This is a post by Gregory C. Keating (USC Gould School of Law).
In his excellent blog post Does Tort Law Really Care About You?, Diego Papayannis addresses a fundamental question of tort law and challenges my view of the matter as he understands it from my book Reasonableness and Risk (OUP 2022). The role of the law of torts is to secure us against harm at each other’s hands as we go about our lives in civil society. How then should the law of torts respond to unavoidable harm?
Avoidable harm is the natural habitat of negligence law. When we hold someone liable for injuring someone else because they were negligent, we assert that they should have avoided inflicting the harm at issue. Had they exercised due care, the plaintiff would not have suffered harm at their hands. Strict liability is different. Its natural habitat is unavoidable harm: harm whose infliction should not have been avoided by altering the conduct responsible for inflicting the harm. Vincent v. Lake Erie, 122 N.W. 223 (1910) illustrates this circumstance vividly. In Vincent, defendant’s ship was docked at plaintiff’s pier when a fierce storm suddenly bore down. To save its ship, defendant lashed the ship to the pier, retying the ropes when they frayed. Defendant’s ship was thereby saved, but at the cost of damaging plaintiff’s dock. When plaintiff sued for trespass, defendant asserted the privilege of private necessity. The court concurred that the privilege applied, but ruled that the privilege of private necessity, unlike its public counterpart, was conditional. Consequently, defendant had to compensate plaintiff for the damage that it inflicted on the dock, even though the infliction of that harm was not wrongful. Plaintiff’s right to exclude defendant from its dock was extinguished by defendant’s privilege. Defendant was therefore permitted to dock without plaintiff’s consent. Moreover, defendant was justified in damaging the dock to save its ship. Damaging the dock saved the ship from much greater harm. Even so, plaintiff was obligated to pay compensation. It would be unfair for defendant to, on the one hand, reap the benefit of saving its ship by damaging the dock and, on the other hand, foist the burden the ship’s salvation off onto the dock owner. Fairness required that defendant take the bitter with the sweet.
In his post, Professor Papayannis describes a more difficult and troubling example. His example, which approximates the facts and the ruling of Boomer v. Atlantic Cement, 257 N.E.2d 870 (1970), involves a cement plant whose dust emissions “cause severe damage” to the property and the health of a plaintiff who lives 50 meters away. The plant inflicts the damage notwithstanding the fact it “operates lawfully and takes every reasonable precaution.” Boomer treats this case in a way that is of a piece with Vincent: the court recognizes the presence of the legal wrong of nuisance but declines to enjoin the nuisance on the ground that the defendant is using its own property in a reasonable way. Operating a cement plant is a legitimate (and socially valuable) activity and defendant is operating its cement plant reasonably. Indeed, defendant is taking all feasible precaution. Reasonable conduct is thus responsible for unreasonable harm— for more interference with plaintiff’s use and enjoyment of its property than plaintiff should have to accept absent reparation. The remedy of reparation rights that wrongful infliction of unreasonable harm. In the circumstances at hand, reparation fairly reconciles the conflicting rights of plaintiff and defendant to the reasonable use and enjoyment of their properties. Injunctive relief, by contrast, would reconcile these rights in an unfair way; it would deny plaintiff the right to put its own property to productive use in a legitimate and generally beneficial manner.
As the preceding paragraph illustrates, my understanding of Boomer— and of harm-based strict liability more generally— differs from Professor Papayannis’ understanding. In my view Boomer is doing interpersonal justice. Boomer claims that reparation— not injunction—fairly reconciles the parties’ equal rights to the reasonable use and enjoyment of their land. Injunctive relief would impair defendant’s right of reasonable use and enjoyment more than the remedy of reparation in lieu of injunction impairs plaintiff’s equal right. Moreover, the remedy of reparation registers the intrinsic, negative moral significance of inflicting harm on someone else. Atlantic Cement is liable for nuisance notwithstanding the fact that its conduct is free of fault precisely because its reasonable conduct does unacceptable harm to its neighbor. Where Papayannis and I part ways is in our accounts of how tort law registers the intrinsic significance of harm. Papayannis writes of a “primary duty not to harm.” I worry that this figure of speech invites confusion. In tort, duties impose obligations of conduct. To say that we are simultaneously permitted to impose some risk —but obligated not to inflict harm by doing so— is to subject us to schizophrenic practical guidance. In Vincent and in Boomer, the moral significance of harm— its intrinsic badness for the person who suffers it— is acknowledged not by imposing a primary duty of harm-avoidance, but by imposing a secondary duty to make reparation for harm reasonably inflicted.
