No-Fault and Beyond
Class tomorrow
Friday April 26th
10:00am to 11:15am in the Hall of the 70s.
Office hours immediately following the end of class.
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Why are we studying this?
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For alternatives to tort, what types of questions are fair game?
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Insurance
For a given fact pattern:
- How does insurance affect (or not affect) the tort litigation?
- How does insurance change incentives of the parties?
- How does insurance change our assessment of the fairness and efficacy of a particular tort law rule?
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Workers’ Compensation
For a given fact pattern:
- Can the plaintiff pursue a tort claim or is workers’ compensation the exclusive remedy?
- What can the plaintiff recover from workers’ compensation compared to tort?
- With multiple defendants, what are the plaintiff’s options for redress?
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Policy Questions
For a given aspect of tort law:
- How does an alternative to tort fare at addressing a particular problem compared to tort law?
- Should tort law adopt this policy or rule from an alternative to tort?
- In crafting law that addresses personal injury and accidents, what should our values and goals be? What rules should we adopt?
The Bargain of Workers’ Compensation
No fault
and
Exclusive remedy
Workers’ Compensation Requirements
Only compensates for work-related injuries
Benefits include:
—— Medical coverage
—— Percent of lost wages
—— Vocational rehabilitation
—— Survivor benefits
Employers must buy workers’ comp insurance
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| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of Conduct | ??? | ??? ??? | ??? |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal Connection | ??? ??? | ??? ??? | ??? ??? |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative Defenses | ??? ??? | ??? ??? | ??? ??? ??? |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages Available | ??? | ??? | ??? |
| - | Negligence | Strict Liability | Intentional Torts |
|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | ??? |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | ??? |
| - | Negligence | Strict Liability | Intentional Torts | Workers’ Comp |
|---|---|---|---|---|
| Type of conduct | - Fault | - Dangerous activities - Products | - Intentional harm | - Workplace injuries |
| Causal connection | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Factual cause - Proximate cause | - Injury must be “work-related” |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Comparative fault - Assumption of risk | - Consent - Self defense - Necessity | - Employee was outside “scope of employment” |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) |
No-Fault Systems / Compensation Funds
Common features:
- Narrow category of injury
- Reduced fact-finding and proof requirements
- Fixed recovery amounts
- Insurance-like funding rather than individual defendant-to-plaintiff payouts
| - | Torts | Workers’ Comp | No-Fault Funds | |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all |
9-11 Fund
Unique characteristics:
- created after the harm, not in anticipation of harm
- individualized approach to economic loss
- tort-like awards for noneconomic loss
- low administrative costs
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | ??? |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available at all | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | ??? |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | -??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | ??? |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | ??? |
| - | Torts | Workers’ Comp | No-Fault Funds | 9-11 Fund |
|---|---|---|---|---|
| Type of conduct | - Fault - Dangerous activities - Products - Intentional harm | - Workplace injuries | - Specific injuries | - 9-11 terrorist attacks |
| Causal connection | - Factual cause - Proximate cause | - Injury must be “work-related” | - Limited proof required | - Injury happened in “zone of danger” of the terrorist attacks |
| Affirmative defenses | - Comparative fault - Assumption of risk | - Employee was outside “scope of employment” | - Few defenses available | - Terrorism |
| Damages available | - Past and future damages (economic, noneconomic, punitive) (lump sum payment) | - Unlimited medical compensation - Fraction of lost wages (with statutory cap) (paid in installments) | - Unlimited medical compensation - Strict statutory formulas for other economic or noneconomic compensation, if available | - Full economic damages up to 98th percentile of wage earners - Noneconomic losses compensated in full |
New Zealand
Total tort reform
Common law torts for accidental injury are abolished
All accidental injuries now covered under a no-fault scheme: — unlimited medical expenses — fixed compensation for lost earnings — lump sums for lost body parts and pain and suffering
Doing Away with Tort Law
Stephen D. Sugarman
Proposal:
- No more tort law
- Compensation: Expanded safety net (public and private)
- Deterrence: Regulatory state
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Muss Es Sein? Not Necessarily, Says Tort Law
Anita Bernstein
A defense of tort law as progressive. How so?
Compared to all other fields of law, tort law
- empowers the vulnerable to challenge the powerful
- gives plaintiffs space for creative pleading
- imposes individual accountability on the powerful
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In-Class Exercise
You are a wise federal trial judge with experience managing multidistrict litigation for toxic harms. Policymakers are considering establishing a compensation fund for victims of toxic harms. You have been asked to advise the group that is drafting the proposal.
Here are some features of the current plan. To receive compensation, the plaintiff must prove that she was sufficiently exposed to a toxic substance such that the toxic substance could have caused her injury. If there are multiple possible defendants, the plaintiff is not required to prove which defendants are responsible for her injuries. The plaintiff is not required to prove that the defendant was at fault. The plaintiff can receive unlimited compensaton for medical expenses (including medical monitoring) in installments over time, but the plaintiff cannot be compensated for other losses. If the plaintiff receives compensation from this fund, the plaintiff is barred from pursuing any common law tort action related to the injury.
What are the strengths and weaknesses of this plan? What are your suggestions for revision?
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