Strictly Relational Duties for Strictly Random Victims and the Need to Let Go When You Have Nothing to Hold on to—Discussion of John Gardner’s Book From Personal Life to Private Law

Introduction

This article aims to discuss John Gardner’s thematic reading of two fundamental distinctive elements of torts—duty and damages¹—both introduced in his book, From Personal Lifeto Private Law. The article will challenge both themes from the standpoint of the Systemic Victim, hereby juxtaposed with the Random Victim, which Gardner’s view appears to represent. Systemic victims cross into tort law as people whose suffering is typical to their life experience, and are therefore systematically more vulnerable to hurt than others. By contrast, Random Victims cross into tort law as accidental victims upon whom the hurt befalls arbitrarily. The author’s contention is that the latter is omnipresent in tort law and fits more squarely with its traditional corrective justice paradigm, while the former is unjustly overlooked by current tort law reasoning as well as by Gardner, in his book. Systemic Victims, inter alia, warrant more nuanced understanding of the role distributive justice plays out in this legal field. This realization renders the article’s critique more tactic than strategic, when Gardner’s stance is concerned. At the pertinent tiring-yet-crucial “torts' justice paradigm” question, the article ultimately aligns with Gardner, who expresses his conceptual starting point which sees distributive justice as relevant to tort law, alongside its corrective justice framework.²

This article proceeds in two sections. Section one, featuring the duty-assumption stage, explores the roots of tort law’s accidental character and the impediment it sets to Systemic Victims seeking relief to their suffering. Section two, featuring the damages-determination stage, demonstrates how the concept of restitutio in integrum, which serves as the basis for tort compensation scheme, fails to redress Systemic Victims’ typical hurts.

The author culminates with a conclusion that, regrettably, Systemic Victims are not only more susceptible to life’s hurdles, but also to tort law’s blindness to their uniquely vulnerable position.

Section one: the duty

Life affects tort law and determines its scope. Similarly, tort law affects life and determines its categories. This two-way stream is what nurtures Gardner’s interest in exploring the way tort law and our private lives intersect and interact. The principal element of the concept of “Duty” serves as Gardner’s exploratory focus. Tort-based duties are commonly perceived as stemming from some kind of “legal reasoning” that goes beyond “human reasoning” and at times even counters it. Gardner bravely breaks with this conventional legal analysis of torts, contending that the two are intertwined, as the notion of “Strictly Relational Duty” (SRD), introduced by him, reveals. The very existence of this type of duty is telling of its uniqueness. It is reasoned by the special relationships existing between the duty bearer and the duty’s beneficiary. As opposed to duties owed to all (such as the duty not to humiliate), SRD is, a duty owed to a particular person, based on the unique relationship that justifies it. Gardner maintains that SRDs are of rational basis and generally work well with our private-live way of thinking of duties. Accordingly, SRDs are not merely a smokescreen for tort law’s “real-yet-hidden” reasons for imposing liability on one person for the harm inflicted on another, but rather the explanandum for it. Moreover, the relationships between the parties provide the basis for the duty and not just the reasons for it.

“She's my wife” is the example Gardner entertains to explicate his argument about SRDs’ nature. This example implicates that it is virtuous to allow a rescuer to prefer his wife compared to others on a rescue mission. This duty statement is contrasted with “she's my wife” and “therefore I need her to stay alive and take care of our kids/I know her better and therefore can be more effective in the rescue by prioritizing her.” The latter would make a rule-utilitarian explanation rather than reason for prioritizing the wife. Gardner argues that “she's my wife” needs to be a reason in its own right, and it is such, inasmuch as it has a value in it. The value exists in our acknowledgment that our society, as a whole, cherishes relationships, such as the marital relationships.

Already at this early stage, a methodological pause is needed to make a provocative statement: invoking the “caring husband” example as the axel around which the notion of SRD evolves in Gardner’s writing, reflects a typical manner in which Systemic Victims are alienated by tort law reasoning. Take women and intimate partner violence, for example. Based on women’s life-experience, the sentence starting with “she is my wife,” could easily be completed with the following addition: “(she is my wife) and therefore, I murdered her/bit her/raped her.” Gardner’s association of rescue might easily turn, by virtue of realist-feminist experience, into the horrifying association of a wife needing to be rescued from her husband.³

The prominence of the “caring husband” example throughout Gardner’s analytical construction of SRDs stands for something deeper than merely random choice by an author to demonstrate his theory. It rather resonates with tort law’s perception of relationships and the way tort academics envision how these relationships intersect with tortious events. In a nutshell: tort law envisions close or intimate relations as (i) intrinsically healthy and safe, and (ii) their intersection with tortious events, as random.

