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Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan, Torts as (Only) Wrongs? An Empirical Perspective (Brooklyn Law School, Legal Studies Paper No 302, 2012) available at SSRN.

A long-enduring question in tort scholarship concerns the purpose of tort law.  One camp, anchored by the powerful scholarship of John Goldberg and Ben Zipursky, argues that tort is a law of fault and wrongs, and strict liability is sort of that weird cousin no one likes to talk about much.1

In a compelling new sociological study, however, Joseph Sanders tests the idea of tort as wrongs (and only wrongs), and adds to the scholarly debate about tort’s rationales.  Sanders persuasively argues that—far from being “at the margin of tort law”2 —from the public’s perspective, strict liability reigns supreme.  In four discrete studies, Sanders assessed whether the public believes fault or wrongdoing is a requirement for tort liability.  His thoughtful article presents some surprising findings that should have those of us in the academy taking another look at the purpose of tort law.

In Sander’s first study, he presented participants with a factual scenario involving a glue-making factory that emitted a toxic chemical.  Two factors varied: the location of the factory and the owner’s state of mind.  Consistent with the factors for strict liability in the Restatement (Second) of Torts, participants assigned less liability when the factory was located in an industrial area.  A majority of participants, however, believed that the factory owner should be responsible for damages even when he was not negligent and even when the factory was located in an appropriate area.  Still, Sanders attributed this result to a potential problem in the vignette and concluded that participants might have read a negligent state of mind into the fact pattern.

Sanders corrected the state of mind factor in the second study.  In the second scenario, the driver of a pickup truck injured a bicyclist.  The state of mind of the truck driver varied from a careless driver to an attentive driver who hit an unseen spike in the road.  The scenario also varied the manner of injury.  In one, the driver hit the bicyclist directly.  In the other, the driver’s cargo spilled a toxic chemical onto the bicyclist.  The results of this study were interesting in two respects.  First, participants responded to the mere presence of a chemical in the vignette as a ground for liability.  Second, two-thirds of the participants assigned liability in a mundane truck accident where the driver took every reasonable precaution.

In the third study, Sanders sought to eliminate any potential that the participant’s liability findings in the first two studies were improperly influenced by the involvement of a corporate actor.  The third scenario presented two variations:  a bicyclist struck another bicyclist, or a truck driver struck a bicyclist.  The study found that participants viewed both scenarios – truck and bike – as free from negligence or fault.  Nevertheless, the participants imposed significant liability in all variations.  In the bike-on-bike accident with no corporate actor, nearly forty percent of participants assigned some liability.

Of course, a bike accident with another bike clearly does not involve an abnormally dangerous activity, and would not justify strict liability under current precedent.  In this study, participants further were asked to justify their liability decisions.  Here, the findings were shocking—nearly three-fourths of those who assigned liability believed that the injurer should compensate the victim simply because he caused the injury, even though he was not at fault.  In other words, as Sanders summarizes, “mere causation created liability.”  (P. 22.)

In the final study, Sanders tested whether jury instructions affect a layperson’s response to imposing liability.  The fourth study assigned half of the participants the role of a juror and instructed them to apply a negligence standard to a scenario resembling the Indiana Harbor Belt Railroad case.  Forty-six percent of participants in the control group assigned liability to the railroad.  But in the juror group, no one assigned full liability and only seven percent assigned partial responsibility.  In short, assuming the role of the juror and being instructed on the law of negligence eliminated the strict liability responses of the participants.

So what does all of this mean?  Sanders is careful not to draw any unwarranted conclusions and does not speculate on why participants assign liability in non-negligent situations.  He simply observes that fault is not required “within the realm of everyday moral intuitions.”  (P. 34.)  Is this relevant to us as torts professors?  I think it is for two reasons.  First, social norms impact tort law.  Tort law continues to evolve; new legal wrongs are created by judges and by legislatures.  Accordingly, understanding lay opinions of strict liability can help us see where social norms place responsibility, and thus, where tort law may evolve.  Second, our students come to us as ordinary lay people.  It is only after we have “taught them to think like a lawyer” that their ordinary moral intuitions take a back seat.  This article reacquaints us with a perspective of tort law likely shared by many of our students, and opens our minds to non-conventional thinking about strict liability.

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  1. Goldberg and Zipursky’s body of work on civil recourse theory is voluminous.  See Civil Recourse Revisited, 39 Fla. St. U. L. Rev. 341 (2011); Torts as Wrongs, 88 Tex. L. Rev. 917 (2010); and Unrealized Torts, 88 Va. L. Rev. 1625 (2002).
  2. See Torts as Wrongssupra note 1, at 952.
Cite as: Sheila Scheuerman, A Preference for Strict Liability?, JOTWELL (December 3, 2012) (reviewing Joseph Sanders, Matthew B. Kugler, John M. Darley and Lawrence M. Solan, Torts as (Only) Wrongs? An Empirical Perspective (Brooklyn Law School, Legal Studies Paper No 302, 2012) available at SSRN),