Of Envelopes and Legends: Reflections on Tort Law

• Author: Frank L. Maraist
• Position: Nolan J. Edwards Professor of Law, Louisiana State University

Nolan J. Edwards Professor of Law, Louisiana State University. B.A., 1951, Southwestern Louisiana Institute; J.D., 1958, Louisiana State University; LL.M., 1969, Yale University.

I Introduction And Explanation

More than 40 years ago, when as a student I struggled to master the intricacies of the law, I heard a legend¹ comment that all of tort law could be written on the back of an envelope.² As one might suspect, that legend taught contract law. However, his comment stayed with me, albeit usually in the recesses of the mind, during my many years of practicing law and many more years of teaching torts. Because I have always loved tort law and have found it the most intellectually stimulating field in the profession, I never forgave the legend for the comment. Later, I would retaliate when, as a faculty colleague of the legend,³ I observed that all of contract law can be reduced to three questions, and thus fit on the back of a small envelope. I remain convinced that my observation was correct, and that one may compress contract law into these questions: Can they agree? Did they agree? What did they agree to?

After 30 years as a torts teacher, I now see the wisdom of the legend's comment. While contract law can be reduced to three basic questions, tort law can be reduced to only one: when harm occurs or is threatened because of a human act, is it the better societal choice to impose the loss upon the actor, or to let the loss stay with the victim? This single issue can be subdivided (we are up to two questions now, approaching parity with contract law): 1) did the actor's conduct expose others to a risk of harm that society generally condemns (which we may call the "general risk") and 2) under the particular circumstances of this case, do we want to impose liability upon this actor for this conduct which caused these damages to this plaintiff in this particular manner (which we may call the "specific risk")?

What the legend did not add (although I am certain he realized it) was that the basic three-question contract law and two-question tort law are made incredibly complicated (and sometimes incomprehensible) by legislative alteration and by judicial application in a myriad of fact patterns. Adding to the difficulties are the frequent commingling of tort law and contract law in the resolution of controversies and the role of tort law as the "garbage heap" of private law, i e , "if it doesn't fit under anything else, can it be a tort?"

II Statutes, Contracts And Tort Law

The complications of contract law are beyond this discussion. What I focus upon here is the way in which the two basic tort law questions (the "general risk" and the "specific risk" inquiries described above) have been made difficult to understand and to apply because of statutory and judicial innovations. I begin with two basic truths: 1) legislation "trumps" jurisprudence and 2) contract law usually prevails over tort law. Thus, when the act of one person (the actor) causes harm to another (the victim), the first inquiry in tort law analysis is whether the legislature has made a determination of how the loss should be allocated between them If there is a statute providing that an actor who does a particular act which causes harm to another must bear the cost ("you break, you pay"), then tort law is irrelevant. The legislature has spoken, and, given the "pecking order" of law,⁴ has resolved the matter. Such statutes are rare, however.

If there is no damage-allocating statute,⁵ the next inquiry is whether the parties (actor and victim) have agreed in advance on how the loss should be borne. In such a case, lawyers are wont to say that the contract is the law between the parties.⁶This, of course, provokes the three questions governing contract law: Can they agree? Did they agree? What did they agree to? If the parties have not agreed, or if the law does not permit them to agree (because we need a Latin name to keep up appearances, we say the contract is contra bones mores⁷), then contract law is inapplicable and the next level-tort law-is reached.