A feminist perspective on tort law typically challenges these two underlying premises by contending that family relations might turn specifically harmful and that some victims are systematically more vulnerable to harm than others or less “accidentally” harmed than others, particularly within these relationships.⁴ First thing last and last thing first: let us first get a grasp of the newly introduced notion of the Systemic Victim, the axel around which this article’s critique revolves, and only then go back to the first feminist problematization of the relationships that strictly relational duties are comprised of.

Accidental tort law to accidently harmed victims (Random Victims)

The whole perception of tort law as pertaining to “accidents” is what brought it its identification as “accident law.”⁵ According to that underlying premise, we must constantly look for justifications to impose tort liability on people who inflict harm on others. Being held accountable for another person’s suffering is deemed unnatural to ordinary happening, whereby one’s suffering is first and foremost one’s onus, as it stems from some unfortunate mischief or simple bad luck. Oliver Wendell Holmes lucidly described this simple logic of life-and-law: “The general principle of our law is that loss from accident must lie where it falls … .”⁶ Though he was prominent founder of the short-lived scientific metaphysical club of academics, Holmes appears to have expressed here a somewhat “naturalist” approach to the nature of harm and liability. That is, harm should stay where it falls. It is natural and neutral to leave it where it occurred and was formed.

A second glimpse over Holmes’ contention, however, reveals a scientific sentiment embedded in his usage of the “falling of the harm” rule. This sentiment resonates with Newton’s “Eureka”! moment, once the apple descended from the apple tree next to him or on his head, as believed by the legend.⁷ Drawing on Newton’s experience, the harm should lie where it falls by nature, not only morally, but also scientifically. But even within this scientific framework, what kept the falling apple next to the tree in Newton’s case was gravity; a natural and neutral force from above (or from the Earth, in this case). What is, then, the gravity force of some harms compared to others? What if gravity was not a “natural,” but rather a nurtured power? Would we still be holding on to the same neutral perception of leaving the harm where it fell? Arguably, the answer would be in the negative.

This is where the notion of the Systemic Victim comes into play. Once the tortious victim is no longer accidental, but rather systemically positioned in a vulnerable status, the Holmesian logic does not apply to the victim anymore, and the reasoning Gardner offers for understanding SRDs, becomes disrupted.

The Systemic Victim

The notion of the Systemic Victim—first time introduced here—aims at achieving two goals. First, to establish recognition in a substantial segment of victims not acknowledged by tort law, and second, to determine the challenges these victims set to traditional perceptions of tort law’s accidental nature. Ultimately, the conclusion is that the Systemic Victim notion undermines commonly held conventions concerning quintessential tort elements such as “duty” and “damages.”

Systemic Victims are people victimized at least twice: before the constitution of a tort against them, and then, upon its commission. First victimization materializes as these victims are put within a systemic socio-political power relation that constantly threatens to turn them into victims. Second victimization comes into play when this threat materializes, transforming them from “systematically potential victims” into “tort victims.” Systemically potential victims, thus, ultimately become actual tort victims due to their susceptibility and vulnerability to harm. Take, for instance, the case of a woman who was raped at work by her employer. Being a woman in a discriminatory labor market renders her susceptible to a rape by her male boss. This is her potential victimization, hanged over her head like the Sword of Damocles. Upon being raped, however, she turns now into a “realized” tort victim. As the tort befalls her, she is now placed within the auspices of tort law. Another daunting example of a Systemic Victim is that of a black male attending some public protest and eventually being subjected to race-related brutality by police officers restraining the protest.

More to the point, living under susceptibility to potential harm might in itself constitute harm to these victims, long before tort law recognizes it as such. Systemic Victims’ constant fear of being victimized often warrants taking cautionary and avoidance measures by them to prevent the harm from materializing, thereby inflicting harm on them, while they “await” their faith. One such type of fear is what sociologists identified as the “feminine fear of being raped.”

