Torts I, Professor Catherine Sharkey, May 14, 2007

Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A-

Question I.

The unfortunate victim, Franklin Parmis, has a great number of potential lawsuits against a variety of defendants, including David Sloan, Moving Express, Eagle Co., Peterson Co., Lenox

Co., the Texaco plant, and the persons responsible for the ICC spot checks that the truck was subjected to prior to the accident. I will analyze the claims against each of the defendants in turn.

Claims against David Sloan:

Parmis may have a claim of negligence against Sloan for the manner in which he drove the truck and for the inspection he conducted before leaving the Texaco station. In terms of

Sloan’s negligent driving of the truck, Parmis may be able to prove negligence under a reasonable person theory, a hand formula theory, or a custom theory. As for the reasonable person standard, a court would need more evidence of precisely what caused the accident in order to place the blame on Sloan’s driving technique. Parmis can show negligence if a reasonable person engaged in the driving of a large truck with potentially dangerous cargo would have traveled at the same speed as Sloan on that type of overpass. Although it is true that Sloan was actually driving under the speed limit on the highway, there is no indication that he properly slowed down as he entered the offramp, which is usually required, and would have been done by the reasonable person. Parmis may also show negligence under the Hand Formula. Although the probability of the trailer unhitching are relatively low (P), the potential harm that would occur as a result of that incident are enormous (L), and the extra buden (B) of slowing down on an offramp or waiting to make a stop until there is a safer offramp (not an overpass) is comparatively miniscule. Parmis might also be able to prove negligent driving by using the

1 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- standard of custom. If it could be proved that it was the custom among truck drivers to take certain precautions when on an offramp or in the choice of offramp, and Sloan did not take those precaution, Sloan might be negligent for not meeting the custom. Also, if Moving Express,

Sloan’s employer, implemented certain internal safety standards that exceeded those outlined by custom, Sloan could be held to the higher duty of care just as was done in Lucy Webb v. Perotti.

In the absence of any evidence that Sloan did not take any safety precautions that would be warranted under the Hand Formula, reasonable person, or custom standards, this claim of negligence is likely to be unsuccessful. Sloan was cautious enough to drive 5 miles under the posted speed limit (presumably because it was safer). However, if Sloan was driving slowly because he was sleepy, and that is why he eventually decided to stop for coffee to wake himself up, Parmis could have a very good claim for negligent driving.

Parmis may also have a claim against Sloan for negligence in the inspection of the truck that was completed before leaving the Texaco station and entering the highway. Again, depending on what the custom among truck drivers is as to the proper inspection, Parmis may be able to show that the inspection conducted by Sloan (of the lights, hitch, hoses, and tires) was insufficient, particularly since it omitted an inspection of the drawbar and safety cables that were responsible for connecting the truck to the trailer. Also, a Hand Formula calculation may lead to the result that the burden of adding there elements to the inspection is far outweighed by the risk of the resulting damage (again, the risk may be relatively small, but the potential harm enormous).

Furthermore, Parmis may be able to show that Sloan’s failure to conform to State Code

Provision 1.2 is negligence per se. The Third Restatement (and the majority position) state that violation of a statute is negligence per se, even though compliance is only some evidence of

2 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- proper care. That statutory provision prohibits driving a vehicle on a public highway (as Sloan did) unless it is constructed or loaded to prevent any part of the load from escaping. Presumably, this statute was designed to protect not only the cargo, but the other drivers on the road (class of persons covered by the statute), and it is designed to protect against the harm that would result from other drivers coming into contact with the falling debris (class of risk, unlike in Gorris v

Scott where the statute was read to protect from an entirely unrelated risk). Sloan may defend this by claiming that he took all proper care to ensure the truck was in the proper condition, and the malfunction must have been due to a manufacturing defect. However, the statute doesn’t mention anything about proper care negating liability, it seems to suggest an almost strict liability standard. However, if applying the Second Restatement’s standard for when something should use a strict liability standard, this situation may not meet the requirements of high degree of risk, an activity not of common usage, inappropriate locale, and insufficient social value, although it may meet the requirements of gravity of harm and the ability to eliminate the risk with reasonable care. A court faced with this statute may choose to import a negligence standard, in which case Sloan may have a defense if Parmis cannot provide evidence of the breach of a duty of care (as a prima facie element, the burden is on the prosecution).

