I have previously had the opportunity to write an article dedicated to the legal model of death damages and its implications and possibilities in civil law jurisdictions, especially in light of the complete failure of the traditional compensatory function of civil liability—and the corollary of the principle of full compensation—in adequately protecting the fundamental right to life.
Now, I would like to present to the reader the second part of a text in which I address the same issue from the perspective of the American philosophy of civil liability, drawing on a recent article by Professor Gregory Keating,1 titled “Irreparable Injury and the Limits of the Law of Torts.”2 The author starts from the premise that some harms are simply irreparable. Death is the paradigm. No amount or form of compensation can restore to the dead the lives they have lost. No remedy can restore them to the position they would have occupied had they not died. Civil liability provides no compensation for wrongful death, thereby exposing its Achilles’ heel. On the one hand, premature death is the harm against which we most wish to be protected. On the other hand, it is the harm against which civil liability is least able to protect us. Civil liability fails prospectively because it does not price and, therefore, does not prevent the harm of death. It fails retrospectively because monetary awards cannot compensate for the harm of death.
In the previous column, we saw how Keating examines the link between the principle of full compensation and irreparable harm in the main theories developed in the common law—namely, the philosophy of corrective justice and economic analysis. There is no way to remedy the most severe loss that torts can inflict upon us. On the other hand, death strips civil liability of its deterrent power. For good reason, both courts and legal commentators cite the old adage that “it is cheaper to kill your victim than to leave him maimed.”
Starting from the premise that the welfare-based foundations of cost-benefit analysis obscure the special significance of harm because they treat it as just another cost in a general calculation of social goods and ills, deontology views the situation differently. When we take the distinctions between people seriously, we observe that harm carries a negative moral significance and that preventing it is a special priority. Safety is a Rawlsian primary good; an essential condition for effective agency. Physical harm diminishes our power to exercise our will in the world. Devastating and irreparable injuries permanently and profoundly reduce this power and may even extinguish it completely. Legal standards that require more than cost-justified precautions respond appropriately to significant risks of serious and irreversible injury.
From here on, we will examine how Gregory C. Keating evaluates standards of safety precaution and cost feasibility and explains why civil liability fails in the face of the harm we have the most reason to avoid. In legal discourse, the claim that cost-benefit analysis is the only plausible way to think about risk and precaution is articulated as a critique of two other standards of precaution, namely, the “safe level” and “feasibility” standards.
A. Safe, Feasible, and Cost-Justified Precaution
The two standards of greatest interest—the safety and feasibility standards—implement a relatively well-integrated set of concepts. The concepts of “safe level,” “feasible risk reduction,” and “significant” risk deserve careful examination.
1. The Safe Level Standard
The Food Quality Protection Act of 1996 incorporates the safe level standard.3 It requires that pesticide residues in fresh and processed foods be reduced to a “safe” level—that is, providing reasonable assurance that no harm will result from exposure to the pesticide residue, even for those who are exceptionally vulnerable to harm. The application of the safe-level standard, therefore, does not require any investigation into the costs of risk reduction, but rather the determination of the level at which the risk posed by exposure to the regulated substance ceases to be significant.
Of the three standards, this is the one that tolerates the least risk. Safety-based regulations require that risk be reduced to a point where there is no “significant risk” of catastrophic harm. This may require going beyond the point of precaution justified by cost (and beyond the point of feasible precaution as well). If an effective precaution is taken and a significant risk still persists, the safe-level standard requires a further reduction—that is, when one additional dollar spent on precaution results in less than one dollar in avoided harm.
2. The Feasibility Standard
The feasibility standard is just as important in federal risk regulation as the “safe level” standard. The Clean Air Act, for example, stipulates that standards for hazardous air pollutants must require the maximum degree of emission reduction, taking into account the achievable cost of achieving such a reduction.4 Feasible risk reduction does not require the elimination of all significant risks; it is less stringent than the safety standard but more stringent than cost-justified precaution. Feasible precaution requires reducing the risks of an activity over its long-term course. In other words, it may require precaution beyond the point at which an additional dollar spent on preventing harm results in more than one dollar in avoided harm, up to the point at which further risk reduction would jeopardize the activity.
