Torts: Cases, Principles, and Institutions

Torts: Cases, Principles, and Institutions
3rd Edition
John Fabian Witt
Table Of Contents
Torts: Cases, Principles, and Institutions



John Fabian Witt

Allen H. Duffy Class of 1960 Professor of Law


Yale Law School



Third Edition

CALI eLangdell® Press 2018


About the Author

John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law at Yale Law School. He is the author of Lincoln’s Code: The Laws of War in American History, which was awarded the American Bar Association’s Silver Gavel Award, was selected for the 2013 Bancroft Prize in American history, was a finalist for the Pulitzer Prize, and was a New York Times Notable Book for 2012.  He has taught torts for sixteen years at Yale, Columbia, and Harvard. 

Professor Witt’s previous writings includes the prizewinning book, The Accidental Republic: Crippled Workingmen, Destitute Widows, and the Remaking of American Law (Harvard University Press, 2004) and Patriots and Cosmopolitans: Hidden Histories of American Law (Harvard University Press, 2007).  He has authored articles in the American Historical Review, the Columbia Law Review, the Harvard Law Review, the Yale Law Journal, and other scholarly journals. He has written for the New York Times, Slate, the Wall Street Journal, and the Washington Post. In 2010, he was awarded a John Simon Guggenheim Memorial Foundation Fellowship for his project on the laws of war in American history. Professor Witt is a graduate of Yale Law School and Yale College, and he holds a Ph.D. in history from Yale. He is a fellow of the American Academy of Arts and Sciences. He served as law clerk to Judge Pierre N. Leval on the United States Court of Appeals for the Second Circuit.


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What did the banana say to the judge? I’ll be sure to win my case on a peel.

August Cooper Witt, July 2017 (h/t Geronimo Stilton, The Quest for Paradise: The Return to the Kingdom of Fantasy 140 (2011))

Chapter One
1.1. Principles and Institutions

Tort law is the common law of civil wrongs not arising out of contract. Torts books often start with a definition because tort law, unlike other mainstays of the first year in the American law school curriculum, can seem strange and unfamiliar to the new law student. Terms like “contracts,” “procedure,” “property,” and “criminal law,” are relatively familiar to the student long before he or she arrives for the first day of classes.  “Constitutional law” will resonate with the law student who has even a passing interest in politics or public policy.  Alone among first year subjects, “torts” has not made much headway into lay usage.  Indeed, the situation is even worse than this suggests, for to the extent the term has made its way into popular usage, the results have often been terrible misuse and misunderstanding. 

So let’s start with a definition and take it piece by piece: Tort law is the common law of civil wrongs not arising out of contract.  We call tort law a “common law” field because it arises out of the body of legal norms and institutions inherited by the United States from England more than two centuries ago, when the United States won independence from the British Empire. In England, the common law was the law of the King’s courts in the centuries after the Norman Conquest in 1066.  (The common law was the law common to those courts, as opposed to the church courts, borough courts, and the courts of the local nobility, each of which had its own law through the medieval and early modern periods.)  Today, to say that a body of law is made up of common law principles is to say that it is mostly judge-made law, though not necessarily exclusively so.  State legislatures and the U.S. Congress increasingly alter the common law of torts. The Federal Constitution and its state-level counterparts largely (but not entirely) give the Congress and state legislatures power to make such alterations, though as we shall see constitutional constraints touch tort law in several different ways. Nonetheless, it is still fair to call torts a common law field.  And as a common law field, torts is made up predominantly of state law, rather than federal law, though federal law has always played a role, especially in the past century, and even more so in the last two decades.  To the extent that torts remains a subject of state law, its basic norms will vary from state to state, though usually with a wide area of consensus at its core.

Tort law deals with civil wrongs as opposed to violations of the criminal law. This means that tort law’s norms and institutions exhibit a cluster of features characteristic of civil proceedings, not criminal proceedings. Private parties, not public prosecutors, typically initiate tort litigation (though the government may be a claimant in tort cases when certain harms befall government property).  The array of procedural protections for criminal defendants (many of them constitutionally required) typically does not apply to defendants in torts cases.  There is no privilege not to testify on the grounds that you might concede liability, for example. There are no Miranda warnings in torts.  And there is no constitutionally protected right to confront witnesses. The Federal Constitution does not require states to offer jury trials in tort cases, though most states do anyway. The standard of proof is a preponderance of the evidence rather than beyond a reasonable doubt.  Parties without lawyers are not usually offered free court-appointed counsel.  Most importantly, perhaps, the fact that tort law is the law of civil wrongs means that, with one exception, tort law does not aim to punish.  Punishment is a principal function of the criminal justice system.  The remedies in a torts case aim not to punish the defendant, but to compensate the plaintiff, almost always through monetary compensation to make up for losses, and sometimes (though much less often) through an order by a court requiring that a defendant cease some ongoing course of conduct.  The exception to this rule is the doctrine of punitive damages, which consist of monetary sums awarded by a judge or jury for the purpose of punishing tort defendants, and which are awardable in torts cases involving some especially outrageous or reckless conduct.  As we shall see, even though punitive damages are rare, they have attracted considerable attention because of concerns that they punish without the institutional protections offered to criminal defendants. The United States Supreme Court has significantly constrained the size of possible punitive damages awards in recent years. 

Tort law is a field not merely of civil law: it is a field of civil law wrongs. The term “tort” comes from the Latin meaning bend or twist.  (It shares the same root as the word “torture.”)  For centuries, tort law has thus been connected indelibly to the moral concept of wrongfulness.  But the emphasis on wrongfulness produces two kinds of puzzles.  The first is how to measure it.  Some cases are easy, of course: in such cases, we know wrongfulness when we see it.  Others are hard.  And in the hard cases the distinction between right and wrong can be a hair’s breadth.  Perhaps for this reason, some domains in tort law purport to do away with the concept of wrongfulness.  As we shall see, there is some reason to think that the early modern English common law may have required defendants to pay for the injuries they caused regardless of whether they had acted wrongly.  And since at least the middle of the nineteenth century, important areas of the law (urged on by prominent jurists and commentators) have embraced so-called strict or no-fault liability doctrines that allocate accident costs without regard to questions of wrongfulness. In the field of product-related injuries, for example, which we will spend considerable time discussing later in this book, the trend toward eliminating fault or wrongdoing from the analysis of torts cases has been especially powerful in the past half century. 

Last, tort law is a common law field of civil wrongs not arising out of contract. This means that, as a conceptual matter, the obligations that tort law recognizes exist independent of any agreement between the parties. For a person to have a legal obligation to another arising out of tort law, they need not have promised the other person anything. The law of torts itself, not the terms of any agreement, specifies the contours of the obligations it enforces. 

Yet this final piece of our definition, like each element of the definition that has preceded it, comes with caveats and exceptions, two of which are worth noting here. First, many and perhaps even most torts cases do arise out of the interactions of parties who are in contractual relationships with one another, or at least in relationships akin to contracts. Consumers of products contract with sellers to buy those products, but if they sue for product-related injuries, they often sue in tort law.  Patients of doctors enter into contracts to purchase medical services, but if they sue when those services go awry, they usually sue in tort law.  And even when there is no formal contract, there are often relationships or social roles that could be construed as setting the terms of the parties’ interactions. Social settings such as classrooms or playgrounds, as we shall soon see, typically come with informal conventions and codes of conduct. Such conventions and agreements are crucially important in modern tort law. They require that we decide whether and when tort law should defer to private agreements and when it should override them when they purport to alter or perhaps even abolish tort obligations altogether. 