A defense that may be brought to these claims is contributory negligence of Parmis. As most jurisdictions use comparative negligence, the best this defense could do would be to mitigate the damages. Sloan may show that Parmis was exceeding the speed limit, thus violating a statute and proving negligence per se. However, Parmis’s statutory violation will likely be found not to have been the proximate cause of the accident, and the type of harm that resulted is likely to be found not to be the type of harm sought to be prevented by the statute (again, see

Gorrsi v Scott).

3 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A-

Sloan may raise the defense that there was an intervening cause that broke the chain of causation, so he is not to be held liable for the harm that resulted to Parmis. Sloan might make this argument based on the fact that he heard the sound “like somebody kicking an empty fifty- gallon drum before the first started” before the fire started. This defense is likely to be unpersuasive, as there will almost assuredly be no evidence to support the intervening cause theory, and any trier of fact will find it unlikely that such an intervening cause was necessary. If however, the court does entertain this defense, Parmis may contend that the substantial factor test is sufficient to prove the necessary prima facie element of causation.

Claims against Moving Express:

Parmis can also file a lawsuit against Moving Express, Sloan’s employer, under a theory of vicarious liability (respondeat superior). Parmis could win if he was able to show that ME was negligent in hiring Sloan if Sloan was incapable of using the proper care, but as Sloan has been a driver for 11 years, this is highly unlikely. Parmis can sue ME for the torts committed by its employee, Sloan, in the scope of employment. ME may defend that Sloan was actually not in the scope of employment because he was exiting the highway to get coffee. This defense will likely fail because of the “frolic and detour” exception to the scope of employment rule. Depending on the duration of the detour, the distance traveled away from the location that is within the scope of employment, and the content of the activity, respondeat superior may still apply. Because Sloan was only getting some coffee, likely to be very common for truck drivers, and was not going to stop long or travel far off the highway, it is likely that ME will still be held responsible. This may prove to be particularly important for Parmis if Sloan is insolvent, because he can still recover from the employer.

Furthermore, Parmis may have a claim of negligence per se against ME for the violation of State Code Provision 1.1. ME owned both the truck and the trailer, and was thus in control of it. The doctrine of res ipsa loquitur may apply if the given event usually doesn’t happen without negligence, the item was in the defendant’s exclusive control, and the negligence in question is in the scope of the defendant’s duty. The statute certainly makes the scope of the duty of the owner of such merchandise include the assurance that the drawbar is adequate. The use of this doctrine may at least shift the burden to ME to prove that it was not negligent in its compliance with the statute, similar to the burden shifting that was done in Zuchowcz v US. Also, it might be found that the proper maintenance of the truck is a nondelegable duty, as the duty to ensure the maintenance of the escalator in Colmenares v Sun Alliance.

Claims Against Eagle Co.

Parmis may have a products liability claim against these this company for a manufacturing defect in the crossbar. Again, using the doctrine of res ipsa loquitur Parmis may be able to shift the burden to the defense so that they can parse out whose fault the malfunction was. Since this type of drawbar by Eagle is used by 95% of similar truck-trailer units, and presumably this malfunction does not happen very often, it is likely to be a matter of manufacturing defect (not design defect or failure to warn), which is usually decided using a strict liability standard. Eagle may defend by claiming that it was not being used according to the normal and proper use, or that it had been altered in some way after entering the market (Escola), but it would have to offer proof of this.

Claims against Peterson Co. and Lenox Co.

Parmis may have a product liability claim against these two companies for manufacturing defect, design defect, or failure to warn. If the truck or trailer was manufactured in a defective way that contributed to the accident, the company will be strictly liable. If the design of the truck, most likely using either the consumer expectation standard or the risk utility standard (the expectations would cover this type of mishap, and the risk of harm is extreme) was defective,

Parmis could win the negligence case. Similarly, if there was a duty to warn, perhaps some unique feature that required extra safety precautions in attaching the truck and trailer, Parmis could win on the negligence standard.

Claims against the Texaco Station and the ICC Spot-checkers.

The Texaco station may be found negligent per se if it loaded that truck in such a way that it violated State Code Provision 1.2 (which includes “loading”). Again, the majority position is that statutory violation is negligence per se.

The persons responsible for conducting the ICC spot check may be found negligent if they failed to dutifully inspect and discover and violation of the ICC standards.

