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The fault system is not the whole story of American tort law by any means.
There are areas of tort law where a person can be held liable for an injury,
even though he or she has not been negligent or intended harm or offense.
Tort law includes doctrines of strict liability.
One might find this surprising in light of Brown versus Kendall.
If a fault-based system is so just and practical, how can doctrines of
strict liability, liability without fault, also be just and practical?
One way to understand the situation is this.
While generally speaking, American tort law holds people liable when they are at
fault, some activity is so dangerous the law holds those who engage in it
to a higher standard, a standard of liability without regard to fault.
The exception to the fault principle for
very hazardous activities may function to discourage it.
Hence, the doctrine of strict liability for injuries caused by the possession of
wild animals and for blasting operations as part of our law.
If a person keeps dangerous wild animals, say snakes, poisonous snakes,
or adult chimpanzees in their home, and the animal bites a guest,
the animal's keeper will be strictly liable to the injured person.
Or if a person is engaged in a business involving the use of blasting or
explosions he'll be strictly liable for resulting injuries there too.
American tort law also holds the manufacturers of
consumer products strictly liable for injuries caused by manufacturing defects.
The argument for departing from the fault principal here is different.
It's not so much that manufacturing consumer products like make-up, or
motorcycles, or medicines is itself dangerous.
It's that the public has expectations of safety and
cannot protect themselves from risk and dangers, of which they may not be aware.
Some courts recognize near strict liability for
unreasonably dangerous product designs and poor product labeling.
Courts and commentators sometimes stress that justice or good public policy of
asking those who profit from enterprises to internalize the true cost of
their businesses to assume the burden of redistributing injury cost through
their insurance pricing and to seek the optimal levels of investment in safety.
Even when liability is based on fault, American tort law eases the burden of
proving fault to make it easier for plaintiffs to recover.
Sometimes it's not practical to expect someone who's been injured to
prove exactly in what way they were injured through negligence, and
the injury itself strongly suggests negligence.
For example, if a barrel of flour falls out of a second story window and
hits a pedestrian on the head, doesn't that mean whomever was in control of
the barrel of flour had to have been negligent?
Res ipsa loquitur we say, the thing speaks for itself.
If a bottle of Coca-Cola explodes in the hands of a waitress can we
assume that that particular bottle was negligently manufactured?
If a patient wakes up from abdominal surgery and
his arm is paralyzed can't we assume that somebody in the operating room was
negligent even though the patient who was under anesthesia cannot prove it?
Doesn't the thing speak for itself?
Sometimes tort law makes one person responsible for the wrongdoing of another.
Employers, though faultless, are liable for
the negligence of workers that takes place in the scope of duty.
The pizza delivery guy employed by Joe's Pizza causes an accident while
recklessly speeding to make his next delivery.
Let's imagine.
Well, Joe's Pizza is vicariously liable, respondeat superior, we say, more Latin.
So, American tort law is a system of fault-based liability with several
important exceptions.
Tort law is not the only way in which America deals with problems of injury.
In most states, automobile drivers are required to have
no-fault insurance policies that pay for personal injuries without regard to fault.
Workers who get injured at work due to the routine negligence of
their employers are not permitted to sue those employers.
They must apply for compensation through an insurance program,
the worker's compensation insurance system.
Various victim injury funds, some ad hoc, some standing,
compensate people injured by vaccines, hurricanes, oil spills, and terrorism.
Such funds heal nationally felt wounds and
free the courts from a large number of related but factually complex cases.
In the case of vaccine compensation, the tort alternative means that drug
companies that make vaccine need not fear liability for
providing tools essential to our public's health.
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