Second, and just as significant, contracts are vital for the resolution of tort claims because in the real world virtually every successful tort claim is resolved by a special kind of contract called settlement. Contracts of settlement discharge the underlying tort obligation and render it a contractual obligation to pay some or all of the damages the plaintiff sought.  In the everyday practice of tort law, such settlement contracts are pervasive. No one really knows what percentage of tort claims settle, but the percentage is thought to be stunningly high, probably well above ninety-five percent of those tort claims that lead to monetary transfers. Settlement is thus at the heart of how American tort law works.  And it offers us a segue to a central theme in this book.  For settlement is one of the wide array of social practices and institutions that constitute American tort law and that make it more than merely a formal legal definition or a dry and dusty concept in the doctrinal analysis of the law.  Tort law in the United States is a vast and highly distinctive socio-regulatory system.   


Tort law in the United States consists of a sprawling set of social institutions and practices. One way to see this is to observe that formal definitions of tort law do not differ much from one legal order to another. But the institutions and sociology of tort law differ radically from legal system to legal system.  In this book, we will attend to formal definitions and doctrines. But we will keep an especially close eye on three features of American tort law that breathe life into the field and give it a distinctive twenty-first-century character. 

First, tort law’s doctrines and principles embody the law’s basic norms of interpersonal obligation.  Torts’ jurists have argued for many decades about these principles, about what they are and what they ought to be. Some see in tort law either an instantiation or an opportunity for utilitarianism in action.  Others see a science of duties and finely tailored interpersonal obligations. This book will introduce the basic controversy over tort law’s moral commitments.  These controversies are significant in part because they represent live debates in practical moral philosophy.  But they also matter for the purpose of identifying ways to decide the hardest and most cutting-edge cases in the field, cases in which there is no obvious existing answer in the law and for which lawyers, judges, and juries will need to grasp the law’s underlying principles. 

Second, tort law in the United States is the starting point for a vast and far-flung set of exceedingly important social practices, ranging from contingency fee representations and highway billboard advertising, to class action litigation and claims adjustment, to contracting and risk assessment. We can barely even begin to evaluate the law of torts and its virtues and defects without taking these social practices into account. We will aim to take account of the tort system by referring to statistics and numbers and through the leading sociological, game-theoretical, and historical accounts.  Indeed, to understand the distinctive features of tort law in the United States as opposed to in other legal systems, where tort law operates quite differently, these perspectives will be decisive for illuminating the real stakes in long-running controversies.

Third, American tort law shapes and is shaped by an important array of institutions, among them insurance companies, the administrative state, the jury, social customs, cost-benefit analysis, the plaintiff’s bar, and more.  These institutions, along with the practices noted above, powerfully influence the law of torts in the United States. We cannot understand the law without them.  Indeed, we cannot understand contemporary American law more generally without placing these institutions front and center, and once we see tort law this way, the field serves as an ideal introduction to the central features of our vast and multifarious legal system.

Here, then, is the theory of this book: understanding the characteristic features of American tort law requires exploring the field’s principles, practices, and institutions. The benefit of approaching tort law this way is not only that we understand torts better, though that would be no small thing.  The further payoff is that this approach allows us to turn the study of tort law into more than an obligatory first-year purgatory of fusty and old-fashioned common law rules.  Instead, we take up the law of civil wrongs as an introduction to some of the most important problems faced by twenty-first-century American lawyers and lawmakers more generally. Thankfully, we can begin to think in these ways by exploring one of the field’s simplest and best-known cases, a case that began as a classroom interaction between two boys in nineteenth-century Wisconsin.

1.2. An Introductory Case: The Tort of Battery
1.2.1. Vosburg v. Putney

Vosburg v. Putney, 50 N.W. 403 (Wis. 1891)

The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. . . . At the date of the alleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less than 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded.

[The opinion of the court in the initial appeal provides the following additional facts:

“The plaintiff was about 14 years of age, and the defendant about 11 years of age. On the 20th day of February, 1889, they were sitting opposite to each other across an aisle in the high school of the village of Waukesha. The defendant reached across the aisle with his foot, and hit with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a few moments he felt a violent pain in that place, which caused him to cry out loudly. The next day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr. Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations, and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so increased by the 5th day of March that counsel was called, and on the 8th of March an operation was performed on the limb by making an incision, and a moderate amount of pus escaped. A drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another incision was made to the bone, and it was found that destruction was going on in the bone, and so it has continued exfoliating pieces of bone. He will never recover the use of his limb. There were black and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of January before, the plaintiff received an injury just above the knee of the same leg by coasting, which appeared to be healing up and drying down at the time of the last injury. The theory of at least one of the medical witnesses was that the limb was in a diseased condition when this touch or kick was given, caused by microbes entering in through the wound above the knee, and which were revivified by the touch, and that the touch was the exciting or remote cause of the destruction of the bone, or of the plaintiff’s injury. It does not appear that there was any visible mark made or left by this touch or kick of the defendant’s foot, or any appearance of injury until the black and blue spots were discovered by the physician several days afterwards, and then there were more spots than one. There was no proof of any other hurt, and the medical testimony seems to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff. The jury rendered a verdict for the plaintiff of $2,800. The learned circuit judge said to the jury: ‘It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say that ought not to have come into court. The parents of these children ought, in some way, if possible, to have adjusted it between themselves.’ We have much of the same feeling about the case.”]

The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. . . . On the last trial the jury found a special verdict, as follows: “(1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff’s right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff’s leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars.” The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages and costs of suit, was duly entered. The defendant appeals from the judgment.

Lyon, J.

 . . .

The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant’s motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.


Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

 . . .

Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts [is] that the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.  [The court explained that in a cause of action “ex contractu” and not “ex delicto, a different rule of damages would be applicable in which unforeseeable damages would not be recoverable.]

[Despite upholding the plaintiff’s verdict in these two critical respects, the court nonetheless ruled in a separate part of its opinion that the trial court had erroneously overruled the defendant’s objection to one of plaintiff’s counsel’s questions.  Accordingly, the court sent the case back to the trial court for another new trial.]

1.2.2. Anatomy of a Torts Case

Vosburg v. Putney was a simple case. By now, it is an old case. But getting to the bottom of it reveals much about the complexities of American tort law right up to the present day. 

At an elementary level, the case presents two kinds of questions that will run through the rest of this book and that are omnipresent in legal analysis: questions of fact and questions of law. There are, for example, questions of fact about causation. What caused the injuries to the leg? Would those injuries have come about anyway if Putney had not made contact with Vosburg on the 20th of February? There are also questions of fact about Putney’s intent: what did he mean to accomplish when he reached out and kicked his classmate? 

The questions of law are different. They ask not what happened, but rather what the law is—or what it ought to be. For example, what kind of mental state does the law require for holding Putney liable? Is it sufficient that he intended to make a certain kind of contact with Vosburg? Or does Vosburg need to show that Putney further intended to harm him? Questions of law about Putney’s causal relationship to Vosburg’s leg injury would ask whether it is sufficient for Vosburg to show that Putney’s kick increased the likelihood of leg damage that was already in motion, or that Putney’s kick accelerated that damage.  

