Why Do We Study Tort Law
The common law tort system is very different from the legislatively enacted statutory Tort Liability Law;nor is it the same as the hornbook rules of the Re-statement of Torts.Torts in the United States remain very much case law,although each and every state has its own statutes on some respects of torts.To find someone liable for compensation to an injured person,fault is generally a necessary ingredient.
There are many injuries that cannot be redressed through torts.For instance,one struck by lightning,or buried in earthquake rubbles,or wounded in the actions of war,may not normally blame a particular person and get compensation,as he cannot individually locate the source of the wrongdoing (or maybe there is none),or scientifically prove that that source is the direct cause of his injury.
In our normal course of life,we all act in a way toward others which we expect others to act in the same way.We don’t want to injure other people because we don’t want to be injured by other people.
If we follow the rules of traffic law by waiting at the red light and going through at the green,and when everyone does so,ideally,no accidents would take place.But accidents do happen once in a while – no matter how careful we are.My car brake might fail,e.g.,and I run through the red,resulting in injury of another.Should I be responsible for the resulting injury? Should I be held absolutely responsible for every mechanical failure of my car,suppose I take every precaution to have my car properly maintained? If so,how?
Most of the tort cases involving such issues as “reasonable care” and liability go to trial,in which the issues are to be resolved by a jury – twelve people randomly selected – to determine which version of the litigants is more credible.The jury system is unique to common law,and torts cases in particular,where the judge determines the legal issues (which law to apply) and the jury determines the facts (what really happens and what follows under the instruction of the judge).In the absence of a jury system,such as in China and all other civil law countries,both issues of law and issues of facts are determined by a judge (sometimes,one presiding judge,with a number of accompanying assistant judges),and on appeal,there is usually no standard of review,meaning that the case in the second instance would be tried again,most often,with the same result.
In the above car-brake-failure hypothesis,I apparently did not do anything wrong,and therefore should not be responsible for the accident,with a miserable result for the victim to shoulder the injury.
Or,there might be somebody else who has done something wrong in this case.Somewhere in the process of making the car available for use,there is a mechanical problem which escaped the notice of the manufacturer,the dealer or the service mechanics.If it is true,shouldn’t we take a closer look at the road accident case to see who the person is in causing this accident? Hence,the development of product liability law.(https://www.daowen.com)
This is the tort law: about who should be responsible,and in what way,for personal injuries.It is not enough that the victim be compensated;our study is to find the right person who has committed the wrong in the first place.Otherwise,we will do more unfairness than we try to do fairness,if we simply hold the person nearest to the accident scene to be responsible.
Notice,however,that fairness is not the result from a legal analysis at all;it is derived from the equity system.The legal analysis is to find the rules for human behavior: if one does it according to the rules of law,he can do no wrong,and should not to be blamed for his acts;or if he deviates from the rules of law,he has to be wrong,and be held responsible for whatever flows from his acts.Equity,on the other hand,looks to the end result – fundamental fairness in the overall social effect – to give a sense of justice.The statute may say,in the instance of the car accident,that whether or not the driver is at fault,his insurance company must cover at least 10% relating to his vehicle,which is all right.But it will be quite another thing to say,that the driver (or even an on-looker) must act as a private insurer,even if he does nothing wrong,simply because owning a car is evident enough that he has more money to spend around.To say that this is fair to put an individual in the strict liability position of a commercial manufacturer who must be strictly liable for his product whenever it causes injury,is fundamentally unfair.If this be the law,why do we need torts law,why do we need the law of negligence,and indeed,why do we need to behave in a socially acceptable way,so long as we have insurance coverage for everything.Unfortunately,our drivers do take it for granted that everything is supposedly covered by insurance.What’s the result? Does that make our road safer,our drivers drive better?
More ironically,if the depth of pocket should be the measurement for shouldering responsibilities (as you see in the discussion in the supplemental readings),Robin Hood may be the perfect judge in every personal injury dispute.Or for that matter,shouldn’t bank-robbing be considered acceptable since the bank is always richer,and we need some fair balance if the bank money is shifted to the poor?Indeed,Butch Cassidy and the Sundance Kid[4] might very well be reconsidered.
The purpose of this course on common law torts is not to see which legal sy-s tem works better,but simply to present the common law treatment on the subject,and you will get your own conclusion or experience,which may someday become useful or helpful in your future practice.
But the question remains as to how to determine whether a defendant must be responsible for his act,under the particular circumstances,e.g.,when a driver drove his car through the wall of a bicycle shop and injured the shop owners inside.He did it,alright.But should he be held responsible for his act,and under what standard? That is the question in the following case.