Question II.A

I agree with this statement. The award of compensatory damages is severely limited in the wrongful death scenario by the exclusion of nonpecuniary damages. A person (executor or family) pursuing a wrongful death action will be limited in what they are able to recover. For example, in the case of McDougald v Garber, it was stated that cognitive awareness is a prerequisite to recovery of damages for loss of enjoyment of life. Impliedly, this also includes recovery for damages for pain and suffering, as the two forms of damages are very similar and are often fused into one category of award in many jurisdictions. The deterrence goal of tort law

6 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- is severely limited by the exclusion of nonpecuniary damages in wrongful death cases. As judge

Posner and Sual Levmore seem to believe, tort law in general, and specifically pecuniary damages, are insufficient to deter the unwanted behavior because they are never fully compensatory, and the offending actor is likely not caught every time for his bad act (recurrent miss), so limiting damages in this way may make it profitable for the bad actor to continue in its negligence. However, if the goal of tort law is purely compensatory, the limit placed on damage awards in wrongful death cases may be warranted, though it may make a difference if the damages are limited by “loss to estate” or “loss to survivors.” The limiting of damages in wrongful death cases creates the perverse incentive which makes it cheaper to kill someone than it does to maim them, and none of the goals of tort law are properly met with this type of incentive. If the bad actor was reckless in causing the death, the inclusion of punitive damages may mitigate the effects of excluding nonpecuniary damages from the damage award.

Question II.B

I agree with this statement. Although our system does operate under the general rule that there is no affirmative duty to protect others (which Hyman does not think is a bad system, since most people seem to help others even without the obligation), there has always been an exception for the scenario when a special relationship exists between the parties. One tort doctrine implicated by this statement is that of the increased duties of owners/occupiers. In the older formulation of the rules governing this relationship, the duties of the owners/occupiers progressed as the relationship between them and the potential plaintiff grew closer. For example, in Robert Addie & Sons v Dumbreck, the owner of the property was not held liable for the harm suffered by a trespasser who didn’t heed the order to leave the premises, even though he

7 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- probably knew that the toddler-trespasser had a good chance of suffering harm on the property.

The older formulation imposed an affirmative duty to inspect the premises for hidden dangers to protect any invitees on the property, thus imposing an affirmative duty because of the special relationship. The more modern formulation, as outlined in Rowland v Christian, rejects the rigid categorical test, and instead uses a more general reasonableness test to assess the duties owed by an owner/occupier, by the duties still increase because of the nature of the special relationship.

The corrective justice theory of tort law is at odds with this proposition. Corrective justice aims to correct some moral wrong, usually implying that one party has done something wrong to cause harm to the other party. In the case of affirmative duties, someone could be held liable under tort law even though they have not done anything wrong, just because of the nature of the relationship. Presumably, there is no moral imbalance to be corrected.

Question II.C

I agree with this statement. Using tort law as an insurance mechanism (“third-party insurance”) does have unfair and improper consequences for low-income individuals. One major tort doctrine that is implicated by this statement is that of products liability, or more precisely the expansion of the liability of manufacturers due to the evolution of products liability.

Manufacturers are being found liable for damages under theories of products liability more frequently and for more things, which leads to some odd results. The argument has been made that judges have expanded the doctrine of products liability in order to provide this “third-party insurance” to individuals who cannot obtain first-party insurance. An example of this might be the case of Liriano v. Hobart, in which in immigrant worker was severely injured on the job by a meat-grinder manufactured by the defendant. Liriano likely was not in a position to obtain first-

8 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- party insurance (for purposes of this analysis, we will disregard the possibility of a worker’s compensation scheme). Holding the manufacturer liable would allow the low-income, innocent, injured plaintiff to recover for the harm suffered. However, as a result of this expanded liability, manufacturers have passed along the cost of insuring against this liability to consumers. Because at this level the risk pools cannot be varied pursuant to the likely damage award in case of incident (for example, people with higher incomes will receive higher awards for lost wages than people with lower incomes), all consumers pay the higher costs. In a way, the lower-income consumers are paying higher than they should based on their risk, and the highest income consumers are paying lower than they should be based on their risk (size of damage award). In this way, third party insurance requires the low-income people to subsidize the pecuniary and nonpecuniary (loss of enjoyment of life may be held to be greater for high-income persons) losses of high-income people. This is certainly at odds with the economic efficiency goal of tort law. Low-income people are paying for protection they do not need and do not get back in case of an incident.