In a research recently conducted, scholars were able to expose the toll “feminine fear of being raped” takes on women.⁸ They showed that women spend substantial amount of money throughout their adulthood in an effort to refrain from situations they deem dangerous to their sexual integrity.⁹ In this respect, these women are a template of Systemic Victims: they are victims by virtue of the gendered power relations within which they live—even before they become “classic” tort victims—namely: before they become women who were actually sexually assaulted.

Armed with the notion of Systemic Victims, the stage is now set for reevaluating Gardner’s notion of SRDs from these victims’ standpoint.

Relational duty and no-duty, based on relations susceptible to harm

Let us think again of the husband–wife example Gardner chose to focus on. For hundreds of tort-law years of existence, the mere fact of spousal relationships did not affect recognition of a duty between couples. Moreover, spousal immunity was set to bar such duty from materializing, and even after removed, it was not deemed natural enough to ignite what should have been a flux of spousal-relation-related torts.¹⁰

The close relations between the notion of duty and the notion of relationships to which Gardner alludes, suggest that SRDs are more natural than others. Therefore, they are more naturally—and hence, neutrally—protected. This neutrality renders what may be seemed unnatural duties “political,” and therefore harder to protect. But here is where the absurdity lies: humanistic and personal relationships are almost immune from torts’ intervention as the liberal private–public dyad dictates.¹¹ At times, the unnatural invasion of natural relationships is exactly what bars imposition of a duty. Social workers, policemen, and other governmental authorities were granted immunity or semi-immunity when failed to protect the interests of women vis-à-vis their abusive husbands, or of minors vis-à-vis their abusive parents, based on, inter alia, exactly this reasoning.¹² At the same time, in the market sphere, where relationships are more “artificially constructed,” the unnatural nature of the relationships and its remoteness, makes them harder to recognize as carrying tort liability. This way, a retailer’s liability for a crime perpetrated against someone on his premises would not be easily assumed for the crime’s harmful consequence.¹³

SRD’s nature—or better said, the relationship in which it is nested—dictate their content, claims Gardner. However, this pertains to “natural” relationships, as opposed to “artificial” ones. But here comes in another complication as to the neutrality of SRDs: often, the “naturalness” of a duty is actually “nurtured,” and therefore needs to be addressed as part of the natural relations’ content. The power relations within which women are positioned vis-à-vis their husbands or fathers, for instance, should have substantiated the naturalness of the duty between these women and the social workers who fail to diagnose their abuse at home. Under tort law’s reality, however, this rarely happens.¹⁴ According to Gardner’s SRD theory, contractual relations between two strangers would tend to put them under a duty not to harm.¹⁵ The social worker, however, is bound by her contractual duties not to the assaulted woman, but to her employer and is therefore potentially lacking a duty to protect her. Moreover, contractual relations do not function under negligence liability, only as means to constitute a duty between the contracting parties. Rather, they serve to demarcate the boundaries between those who are not sides to it, that is, the social worker and the abused woman.¹⁶

Against this backdrop, the question arises: does a new hope for the Systematic Victims reside with the new form of duty promulgated by Lord Atkin in Donoghue? The Donoghue decision marked a revolution in tort law in the sense that it changed everything and untangled the bonds between relationships and a duty to care. Lord Atkin dropped the “relationship” component out of the duty equation, and allowed a whole new crowd of accidental harmful incidents into negligence law’s protection. Gardner sees this shift differently to Lord Atkin. He brilliantly reconceptualizes what Lord Atkin did to duty, considering it relation-based nevertheless. To him, the new relational element of the duty is invoked by account of it being nested in the notion that relations are created between the predator and victim. Put differently, Gardner maintains that: “your duty of care exists by reason of the threat that your actions pose to some or all of the value in the victim's life, never mind whether the threat consists of the imperiling of her special relationships.”¹⁷ Gardner, therefore, offers us a shift into reason of “special vulnerability/dependence” between the parties to facilitate duty assumption. This newly shaped notion of duty is still relational, but not “strictly” relational anymore. It is “loosely” relational. Gardner’s analysis of Lord Atkin’s duty could indeed be of great value to Systemic Victims. It can be fairly said that their relationship with power relations is what bound others to them. The duty now can be not to harm them or to protect them against the aggressions of others.

To sum up the duty part: regardless of Gardner’s simple and natural thinking, it is not at all clear that the logic of life defuses to tort law, uninterruptedly. It rather seems to affect it, full forcedly, against the protection of interests of Systemic Victims.