Once we bring in some of the context for the court’s opinion, this little case from long-ago Wisconsin also serves as a remarkable introduction to the sociology, economics, and functions of tort law. Andrew Vosburg was a slight boy whose father, Seth (a Civil War veteran), worked as a teamster at a local lumber company.  According to Professor Zigurds Zile of the University of Wisconsin Law School,

Vosburg was frequently bedridden with a succession of childhood illnesses. He caught scarlet fever at the age of eight and had two or three bouts with the measles. Yet he was raised as an ordinary country boy, obliged to do the customary chores around the homestead, endure discomfort and face the usual hazards associated with rural life. Bumps, bruises and lacerations were part of his workaday experience. Accidents just happened to Andrew; or perhaps they happened to him more often because he lacked the strength and dexterity the rigors of his environment demanded . . . . 

Zigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 Wis. L. Rev. 877, 879.  George Putney, by contrast, was the only son of a prominent and prosperous local family.  Zile reports that George Putney was described by a contemporary as “a sucker of a boy” with “a bad temper.”  Id. at 882.  In fact, George had a minor altercation with Andrew a couple weeks prior to the incident at the center of the litigation when George inexplicably prevented Andrew from retrieving his textbook before an exam.

The Vosburg family also initiated a criminal case against Putney.  Passions, it seems, ran high in 1889 in Waukesha.  Andrew’s father went to the town justice of the peace to file a criminal complaint against George on October 19, 1889.  The justice of the peace issued a warrant to apprehend George, and a trial ensued.  (This was the era before special criminal procedures for juveniles.)  After witness testimony and cross-examination, the court found George guilty as charged in the complaint.  He was ordered to pay a fine of $10, plus costs, amounting to a total of $28.19.  The conviction was later overturned on appeal.

The civil and criminal cases arising out of the schoolboy’s kick soon involved substantial time and expenses. During the first jury trial in the civil suit, witnesses included Andrew, George, the boys’ teacher, and Andrew’s doctors.  When the case was retried in the December term of 1890, the plaintiff subpoenaed eight witnesses and the defendant subpoenaed eleven.  The third trial for Andrew’s case seemed imminent until September 1893, when the circuit court dismissed the case for the plaintiff’s failure to pay overdue court costs.  In still another proceeding, Andrew’s father brought a claim against George Putney for the loss of his son’s services.  A jury awarded Seth $1200 in damages against George, which the Wisconsin Supreme Court later affirmed.  But even then, it does not seem that the Vosburgs ever collected any damages from the Putneys, perhaps because parents are not liable for the torts of their children.  At the end of this long litigation process, there is no evidence that the parties ever exchanged any money.

All told, the dispute between these families lasted for four and a half years and never produced even a dollar in actual damages changing hands. The litigation was expensive, too. Zile estimated that the Vosburgs “would have incurred costs in the amount of $263 in order to get nothing.” Their lawyers probably spent considerably more in time and money in hopes of recovering a portion, usually a third, of the winnings. The Putneys probably paid at least $560 in lawyers’ fees and incurred additional costs summing to a further $677. Zile, supra, at 977. 

The outsized expenses of the Vosburg case are not unusual in American tort law, at least not in the narrow slice of cases that go forward to trial. Observers estimate the administrative costs of the tort system—lawyers’ fees, expert witness fees, court costs, etc.—amount to between fifty and seventy cents for every dollar transferred from defendants to plaintiffs.  The Vosburg case’s costs were almost exactly in this range: the parties together incurred some $1500 in costs in a dispute over two claims that juries seemed to value at around $3700 (a $2500 claim for Andrew plus the $1200 claim for Seth). The Vosburgs’ lawyers would have eaten up another one-third of whatever money the Putneys paid, for a total of around $2700 in costs on $3700 worth of tort claims.  The Vosburgs would only have recovered $2500 after subtracting their lawyers’ fees. This is equivalent to a costs-to-value ratio of more than 1, a figure that is vastly higher than the administrative cost ratios that attach to, say, disability claims in the Social Security system, where costs are typically closer to ten percent of the value of the claim. Tort administrative costs are vastly higher than first-party insurance administrative costs, too: victims of injuries can much more cheaply process claims for covered injuries from their own insurance companies than they can prosecute tort claims through the courts.

1.2.3. The Pervasiveness of Settlement

Given how counter-productive the litigation was, one great mystery in Vosburg is why the families did not reach a settlement. The initial trial judge seems to have thought the matter ought to have been resolved before trial. The original appeals panel agreed. And there were settlement negotiations. By the early fall of 1889, the Vosburgs had already incurred substantial medical costs and were facing another year and a half of care, eventually costing at least $475. After the Vosburg family retained a lawyer,

Seth and Janet Vosburg and one of their attorneys called on Henry Putney [George’s father] at his store, and the incident “was talked over amongst [them].” The Putneys offered to pay Dr. Bacon’s bills [about $125 accrued to date] and an additional amount of $125 towards medical and other needs in return for releasing George from any liability arising out of the February 20 incident. The Vosburgs, however, were not willing to settle for less than $700, which to them was a paltry sum, barely sufficient to meet the financial obligations already accrued, to set aside a reserve against outlays associated with Andrew’s convalescence and potential complications, like the amputation of Andrew’s diseased leg, and to pay the lawyers for negotiating the settlement. To the Putneys, by contrast, particularly if they looked at George’s role as peripheral, the sum of $250 might have seemed a generous price for the nuisance value of a threatened lawsuit.

Zile, supra, at 894. 

The startling thing is that in hindsight any one of the proposals by either defendant or plaintiff would have been in the interest of the parties. Simply dropping the litigation in return for nothing would have been better than proceeding.  Given the array of choices before them, litigating the claims to judgment seems to have been the worst choice available to the parties, and yet each of them chose to litigate rather than to accept settlement offers from the other side that (again, in hindsight) were vastly better than the alternative of trial.

So why didn’t the Vosburgs and Putneys settle if it was in their interest to do so? The mystery deepens when we see that virtually all cases end in settlement. One of the most important institutional features of American tort law is that it is almost entirely party-driven. The parties to a lawsuit have virtually complete autonomy in deciding whether to bring claims, how to manage those claims, and whether to withdraw from prosecuting them. The result is that almost all parties settle their disputes before trial. 

Settlement has been widespread in American tort law for as long as modern tort law has existed, for more than a century and a half, and there is reason to think settlement is growing even more common in the past fifty years.  In 2003, the American Bar Association Litigation Section held a symposium titled The Vanishing Trial, which concluded that the “portion of federal civil cases resolved by federal trial fell from 11.5 percent [of all filings] in 1962 to 1.8 percent in 2002.”  Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in Federal and State Courts, 1 J. Empirical Legal Stud. 459, 459 (2004).  Between 2008 and 2012, a mere “0.56 percent or slightly more than one-half of one percent of all terminations” occurred by civil jury trials. Charles S. Coody, Vanishing Trial Skills, A.B.A. (May 22, 2013), http://apps.americanbar.org/litigation/committees/pretrial/email/spring2013/spring2013-0513-vanishing-trial-skills.html.  The following chart, compiled by Marc Galanter, who led the ABA study, and his co-author, shows the stark picture of settlement in civil litigation generally:

Figure A: Percentage of Civil Terminations During or After Trial, U.S. District Courts, 1962-2010

Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, The Pound Civil Justice Inst. 1, 3 (2011), http://poundinstitute.org/docs/2011%20judges%20forum/2011%20Forum%20Galanter-Frozena%20Paper.pdf.

Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, Pound Civil Justice Inst. 1, 3 (2011), http://poundinstitute.org/docs/2011%20judges%20forum/2011%20Forum%20Galanter-Frozena%20Paper.pdf.

Parties settle because, as the Vosburgs and Putneys learned, litigation is expensive and time-consuming.  Many parties are risk-averse; they have a preference for the certainty that settlement offers.  Moreover, there is reason to think that on the plaintiffs’ side, lawyers paid on a contingency basis, as a percentage of any settlement or award, will have an interest in avoiding long drawn-out proceedings.  Settlement minimizes their workload, allows them to take on additional claims, and often allows them to maximize their imputed hourly wage. 

Given the incentives for the parties and for the plaintiffs’ lawyers, why is it then that some parties like the Vosburgs and Putneys don’t settle? Looked at this way, the question is not why there are so few trials.  The question is why there are any trials at all!   Why doesn’t everyone settle? 

One especially influential view is that where a case proceeds to judgment, at least one of the two parties, and perhaps both, must have incorrectly estimated the likely value of the claim.  In this account, which was first offered by George Priest and Benjamin Klein, trials are errors.  See George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984). Consistent with this view, some observers suggest that the trend toward settlement since the middle of the twentieth century, at least in the federal courts, has been driven by the enactment of the Federal Rules of Civil Procedure (FRCP) in 1938, which authorized pre-trial discovery and deposition procedures that allow each side to learn virtually everything about the facts of the case in advance of the trial itself.  Lawyers are thus able to develop quite accurate estimates of the value of the claim—much better estimates than pre-FRCP lawyers were able to form—which in turn allow the parties to settle their cases before trial.

Another view is that parties do not settle because there is something other than dollars and cents at stake in tort disputes.  Parties persist, in this view, as a matter of principle. And many argue that we should encourage them to do so.  In this latter view, articulated memorably by scholars like Owen Fiss and Judith Resnik, trials are not errors.  They are the public forums in which we work out our social commitments and hold our ideals up for testing.  See Owen Fiss, Against Settlement, 93 Yale L.J. 1073 (1984); Judith Resnik, Whither and Whether Adjudication?, 86 B.U. L. Rev. 1101 (2006).  Of course, if trials are intrinsically valuable as public fora, then settlement rates are startlingly high.  For it appears that something about the tort system—and indeed, civil litigation generally—produces vast numbers of settlements and very few judgments. 

1.2.4. The Size of the Tort System

One way to glimpse the tort system in the aggregate is to look at the total amount of money passing through the American tort system each year.  It is here that little cases like Vosburg connect up to the heated political controversies over tort law in the past several decades.

Insurers estimate that the money transferred in the tort system amounts to more than $260 billion per year.  This is a huge amount of money, comparable to the amount the United States spends annually on old age pensions in the Social Security system.  Moreover, if we look at the amount of money flowing through the tort system, we can see that it has increased sharply over the past sixty years, though that growth has slowed (and by some measures has been reversed) since the middle of the 1990s.     

United States Tort Costs


U.S. Population (millions)

Adjusted Tort Costs (billions) (2010)

Tort Costs as Percentage of GDP





























Source: Towers-Watson, 2011 Update on U.S. Tort Cost Trends, http://www.casact.org/library/studynotes/Towers-Watson-Tort-Cost-Trends.pdf.

Tort Costs (billions) Adjusted for Inflation

Source: Towers-Watson data, adjusted by the Consumer Price Index

Tort Costs as Percentage of GDP

Source: Towers-Watson data

Even with the slower growth of recent years, the figures for transfers and administrative costs in tort law are far higher in the United States than in any comparable legal system or economy. 

Comparative Tort Costs as a Percentage of GDP in 2000

Source: Tillinghast-Towers Perrin, U.S. Tort Costs and Cross-Border Perspectives: 2005 Update, http:// www.legalreforminthenews.com/Reports/Tort_Costs_2005_Update.pdf.

There is at least one country where tort costs as a percentage of GDP are near zero: New Zealand simply abolished tort law for virtually all injuries forty years ago, replacing it with a system of social insurance. 

One of the things we will want to be able to make sense of by the end of this book is why the tort system is so much bigger in the United States than it is in other countries.  The answer, it turns out, is not about the substantive doctrines of American tort law, which more or less resemble the substantive tort doctrines of other developed legal systems.  The real difference in American tort law lies in its institutions and procedures: jury trials, discovery, a plaintiffs’ bar whose fees are contingent percentages of the plaintiff’s ultimate recovery, and more. 

It is worth noting that the data cited above is hotly controversial: it comes from a consultant to the insurance industry now named Towers-Watson, formerly Tillinghast or Towers-Perrin.  Critics contend that the Towers-Watson data is misleading and tendentious and that the insurance industry aims to use it to promote legislation that would reduce tort costs and thus serve the interests of insurers and the tort defendants they insure.  See, e.g., Lawrence Chimerine & Ross Eisenbrey, The Frivolous Case for Tort Law Change, Econ. Pol’y Inst. (May 16, 2005), http://www.epi.org/publication/bp157/. The critics complain both that certain elements of the cost calculation, such as insurance executive compensation, ought to be excluded, and that Towers-Watson and its predecessors misstate the concept of costs in the tort system. Both critiques have some force. The latter critique in particular has obvious merit. Why, after all, call the monetary transfers in the tort system the “costs” of tort law? The costs might much better be described as the underlying injuries plus avoidance costs plus the costs of administering claims when injuries happen. Is it a “cost” when tort law transfers money from wrongdoer to victim? Or is it a “cost” when a wrongdoer injured the victim in the first place? For a general theory of the sum of accident costs, see Guido Calabresi, The Costs of Accidents (1970).

Despite the criticisms, however, there is also a good reason to use the insurers’ data as a basic measure of the tort system. For the startling thing about tort law in the United States is that insurers’ private information is the only way we can even possibly begin to grasp the full size and scope of the tort system. This is worth emphasizing again: the biggest insurers and only the biggest insurers are in a position to see the macro trends in the field.  The reason is that the pervasiveness of private settlement ensures that there is no public repository of information about the fate of most tort claims, sometimes virtually all tort claims. Nothing in the law of torts or in the law of settlement contracts even requires that a claim be filed with a court before it is contractually extinguished in a settlement agreement. To the contrary, the parties can save money on the cost of drafting and filing a complaint and share those savings between them if they settle before filing the claim in a courthouse. There is thus often not even a single trace in the public record of a tort claim, even one that produces a substantial settlement.  Indeed, many plaintiffs receive higher settlement awards precisely in return for their promise to keep the terms of the settlement and even the fact of their claim confidential—promises that are enforceable under current law, despite the protests of many well-positioned observers. 

In short, the only institutions that could possibly know the overall size of the American tort system are the insurers. And that tells us a lot about the system we are studying. It is party-driven, highly opaque, radically decentralized, and vast. Taken together, these features present the tort lawyer with an important challenge: What goals or moral projects could possibly be so important as to make U.S. tort law worth its stunningly high costs? 

1.2.5. Accident Rates and the Deterrence Goal

One goal tort jurists often advance is the deterrence of unreasonably dangerous conduct. The logic here is simple and intuitively attractive. Tort law raises the price of injurious behavior.  As a result, the logic goes, the prospect of tort liability should decrease the amount of injurious behavior in the world. Deterrence theory has further implications and wrinkles. We will return to these at a number of junctures later in the book. But the important point for now is that the risk of tort damages ought to lead rational parties to take into account the costs of their behavior in a way they might not, absent tort liability.  