3. The Cost-Benefit Standard
Cost-justified precaution requires that risks be reduced to the point where the costs of further precautions exceed their benefits. Cost and benefit are broad concepts. In a well-known defense of cost-benefit analysis, economist Robert Solow explained that “the cost of the good to be obtained is precisely the good that will be foregone to obtain it.” Thus, something is always given up to obtain something else.5 “Benefit” is the other side of the coin—anything worth achieving that requires giving something else up. An ideal cost-benefit analysis takes into account all costs and all benefits and identifies the point at which costs and benefits are balanced so that the net benefit is maximized. This is the point at which an additional dollar spent to prevent harm results in less than a dollar in harm avoided. In general, cost-justified precaution is the least stringent of the three precautionary standards.
B. Do the 3 Standards Really Identify Different Levels of Precaution?
The safety and feasibility standards have their roots in the U.S. in the founding of the Environmental Protection Agency in 1970 and the Occupational Safety and Health Administration in 1971. They dominated the regulatory landscape in the 1980s and received significant legislative reaffirmation during the 1990s, such as the Food Quality Protection Act. In the early 1980s, however, the political right began advocating for cost-benefit analysis and cost-justified precaution as its preferred alternative to safe and feasible risk reduction. In 1982, the Reagan administration implemented an executive order requiring cost-benefit analysis for all “significant” federal regulations. It is clear that these standards express different normative judgments, as standards of safety, feasibility, and cost justification apply in different institutional domains.
1. The Safety Standard: Consumer Expectations
In the United States, the two most common tests for product design defects are the risk-utility test and the consumer expectation test. Scholars of law and economics generally assume risk utility as the test for applying cost-benefit analysis to product design.6 In contrast, in some applications, the consumer expectation test functions as a “safe level” standard. While the risk-utility test focuses on product design from a product engineer’s perspective, the consumer expectation test focuses on product performance from the user’s perspective.
Green v. Smith & Nephew AHP, Inc. illustrates this type of circumstance well.7 The plaintiff, Green, worked as a medical technologist at a hospital. His job required him to wear powdered latex protective gloves manufactured by the defendant. After a period of prolonged use, Green experienced increasingly severe health problems—cold-like symptoms, a generalized rash, and shortness of breath—and was diagnosed with a latex allergy. He then had to change jobs and limit the items he purchased, the foods he ate, and his activities. Because of the allergy, Green developed irreversible asthma and life-threatening anaphylactic shock. Since latex allergy is primarily caused by the use of latex gloves, it disproportionately affects healthcare professionals. Since latex allergy was unknown until the use of latex gloves became widespread, if Green’s claim had been judged by the risk-utility test, it would likely have failed. The cost of discovering the defect in latex gloves years before it manifested in users’ health was certainly high. In fact, it may have been impossible to discover the harmful effects of prolonged use of latex gloves other than through the widespread use of such gloves over an extended period of time. However, when the gloves were examined under the consumer expectation test, the plaintiff’s claim prevailed. This test assesses a product’s defectiveness by asking whether it is “dangerous to an extent beyond what the ordinary consumer would expect.” Users of the defendant’s gloves reasonably expected that they would not suffer injuries from normal use of the product. Similarly, healthcare professionals in Green’s position reasonably expect that the use of protective equipment will not place them at significant risk of disabling physical harm. We believe that the clothing we normally wear does not put us at significant risk of physical harm. The question of whether this expectation is justified by the cost never arises.
2. The Feasibility Standard: Rescues
What costs—including the risk of death—can rescuers reasonably bear to save the lives of others? The literature on “statistical lives”8 is haunted by the apparent irrationality of many rescues. Money does not seem to be an issue when miners are trapped in a mine or when children are trapped in a burning building. The rational way to budget our “rescue funds” is to spend them in a way that maximizes the number of lives saved while minimizing the sacrifice of other goals. Lives are lives, and the extra money spent on rescuing specific individuals might be better spent on safety measures that would save more lives. This is simply an application of the standard cost-justified precautionary argument to the special case of rescues.