Section two: “Holding On” or “Moving On”?

Still armed with the notion of Systemic Victim, this section of the article’s critique follows Gardner’s argument into the nature of the compensatory stage. This principal element of tort law, too, warrants transformative adaptation when applied to Systemic Victims. Gardner ventures on the road to understanding why the specific restitution paradigm of restitution in integrum dominates the practice of damages assessment. He is particularly puzzled with the prominence of the idea of getting things back to how they used to be, by “holding on” to what the victim had, before the tort affected him, regardless of how unrealistic such a pursuit is.¹⁸ This puzzle is unraveled using a humanistic perspective explaining the desire to restore things to what they used to be as having a value in its own right, regardless of whether it is obtainable or not. It is a virtue of human nature, Gardner contends, which tort law embraces and endorses. Here, too, the rudimentary conventions reflected by the tort compensation stratagem are shaken, if not shattered, by the unique challenge Systemic Victims set to them.

The underlying premise of compensation for Random Victims is “holding on” to what the victim used to be and used to have before being affected by the tort. It is the respect shown to the simple quest to hold on to one’s already pursued goals, that Gardner identifies in tort law, and it is contrasted with the allegedly more rational expectation from the victim to “let go.” Conversely, what Systemic Victims wish the tort compensation stratagem to do for them falls outside this dialectical approach. Systemic Victims typically want the compensation to enable them to “move on” and “move away” from the vulnerability that allowed hurting them in the first place. Moving on, however, gives rise to distributive justice concerns. The question will now be addressed as to whether distributive justice should be allowed in this conceptual junction into tort law.

“Holding on” and distributive effects on Systemic Victims

Distributive justice concerns are intimately associated with the question of what should be compensated and restored through tort law. Acknowledging that, Gardner reminds us that tort law does “justice in the distribution in the very corrective justice that it dispenses.”¹⁹ The intricacy as to the legitimacy of using tort law—being a private law mechanism—as a tool for social engineering, is thus elegantly resolved by Gardner: he resorts to the dissociation between torts’ primary obligations—accommodating the distributive front—from torts’ secondary counterparts—accommodating the corrective front. This conceptual division indeed enables the diffusion of distributive justice into tort law. Though, Systemic Victims, though, warrant such diffusion in a more nuanced manner.

The distributive effects of tort law’s compensatory principle go beyond the scope allowed by the primary/secondary obligation divide. First, consider the distributive elements of torts’ restitution paradigm controlling the damages granting stage. The right to damages reflects the allocation of secondary protection to interests of specific kind but not to others. Under this consideration, feminists criticized torts’ reluctance (and at times, resistance) to compensate women for their femininity-based losses, such as the nonbodily harm inflicted by rape.²⁰ Women, being the Systemic Victims of rape, lack adequate protection of their right to bodily integrity and autonomy. Here, the distributive effect is somewhat elusive: while the primary obligation itself is easily recognized—the tort of battery—the idea of restitution, of “holding on,” is what empties it off its initial logic. The second distributive effect of compensation on Systemic Victims is even greater.

Between “Holding On” and “Moving On”

There is a second, even deeper manner in which Systemic Victims challenge the distributive effect of the idea of “holding on” to one’s already pursued goals. Given their vulnerable disposition, Systemic Victims often seek a way out of what allowed their victimization, and aspire to “move on” with their lives, rather than “hold on” to them, through compensation.

The principle of “holding on” to one’s goals leans heavily on speculating about what the victim could and would have achieved, was he not wronged and hurt. Despite this principle’s potential to bring volatility to tort compensation calculus mechanism, tort law adheres to it due to its belief in the humanistic virtue of “holding on,” as Gardner maintains. To reduce the speculative effect embedded in this principle and avoid its “fortuneteller” sentiment, tort law sets boundaries to the idea of “holding on,” allowing only realistic speculations to be taken into account in evaluating the loss.²¹ Cases epitomizing this challenge would typically concern a youngster claiming to have had a passionate dream of developing a career as an athlete, which was shattered due to the wrong he was subjected to. Given its lack of means to evaluate such a harm, and in light of the tremendous cost such calculus would burden the defendant with, the court would normally decide to grant the plaintiff a sum which will account for partial admittance of the harm; not negating neither admitting the plaintiff's dream in its entirety.²² Evidently, no legal system seeking reasonable effectiveness can afford this type of exhausting calculus to take place for each tort plaintiff.