Question II.D

I disagree with this statement. Modern products liability has actually exhibited some level of deference to contract law when appropriate. The tort doctrine most obviously implicate by this statement is the Economic Loss Rule. As in the case of Casa Clara, if a product or service which has been contracted for is defective in some way, and the defect remains only in the product and does not harm any other property or any person, the parties will be held to the terms of their contract and cannot seek recovery in the tort system. This makes sense from an economic efficiency view of tort law. We do not want parties running to the tort system because they are

9 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- unhappy with their remedies pursuant to the contracts they have entered. To preserve judicial resources, parties should not be able to seek recovery for exactly the same thing in both contract law and tort law. Furthermore, we want to encourage the autonomy of people to contract and bargain, which is exactly what Coase urges of the tort system, so that the most efficient outcome is reached. It would not be efficient to let people get out of the terms they have bargained for and seek increased damages in tort law.

Question III.A

Even if the jurisdiction allows contribution actions, the partial repeal of joint and several liability may be warranted anyway. For example: A trier of fact determines that A is 5% at fault for V’s injury, and B is 95% at fault for the same injury, but only A is named as a defendant in the current lawsuit. Under the pure joint and several liability theory, A could be made to pay the entire amount of damage even though only slightly at fault, and must resort to a contribution action against B. The result may be particularly dismal if B is insolvent. The legislators might have feared this inequitable outcome in the partial repeal of joint and several liability. The requirement that the defendant be at least 50% responsible before a court can consider making him pay the entire amount eases the feeling of inequity and injustice of making the least-guilty party pay the whole bill. Furthermore, depending on the terms of settlement, defendant B (95% at fault) might settle for far less than his fair share. Against, we don’t want the party who is only slightly at fault to get stuck with the whole bill, and contribution may not work because of insolvency.

Question III.B

The statutory revision outlined in this section is only a partial repeal of joint and several liability for several reasons. Firstly, the revision limits the use of the proportionate share rule to parties whose share of the fault is 50% or less. Thus, if one party is 51% at fault, and the other is

49%, the first party may be held to pay all damages if the second is not named in the action or is insolvent. Under a pure proportionate share doctrine, each party would only be made to pay his proportionate share of the fault, no matter what percentage that was. The proposed revision is somewhat of a middle ground between total proportionate share and pure joint and several liability. A party who is 51% at fault can be made to pay the whole amount under the stated revision, but would only be made to pay 51% in a pure proportionate share jurisdiction. On the other hand, is a party is 49% liable, he will pay that 49% under either doctrine.

The second reason that the statutory revision is only a partial repeal of joint and several liability is that it limits the use of the proportionate share rule to the plaintiff’s non-economic damages (pain and suffering, loss of enjoyment of life, etc.). If the revision were meant to effect a total repeal of joint and several liability, it would have included both economic and non- economic damages in the limitation. The legislature was likely concerned with the compensatory goal of tort law. It seems unfair to make the victimized plaintiff suffer the economic losses (such as lost wages or medical expenses) just because the two or more guilty parties cannot properly apportion the loss between them.

A third reason that this revision constitutes only a partial repeal of joint and several liability is that it only applies to personal injury cases. As such, it presumably does not apply to the intentional torts of trespass to chattels and conversion. It also does not apply to harm that is caused to a plaintiff’s property but not to his person. For example, in the infamous case of Ploof v Putnam, the defendant was made to pay damages to the plaintiff for refusal to allow the

11 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- plaintiff to exercise the necessity defense and remain moored to the dock in bad weather. The defendant was made to pay for the damage done to the plaintiff’s ship as a result of this behavior.

If there were more parties involved (maybe the owner of the boat had loaned it to a friend, and the owner was suing both the friend and the dock-owner), and the owner of the dock was found to be only 49% negligent, he could still be found to be liable for 100% of plaintiff’s nonpecuniary loss (perhaps loss of enjoyment of life, or suffering because of an emotional attachment to the boat).

The revision is also only a partial repeal of joint and several liability because it does not address the issue of indemnity, in which a party may be held to bear the entire loss if the losing defendant is able to get indemnity against them. Indemnity is a common law doctrine, as opposed to contribution which is statutory, so even though the statute does not say anything about indemnity, courts may still choose apply the indemnity doctrine if necessary. An example of this would be the court in American Motorcycle Association v Superior Court, in which the court basically created the concept of “partial equitable indemnity” in order to reconcile the competing doctrines of joint and several liability and comparative negligence. The revision certainly leaves room for courts to come up with similar creative outcomes using the doctrine of indemnity.

