Let the Damages Fit the Wrong: An Immodest Proposal for Reforming Personal Injury Damages

Abstract

The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable. Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory damages and takes the position that make-whole recovery is an unnecessary consequence of liability and does not necessarily achieve just results. With apologies to Gilbert and Sullivan who contributed the refrain “[L]et the punishment fit the crime,” the author proposes that civil damages should fit the wrong. Compensatory damages should abandon the make-whole premise and be measured by three factors: the degree of the wrongfulness of the tort, the severity of the harm, and the extent to which the risky conduct was directed at the plaintiff--which the author calls connectedness