Of course, tort law is one of many regulatory mechanisms that aim to accomplish the goal of improving safety standards.  Consider, for example, state inspection regimes for everything from housing code compliance to factory employment standards. The federal Food and Drug Administration seeks to guarantee the safety of pharmaceuticals and food products. The Federal Highway Administration’s Office of Safety issues regulations and guidelines with an eye toward automobile accidents. The Consumer Product Safety Commission does the same for consumer goods. Even aside from regulators, the market itself creates many incentives for safety on the part of market actors seeking to attract buyers, passengers, or clients. 

Does tort law add to the deterrence function played by these other regulatory institutions? Formal evidence is considerably more difficult to come by, in no small part because of the difficulties described above in obtaining good information about the size and significance of tort costs. Nonetheless, anecdotal evidence suggests that in the United States tort law does shape behavior around risk and safety. We routinely read news stories about firms that claim to have made some decision—often an unpopular one—on the basis of the risk of litigation.  

Consider the big picture trends in accidental and violent injuries over time. For the past half-century and more—precisely the time during which tort costs have soared—rates of accidental death have declined substantially. This is not to say that tort law has caused that decline. It might be the case that causation runs in the other direction: improvements in safety may have generated higher expectations of safety and thus led to heightened standards in tort law. Either way, the trend is striking. Since 1960, accidental deaths in the United States have fallen by nearly half. 

Source: Statistical Abstracts of the U.S. (2014)

Much of this change continues a trend that began long before 1960. Excluding motor vehicle accidents, accidental deaths fell from around a hundred per 100,000 people in the population annually to less than thirty by 1975. 

Even motor vehicle accidental death rates have dropped during the past sixty years. 

Age-adjusted Death Rates for Unintentional Injuries and Motor-vehicle-related Injuries: United States, selected years 1950-2010 (per 100,000 population)

Source: Center for Disease Control and Prevention, http://www.cdc.gov/nchs/hus/contents2012.htm#020

If we adjust motor vehicle accidental death rates by miles traveled, the drop in motor vehicle traffic fatalities has been even more pronounced.

Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009

Source: National Highway Traffic Safety Administration, An Analysis of the Significant Decline in Motor Vehicle Traffic Fatalities in 2008, U.S. Dep’t Transp. 12, (June 2010), http://www-nrd.nhtsa.dot.gov/Pubs/811346.pdf .

Yet if our goal in tort law is to deter unreasonably dangerous actions, as many observers argue it is or at least ought to be, the connections between deterrence and a case like Vosburg are not at all clear. Is it reasonable to think that the prospect of tort damages payments—or even the prospect of interminable tort litigation—will alter the behavior of children in a classroom? In this domain, at least, using tort law to induce appropriately safe behavior by children seems a fool’s errand, at least so long as we are trying to alter the behavior of children with monetary sanctions aimed at the children themselves. (Monetary awards against the school or the teachers might be far more effective, even if controversial for other reasons.) 

Many scholars believe that the notion of tort damages shaping behavior is unlikely even in other domains where it might seem more plausible than in the middle-school classroom. We will return to this problem repeatedly in this book. For now, it is sufficient to observe that the critics point to a myriad of factors that they say get in the way of translating prospective tort damages into a safer behavior. Some parties are not susceptible to being incentivized in the relevant respect by cash.  Others act irrationally.  Still others act rationally and are responsive to monetary incentives, but are protected from tort damages by third parties who will pay the damages, such as liability insurers or employers. Some may be sheltered from the threat of paying tort damages because they have time horizons shorter than the 4-plus years that it took Vosburg to conclude. 

This is not to say that deterrence is an impossible goal, or that deterrence ought not be thought of as an important function of tort law. We will see considerable support for the idea that tort damages do shape behavior in many contexts. Nonetheless, the effort to shape behavior and induce safety offers at best a partial justification for tort law. 

1.2.6. Intent and Corrective Justice in the Battery Cause of Action

Another way we could defend tort law in light of its high costs would be to describe it as embodying our moral judgments about wrongful behavior.  If tort law is thought of as philosophers often think of it, a practice of corrective justice, in which we recognize wrongdoers’ obligations to repair wrongful losses, the difficulty of identifying any behavioral effects disappears. Some might think that some or much of the difficulty of the high cost of tort law disappears, too, since it might be worth a lot to pursue questions of right and wrong, and it might not be surprising that inquiries into such questions are considerably more complex (and costly) than the kinds of inquiries Social Security claims administrators or insurance claims adjusters need to make. 

As with the deterrence goal, we will continue to pursue the concept of corrective justice throughout this book. For now it is important to observe that corrective justice may play an especially powerful role in accounting for the distinctive features of intentional torts. These are often distinctively wrongful acts, arising out of conduct that has little or no social value. Our law of intentional torts helps mark out such acts as wrongful. Later in the book, we will often find ourselves wondering what, if anything, makes an actor’s conduct wrongful. Critics of the corrective justice concept often object that the concept offers no internal metric for distinguishing wrongful conduct from conduct that is justified. The concept can thus seem circular: it identifies tort law, which is the law of civil wrongs, as a body of law that provides remedies for wrongful losses.  But how does one know when a loss has been wrongful?

In intentional torts such as battery, wrongfulness arises out of the relationship between the defendant’s intentionality and the plaintiff’s injury. A plaintiff in an intentional tort suit is essentially saying, “He meant to hurt me!” In this sense, the corrective justice account poses a further question for intentional tort cases. For if a plaintiff seeking to make out an intentional tort claim is required to show that the defendant had the relevant intent, we need to know what that intent consists of. This is precisely the question taken up by the next case.

1.2.7. Garratt v. Dailey

Hill, J.

Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff’s home, on July 16, 1951. It is plaintiff’s contention that she came out into the back yard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the following findings:

III. . . . [T]hat while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant’s small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any willful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff. (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be $11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

. . .

It is urged that Brian’s action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13 [1934], as:

An act which, directly or indirectly, is the legal cause of a harmful contact with another’s person makes the actor liable to the other, if 

(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

(b) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and

(c) the contact is not otherwise privileged.

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

Character of actor’s intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced . . . .

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian’s action would patently have been for the purpose or with the intent of causing the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages.  Vosburg v. Putney, supra.

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian’s version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

In this connection, we quote another portion of the comment on the ‘Character of actor’s intention,’ relating to clause (a) of the rule from the Restatement heretofore set forth:

It is not enough that the act itself is intentionally done and this, even though the actor realizes or should realize that it contains a very grave risk of bringing about the contact or apprehension. Such realization may make the actor’s conduct negligent or even reckless but unless he realizes that to a substantial certainty, the contact or apprehension will result, the actor has not that intention which is necessary to make him liable under the rule stated in this section.

A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. . . . Without such knowledge, there would be nothing wrongful about Brian’s act in moving the chair and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff’s action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian’s knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

. . .

The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.


1. Intentionality. What counts as an intention with respect to some consequence? One answer comes from the authors of the influential Restatement of Torts, an authoritative account of the common law published by leading lawyers in a century-old private organization known as the American Law Institute (ALI) based in Philadelphia.  The ALI published the first Torts Restatement in 1934.  Thirty years later, the organization published an update known as the Second Restatement. A third Restatement has been coming out in pieces for the past decade.  The ALI Restatements have been highly influential in torts, and each Restatement has adopted its own distinctive approach.  Today, lawyers and judges commonly cite both the Second and Third Restatements.