The notion of Systemic Victim may account for a tool to set boundaries to such potentially destructive limitless calculus method. Systemic Victims warrant reconceptualization of the restitution in integrum principle in a manner that will take into consideration the injustice embedded in their “original position,” if to borrow a Rawlsian term, as they cross into tort law’s remedy world. Their original position was unfairly constituted, not because they were tortiously harmed, but because they were systematically more susceptible to be injured. Their position is unfair in the sense that it is a result of systemic discrimination they endured based on their gender, race, etc. Now, put under socially inferior position, Systemic Victims challenge tort law by asking not to “hold on” to the inferior position they had before being hurt, but rather to move on from it. This plea seems, on its face, to deflect from compensation’s known route to the speculative and unacceptably burdening compensation route to the unknown. However, what it seeks is to differentiate the distinctive disposition of Systemic Victims from that of “dreaming athletes” of the kind described above, and treat them differently, as justice mandates.

Supportive of this claim is Gardner’s conviction that the restorative effect of tort law is not aimed to serve as a conservative power designed to preserve unjust distributive allocations, but rather to distribute tortious protection of one’s security. His words express this idea best:

“But there is also a distributive state of affairs that is not independent of the relevant legal obligations themselves, which is also a distribution of rights.”²³

As Gardner’s statement reveals, distributive justice elements reside not only outside tort law, but also within it. The Systemic Victim’s vulnerability, thus, should not be mistakenly seen as lying outside the scope of tort law. Arguably, the injustices that render this victim systemic are not tort based, but when harm befalls the victim due to his or her systemic vulnerability, the victim thereby crosses into tort law with his or her weaknesses and becomes exposed to the vulnerability of tort law’s own tyranny. It now becomes a wholly tortious—however distributive—question, whether and how to compensate this Systemic Victim’s harm.

The Systemic Victim’s vulnerability should be taken into consideration, as the court calculates the victim’s lost future that is no longer possible to pursue. This vulnerability should not be allowed to demarcate the victim’s possibilities and limit his or her abilities to pursue goals. Conforming to the Systemic Victim’s vulnerability (using the “holding on” strategy, rather than allowing such victim to “move on”), substantially abridges Systemic Victims’ right to equal protection of the law of torts.

Recently, Israeli courts faced the fairness challenges Systemic Victims pose to the compensation scheme, in two different cases. Each case reveals the incompatibilities of tort law’s restitution paradigm with the unfair life experience of Systemic Victims: systematically low loss and typical hurt.

Systemic Victim: systematically low loss

First to challenge the Supreme Court with a typical Systemic Victim adversity was the Rim Abu Hana case. In this case, Supreme Court Justice Rivlin contemplated how to compensate an Arab 5-month-old baby girl for her earning capacity losses, caused by a car accident. Given that Arab women suffer systematical discrimination in the Israeli labor market—both as women and as Arabs—their earning potential is substantially low to a point where it literally does not exist.²⁴ The defendant, therefore, claimed the plaintiff should not be granted any compensation under this head of damage. Justice Rivlin initially acknowledged that the injustice that has put the plaintiff under the potential to be ultimately unemployed was exogenous to tort law. Nevertheless, he considered her inferior disposition as a threat to the plaintiffs’ right, under tort law, to autonomously pursue their goals and write their own “life story.”²⁵ “Goal pursuance,” according to his interpretation, is not that of “holding on” to what used to be probable to this plaintiff, but rather what she was entitled to have a right to pursue: the right to realize one’s potential to its fullest extent, without unfair limiting discriminatory boundaries.

Yet, a closer look at this eye-catching decision, in light of the “holding on” paradigm, reveals the threat of overcompensation it carries: clearly, all children—and, for that matter, also late blooming adults—wish to have an undisrupted path to pursue their autonomous goals. How should the tort-tolerated boundaries of such autonomous goal pursuance for the purpose of loss calculus be determined? People have many potential goals to pursue, and Gardner reminds us that only those already pursued are for us to respect holding on to. An Arab female baby’s potential to become anybody, advocated by Justice Rivlin, seems to fall outside such a scheme. At the same time, conforming to Justice Rivlin’s solution bears the threat of undercompensation. Recall the case of the young plaintiff who dreamt of becoming an athlete and the implausibility of accommodating cases of this type on a regular basis. If we were to comport the athlete’s case with the Arab baby case, the latter would have ended up with very little compensation to the plaintiff, given that the chances an Arab baby in Israel stands of fully realizing her potential as a person would have not exceed 10 per cent.

