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Karissa Smith
Philosophy of Tort Law
Various philosophies of law, and facets of law mold together to form the legal
system known today, and different philosophers contribute. One important component of
this law system is the philosophy of tort law, which focuses on answering two key
questions: how should people treat each other and whose problem is it when things go
wrong (Ripstein 656). These two questions lead to the discussion of negligence, which
encompasses both questions concerning tort law, and delves into more details of torts.
Furthermore, foresight of injury, and the extent of ones liability contribute to determining
whether a person was negligent in a tort case. Johnson, a professor of philosophy at
Eastern Oregon University explains tort law is obviously a social practice of great
interest and importance, so an improved understanding of its analytical core seems an
entirely worthwhile intellectual project (par 5). Arthur Ripstein, Jules Coleman, and
Stephen Perry are three known philosophers that have contributed in great deals to the
discussion on the philosophy of tort law. Examining these philosophers views, and
concentrating on the topics of foreseeability, and focusing on the responsibility based
theories leads to a greater understanding of the philosophy of tort law.
To begin with Ripstein explains that it is a commonplace of the law of
negligence that a defendant is only liable to plaintiffs who, and for injuries which, are
foreseeable (664). Foreseeability involves duty, and questions of remoteness, and simply
you are only answerable for, and so potentially liable for, the consequences of your acts
if it makes sense to include those consequences among your deeds (Ripstein 664).
However, foreseeability, and its role in negligence tort cases has been muddled overtime

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and passionately debated in the law field. The two views most discussed are the
independent constraint view, and the duty account. The latter is clearer, and relies on the
fact that foreseeability is required for liability in negligence because norms of
negligence law enjoin people to avoid certain consequences (Ripstein 667). The duty
account explains that a plaintiff cannot complain that defendant should have taken
account of the hazard, especially if thinking of it in advance could not have made any
difference to the injurers conduct (Ripstein 668).
While, independent constraint view, moves away from the tort doctrine, which
causes problems, and focuses on moral appeal, expressing the idea that a person is only
liable for something if he is responsible for it (Ripstein 665). Under the independent
constraint view Stephen Perry argues, the relevant notion of could should be
understood as referring to the agents general capacities, whether or not those capacities
were exercised on a particular occasion (Ripstein 665). This concept of capacities
creates a more disarrayed structure of how to determine what should be avoided, and the
duty account has a sharper structure to determine what a reasonable person should avoid.
Today the law follows the duty account more, however complaints about
foreseeability still arise, and the duty account still causes some confusion because of the
difficulty in determining where to draw the line of what is considered in the scope of
liability. Also, in many courts the foreseeability lens seems to expand, contract or
change focus at the will of the judge (Cardi par 23). Some people argue that
foreseeability should not be included in a decision on negligence cases because it
depends on the judge, and what is considered foreseeability can easily change from case
to case.

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However, despite the arguments against foreseeability, it remains a component of
negligence cases. The Palsgraf v. Long Island Railroad Co. case is a noted case when
discussing foreseeability. In this case, Mrs. Palsgraf was standing in at the Long Island
Railroad Co, and unfortunately was harmed when a man ran to catch the train, and was
helped by two Long Island Railroad Co. employees to get on the train. As, the man
attempted to get on the train, the box of fireworks he held fell, and hurt Mrs. Palsgraf.
The appellate court held the railroad company liable for Palsgraf injuries, but the New
York Court of Appeals reversed this decision. Cardi explains in The Hidden Legacy of
Palsgraf that In 1928, Cardozo garnered a majority of New York Court of Appeals
judges for his views that duty is relational, that plaintiff-foreseeability lies at the heart of
the duty determination, and seemingly, that the court is the proper decision maker in that
regard (1). In this case, the reversed decision was determined because Mrs. Palsgraf
injuries were not foreseeable. In the majority decision Cardozo states, A different
conclusion will involve usin a maze of contradictionsLife will have to be made over,
and human nature transformed, before previsions so extravagant can be accepted as the
norm of conduct, the customary standard to which behavior must conform (Ripstein
667). This statement explains that if the court could not make the railroad company liable
for her injuries because there is no way that they could have foreseen the events that
occurred, and did violate a norm of conduct. Cardozo statement explains, it would be
contradictory to impose a duty to avoid unforeseeable consequences (Ripstein 667).
Overall, even though Palsgraf was injured, the railroad company cannot be held liable for
the unforeseeable events that occurred that day. This case serves as a precedent for many
other foreseeability tort law cases, and clearly explains the point of the foreseeability

