Torts of necessity: A moral theory of compensation

Abstract

Tort law is concerned in large part with compensation of those who have been wrongfully injured. When an actor inflicts a harm either intentionally or negligently, the wrongfulness of the actor's malice or failure to exercise due care gives rise to the victim's claim that her loss deserves compensation. On the other hand, principles of strict liability are applied to some harms which are neither maliciously nor negligently inflicted. Those cases are usually justified on the basis of efficient distribution of risks through liability insurance. But there is a class of cases in the law of torts in which compensation is made to an injured party despite an apparent lack of any wrongdoing on the part of the injurer, and despite a lack of any argument to show that risks have thereby been allocated to the party who can most efficiently distribute them. These are the "necessity" cases,' exemplified in law school casebooks by Vincent v. Lake Erie Transport. Co.2 In these cases, an actor is driven by an unforeseeable necessity to take or damage the property of another in order to avoid a much greater harm to himself. His actions are seen as entirely justified and reasonable, and yet most people's intuitions, and the law, agree that the innocent injured party is entitled to be compensated for her loss.