Tort Law: Public and Private

Readers interested in medical malpractice might be interested in seeing—and commenting on—my new article, The Domain of Torts, forthcoming in 117 Colum. L. Rev. (2017).

This Article advances a novel positive theory of the law of torts that grows out of a careful and extensive reading of the case law. The Article’s core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since tort scholars universally believe that the operation of the doctrines that determine individuals’ liability for accidents—negligence, causation, and damage—is driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the case law.

Specifically, this Article shows that our tort system operates in two parallel modes—private and public—rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit, tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.

This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. This Article demonstrates, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the case law reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode and that, when the system switches to the public mode, it aims at achieving economic balance between victims’ safety and the production of public benefits. The Article also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. Switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.



Roberts v. State, 396 So.2d 566 (La.App.3d Cir. 1981). This case was about a mobility-trained blind person, familiar with his surroundings, who accidentally collided with—and injured—another person on his way to a restroom. The underlying benefit (using restroom) was private and the risk of accident to which the defendant exposed the plaintiff was socially acceptable and hence reciprocal. The court properly decided that the injurer’s conduct was not negligent under principles of corrective justice.

This private-mode decision sails apart from the Louisiana Supreme Court precedents that applied the Learned Hand formula to accident-causing activities that produced public benefits. See, e.g., Levi v. Sw. La. Elec. Membership Coop., 542 So. 2d 1081, 1087 (La. 1989); Reed v. Wal-Mart Stores, Inc., 708 So. 2d 362, 365 (La. 1998), Chambers v. Village of Moreauville, 85 So. 3d 593, 597-98 (La. 2012).


Compare a public-mode decision, Mickels v. Danrad, 486 S.W.3d 327, 330-31 (Mo. 2016), with a private-mode decision, Jordan v. Jordan, 257 S.E.2d 761, 762-63 (Va. 1979).

In Mickels, the accident-causing activity was provision of medical care. The court imposed liability on a physician who negligently failed to diagnose the presence of a malignant brain tumor from which the patient was about to die anyway.

In Jordan, the accident-causing activity was car driving for purposes of a social visit. The court refused to impose liability on the defendant who negligently backed up her car without looking in the rearview mirror and ran over the plaintiff, who could not be seen from the mirror.


Also consider Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068, 1071-72, 1089-90 (Utah 2002). This decision of the Utah Supreme Court was about a manufacturer’s negligent installation and servicing of an x-ray machine at a hospital. The manufacturer’s negligence included failure to secure ventilation that could drive away chemical fumes coming from the machine. Shortly after the machine’s installation, technicians who operated it have developed chronic fatigue syndrome—an ailment that could be brought about by other causes as well. The Utah Supreme Court held that the safety protocol violated by the manufacturer aimed at preventing the type of harm suffered by the technicians. Under such circumstances, it explained, temporal proximity between the harm and the violation can properly substitute for causation evidence.

This and similar public-mode decisions (e.g., Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)) stand in stark contrast to the private-mode cases in which courts have applied the strict but-for standard for causation.