Section 1 of the Restatement (Third) of Torts: Liability for Physical Harm, published in 2010, offers an updated definition of the intent required for battery—one that is largely similar to the definition adopted in the First Restatement in 1934 and quoted in Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955). According to the Third Restatement, “A person acts with the intent to produce a consequence if: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowing that the consequence is substantially certain to result.” Restatement (Third) of Torts: Liability for Physical Harm § 1 (2010).

The Restatement’s position on knowledge of the substantial certainty that a consequence will result raises important questions about the boundaries of intentional torts. When does knowledge of the likelihood of a consequence amount to substantial certainty? Consider, for example, an employer who employs many employees in work with known hazards.  Is the employer substantially certain that injury to one or more employees will result?  It follows from the law of large numbers that a certain number of injuries will occur such situations.  Some courts have held that being aware of the risk of harm is not the same as knowing that harm will occur with substantial certainty. See Tomeo v. Thomas Whitesell Constr. Co., 823 A.2d 769, 772 (N.J. 2003) (holding that plaintiff-employee, who was injured by a snow blower in the scope of employment, could not use defendant-employer’s awareness of the inherent risks in operating a snow blower to establish substantial certainty). The Tomeo Court held that “mere knowledge and appreciation of risk—something short of substantial certainty—is not intent.”  Id. (internal quotation marks omitted).  Courts in other jurisdictions have echoed Tomeo’s holding.  See, e.g., Adams v. Time Saver Stores, 615 So. 2d 460, 462 (La. Ct. App. 1993) (holding that the mere foreseeability of an injury does not establish substantial certainty). 

Other cases, however, have approached the issue differently.  For example, in Laidlow v. Hariton Machinery Co., 790 A.2d 884 (N.J. 2002), the plaintiff-employee successfully established that the defendant-employer acted with substantial certainty of the consequences of injury to the plaintiff where the defendant disabled a safety device and enabled it only when OSHA inspectors were present.

The more common position, consistent with cases like Tomeo, was adopted in Shaw v. Brown & Williamson Tobacco Corp., 973 F. Supp. 539 (D. Md. 1997), in which plaintiff truck-driver, who shared a cab with a heavy smoker, sued his partner’s cigarette manufacturer for battery by smoke.  It is well accepted that the law of battery will allow for transferred intent: when A intentionally strikes at B and hits B’s companion C instead, the error does not undercut A’s battery liability to C. If the common law recognizes a theory of transferred intent, why not also a doctrine of transferred intent on a larger scale where the defendant knew to a certainty that its smoke would come into contact with many third parties? District Judge Walter E. Black, Sr., rejected the extension of the transferred intent doctrine to the more general smoking context:

Brown & Williamson did not know with a substantial degree of certainty that second-hand smoke would touch any particular non-smoker. While it may have had knowledge that second-hand smoke would reach some non-smokers, the Court finds that such generalized knowledge is insufficient to satisfy the intent requirement for battery. Indeed, as defendant points out, a finding that Brown & Williamson has committed a battery by manufacturing cigarettes would be tantamount to holding manufacturers of handguns liable in battery for exposing third parties to gunfire. Such a finding would expose the courts to a flood of farfetched and nebulous litigation concerning the tort of battery. 

973 F. Supp. at 548. The Restatement authors agree with Judge Black. The substantial certainty doctrine, the Restatement asserts, should be limited to cases in which “the defendant has knowledge to a substantial certainty that the conduct will bring about harm to a particular victim or to someone within a small class of potential victims within a localized area.” Restatement (Third) of Torts § 1 cmt. e (2010) (emphasis added).  Why limit the tort of battery in this way? 

2. Is intentionality intuitive? The famed Supreme Court justice Oliver Wendell Holmes, Jr., once claimed that “even a dog knows the difference between being kicked and being stumbled over.” Oliver Wendell Holmes, Jr., The Common Law 3 (Boston: Little, Brown & Co., 1881). Yet research from developmental psychology paints a more complicated picture.

It is true that the ability to distinguish intentional from unintentional action is a foundational skill that emerges early in development.  Chimpanzees, orangutans, and eight-month-old human infants can reliably discriminate between purposeful and accidental action. Josep Call & Michael Tomasello, Distinguishing Intentional from Accidental Actions in Orangutans (Pongo Pygmaeus) and Chimpanzees (Pan Troglodytes) and Human Children, 122 J. Comparative Psychol. 192 (1998). This faculty plays an essential role in helping children acquire language and develop interpersonal skills.  In fact, preschoolers whose ability to infer others’ intentions is disrupted, often due to maltreatment or physical abuse, are at heightened risk for later social maladjustment and behavioral problems. See Kenneth A. Dodge, John E. Bates & Gregory S. Petit, Mechanisms in the Cycle of Violence, 250 Science 1678 (1990).  Indeed, some have argued that our ability to identify unintentional harms as accidents and to respond with forgiveness is what allows for the evolution of cooperative societies in which individuals coordinate their behavior to maximize collective welfare.  E.g., Drew Fudenberg, David G. Rand & Anna Dreber, Slow to Anger and Fast to Forgive: Cooperation in an Uncertain World, 102 Am. Econ. Rev. 720 (2012).

Yet while the distinction between intentional and accidental behavior is intuitive for apes and babies alike, we do not always use this distinction when forming moral judgments. For instance, the celebrated developmental psychologist Jean Piaget observed in 1932 that young children consider it morally worse (“naughtier”) for a child to make a large ink stain accidentally than to make a small stain intentionally. Older children, he noticed, felt just the opposite. Since Piaget’s discovery, this developmental trajectory has been extensively documented. Preschoolers tend to judge the moral valence of an act by focusing on its outcome and largely ignoring the agent’s beliefs and intentions. By around age 6, children begin to condemn actions on the basis of the agent’s mental states such as intent to harm.  In other words, children shift from outcome-based moral judgment to intent-based moral judgment as they age.  Fiery Cushman, Rachel Sheketoff, Sophie Wharton & Susan Carey, The Development of Intent-Based Moral Judgment, 127 Cognition 6 (2013).

Under some circumstances, adults will also exhibit a tendency to focus on outcomes rather than intentions when judging actions that result in harm. Research from cognitive psychology demonstrates that adults who are placed under time pressure and asked to make hurried moral judgments show a systematic bias toward judging actions as intentional. In their haste, these decision-makers will say that harms were intentional. Given more time to make their decisions, they revert to saying that harms were unintentional. Evelyn Rosset, It’s No Accident: Our Bias for Intentional Explanations, 108 Cognition 771 (2008).  This work suggests that we tend to adopt a default assumption that actions are undertaken intentionally and that it takes mental effort to persuade ourselves to abandon our initial stance. This finding is consistent with the developmental pattern showing that sensitivity to harm is relatively automatic, manifests early in childhood, and is continuous throughout development, while sensitivity to intentions emerges later and requires more cognitive resources.

