Torts & Civil Liability: Who Pays When Someone Is Hurt

In 1928 a woman waiting on a platform of the Long Island Rail Road was struck by a set of scales that fell over after a distant explosion. Helen Palsgraf had done nothing wrong, and the railway guard who had helped a passenger onto a train, dislodging a package of fireworks, had never seen her. She sued anyway. Judges in New York spent pages deciding whether the guard owed her anything. A century later, law students on four continents still study the case, because it asks the question every injury raises: it happened, it hurt, and someone has to bear the cost. Who?

A law graduate looks at a banana skin, a faulty phone charger or a pothole and sees the same machine: a duty, a breach, a link from act to harm, and a sum of money meant to put things right. This is the law of torts in the common-law world and of civil liability (responsabilidad civil, responsabilité civile) in the civil-law world. The names differ and the problem is shared.

This describes how legal systems work. It isn't legal advice; laws differ by country and change.

The common ground: harm needs a payer

Accidents are not rare. Cars collide, drugs have side-effects, ladders slip. Each society must decide who absorbs the loss: the victim (where it falls), the injurer (who may have been careless), an insurer or the public (through a fund). Tort law is the system that picks the injurer when two things are true: the injurer is in some sense responsible, and the law has a rule that makes the cost move. Its two jobs are compensation (repair the loss) and deterrence (make carelessness expensive). Some places have decided the lawsuit is the wrong tool. New Zealand's Accident Compensation scheme, in force since 1974, mostly replaced suing for personal injury with a no-fault public fund.

Question	US and England	Latin America	France and Germany
Starting point	Separate torts and duties, built case by case	A general clause: whoever unlawfully harms another must repair it	France: one general clause. Germany: a list of protected interests
Main test	Negligence: did the defendant fall below a reasonable standard?	Fault, plus strict liability for risky things and consumer products	Fault, plus strict liability for products under EU law
Who decides damages	Often a jury, in the US	Judges, with growing guidelines for non-economic harm	Judges, with scales and guidelines
Punishing the wrongdoer	Punitive damages in the US; limited in England	Rare; Argentina's consumer law has a punitive damage	Generally not available

Duty of care or one big clause: how the families begin

The common law grew up with separate wrongs: assault, trespass, nuisance and later negligence. The great step came in Donoghue v Stevenson ([1932] AC 562, House of Lords), where a woman who drank ginger beer from an opaque bottle and found the remains of a snail was allowed to sue the manufacturer, although she had no contract with him. Lord Atkin's answer was the "neighbour" principle: you must take reasonable care to avoid acts you can reasonably foresee would injure the people so closely affected that you ought to have them in mind. Courts later found that foreseeability alone would make liability limitless, so England now asks (Caparo v Dickman, 1990) about foreseeability, proximity and whether it is fair, just and reasonable to impose a duty. In America, Judge Cardozo's majority in Palsgraf (1928) said that a duty runs only to those within the foreseeable zone of danger. The guard owed her nothing.

The civil-law codes begin with a sentence. France's old art. 1382, now art. 1240 after the 2016 renumbering, says that any act of a person that causes harm to another obliges the person by whose fault it happened to repair it. Mexico's Federal Civil Code art. 1910 says that anyone who acts unlawfully or against good customs and causes harm must repair it. Germany does not have so wide a clause. BGB §823(1) names the interests protected (life, body, health, liberty, property and "another right"), so a purely financial loss with no injury to one of them is not covered by it, and §276(2) defines negligence as ignoring the care required in dealings.

The two methods meet in the middle more than their labels suggest. Where French law has one broad sentence, courts build a case law of exceptions to it. Where the common law has duties, judges stretch them. One real difference remains: the code's sentence tells a judge the default is liability for fault, whereas the common-law judge must find a duty first. Both approaches give the same result in a road accident and diverge on things like pure economic loss and harm from omissions.

Negligence and the Hand formula: when is skimping careless?

