A tort occurs when one person's (or party's) action or (sometimes) neglect to act results in tangible harm to someone else or to some class of people. Often, although not always, a party's duty to another has already been spelled out in a written contract. According to our common law, the harmed person(s) is entitled to monetary damages and sometimes injunctive relief ceasing the offending action.

            When is a person or entity harmed? When this is not defined precisely in statute, the law turns to case law or to equity ¾ a commonly held sense of "fairness."

            The problem is that the perception of harm is likely to be subjective. This is particularly true in intellectual property law where the harm of copyright infringement or invasion of privacy may differ enormously according to the sensitivities of the victim. Also the notion of causation may be subjective: an author of a book or web page on weapons or assassinations could be held liable (in some cases) if his actions were followed by an unstable person.

            This problem can be alleviated by "positive law" -- statutes which define precisely what is considered harmful in various situations. The law may indeed free people -- especially entrepreneurs - to take risks if they know they are legally safe. Or the law could be more restrictive.

            The law could discourage frivolous lawsuits by mandating (as in Europe) that "loser pays" at least in some situations (as with copyright).  The law could be modified to punish lawyers who bring frivolous suits in bad faith.  In some states, limiting torts (such as awards for pain and suffering or emotional distress) can result in lower insurance premiums (especially for autos). In theory, libertarians are opposed to more laws, but when dealing with torts in positive law may actually give people more freedom.  But there is already a provision in American courts that a judge may order a plaintiff to pay defendant’s costs when the court believes that a suit is brought in bad faith with no purpose other than to harass a defendant. This situation should be distinguished from the issuance of a summary judgment or summary dismissal in a civil action, where a judge feels that even if all the facts in a complaint or pleading are true, the case can not be won as a matter of law.  Statutory law could also be modified to limit punitive damages to situations that are less subjective and less amendable to interpretation by a jury (although the jury trial provisions in the Bill of Rights for civil trials come into play here). Limitation of punitive damages is often regarded as one of the most important objectives of tort reform. The punitive damage issue may become relevant in the aftermath of the World Trade Center attacks.

There have indeed been some examples of abuse of the tort system. For example, some "survivalist" parties in eastern Montana near Jordan conducted "common law courts" and filed false liens. In some cities, including Minneapolis, there have reportedly occurred instances where landlords have obtained court judgments (and "unlawful detainers") against former tenants (and even tenants' associates) who had broken leases and abandoned poorly maintained apartments, without even notifying the tenants they were being sued. (See Minneapolis City Pages, "The Path of Least Resistance," February 10, 1999 and follow-up reader's letter February 17, 1999). Positive law should specify proper civil procedure and due process. Indeed the Seventh Amendment would seem to demand this.

In the film The Rainmaker (1998), based on John Grisham’s first-person novel, the hero (“David v. Goliath”) Rudy Baylor (so charismatically played by Matt Damon) argues, in his closing summation in a huge lawsuit against the fictitious Great Benefits Insurance Company for bilking low-income families out of largely home-sold health policy claims, that tort reform would undermine the ability of the little guy to protect himself from huge corporations out to cheat him.  The insurance, manufacturing and transportation industries maintains that “plaintiff’s bars” or ambulance chasers are out to exploit public perceptions of these  industries and of unfair distribution of wealth, and that the nortorious “stupid, stupid, stupid” letter of The Rainmaker (or the “tortuous interference” of The Insider) is an exaggeration of a common litigation tactic that can be abused. Tort reform might also undermine the libertarian prescription for using the tort system (in relation to property rights) to prevent environmental damage or force environmental cleanups. Maybe, but individuals and small business owners can be victims of frivolous lawsuits, too.  Clint Eastwood gave some good examples in conjunction with the Americans with Disabilities Act of small business owners that get “extorted” by lawyers. One solution would be a “loser pays” system in which the jury or judge may exempt the plaintiff from paying the winning defendant’s fees if the jury or judge feels that, although the defendant prevailed in matters of law, the defendant still showed a pattern of unethical conduct.     

There is one other important concept in torts to mention in conjunction with libertarianism: immediacy of accountability. Libertarians believe that all parties (individuals or organizations) should be held accountable for honoring their own immediate contracts with other parties. This is generally but not always true in law. But, in principle, if Party A makes a promise to Party B and fails to keep it because Party Z failed to keep a contract with party A, Party A must be held strictly liable to honor his responsibility to Party B even though he was wronged. (We see this in auto rental insurance, where one is encouraged to purchase collision and theft waivers). The implications of this idea can be disturbing. If someone is harmed severely by the wrongdoing or crimes of another, the civil justice system (in conjunction with the criminal system) must be used to try to restitute for the wrong, but when restitution is impossible, the “victim” is still ultimately seen as responsible for his or her own “failure.”  The victim does not necessarily have a moral claim on those others in the public who did not harm him.  Individualism, interpreted strictly, can have harsh consequences, as people really can be left out in the cold regardless of their own “fault,” either because of misfortune or the wrongdoings of others. Family and community values are supposed to moderate this harm, but then this means some loss of freedom of choice for the individual.


The litigious nature of our society is forcing employers to crack down on conduct within the workplace. This may be healthy to a point.  Sexist, homophobic or racist comments that used to be acceptable in many workplaces now are generally no longer tolerated.  But, as ABC reported John Stossel points out, the offended person gets to decide what is disturbing and what may contribute to the “hostile workplace” and interfere with job performance. So employers find themselves practically having to insist on zero-tolerance policies with regard to workplace jokes.

The offensive conduct issue has become particularly pervasive in the electronic communication area, as employers feel compelled to monitor email and even web-site visits for potentially offensive conduct (especially in companies with a large blue-collar workforce where sexual harassment has happened in the past).  Employers rightfully expect that company-owned computer resources should be used for business purposes only, but some employers may feel bound to go beyond common sense and enforce zero-tolerance policies in computer monitoring, too. 

This gets to be more complicated as telecommuting, employee perks and discounts and free personal email accounts blur the distinction between work and home.  Indeed, employers may eventually discover that they have to concern themselves with what associates “publish” on their own personally owned web sites or discussion boards with their own resources—after all, these are available to the entire world, may often be tracked to individuals associated with the company and have the potential to suggest a compromise of confidentiality or to convey what some view as hostile attitudes towards minorities. Indeed, personal home computer use is somewhere (a “no man’s land”) between a person’s private business (protected by privacy law) and a public facility or national media, since what a person posts on the Internet is potentially available to everyone. 

Another potential legal hurdle in employment law is medical risk.  This takes a variety of forms. For example, employers in the transportation industry properly require drug tests and regular physicals, even including, say, electrocardiograms.  Some jobs (as in IT) require occasional twenty-four hour availability and the capability of the employee to stay up with little sleep and changing work schedules. Should employers require such workers to pass physicals?

We have seen sanity prevail in some areas. Generally, HIV screening is not required for civilian jobs  and it should not be (there were some scares about this in the 1980’s, particularly from a Dallas company that wanted to screen its executive food service workers for many diseases), although there are some practices in medicine regarding the health status of those who perform invasive procedures.  But we wonder what liability risks lay ahead, particularly in the food industry, regarding the sanitation of food itself (the E-coli risk and the sensational reports about “mad cow disease” from Europe), even the personal sanitation (hair nets, hand washing, body hygiene) of food service and possibly, in the future, scrub standards in medicine.    

See also intellectual property law

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