Question IV.A

The courts in Hammontree v. Jenner and Vincent v Lake Erie came out on opposite sides of the question of whether or not to impose liability without fault on a defendant who caused harm to the property of the plaintiff. Although, based on a cursory look at the facts and the

12 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- course of events that led to the courtroom, it seems that these two cases are inconsistent, a deeper look at the underlying facts and applicable tort doctrines may justify the difference in outcomes.

In order to justify not only the fact that the cases came out differently, but also that they came out the way that they did, it will be necessary to determine why it is that the plaintiff

Vincent has a stronger case for imposing liability without fault than did the plaintiff in

Hammontree. The most striking difference in the two scenarios is that the defendant in Vincent actively and consciously chose the course of conduct that resulted in the harm to the plaintiff’s property. In Hammontree on the other hand, the defendant was rendered unconscious by an epileptic seizure, and made absolutely no choice in the path of his vehicle. From a corrective justice standpoint, there is no moral blame to be placed on someone who was not in control of his actions, and while there is certainly not a great degree of moral blame for someone who makes a decision based on a true necessity, there is certainly something to be said for holding someone responsible for the consequences of their conscious actions, particularly when they are aware that it will cause harm to another person. The Second Restatement of Torts gives several factors in the determination of whether or not a particular activity warrants the application of strict liability instead of the more widely used negligence standard. These factors include: the high degree of risk, the gravity of the harm, whether or not the risk can be eliminated with reasonable care, the common usage of the activity, how appropriate the activity is to the locale, and whether or not the social value of the activity is outweighed by the danger. Arguably, these factors help to justify the outcomes of these two cases. The degree of risk is higher for sailing than driving (maybe), and the gravity of the potential harm may be about equal when determining this factor ex ante. Both actions can be said to be of common usage and appropriate to their locale, and both activities certainly have a social value. One of the turning factors,

13 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- therefore, will be whether or not the activity can be made safe with reasonable care. In tracking weather and planning trips accordingly, reasonable care could be taken by a shipowner to avoid the risk of use of the necessity defense to moor a ship to a dock. Since the activity could be made safe, it makes sense to impose liability without fault, which will create incentives for people to take the proper precautions next time. On the other hand, having a sudden epileptic seizure while driving is not a risk that could be eliminated by taking proper care, so imposing liability without fault would not create the right incentives. As judge Posner analyzed in Indiana Harbor Belt RR v American Cynamid, the “activity level” test may be useful in determining whether or not to impose liability without fault. If imposing such liability would do nothing but reduce the frequency with which people conduct a socially useful activity, that may not be the proper standard of liability to impose if our goal is to increase societal benefits and decrease societal costs. If, however, imposing liability without fault will make sure that those engaging in dangerous activity take all possible precautions to avoid accidents but still continue the socially useful activity, that may be the right option.

It might be possible to justify the fact that these two cases came out differently, but determine that they both came out wrong, and in fact the plaintiff in Hammontree had the stronger case than the plaintiff in Vincent. For example, in Hammontree, the defendant had a history of epileptic seizures. Even though he had not had one for several years, it was still a risk that it might happen again at an unexpected time, such as while driving a car. In Robert v. Ring, the court said that a reasonable person was obligated to consider his/her own infirmities in the judging what precautions to take in the course of conduct. With this requirement, one could use the doctrine of res ipsa loquitur to bridge the gap between negligence and strict liability (as was done in Escola v Coca Cola) to hold the defendant liable without fault for any harm that was

14 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- caused as a result of having a seizure while driving. In the Vincent case, on the other hand, the weather is often unpredictable, and the risks that may be taken unforeseeable ex ante, so that analysis would not work to impose liability without fault in that case.

Furthermore, the Posner “activity level” test could be applied to come out the other way.

If one were to look at the situation on a broader scale, beyond the immediate parties, Posner’s test could suggest to impose liability without fault for drivers having epileptic seizures, because it will create incentives for people who are at a higher risk of having such seizures to refrain from driving cars. On the other hand, if we are to consider both predictable and unpredictable weather, imposing liability without fault in the boat scenario could deter the socially useful activity more than an optimal deterrence theory would want.