The equally problematic effects of over and undercompensation, due to “holding on,” could be relaxed by using the notion that squarely aligns with Systemic Victims: “power-relations.”²⁶ Power relations bear the potential to demarcate the boundaries of restitution in a fair manner. We justify the reinstating of plaintiffs’ goal pursuance that was withheld from them by virtue of some unjust evil that befell them. A plaintiff wins our sympathy when her dream of becoming a lawyer was deprived of her due to discrimination and not due to the fact that she has failed the screening exam to law school. Power relations represent the former type of unacceptable injustice, which resonates, in tortious terms, with the justification to impose liability for nonreciprocal harms, as opposed to reciprocal harms.

The notion of “reciprocity,” introduced in George Fletcher’s well known and accepted theory of tort law, focuses tort liability on the degree of risk that the parties to a torts dispute imposed on each other. It advocates the imposition of liability only when the risk taken by the tortfeasor against the victim exceeded the degree of risk, normally inflicted by people in society, that is, nonreciprocal risk.²⁷ Fletcher submits that this perception of unwanted risk taking offers better protection to individual interests than the paradigm of reasonableness, which assigns liability based on a utilitarian calculus.²⁸ Pursuant to Fletcher’s ideas, Systemic Victims’ vulnerability, which stems from discrimination, puts them under nonreciprocal risk to endure hurt, and therefore warrant tortious protection of these victims’ interests, also at the compensatory stage.²⁹

Systemic Victim: typical hurt

The notion of “holding on” expands beyond the calculus of loss evaluation with regard to Systemic Victims, and affects them in another manner, also relating to harm assessment. It touches upon another vulnerability carried by Systemic Victims when their losses or hurts are assessed by the court.

This pitfall inherent in the notion of “holding on” can be best illustrated by a hypothetical. Consider a victim who belongs to a discriminated group based on race. He is systematically susceptible to harmful racism, and is likely to have suffered from it throughout his life. Now, imagine he has been wronged based on his race. Under the constant annoyance and negative stimulation of his autonomy, due to the racism he endures, his irritation—and consequently his harm—is likely to be greater than usual. Greater vulnerability leads to greater susceptibility to greater harm. This point can be illustrated through two case examples.

The first case example is that of racism in public accommodation. A white person not allowed in a nightclub due to his Caucasian race is likely to be mainly surprised by such an act, while his black-skinned fellow is likely to suffer tremendous frustration from yet another attack on his autonomy, due to his immutable race. Moreover, still to the point of the magnitude of the harm, the white person can relatively easily relieve his hurt by entering the nightclub nearby. His black friend, however, has no such practical relief available, and is likely to suffer the same rejection should he try to enter the alternative nightclub.

Tort law, using its “accidental” lens, is blind to this type of systemic endurance of hurt. Suffering draws this law’s attention only on a very specific moment, isolating it from a continuum of hurt. For tort law, only the moment a tort-recognized wrong has been commissioned matters. For Systemic Victims, this wrong is yet another hurt in a chain of hurts they systematically endure, which negatively affects them more considerably.

The second case example concerning Systemic Victims relates to greater harm cases, where the “holding on” effect is even more problematized. Systemic Victims’ harms—induced by their general systemic victimhood as well as by their specific tortious victimhood—might unjustifiably go tolerated by tort law. In the Nafusi case,³⁰ a young woman plaintiff was coping with mental challenges when institutionalized and raped by other detainees. The rape happened due to the mental institution’s employees’ negligent neglect that enabled Nafusi’s rape. The defendant—the National Health Care Services—filed a motion to dismiss the case for absence of loss by plaintiff. Defendant argued that since she was already suffering from 100 per cent psychiatric disability when raped, the plaintiff endured no added negative value, that is, “loss,” through the rape itself. This outrageous stance lined up with the doctrinal translation of “holding on”: the defendant suggested that this specific plaintiff had nothing to hold on to, to begin with!

