Economic Analysis of Tort Law November 26 2012 Tort Tort French derives from the Latin word Torquere meaning a private wrong or injury Alleged purpose of tort law roughly speaking is to protect the interests of people in their property or their person from damage by others Historical Development Not considered a discrete branch of law in US until mid late 19th century o 1st American treatise on torts 1859 o 1st taught as a separate subject in schools 1870 o 1st torts casebook 1874 Torts originally meant wrong a synonym for trespass and part of property law o Tortous wrongs are simply wrongs not arising out of contract that warranted liability for harms Trespassers were always held liable for any harms arising from trespass o Trespass liability applied for harms to property but also for harms to people trespass on his her person Case Some harms also arise indirectly without any trespass o First referred to as trespass in a similar case lawyers referred to such situations as Trespass meant that damages had to be paid trespasser was always liable but to recover in case the plaintiff had to demonstrate that there was some other illegal act or fault to case establish liability o Ultimately this became what is now called negligence carelessness Can also have intentional tort Negligence When first used by courts negligence did not mean carelessness o Meant nonfeasance failure to perform a prescribed duty o Negligence first used to refer to a public official failing to perform his assigned duties resulting in someone being harmed Individuals harmed had a long established principle of common law both through precedent and statute to sue the official Most early cases involved actions against sheriffs i e for allowing imprisoned debtors to escape Prisons were first used to house those who had not paid their debts 18th century statues also made towns liable for harms arising from failure to The Fault Standard for Trespass repair roads and bridges Defendants for trespass began arguing that there was a double standard as trespassers were strictly liable but in case liability required evidence of fault o Brown v Kendall Mass 1850 is generally cited as the first American tort case as it employed a fault standard for liability in a trespass case Defendant tried to separate dogs that were fighting by beating them with a stick raised the stick and struck the plaintiff s eye Ruling when harm occurs as the consequence of an unintended contact it is actionable only on the basis of negligence Implication trespass and do damage to property does not mean liability for damages if damages were accidental or unavoidable Weakens private property rights o Morton Horwitz The inquiry into causation shifted the attention of courts to questions of carelessness And as liability for carelessness began to be understood as deriving from an independent social obligation imposed by the state the search for a standard of care encouraged judges to regard themselves as social engineers and legislators whose decisions to impose liability were influenced by broader considerations of social policy Yet it was some time after the advent of the negligence action that judges realized its potential for affecting the course of social change Start to change people s incentives social change via common law o Fault standard increasingly applied in trespass cases Contributory Negligence in US First applied in Massachusetts o Statute mandated that towns were liable for double damages for harms arising from neglect to repair roads and bridges 2 Courts regarded this statute as imposing a crushing burden on the towns so allowed the defendant town to argue that they were not liable bc the plaintiff failed to use due care to guard against dangerous obstructions contributory negligence Transformation from trespass law into fault law Tort Transformed Property Law The increasing importance of the negligence concept would ultimately lead to a general attack on common law protections of private property that had been erected over centuries The rights of trespassers and licensees were filtered through a system of limitations on the use of land which were grounded in long established historical attitudes toward property ownership Only slowly over a period extending well beyond the supposed halcyon days of negligence were these property dominated principles subordinated to the tort system Rabin The Historical Development of the Fault Principle A Reinterpretation Georgia Law Review Vol 15 1981 p 946 Private property and contract law becoming dominated by tort law Elements of Fault Based Tort As tort law developed three key elements became relevant for torts actions to succeed all o 1 A breach of duty owed to the plaintiff by the defendant defendant did something needed to be present evidence of wrong o 2 Harm suffered by the plaintiff Tort is all about compensation for harms At first had to indicate measurable harms not subjective harms i e psychological distress o 3 The breach of duty is the immediate or proximate cause of the harm Legal Duties Owe legal duties to others i e to be careful o When a breach of duty occurs it is said that the defendant was at fault or negligent Breach of duty by the wrongdoer or tortfeasor can be an intentional harm to someone or the harm can arise from an accident caused by carelessness Duty of Reasonable Care majority A key question in tort law under the negligence standard is how are the duties determined o Potential tortfeasors have a duty of reasonable care Court presumably compares the precautionary activity of a defendant with what a reasonable person would have done under the circumstances subjective Harm standard 3 If a breach of duty does not result in harm there presumably is no grounds for a suit under tort Magnitude of harm presumably determines the monetary payment to be made in law compensation o Liable for the damages created through a neglect of duty presumably creates incentives to behave without reasonable care but objective is compensation for harms not o Requires that costs be determined so historically focused on tangible or measurable punishment for carelessness costs This has been changing increasing tendencies to award payments for intangible harms and disciplinary damages Causation Under the Negligence Standard Breach of Duty must be the cause of the harms o Historically limited to two types of cause 1 Cause in fact more comprehensive o 2 Proximate cause Establishing that the defendant s