Unit 8 The Idea of Torts: Yesterday, Today and Tomorrow

The concept of a tort is not new. English judges were deciding tort cases in the fifteenth century. Tort law has always tried to balance the usefulness of certain conduct against the harm that conduct might cause.

Courts and lawmakers have had to balance an individual’s wish to act as he or she wants against another person’s wish to be protected against harm. In balancing these two concerns, courts and legislatures have also had to consider the interests and values of the public.

Most tort law is based on common law. This is law made by judges through the court decisions they issue. Their decisions become precedents used to decide later cases. Tort law may also be based on statutes such as a state’s motor vehicle code. For example, assume that when driving, Heather makes a left turn in front of an approaching car and the two vehicles collide in the intersection. If the state’s motor vehicle code requires drivers to yield to oncoming traffic when making a left turn, Heather’s conduct will be seen as wrongful. The police could give her a ticket, and the injured driver could sue her for damages.

While there are specific torts, there is a saying that «for every interference with a recognized legal right, the law will provide a remedy». If you can convince a judge that justice demands compensation for some injury, you may be able to recover damages without fitting your case into an existing category of tort protection. As you will see throughout this chapter, tort cases involve a clash of values and interests. Arriving at fair solutions is rarely easy.

Tort law has evolved over time, reflecting advances in technology and changing social values. Lawmakers must often decide whether a particular product is more useful than harmful to society. Assume, for example, that a seventeenth-century court was told that a new invention would carry up to six adults 60 miles in one hour (the usefulness of the machine). On the other hand, the machine would eventually cause thousands of deaths per year and would significantly harm the air we breathe (the harm caused by the machine). Would you permit the operation of such a machine? The machine, of course, is the automobile. Hundreds of years ago, most people would have considered autos more dangerous than useful. Technology and values change, however, and today the car - along with the many lawsuits it creates - is a permanent fixture in our lives.

Tort law today continues to balance usefulness against harm. For example, how safe must a new prescription drug be before the governments allows its widespread use?

Tort law also tried to preserve individual choice. With a warning of the dangers of cigarettes prominently displayed on the package, adults are permitted to purchase a product that may be more harmful than useful. However, some people argue that letting adults purchase cigarettes preserves their individual choice, and that in theory the warning allows the individual to make an informed choice. Others criticize this government decision and argue that the sale of cigarettes should be restricted or banned.

Tort law is often at the forefront of public controversy and is closely related to economic and political, as well as legal, policy decisions.