3. The boundaries of intentionality. One puzzle is to identify what is at stake in guarding the boundaries of the intentional torts cause of action. As we will see in later chapters in this book, plaintiffs such as Tomeo and Laidlow would ordinarily have claims for unintentional torts available to them. Why then did their lawyers seek to advance an intentional tort theory instead? Most likely, the plaintiffs’ attorneys in Tomeo and Laidlow were trying to circumvent the workers’ compensation statutes that provide modest compensation for workplace injuries but also prohibit employees from suing their employers in tort for most unintentional injuries arising in the course of their work.  See, e.g., N.J. Stat. Ann. § 34:15-8 (West 2013). The lawyers for Ruth Garratt were probably also trying to get around a legal obstacle when they characterized Brian Dailey’s act as an intentional tort rather than as the kind of unintentional but negligent act for which, as we shall see in later chapters, plaintiffs may also obtain damages.  For Ms. Garratt, the problem was very likely that in an unintentional torts case, Dailey would have been held to a lenient standard of conduct measured by reference to children of like age and experience.

In many domains, by contrast, pressure on the substantial certainty rule is reduced because plaintiffs have powerful incentives not to characterize their injuries as intentional torts. For one thing, liability insurance usually does not cover intentional torts; as a result, a plaintiff who alleges intentional tort rather than a tortious accident may put in jeopardy her capacity to collect on the judgment.  See Catherine M. Sharkey, Revisiting the Noninsurable Costs of Accidents, 64 Md. L. Rev. 409 (2005). In suits against employers for the torts of their employees, plaintiffs face similar incentives to avoid intentional torts claims, since the intentionally caused injuries are often less likely to be ruled within the scope of an employer’s responsibility than unintentional but negligently caused harms. In addition, intentional torts are often subject to a shorter statute of limitations period, which may bar some plaintiffs from bringing intentional tort claims. Compare N.Y. C.P.L.R. § 215 (McKinney 2006) (providing a one-year statute of limitations for assault, battery, false imprisonment, libel, and slander), with N.Y. C.P.L.R. § 214 (McKinney 1986) (providing a three-year statute of limitations for unintentional personal injury and property damage cases).

The boundary between intentional and unintentional torts is important for the law to police for another, more theoretical, reason as well. Some unintentional torts admit of justifications based on the utility of the defendant’s course of conduct. We deem certain unintentional risks permissible, for example, if the benefits of the conduct out of which those risks arise are sufficiently great. In some circumstances, as we shall see, this will be a reason to deny damages to unintentional injury plaintiffs injured by a defendant’s conduct. But in the law of intentional torts, utilitarian defenses to unconsented-to intentional acts are very narrowly cabined, and more often barred outright.  If the law aims to preserve the distinctiveness of these two domains at the case-by-case level—utilitarian balancing for unintentional torts, on one hand, and its absence for intentional torts, on the other—then the law has to maintain the boundary between intentional and unintentional torts. 

4. Intent to be harmful or offend? One final note on the doctrine of battery: in cases where a defendant has the requisite mental state with respect to the consequences of his act, there is still a question of whether his mental state must extend not only to the fact of the contact but also to its harmfulness or offensiveness. Need the plaintiff show that the defendant intended a harmful or offensive contact where the intent is to do harm or cause offense? Or is it sufficient to establish that the defendant intended a contact, which contact we as a community deem harmful or offensive. By whose standards must a contact have been harmful or offensive? The defendant’s? The court’s?  Vosburg sheds a little light on this question, but not much.  Judge Lyon held that the plaintiff need not establish that a defendant intended to harm him, but merely that the defendant intended to make an “unlawful” contact. But Judge Lyon’s formulation is decidedly unhelpful, since, after all, what we want to know is what kinds of contact the law rules out. Telling us that the law will sanction unlawful contacts gets us nowhere! 

A more useful guide to who decides what counts as harmful or offensive comes from Judge Lyon’s attention to the context in which the contact took place. Note that in Vosburg, it was not just Andrew’s actions that made him liable, but it was that his conduct took place in a classroom after the teacher had called the class to order. In the playground context where Andrew and other students would have “engaged in the usual boyish sports,” Judge Lyon might have hesitated to declare his kick the kind of contact for which a battery action may successfully be brought.  In the classroom, however, the court held that “no implied license to do the act complained of existed.” Why should the circumstance—in this case, “the order and decorum of the school”—matter? 

As the distinction between the classroom and the playground suggests, the intent standard for battery typically requires that a defendant have intended a harmful or an offensive contact.  The Restatement provides that an actor may be liable for battery to another when (1) the actor acts intending to cause a “harmful or offensive contact,” either to the other person or to a third party, and (2) a “harmful contact” with the other person results. Restatement (Second) of Torts § 13 (1965). The offensiveness of a contact—as Judge Lyon observed in his discussion of playgrounds and classrooms—turns on the particular conventions relevant to the social context in question.

5. Battery for the Era of #MeToo. In light of the #MeToo movement, are battery causes of action an alternate path in sexual assault cases?  If so, why are tort actions in sexual assault cases not as salient a part of the public debate over sex assault, and especially campus sex assault, as one might expect? There are a number of possible reasons.1 First, the time it takes to litigate is a powerful disincentive. Even if a survivor files right away, tort action can take years to complete, extending the emotional trauma as it makes survivors continue to relive the assault. The broad discovery available in civil actions means that private and personal sexual information about the plaintiff’s life can become public.  (Cross examination during a trial that is often crafted to discredit the plaintiff.)  In addition, pursuing a tort action before a criminal case could hurt the chances of success in the criminal case because the defense may use the fact of a civil suit to characterize the plaintiff as seeking financial gain to undermine their credibility. Finally, unless the actor in question has financial resources, it may not be worthwhile to bring a cause of action for money damages; lawyers may be unwilling to take a case where the defendant would not be able to pay damages sufficient to provide a worthwhile contingent fee. Expensive criminal cases can exhaust a putative assailant’s financial resources before a plaintiff has the chance to collect. And in campus sex assault cases, putative defendants will typically be young and therefore less likely to have substantial assets.  In theory, a damages judgment could be used to collect against future assets. In practice, judgment debtors will likely discharge personal injury debt in bankruptcy.   

Nevertheless, tort claims sometimes provide an important alternative to a criminal case. In a civil tort case, as we shall see later in this book, a plaintiff need only prove her case by a preponderance of the evidence; proof in a criminal trial requires that the jury be convinced under the higher standard of “beyond a reasonable doubt,” a standard that is often impossible to meet in sex assault cases.  Moreover, in a civil case the plaintiff controls the course of the litigation and pursues private satisfaction, unlike a criminal case, in which a public prosecutor controls the litigation in pursuit of a public punishment. 

Recent plaintiffs have been successful in pursuing tort damages from third parties for sexual assault and battery.  Survivors of sexual abuse by Michigan State University sports physician Lawrence Nassar sued the university on the theory that it was vicariously liable as employer for its employee Nassar’s battery.  Later in the book we will take up the subject of employers’ liability for the torts of their employees.  For now, the important point is that the plaintiffs’ complaint raised a classic battery cause of action, alleging that Nassar “intended to cause harmful or offensive contact with Plaintiff’s person, or intended to put Plaintiff in imminent apprehension of such contact.”  Complaint at 20, Jane JD Doe v. Doe 1 (Cal. Super. Ct. Sacramento 2016) (No. 34-2016-00200075), https://assets.documentcloud.org/documents/3106054/JANE-JD-COMPLAINT-Signed.pdf.  In the spring of 2018, Michigan State agreed to a $500 million dollar settlement with 332 plaintiffs. Later the same spring, a civil jury in Georgia awarded a rape victim an astounding $1 billion in damages against the security firm that employed a guard who assaulted the plaintiff in her friend’s apartment complex.  Despite, or perhaps because of such large awards, it is worth asking whether money damages are the right way to address the harms of sexual assault.  We will return to such questions in a subsequent chapter of this book.  One might also ask what it means to award a billion dollars in such a case.  For starters, note that the answer turns in substantial part on the law of bankruptcy and insurance. 

