[MUSIC] American Tort Law can be understood as a principled system of fault based liability with some exceptions for dangerous activities and consumer product defects. But as you learn the rules of Tort Law in detail, it can look less and less principled. Like a Mish Mash of policy, politics and pragmatism. Some doctrines seem harsh or unfair. The law allows civil suits against small children, even as young as four or five years old. Mentally ill people whose actions stem from serious psychiatric delusions are liable for intentional acts. As between too innocent some courts say, the person who caused the injury should pay. But why? The law recognizes liability for highly offensive invasions of privacy and outrageously intentional inflictions of emotional distress, but not for racial epithets and slurs. However, hatefully intended. American Tort Law traditionally, has not required that we lend a helping hand to people in danger. Unless we put them in the path of danger ourselves or have a special relationship to them. So if I see a woman drowning in a shallow pond, I'm not liable to her or her family if I simply let her drown, even if I'm a strong swimmer and the law does not require me to warn strangers of dangers. If I see a train coming and notice a blind man on the track, I'm not obligated to warn the man of the danger or pull him to safety. Lately, there's been a trend in American Common Law to expand the understanding of who owes a duty of care to whom. This is a positive trend in my view. Tort Law is becoming more generous. More compensation driven, more strongly deterrent. Psychologists now have a duty to warn potential victims of their mentally ill patients. Schools are responsible for protecting children from harm. The government is responsible to people they take into custody. There's also a trend in American Common Law to hold businesses responsible for crimes caused by third parties. Suppose you're out shopping and get robbed and beaten up in the parking lot of a major retail chain store like Wal-Mart. Even though your injuries were caused by a criminal and not by Wal-Mart, a court might hold Wal-Mart responsible if the store could have seen that a lack of security in the parking lot would make customers vulnerable to crime. But modern Tort Law is not consistently compensation driven. Politics get in the way. It took many, many years for courts to find that cigarette manufacturers were responsible for cancer, death and disability. Even though gun violence is a major problem in the United States, courts have not generally held gun manufacturers tortuously responsible for criminal and accidental gun injuries caused by other individuals. This may be attributed to the power of the gun lobby. The political climate of the United States is highly relevant to Tort Law. Lobbyists for physicians have had an impact on the creation of statutory caps on the amount of money that can be recovered in a medical malpractice action. Lobbyists for manufacturers have had an impact on the creation of caps on damage awards for pain and suffering and punishment. Product liability laws make it harder in some states for plaintiffs to prove a design defect. Whether the mix of pro business, pro victim tort rules and policies serve the public is a vital question. Distinguishable from the question of whether they have good origins in politics and power. Let me try to summarize and conclude. Americans believe that injuries caused by others deserve a just response. Tort Law is widely presumed to be a just response to the felt need for society to compensate, to deter and to punish injury. Through its Tort Law, American society empowers individuals. Injured through intentional, negligent, and dangerous activities or the use of defective consumer products to file civil complaints through the courts. Such complaints may seek financial payments and other remedies from blameworthy private parties or state, local and federal governments. With a good lawyer guiding them and a strong enough claim, an injured man, woman or child can secure a certain kind of justice, the satisfaction of the claim in a courtroom before a judge and jury or in a negotiated out of court settlement. The Tort Law fault system is one of the means to which our rule of law secures freedom and security. We are free to engage in a wide, wide range of conduct subject only to the demand that we not hurt others intentionally or negligently. If we do, justice demands that we restore them to their status quo ante to the position they were in before the injury we caused. We cannot bring back their vision or their ability to walk without a painful limp, but we pay them a sum of money that a judge and jury believes. Fairly compensates them and deters them and others. The fault system is motivated philosophically by the goals of compensation and deterrence. We want people to be made whole when they're hurt and someone else has been at fault, it's only fair. But we also want there to be fewer instances of injury. We want a safer world. We want to create incentives for safety and restraint. And so we impose toward liability to increase the odds that people who can behave differently do. The fault system is also motivated by the goal of punishment, though that is mainly the job of the criminal law. If people are very malicious and reckless, the civil courts may award money damages called punitive damages to punish and very strongly deter future wrong doing by the defendants and others who don't want to suffer the same fate. Some activities are so dangerous, we assign liability responsible parties not at fault. And because of dangers to consumers of defective products, we impose strict liability and modified versions of strict liability in negligence rules to assign blame. The trend of holding third parties responsible for crimes and recognizing special relationships as the basis of duties to warn and rescue, reflects that compensating people for injury is increasingly seen as more important than freeing people from the burden of payment. Finally, we have discovered that Tort Law is not an adequate response to the problem of injury. Some victims of injury are cared for through private, no-fault insurance managed by the state. Workers compensation, managed by the state. Or special victims' funds, some managed by government. The Common Law of Torts is old law and it's new law. From time to time, there are demands for Tort reform. From time to time, there are Tort reforms by statute. But the wisdom of Common Law, the wisdom of our Common Law judges is the foundation of American Tort Law. This law is as relevant as ever. It's workable and welcome when it evolves as we evolve. Thank you. [MUSIC]