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requirement is not that an unforeseeable consequence fails to be connected to the
defendants agency in the right way (Ripstein 667). In this case, and debates over
foreseeability overtime, one sees the foresight of injury play a key role in court cases.
As discussed, the duty account requires that liability in negligence be limited to
foreseeable injuries, but it does not, on its own require the distinction between the type of
damage (Ripstein 677). Furthermore, responsibility and liability play a role in
determining the damage, and determining if the defendant breached their duty of care. In
general tort law allows for persons to be held responsible (or accountable) for having
wrongfully injured others (Goldberg 1). An issue in tort law is determining if the injuries
the plaintiff received were from a wrongful action of the defendant, and if the defendant
is liable and responsible for the actions. The philosophy or tort law describes the standard
or reasonable care. The standard of reasonable care describes a reasonable person as the
one who exercises appropriate restraint in light of the interest of others (Ripstein 663).
This legal definition of a reasonable person is different than the everyday definition that a
reasonable person is a rational person. Since the standard of reasonable care focuses on
the interests of others, only interest that are protected through norms that can guide
behavior can be used in tort law cases (Ripstein 663).
Stephen Perry makes the point of outcome-responsibility, and that tort law
holds a defendant responsible to the plaintiff in the particular manner of enforcing the
defendants moral duty to repair the plaintiffs loss (Goldberg 4). In Perrys article on
Moral Foundations he uses Colemans idea of weak retributive justice to explain that
given a choice between an innocent plaintiff, and a defendant who has acted faultily, the
loss should be placed on the latter (468). Perry does explain that the plaintiff should

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recover their losses if the defendant is deemed responsible. Unlike Coleman, and Ripstein
who believe include fault in their theories, the outcome responsibility does not require
fault, and it is just one of the attributes. Perry believes that one is responsible for a loss
merely by virtue of having caused it where it was avoidable (Goldberg 4).
However, there are situations where strict liability applies, and these cases are
very different from the typical tort cases. Strict liability cases do not focus on interest
norms. Also, strict liability cases only involve actions that are foreseeable. In cases
involving strict liability tort, one has to prove that strict liability should be followed
because of foreseeability. Strict liability requires, in addition to causation, that the harm
result from conduct which created a foreseeable, unaccepted risk of harm to another that
could have been avoided (Wright par 55). Furthermore, in cases such as use of
explosives, or the keeping of wild animals the person engaging in the dangerous
activity, even though the activity is legal, is liable for the harm the activity causes
(Ripstein 685). Engaging in these types of dangerous activities automatically makes the
cases strict liability because the potential of injury in a dangerous situation is foreseeable.
In short, strict liability cases only occur in certain cases, and must include foreseeability,
as well as causation.
Overall, the philosophy of tort law contains various theories that discuss the
responsibilities of the plaintiffs, and defendants, and what they are liable for. Perry
brings up the points of outcome-responsibility, and in turn discusses the moral duty to
pay for the plaintiffs loss. Coleman and Ripstein deliberate the reasonable care standard,
and the characteristics that a reasonable person posses. The philosophers also place an
important weight on foresight of injury. A tort case determines if the injuries were

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foreseeable, and if the injuries were then there must have been a breach of duty, but the
extent of liability and fault is not determined by pure foreseeability. Overall, tort law
decides whose problem something is by looking at how people are allowed to treat each
other and after determining whose problem it was more facets of tort law describe the
amount the defendant or plaintiff recover (Ripstein 686). Tort law remains a crucial part
of our society because it allows people to recover for losses incurred by someone elses
actions. Without tort law people could breach their legal duty, and the duty to be a
reasonable person without any consequences. Therefore, the philosophy of tort law, and
philosophers opinions are essential to comprehend, and tort law should continue to be
criticized, and improved to create the most effective system.

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Works cited
Cardi, Jonathan. Purging Foreseeability. Vanderbilt University Law Review.LexisNexis
Academic. April 2005. Web. 10 Nov 2014.
< http://0-www.lexisnexis.com.libcat.uncw.edu/>
---.Hidden Legacy of Palsgraf. Trustees of Boston University Law Review.LexisNexis
Academic. December 2011. Web. 10 Nov 2014.
< http://0-www.lexisnexis.com.libcat.uncw.edu>
Goldberg, John. Tort Law and Responsibility. Philosophical Foundation of the Law of
Torts. 23 May. 2013. Web. 1 Nov 2014.
http://www.law.harvard.edu/programs/about/privatelaw/related-content/2013-workingpaper-series/goldberg_tort-law-and-responsibility_5-24-13.pdf
Johnson, Jeffery. "Explanation, Human Nature, and Tort Theory." Georgetown Journal of
Law and Public Policy (2006). LexisNexis Academic. Web. 10 Nov. 2014.
http://www.lexisnexis.com.libcat.uncw.edu
Perry, Stephen, "The Moral Foundations of Tort Law" (1992). Faculty Scholarship. Paper
1153.
http://scholarship.law.upenn.edu/faculty_scholarship/1153
Ripstein, Arthur. Philosophy of tort law. The Oxford Handbook of Jurisprudence and
Philosophy of Law. Ed. Jules Coleman. Scott Shapiro. Oxford: Oxford University Press,
2002. 656-686. Print.
Wright, Richard. Causation in Tort Law. California Law Review (1985). LexisNexis
Academic. Web. 10 Nov 2014.
< http://0-www.lexisnexis.com.libcat.uncw.edu/hottopics/lnacademic>