6. The Knobe Effect. The philosopher Joshua Knobe has studied people’s intuitions about the distinction between intentional and unintentional effects. He makes an important finding, known in the literature as the Knobe Effect: people label certain foreseen outcomes intentional and others unintentional on the basis of value judgments about the outcome. In particular, people are much more likely to attribute intentional responsibility to actors who foresaw (but did not care about) bad outcomes than to those who foresaw (but did not care about) good ones. So, for example, people attribute intentionality to the harms caused by a chief executive officer (CEO) who approves a moneymaking plan that he knows will harm the environment, but do not attribute intentionality to the benefits caused by a CEO who approves a moneymaking plan that he knows will help the environment. See Joshua Knobe, Intentional Action and Side Effects in Ordinary Language, 63 Analysis 190-93 (2003).

The Knobe Effect is interesting in its own right.  But it also suggests that our ostensibly factual descriptions of the world are often, if not always, shot through with value-laden intuitions and influences.  We speak of intent as if doing so will help us reach a reasoned outcome in analyzing a case before us.  But it turns out that the very tool with which we reason (“intent”) is already saturated by the value judgments we hope such tools will help us make!  We have already seen how awkwardly circular it was in Vosburg to try to use the idea of “unlawful contact” as a doctrinal tool.  The Knobe Effect suggests that the circularity problem may be much deeper: the descriptions of the world on which our prescriptive analyses purport to be based may already be shaped by normative intuitions.

7. The dispute pyramid. Before we move on, it is worth noting an important feature of the cases we have read so far, and, indeed, of every case we will read in this book.  Not every schoolroom injury becomes a dispute.  Not every dispute produces a claim.  Not every claim is filed.  And, as Note 3 above observes, virtually every claim that is filed settles before trial.  Galanter posits the dispute pyramid as an effective way to conceptualize our system:

We can imagine a bottom layer consisting of all the events in which . . . [i]n a small fraction . . . someone gets hurt. Let us call this layer injuries. Some of these injuries go unperceived; in other instances someone thinks he is injured, even though he is not. Thus we have a layer of perceived injuries . . . . In many cases, those who perceive injuries blame themselves or ascribe the injury to fate or chance. But some blame some human agency, a person, a corporation, or the government. To dispute analysts, these are grievances. Among those with grievances, many do nothing further. . . . But some go on to complain, typically to the person or agency thought to be responsible. This is the level of claims. Some of these claims are granted in whole or in part . . . . When claims are denied, they are denominated disputes. Some of these are abandoned without further action, but some disputes are pursued further. . . . [T]ypically this would be accomplished by taking the dispute to a lawyer. In analyzing such disputes, therefore, we call the next layer lawyers. Of the disputes that get to lawyers, some are abandoned, some are resolved, and some end up as filings in court. Let us call this the filings layer. Most cases that are filed eventually result in settlement. Typically only a small fraction reach the next layer of trials, and a small portion of these go on to become appeals.

Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 Md. L. Rev. 1093, 1099-1101 (1996).

The dispute pyramid conveys the fact that very few events and perceived injuries are resolved inside a courtroom.  Galanter presents some real-world dispute pyramids:

Figure 1: Common Dispute Pyramids

Source: Galanter, supra, at 1101.

What this means is that the cases in this casebook—cases that have reached an appellate court at the very top of the torts dispute pyramid—are virtually all atypical, and even bizarre. Indeed, as in Vosburg, these are cases in which the disputants are jointly almost always economically worse off than they would have been had they found some other way to resolve their dispute.  Professor Samuel Issachoroff elaborates:  

[A]s soon as disputants enter the litigation process, they are clear losers. Whatever the stakes in a dispute between two parties, there is only one way in which they can preserve their joint welfare. Any division of the stake between them, whether it be one side taking all, or half-and-half or anything in between, leaves the parties jointly in the same position as when they begin their dispute: however they slice it, they will still have the entire pie to share. It is only by bringing lawyers into the mix and by subjecting themselves to the inevitable costs of litigation that the parties consign themselves to being worse off. Once lawyers and courts and filing fees and witnesses and depositions and all the rest are brought into the picture, the pie starts getting smaller and smaller. Because this is perfectly obvious, and perfectly obvious to all rational disputants right from the get go, the penchant of our casebook warriors to litigate requires some explanation.

Samuel Issacharoff, The Content of Our Casebooks: Why do Cases Get Litigated?, 29 Fla. St. U. L. Rev. 1265, 1265-66 (2001).

Are parties who choose litigation over settlement irrational actors, as the passage by Professor Issacharoff suggests? Are these disputants short-sighted fools? Or are they principled zealots? What about their lawyers? How about the Vosburgs and Putneys or Ms. Garratt and young Brian Dailey?

8. Empathy and the case method. What is the effect of learning tort law through the case method? How does approaching torts through the lens of individual stories alter our thinking about overarching principles?

Many students—and presumably many jurors—cannot help but feel moved when they read cases about heinous injuries and destroyed livelihoods. Yet the psychologist Paul Bloom argues that empathy is a poor guide for making law or setting policy.  Empathy can lead us to neglect the systemic perspective in favor of attending to a particular suffering person. Paul Bloom, Against Empathy 9 (2016). Approaching tort law through individual cases may marginalize the interests of diffuse, non-present stakeholders who are unrepresented—the unnamed masses who will be affected by the liability rule going forward.

Psychologists have identified several features of empathy that make it vulnerable to manipulation.  First, our affective reactions are roused by vivid, concrete examples, not by abstract, hypothetical, or distant concepts.  As the Nobel laureate Thomas Schelling observed in 1968: “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will prolong her life until Christmas, and the post office will be swamped with nickels and dimes to save her.  But let it be reported that without a sales tax the hospital facilities of Massachusetts will deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a tear or reach for their checkbook.” Thomas C. Schelling, The Life You Save May Be Your Own, in Problems in Public Expenditure Analysis: Studies of Government Finance (Samuel B. Chase ed., 1968).  The same dynamic may arise when there is a six-year-old brown-haired girl who has been injured and to whom the tort system can give resources, on the one hand, and a systemic social policy question about the optimal liability rule, on the other hand.

A second feature of empathy is that it does not scale.  We feel impelled to come to the aid of a single needy person, but we experience diminished motivation in response to large numbers of victims, a phenomenon known as “psychic numbing.”  Paul Slovic, “If I Look at the Mass I Will Never Act”: Psychic Numbing and Genocide, 2 Judgment & Decision-Making 79 (2007).

Sometimes tort law doesn’t scale either. This is often because (as we shall see) courts cut off liability when damages seem uncontrolled.  Even if judges do not cut off liability, the resources of defendants to pay is limited.

Rationalists like Bloom would like to see laws and policy set based on system-level logic rather than case-level logic. Does the case method disable Bloom’s system-level view?

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    For more on this topic, see Ellen Bublick, Civil Tort Actions Filed by Victims of Sexual Assault: Promise and Perils, NATIONAL ONLINE RESOURCE CENTER ON VIOLENCE AGAINST WOMEN (2009), https://vawnet.org/sites/default/files/materials/files/2016-09/AR_CivilTortActions.pdf.

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