When real lives are in danger, however, we believe it would be inappropriate—and likely morally wrong—to conduct a cost-benefit analysis of the value of the lives at stake and the cost of saving them. We rescue victims if we can, and rescuers generally take great risks during rescues and rescue attempts. Generally speaking, our rescue practices seem to be governed by a norm of feasibility, not by a norm of efficiency. A particularly striking example is the military tradition of conducting rescues to recover the bodies of fallen soldiers. There is something morally grotesque about trying to determine whether losing one’s life while attempting to recover a body is justified under the Pareto principle. Rescuing the bodies of fallen comrades is a matter of solidarity and sacrifice, not of improving one’s own well-being. It is about upholding values considered to be of the utmost importance. Therein lies its rationality.
We are all vulnerable to accidents and premature death. Honoring the value of solidarity does not negate the value of efficiency; it merely affirms that solidarity is more important in the overall context of rescue operations. In the very special context of the military, solidarity is even more important. The values intrinsic to military excellence can only be realized if solidarity is highly valued. It is eminently rational to believe that certain highly valuable human goods cannot be realized unless we recognize that “no man is an island,” and that when the bells toll for one of us, they toll for us all.
Furthermore, it is a mistake not to recognize that even military rescues are governed by a standard of feasibility. It is heroic to attempt to recover the bodies of fallen comrades only if there is some chance of success. Without that possibility, a rescue attempt may be foolish or tragic (or both), but it is neither noble nor heroic. Rescue is governed by a standard of feasibility.
3. Cost Justification and Commensurability: Private Need
The flip side of the argument that cost-justified precaution is not the appropriate principle for regulating serious harm to persons is the criterion of cost justification as appropriate for regulating harm to property that is fungible and replaceable. The doctrine of private necessity, articulated in the famous case Vincent v. Lake Erie, illustrates this point very well.9 In Vincent, a ship was moored to a dock to prevent it from being swept out to sea during a storm. The ship’s trespass onto the plaintiff’s property was deemed a privileged act under the doctrine of necessity, but the privilege was considered conditional. The defendant was permitted to moor without permission but was required to compensate for the damage it caused to the dock. There are two issues in Vincent. The first is whether the shipowner should have had the privilege to dock at the plaintiff’s pier in order to avoid almost certain destruction at the hands of a sudden and violent winter storm. The second is whether such a privilege should be conditional. If the privilege is conditional, the defendant must compensate the plaintiff for any damage caused to the dock in order to save his ship. The court answered both questions in the affirmative.
Vincent is a case in which efficient precaution is the appropriate standard of care. The pier and the ship are fungible goods with a value in use or consumption. The monetary metric is appropriate for measuring both the damage caused by the impact on the pier and the damage avoided by keeping the ship out of the storm. The rational course of action in Vincent was to minimize the combined damage and maximize the combined benefit. Furthermore, the question of who should bear the cost of saving the ship—the shipowner or the pier owner—can be addressed after the damage has been caused. The court concluded that justice required the shipowner to bear the costs of saving his ship. This fair allocation could be carried out after the pier had been damaged simply by requiring the defendant to pay monetary damages. However, the situation is different when it comes to serious personal injury, because such harm is not fully reparable. Justice must be done ex ante.
The standards applied in the two case law examples place different emphasis on the prevention of harm. The application of the consumer expectation test to latex gloves is the most stringent. A significant risk of harm to ordinary users is unacceptable. Latex gloves are defective because they trigger severe allergic reactions in a significant number of users. In contrast, the basic commitment of the feasibility standard in rescue cases is “to save lives if possible.” The cost-justification standard, implicit in Vincent, places no priority on preventing harm. It trades harm for other goods in a way that maximizes net benefit. In short, the safety standard insists on the lowest level of risk; the cost-justification standard accepts the highest level; and the feasibility standard falls in the middle. None of the standards insists on absolute safety. All three standards specify permissible trade-offs. They vary significantly, however, in the trade-offs they permit.
4. Repairing Civil Liability
Taking seriously the distinction between persons and the priority of preventing harm puts us in a position to understand the logic at work in the safety and feasibility standards. Health and physical integrity are primary goods. Safety protects a person’s physical integrity from harm. Values, on the other hand, are plural and incommensurable. The goal of protecting the essential conditions of agency for each person is to enable people to shape their own lives in accordance with their aspirations.
