Misalignments in Tort Law

Abstract

In negligence law, the risks taken into account by courts when setting the standard of care are the same risks considered when imposing liability and awarding damage. I call this the “alignment principle.” One objective of the Article is to expose the exceptions to the alignment principle, which I call “misalignments.” In cases of misalignment, the risks that are accounted for in setting the standard of care are different from the risks for which liability is imposed and damages are awarded. A second aim of the Article is to suggest modifications to the law, when misalignments cannot be justified. The most important aim of this Article is, however, to offer a theory as to how to evaluate and contend with misalignments.

Five cases of misalignment are identified and discussed in the Article. The first case illustrates how courts set the standard of care regardless of the victim’s level of income, but award different amounts of damages to high- and low-income victims. The second case represents instances in which causation is inherently hard to prove. In such cases, courts set the standard of care according to the expected harm, but traditionally allow no compensation when the plaintiff suffers harm but cannot prove that it was caused by the defendant’s negligence. In the third case, courts set the standard of care according to both risks increased and decreased by the injurer, but ignore the decreased risks when awarding damages. In the fourth case, courts set the standard of care by taking into account both ordinary and unusual risks, but often refuse to impose liability for harms that materialized from the ordinary risks. Finally, in the fifth case, courts set the standard of care by considering the risks the injurer created toward others, but not the risks he created for himself, even though the negligent injurer bears harms materialized from both risks to others and to self. In all five cases, the goals of tort law would be better served were the misalignments removed and all risks equally accounted for both in setting the standard of care and awarding damages.

Keywords: Negligence, duty of care, damages, risks, scope of liability, proximate cause, medical malpractice, lost earning, probabilistic recoveries, lost chances of recovery, indeterminate plaintiff and defendant