Must Torts Be Wrongs? An Empirical Perspective

45 Pages Posted: 14 Jul 2012 Last revised: 5 Sep 2014

Date Written: July 14, 2012


In this article, we report on several studies that explore peoples’ preferences for strict liability or negligence in assigning responsibility for accidents. Depending on the situation, a substantial percentage of individuals stand prepared to assign liability to actors who are not negligent. We relate these findings to current debate over whether the essence of tort law is compensation to victims for wrongs committed by defendants.

Part II reflects on the fact that early in their legal careers many law students are sympathetic with the idea of a tort system based on strict liability. We then turn to a brief discussion of the relative roles that strict liability and negligence play in the tort system, both historically and in current doctrine. In essence, both the scholarly literature and the law have, in recent decades, moved away from liability without fault, except in a limited number of circumstances.

Part III reports four experimental studies that presented participants with scenarios in which one person caused another to be injured, but varied whether the injury was negligently or innocently caused, and varied the circumstances in which it occurred. In brief, we found that many of the factors considered relevant by courts and legal scholars – e.g., whether the activity was unusual, whether it was being conducted in a seemingly inappropriate locale, whether the actors imposed reciprocal risks on each other – affected the extent to which participants imposed liability absent negligent conduct. However, other factors, such as whether the defendant was acting for business or for pleasure, also played a role.

Perhaps most significantly, we further found a baseline of strict liability well beyond what the law would impose, even when we degraded the conditions for strict liability as far as we could – an accident in which one cyclist bumps into another through no fault of either while both are out for a pleasure ride. Finally, when asked to put themselves in the role of jurors and instructed on the negligence standard, participants routinely applied that standard in many instances – but not when injury occurred by virtue of an innocent accident involving a chemical spill. Part IV is a brief conclusion in which we attempt to explain these results in light of current competing theories about the nature of tort law.

Suggested Citation

Sanders, Joseph and Kugler, Matthew B. and Solan, Lawrence M. and Darley, John M., Must Torts Be Wrongs? An Empirical Perspective (July 14, 2012). Wake Forest Law Review, Vol. 49, No. 1, 2014, Brooklyn Law School, Legal Studies Paper No. 302, Available at SSRN: or

Joseph Sanders

University of Houston Law Center ( email )

4604 Calhoun Road
Houston, TX 77204-6060
United States
713-743-2125 (Phone)
713-743-2299 (Fax)

Matthew B. Kugler (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Lawrence M. Solan

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States
718-780-0357 (Phone)


John M. Darley

Princeton University ( email )

1-N-17 Green Hall
Princeton, NJ 08544
United States
609-258-3000 (Phone)

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