This does not mean, however, that legislation and contract law disappear from the tort process. A statute which does not directly impose the loss upon the actor may do so indirectly through judicial adoption of it as the standard for tort liability.⁸Contract law also plays a major role in the configuration of tort law. One example is contractual waiver in advance of any liability for a future act which may cause harm.⁹ Such a waiver generally is upheld when the damages are traditional contract damages (the so called "benefit of the bargain"),¹⁰ but often it is rejected as contra bones mores when the damages are traditional tort damages (personal injury and property damage).¹¹ Conversely, tort law is hesitant to provide recovery of damages where the underlying tortious conduct also involves a breach of contract.¹² Tort law may borrow from contract law, such as in the development of products liability, where the underlying theory of recovery was first tort (negligence), and then contract (redhibition, or, in common laws terms, breach of implied warranty) and, finally, back to tort (strict products liability ).¹³ of course, contract law makes its most pervasive foray into tort law with insurance contracts that indemnify the actor against liability arising from the actor's tortious conduct.¹⁴

As noted, if there is no applicable damage-allocating statute or contractual provision, and the victim seeks to impose the loss upon the actor, traditional tort law rules apply. Over several hundred years and millions of cases, the common law has developed an approach to resolving tort claims that focuses upon the general risk which the actor's conduct created, and the specific risk which the victim suffered. Not surprisingly, Louisiana law, although developed from civil law traditions,¹⁵ applies the same "general risk/special risk" concept.

III The General Risks

The first inquiry in the traditional tort approach is identifying the general type of risk that may apply-is there a general principle of tort law which condemns the actor's conduct? If there is, then the other question is whether that general risk protects against the specific risk that caused the damage, i.e., should this actor be liable to this victim for these damages occurring in this particular manner? There are six general risks: 1) was the actor's conduct intentional,¹⁶ 2) was the actor's conduct willful or wanton (sometimes termed reckless or gross negligence),¹⁷ 3) was the actor negligent,¹⁸ 4) does the actor's relationship to a person make the actor liable for the wrongful conduct of that person (vicarious liability),¹⁹ 5) does the actor's relationship to a thing make the actor liable for the damage-causing condition of the thing (strict liability),²⁰ and 6) does the actor's participation in an activity subject him or her to liability for the damages caused by that activity (absolute liability)?²¹ When the actor's conduct does not fit within one of these six general risks, traditional tort law dictates that the loss should stay where it is, i.e., with the victim. At this point one may say there is "no tort" or that the injury-causing event was "an accident," although the latter term is too legally imprecise to be helpful.

Each general risk is confined by an operative principle which may be precise or vague. The intentional torts are generally precise; a specific operative principle determines whether certain conduct is a battery, or an assault, or a false imprisonment, or an intentional infliction of emotional distress. For example, the tort of battery occurs when the actor does an act that, to a person of ordinary sensibilities, is substantially certain to cause a harmful or offensive touching.²²Other general risks often have imprecise operative principles which invite more fact-specific analysis. The classic is negligence-one is negligent if he or she fails to act as a reasonably prudent person under all of the circumstances.²³ The application of the definition/operative principle of a general risk to a particular set of facts may occur often enough, and produce the same result often enough, that a "rule" of tort law develops.²⁴ However, one should never lose sight of the fact that it is the operative principle, and not the rule, which controls.

Nowhere is the general risk inquiry more fragmented (at least in Louisiana) than in the negligence sphere. The general risk of negligent conduct is subdivided into traditional elements of duty, breach and causation.²⁵ The duty element generally asks whether the actor should have taken any care whatsoever for the safety of others. This turns upon the foreseeability of harm resulting from the actor's conduct, i.e., could the actor foresee that his or her conduct would expose others to a risk of harm?²⁶ Arguably, that is the end of the duty inquiry, and the reasonableness of the actor's conduct is considered at the breach level. Some, however, would add to the duty inquiry a reasonableness factor, i.e., assuming the actor could foresee that his conduct would expose others to a risk of harm, was that risk unreasonable in the light of all of the factors (determined for the most part by balancing the likelihood and severity of harm from the conduct against the cost to society of banning the conduct). The breach inquiry concerns whether the actor behaved reasonably in light of the foreseeable risk.²⁷ Sometimes the breach inquiry is expanded to encompass the duty inquiry, such as where a court states that the defendant owed a duty to the plaintiff to drive less than the speed limit in a rainy school zone shortly after expiration of the special zone speed...