Question IV.B

The issue before the court, as presented in the given fact pattern, is whether or not to extend tort liability so as to allow for the award of compensatory damages to businesses, not persons, who suffer losses due to the negligence of other parties.

(a) Majority Opinion:

Assuming that the issues of the defendant’s negligence in causing the spill and the causation factor have been satisfied, the only issue left for the court to decide is whether or not we are to award damages to the plaintiff airline company. We hold that the plaintiff is not entitled to recovery in tort for the losses complained of in the present action. Tort law is a historically

“personal” body of law, seeking to compensate injured persons for wrongs done to them and harms suffered. If we were to expand tort law so as to allow for the award of compensatory

15 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- damages to businesses or corporations, it would be flatly inconsistent with the history and purposes of tort law.

The first concern that the court has is that this would open the door for duplicitous damage awards. Not only could the company sue, but so could the employees (if they could prove the causation factor), as well as any patrons who may have suffered from the loss. This would not be efficient from the perspective of judicial resources, not would it be efficient in the vane of finding the proper balance to maximize social benefits. Secondly, there is certainly an issue of administrability. There will doubtless be a significant overlap between the law of contract, the law of property, and the law of torts if we are to allow for the presently suggested recovery. Again, this is not in the best interest of economic efficiency.

It is important to bear in mind that the defendants in the types of cases the types of lawsuits that we have been asked to consider may be other corporations or may be individual citizens. Referring to Guido Calabresi’s analysis of economic efficiency, the major factors to consider are each party’s ability to evaluate the risk, to cost of insuring against the risk, and the ability to spread the loss or internalize the risk. For each of these factors, the plaintiff-company is likely to be in the better position (unless the defendant is also a major corporation, in which case it might be equal). The plaintiff can asses the risk of neighboring activity and its ability to interfere with its own activities, can cheaply insure against the risks of having to temporarily shut down business, and can spread the cost to its customers. Also, it is almost expected of a business, particularly an airline, to have in place some sort of insurance against the costs of temporarily shutting down business. If there were a severe storm and flights had to be cancelled, it is assumed that the airline company has somehow prepared for the costs and is able to handle them.

From a public policy perspective, it would be unwise to expand tort liability in this way, particularly at the judicial level. In other cases, namely Moore v Regents of the University of

California and Intel v. Hamidi, courts have shown reluctance to expand tort laws into new areas, presumably at least in part for fear of unknown consequences on the promotion of socially productive activity. The court is faced with one set of facts, and deciding to award the plaintiff the requested damages would open the door for countless other claims. The legislature may be in a better position to assess the consequences and risks of creating this liability, and may also be able to individuate the permissible causes of action by type of business, location, or types of neighboring activities. It would be particularly unwise to have a lack of uniformity across the states on this matter, as many large corporations and businesses span many jurisdictions.

(b) Dissenting Opinion:

I respectfully dissent. The granting of the award of compensatory damages suffered as a result of the negligence of the defendant is totally consistent with the primary goals of tort law.

From a corrective justice perspective, it would not make sense for the plaintiff to suffer such severe economic losses and leave them without recourse when there is a party who is morally blameworthy for the loss. The defendant was negligent in handling a dangerous substance, and caused the plaintiff to suffer loss. This is exactly the type of scenario that the tort law of negligence is designed to be used in. Allowing for recovery would also serve a major deterrent goal of tort law. If a defendant risks potential liability from individuals and corporations, they will be even more motivated to take the proper precautions.

Allowing recovery in this case also makes sense for the compensatory goal of tort law. The plaintiff has suffered a loss through no fault of its own, and deserves to be compensated for that

17 Torts, Spring 2007; Prof. Sharkey (visiting) Grade: A- loss. Although it is true that a corporation is not the most sympathetic of plaintiff’s it is important to remember that most corporations have individual shareholders that suffer from the economic losses suffered by the corporation.

There is also a concern for the legitimacy of the tort system. It is commonly believed that there is a bias within the tort system and within the individuals running it (judges and jurors) that works against corporations. This often comes up in situations where an individual plaintiff is able to recover a massive punitive damage award from a corporation, such as in BMW v. Gore.

Disallowing corporations and businesses from recovering compensatory damages that have resulted from the negligence of others would only further the belief in this bias and harm the legitimacy of the entire torts system.