By Gary Sherman
Tort law is the body of law that deals with harm done by one person to another as a result of breach of a duty (other than a contractual duty). There are several elements:
* There must be a duty. In the most common case, we all have the duty to go about our lives taking due care not to harm others.
* There must be a breach of the duty. The breach could be intentional, but the usual form of breach is negligence, which means not exercising the due care that an ordinary person would take in the circumstances.
* The breach of duty must lead to harm to another.
* The harm must be closely related to the breach (proximate cause).
* The harm must be of the kind that can be resolved with money damages.
When issues of tort law are discussed in public today, the focus is usually on the defendant. That is because the insurance industry has framed the issues. However, the law of torts is really about the plaintiff, and for good reasons.
First of all, the object of all civil law is to resolve disputes. Before people developed law to resolve disputes, they were mostly resolved by violence. Today, we take for granted that peaceful resolution of disputes is the norm. We need to remember that an effective civil law system is our best guarantee that general civil peace will continue.
Secondly, the plaintiff has been harmed through the inappropriate actions of others. The plaintiff is analogous to a victim of crime, and may also be a victim of crime. We have developed sensitivity to crime victims in recent years, but somehow have been convinced not to see civil plaintiffs in the same way. That is wrong.
Think in terms of your own family. If you have a child or a sibling who is seriously injured by the inappropriate actions of another, you want them to be made whole. They may have expenses related to the injury, but they may have also suffered in other ways. They may be unable to walk, or in great pain, or unable to ever have children. They may need lifelong care. The person who is responsible for that harm, whether by a deliberate act or through negligence, should be held accountable and made to compensate the victim, just as we expect the criminal law to hold people accountable for their criminal acts.
Tort law is mostly judge made. It is the last great area of the law that is primarily common law, as judge-made law is called. Most areas of the law were common law until about 75 years ago, but activist legislatures have since taken over most lawmaking from courts.
If the plaintiff is partly responsible for his or her own harm, this is called contributory negligence and the damages of the defendants are reduced accordingly. In Wisconsin, if the contributory negligence of the plaintiff is found to be greater than that of the defendants, there is no recovery at all.
When there are more than just two people involved in an incident involving harm, the question naturally arises of how much each party is responsible for. Under some circumstances, defendants can be held "jointly and severally" liable for the damages. This means that each is responsible for all the damages, irrespective of how much each was at fault.
It is interesting to note that partners are always jointly and severally liable for all of the actions of a partnership. There is no apportioning of blame. If a partner becomes insolvent, the other partners are responsible. That is the nature of a partnership. Likewise, employers are responsible for the actions of their employees in the course of the employment. These concepts are ancient, like the concepts of tort law.
The rules of joint and several liability were judge-made common law from long before Wisconsin became a state -- until 1995. In 1995, the legislature tinkered with the joint and several liability rules so that no defendant was jointly and severally liable unless the jury found that they had more than 50 percent of the blame. Thus, if the person who was 51 percent negligent was insolvent, the plaintiff, even if blameless, was left without full compensation from the defendant who was 49 percent responsible.
This is putting a lot of faith in the fine judgment of the jury. After all, the percentage of negligence is an opinion, not a scientific fact, and an awful lot depends upon it.
So, this year, the governor's budget proposed to return to the traditional common law rules of joint and several liability. After seven public hearings and hundreds of emails, the Joint Committee on Finance modified the proposal to provide that a person had to be at least 20 percent responsible for the plaintiff's damages to be held jointly and severally liable. This compromise is intended to avoid disproportionate results, but is still in keeping with the time-honored public policy that innocent victims should be made whole by those who harmed them whenever possible.
Wisconsin citizens pay less for liability insurance than the citizens of any other state, or the District of Columbia. Wisconsin juries are famously parsimonious and fewer claims are filed in Wisconsin than in other states. In fact, the number of civil suits filed in Wisconsin has declined every year since 1985, ten years before the legislature tinkered with the common law in 1995. None of that is likely to change.
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