Fault must be judged against something. The common law uses the reasonable person; French law, until a 2014 reform, spoke of the bon père de famille (good father of the family), and now of a reasonable person. But what is reasonable? In United States v Carroll Towing Co. (2d Cir. 1947), a barge broke loose in New York harbour when its attendant was ashore. Judge Learned Hand wrote a rule of thumb: liability depends on whether B, the burden of precaution, is less than P × L, the probability of the harm times its gravity.

A worked number. A guard rail costs $100. Without it there is a 1% chance a year that someone falls, and a fall costs $50,000. P × L is 0.01 × 50,000 = $500. Because $100 < $500, skipping the rail is negligent. If the rail cost $1,000, it would be a waste on this arithmetic, and you would not be negligent without it. Economists such as Richard Posner defend this as what courts already do. Critics reply that nobody knows P and L at the moment of decision, that the formula ignores rights and fairness (a cheap rule that trades life for money), and that juries rarely do the sum. Hand himself offered it only as a way of bringing the idea into relief, not as a sum courts must perform.

Notice the neat result the tool shows: under both rules the careful choice is the same, and the total cost to society is the smaller of B and P × L. What differs is who ends up paying when the precaution isn't worth taking. Under negligence the victim carries the loss in that case; under strict liability the injurer does. That is the whole case for and against strict liability in one line.

Causation: was it really the defendant?

Fault is not enough: the claimant must show the fault caused the harm. The usual test is "but for": but for the defendant's act, would the harm have happened? If a driver is speeding but the pedestrian would have been hit at a legal speed, the speeding was not a cause. Courts then add a second filter, because causes ripple outward for ever: proximate or "legal" cause in the US (Palsgraf again), and in German and many Spanish-language courts "adequate causation" (adäquate Kausalität), meaning the harm must be a not-unlikely result of the act. Different tools, similar question: how far down the chain should a person answer for what they started?

The hardest cases are the uncertain ones: a doctor delays a diagnosis, and the patient had perhaps a 40% chance of surviving anyway. The common law's civil standard is the balance of probabilities: more likely than not. It is all-or-nothing. If the claimant proves it over 50%, the defendant pays everything; at 49% nothing. English courts held this in Hotson v East Berkshire Health Authority (1987) and refused to compensate a lost chance in Gregg v Scott (2005). French law accepts the perte de chance as a harm in itself, and compensates the lost chance in proportion. Some US states (Herskovits v Group Health, Washington, 1983) allow it in medical cases. See what the rule does across many cases.

With the slider on 60%, the all-or-nothing rule makes the defendant pay in all 100 cases (10,000 units) though they caused only 60 of the harms (6,000): they overpay by 4,000. At 40% they pay nothing though they caused 4,000 of harm. The proportional rule gets both right on average but demands the court assign percentages, and it lets a claimant recover something from a weak case. Neither is neutral; each trades accuracy against simplicity.

Strict liability and products: paying without fault

For some activities the law decides not to ask about fault. The English case Rylands v Fletcher (1868) made a landowner liable when a reservoir he built burst into a neighbour's mine shafts, even if he'd been careful: he brought a dangerous thing on his land. US law kept a descendant for "abnormally dangerous activities". The idea reached its biggest scale in products. In Greenman v Yuba Power Products (California, 1963) the court held that a manufacturer is strictly liable in tort when a product with a defect injures a user; the idea was written into the Restatement (Second) of Torts §402A in 1965. Europe's Product Liability Directive of 1985 (85/374/EEC) set a regime across the EU in which the producer is liable for damage caused by a defective product regardless of fault. A defect means the product wasn't as safe as a person is entitled to expect.

The EU replaced that directive with a new one, Directive (EU) 2024/2853, adopted on 23 October 2024. Member states must transpose it by 9 December 2026. It extends the notion of a "product" to include software and digital manufacturing files, which the 1985 text, written for physical goods, left uncertain. Latin America took a consumer-law route: Brazil's Consumer Defence Code (Law 8.078 of 1990) made suppliers answerable for product defects without fault, and Argentina's consumer statute (1993) does the same, joined by its 2015 Civil and Commercial Code, which treats damage caused by risky things as strict liability. Design is where strict liability and fault meet: US law judges a design by weighing risk against a reasonable alternative design, close to a negligence test in disguise.