Just as efficient precaution is the best standard from the perspective of economic theory, “safety” is the best standard from the perspective of a deontological political morality that seeks to establish the terms of just interaction among equal and independent persons. Safety, like health, is a precondition for effective agency, and the best world is a socially safe world for everyone. The standards of “safety” and “feasibility” are thus justified alternatives to efficient precaution. Cost-justified precaution fails both in treating harms and benefits as symmetrically important and in equating social choice with individual choice. When physical harm is at issue, treating costs and benefits as symmetrically important fails to account for the fact that physical harm impairs basic capacities for agency. Most benefits, on the other hand, do not comparatively enhance these powers. And when some people have their lives devastated by harms resulting from the imposition of risks—while others profit from the imposition of those same risks—it is a mistake to model social choice on individual choice. We must take the distinction between people seriously and adopt principles that are justifiable from the perspective of both the potential victims and the potential beneficiaries of the risk impositions in question.
Direct regulation of risk, in turn, remedies a flaw in civil liability: The more serious the harm, the less the tort can do to undo its effects. No amount of money can restore a parent—devastated by witnessing the negligent killing of their child—to the life they once had. No matter how creative a civil liability system may be, it reaches the limits of its reparative powers when wrongful conduct results in death, since it does not even attempt to compensate victims of wrongful death for the value of the lives they have lost. Compensation is simply impossible. And because civil liability does not set out to compensate, it cannot provide the deterrence that economics expects of it, nor can it achieve the redress that theories of corrective justice consider to be its raison d’être.
Civil liability, therefore, fails in the face of the harm we have the greatest reason to prevent. Direct risk regulation makes possible a responsibility that tort law assumes but cannot fully fulfill. To adequately address the fact that safety is a type of primary good whose provision takes priority over common goods, the direct regulation of risks of serious and irreparable harm must require more than merely cost-justified precaution.
Consequently, standards of safe and feasible precaution are not sentimental exercises in economic irrationality, but rather serious attempts to establish one of the necessary conditions for equal and independent individuals to exercise their agency effectively and pursue the ends, aspirations, and values that give meaning to their lives.
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- Keating is a renowned professor on the faculty of the USC Gould School of Law and the author of works on civil liability. Some of his recent publications include: “Products Liability as Enterprise Liability”; Comment on Gardner: Duty and Right in Private Law; “Is Cost-Benefit Analysis the Only Game in Town?”; “Must the Hand Formula Not Be Named?”; “Strict Liability Wrongs” (Philosophical Foundations of Tort Law, 2014); “When Is Emotional Distress Harm?” (Tort Law: Challenging Orthodoxy, 2013); and “The Priority of Respect Over Repair” (Legal Theory, 2012).
- Keating, Gregory C., Irreparable Injury and the Limits of the Law of Torts (December 8, 2022). Forthcoming in Oxford Studies in Private Law Theory, vol. 2 (Oxford University Press), USC CLASS Research Paper No. CLASS22-42, Available at SSRN.
- Food Quality Protection Act of 1996.
- 42 USC § 7412(d)(2). 1990 Amendments to the Clean Air Act
- Robert Solow, 'Defending Cost-Benefit Analysis' (1981). The basic concept of cost is understood as “opportunity cost.”
- Alan Schwartz, 'Products Liability Reform: A Theoretical Synthesis' (1988)
- Green v Smith & Nephew AHP Inc 629 NW2d 727 (Wis 2001).
- The term “statistical lives” was coined by TC Schelling, 'The Life You Save May Be Your Own' in Samuel B Chase, Jr (ed) Problems in Public Expenditure Analysis (1986). Schelling distinguished statistical lives from “identified” lives. Identified lives are real people who will live if certain steps are taken and will die if they are not. Statistical lives are abstract lives; they are the lives that will be saved in the future if a precaution is taken or a safety program is implemented. At the moment a precaution is taken, statistical lives are not the lives of identifiable people and may remain unidentifiable even after a precaution has been implemented and has saved lives.
- Vincent v Lake Erie Transp Co 124 NW 221 (Minn 1910).