This brings us to larger questions. Professor Papayannis assimilates my view of harm-based strict liability to the economic understanding of tort as price system. On an economic view, if tort law prices harm correctly, it will induce an efficient level of harm as a matter of both care and activity levels. My view is different. I regard strict liability not as a price but as a conditional wrong. Its imposition does both interpersonal justice and a measure of distributive justice. Strict liability is the law’s response to the phenomenon of unavoidable harm. Unavoidable harm is harm inflicted by permissible and generally beneficial activities that cannot be avoided by the exercise of all possible care. Because it subjects unavoidable harm to liability, strict liability is more demanding, not more tolerant, than negligence. From the perspective of strict liability, the puzzle of negligence is that it treats harm reasonably inflicted as wholly unobjectionable. Negligence liability does not embody a “duty not to harm.” It embodies a duty not to inflict unreasonable harm.
Nonetheless, Boomer is a more troubling case than Vincent, and for reasons related to the concerns that Professor Papayannis expresses. In Vincent, for all practical purposes the payment of money damages erases both the harm and the wrong done. The damage to the dock is fully repairable. Reparation enables complete repair and erases the wrong of making the plaintiff shoulder the cost of that repair. Matters are different in Boomer. Cement dust and pollution both impair plaintiff’s use of its property and endanger plaintiff’s health. Money damages may enable plaintiff to mitigate the property damage, but only injunctive relief can erase them. This was the insight behind the traditional rule (reversed in Boomer) that made injunctive relief available as a matter of right whenever a nuisance was substantial. Even if the remedy of reparation reconciles the conflicting rights of plaintiff and defendant to the reasonable use and enjoyment of their respective properties more fairly than injunctive relief does, the remedy of reparation does not fully erase either the wrong of interference or the threat of health impairment. Relevant reasons— justified normative demands— remain incompletely satisfied.
In my view, these unsatisfied normative reasons push us to ponder moving beyond the law of torts. Professor Papayannis rightly observes that I take tort to be an institution of basic justice. Reasonable security against interference with, and impairment of, our urgent interests by others is an essential condition for each of us to pursue our aims and aspirations over the course of complete lives. But tort law alone is not up to the task of securing this condition. Tort is a system of reparation. Sometimes, reparation cannot right a wrong, or erase harm done. In a Boomer type of circumstance, the law of torts is not up to redressing the health hazards imposed by pollution. Pollution is characteristically a critical mass problem. Causal connections between risk imposition and harm are therefore difficult to trace. Moreover, advances in technology may be necessary to bring pollution under adequate control. When tort is not up to the task of responding satisfactorily to relevant reasons, we must explore alternatives institutional arrangements. In Boomer, direct risk regulation in the form of environmental law must therefore be brought to bear.
The remarks in the preceding paragraph suggest a different way of thinking about the normative pressure exerted by unsatisfied reasons not to harm other people. These reasons need not remain confined within tort law proper, prompting paradoxical thoughts about permissions to impose risks of harm which are then subject to continuing duties not to harm. They may— and should— push us to move beyond tort in cases where reparation cannot discharge the responsibilities that tort law asks it to shoulder.
To read more, see my book Reasonableness and Risk (OUP, 2022).
Gregory C. Keating is William T. Dalessi Professor of Law and Philosophy at the USC Gould School of Law; his appointment is joint with the USC Department of Philosophy. He joined the USC Gould School of Law faculty in 1991 and was promoted to full professor in 1996. He teaches torts, professional responsibility, and seminars on topics in private law and legal philosophy.
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