Compensation: juries, punitive damages and the rest of the world

Once liability is settled, how much? Everywhere, the basic aim is compensatory: German BGB §249(1) puts it neatly, restore the situation that would exist if the harm had not happened. Money for medical bills and lost earnings can be added up. Money for pain, grief or disfigurement cannot, and the families handle it differently. Germany allows money for non-pecuniary harm only where the law provides, notably bodily injury, health and liberty (§253). France compiled a standard list of harms (the Dintilhac nomenclature, 2005) that judges apply. Spain has a statutory scale for traffic injuries (the baremo, revised in 2015). Brazil's 1988 Constitution expressly protects compensation for moral and image damage. In the US, civil juries often set these amounts, which is one reason the headline numbers there are larger and more variable.

The sharper contrast is punitive damages, an extra sum meant to punish and deter rather than compensate. They exist in the US and, within narrow categories, in England (Rookes v Devlin, 1964). Most civil-law systems keep punishment for criminal law, and in 1992 Germany's Federal Court of Justice declined to enforce the punitive part of a California judgment. A few states bar punitive damages, and many cap them. On the federal level the Supreme Court has set outer limits: BMW v Gore (1996) found one award grossly excessive; State Farm v Campbell (2003) said that few awards exceeding a single-digit ratio of punitive to compensatory damages will satisfy due process and that, where compensatory damages are substantial, a 1:1 ratio can be the outer limit; Exxon Shipping v Baker (2008) fixed 1:1 for that maritime case.

The best-known case is also the most misreported. In Liebeck v McDonald's (New Mexico, 1994), a 79-year-old woman was badly burned by coffee in her lap. The jury found McDonald's 80% at fault and her 20%, set compensatory damages at $200,000 (reduced to $160,000) and punitive damages at $2.7 million, which it tied to about two days of the chain's coffee sales. The judge cut the punitive award to $480,000, three times the compensatory sum, and the parties then settled for an undisclosed amount. Try the ratio yourself.

What a graduate just sees

• Every accident forces a choice of who absorbs the loss: victim, injurer, insurer or the public.
• Fault means falling below a standard, and the Hand formula is the cleanest way to see why: skimping is careless when the precaution is cheaper than the expected harm.
• Negligence and strict liability give the same incentive to take cheap precautions; they differ on who pays when it was not worth it.
• A cause isn't just "but for": courts also ask how far down the chain responsibility should run.
• Proof at 51% can mean 100% of the bill, which is why some systems pay for lost chances in proportion.
• Products are a special case: the maker pays for defects without fault, because the maker is best placed to prevent them and spread the cost.
• Damages compensate; only some systems punish, and the biggest headline awards usually shrink on appeal.

Where it shows up next

• Criminal Law & Procedure (35/07): the same acts may be both a crime and a tort, with different standards of proof and different goals.
• Administrative Law (35/09): can you sue a government for a pothole or a wrongful order?
• Civil Procedure & Evidence (35/08): the balance of probabilities is a rule about proof, not about the world.
• The real world: insurance premiums, product recalls, the warning labels on ladders, medical malpractice cover, and the EU's rules for digital products and AI-related harm.

If you want to go deeper

• 📘 Textbook. John Goldberg, Anthony Sebok and Benjamin Zipursky, Tort Law: Responsibilities and Redress (Aspen/Wolters Kluwer). A widely used American casebook with a clear theory of what torts are for.
• 📘 Textbook. Winfield and Jolowicz on Tort (Sweet & Maxwell), the standard English treatise.
• 📘 Comparative. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford University Press, 3rd ed., 1998), whose chapters on tort contrast the common law, French and German approaches.
• 🎬 Gentler. Hot Coffee (HBO documentary, 2011, directed by Susan Saladoff) on the McDonald's case and the "tort reform" debate. It takes the claimants' side, so read it beside the critics.
• 🌐 Free. The Cornell Legal Information Institute's Wex entry on tort law, a free plain-English reference with links to cases.