² Similarly, since economic injury and mental distress frequently occur and can extend indefinitely, limits to liability⁷³ and damages⁷⁴ ensure that liability is proportional to culpability and damages do not extend indefinitely.

(2) Reciprocity

Where an activity—automobile driving, for example—is common, it is fair to deny compensation to an injured person from that activity unless carelessness is involved or unless some other policy is served.⁷⁵ The risks and benefits of this approach are "reciprocal"—i.e., on the whole, the members of society generally expose one another to the risks involved and share the benefits.⁷⁶ Some risks, however, are not reciprocal—e.g., dynamite blasting. In these cases it seems fair to make the actor strictly liable for injuries to others by his or her activities, but only so long as the injury results from the blasting.⁷⁷ There should be no strict liability for ordinary risks, like a damaged fender caused from a collision, resulting from the driving of a dynamite truck.⁷⁸

(3) Relative Power

The concern for fairness is also reflected in the consideration of the relative power of the parties involved. For instance, where the disparity in power results in "unfair" disadvantage, special duties have...