Similar lines of arguments surface in other Systemic Victim cases, mainly those of women survivors of incest or molestation at youth, who sued public authorities for failing to execute their power and save them from their predators at childhood. These case examples serve to show that the defendants brought up varied claims, which all revolved around the axel of “nothing to hold on to” for the Systemic Victim plaintiff. Their claims were set out to bar the plaintiffs survivors from reaching even the point of damages calculus in the courthouse. Their contention was that at the point of time the plaintiffs sustained the negligent behavior of the authorities, and the indirect harm it inflicted on them, these plaintiffs were already seriously harmed by the person who directly molested them. Typical stories of this kind are those of the Raz and the Yaffe cases.³¹ In the former, the plaintiff was molested by one of her middle school’s administrators, with the school neglecting to protect her after she confided in her teacher. In the latter, the plaintiff was molested by her father, with the police and social services neglecting to protect her from her father by overlooking mounting suspicious evidences as to her brutal abuse. Under this factual guise, it is nearly impossible to tell which part of the harm could be attributed to the direct child molester and which to the authorities whose negligence enabled him to continue his devastating actions. Though seemingly a question of evidentiary relevance concerning causation, the conceptual roots of this claim of vague harm attribution, are deeper. These roots are well engrained in the principle of “holding on” to something the plaintiff had, where the challenge is that in reality, the plaintiff has had nothing to hold on to, at the time when the authorities wronged her.

Conclusion

Tort law’s underlying conception is that of the lone and accidental, Random Victim. Ironically, instead of guarantying compensation to strangers who cross into each other in harm ways, this conception does the opposite. Evidently, the “strangerness” element characterizing tort parties warrants the invocation of the “relationships” prerequisite between them, which in itself serves to establish the bilateralism required for liability imposition. This same notion of accidentally induced harms to accidentally encountered victims also justifies tort law’s adherence to these victims’ wish to “hold on” to what was “accidentally” taken away from them by the wrong. Systemic Victims challenge these two basic propositions and assumptions and warrant new set of considerations to account for their unique disposition within tort law. The duty element needs to be expanded to include their unfairly induced vulnerability and the restitutio in integrum principle should allow these victims to rewrite their life story, by moving on rather than holding on to their former harmful life experience.³²

Gardners new book, From Personal Lifeto Private Law, in which he expresses the idea that tort law allocates personal security, holds a promise to Systemic Victims in the allocation of the security they desperately seek under tort law. Despite their absence from it, this book provides some comfort to Systemic Victims, as expressed in Gardner perception of the normative role of tort law. Gardner submits that tort law is committed: “… to crystalize constitutive norms, to affirm social significance, and to emphasize solemnity.” Systemic Victims’ rights can be better protected under such commitment.

This article was written from my scholarly perspective as a tort law researcher, as well as from my practical perspective as the manager of Tmura Center, where I provide pro bono representation to victims of sexual violence in strategic litigation of their tort claims in Israeli courts.

Footnotes

¹ Under chapters 1 and 5, respectively, named: Something Came Between Us (hereinafter: Gardner Something) and The Way Things Used to Be (hereinafter: Gardner the Way).

² See, e.g., Gardner the Way, at 37.

³ Incidentally, the violent husband who renders the battered wife Systemic Victim is not completely absent from John’s analysis. He appears at some stage, instrumental in reflecting a dilemma as to a “pathological” duty beneficiary, namely, someone whose wife would not necessarily be happy with the implications of saving. So, even here, what has contemplated is her duty to save him, and not his duty not to harm her. And incidentally, John contends that she is under a demand to save him nevertheless, though I beg the difference, as long as reasonable behavior is what measures people’s negligent actions Gardner Something, supra note 1, at 16-17. …

⁴ For prominent writing on domestic violence and its systematic harmfulness to women see: Evan Stark, Coercive Control: Theentrapment of Women in Personal Life (2007); Jacqui True, The Political Economic of Violence against Women (2012).

⁵ Constitutive in establishing this notion of tort law was the seminal book of Guido Calabbresi, The Costs of Accidents: A Legal and Economic Analysis (1970).

⁶ Oliver Wendell Holmes, The Common Law 94 (1881).

⁷ See, e.g., Newton's Apple and Other Myths about Science (Ronald L. Numbers, ed., 2009).

⁸ Yifat Bitton & Tal Shavit, The Differences between Men’s and Women’s Monetary Valuation of Crime Avoidance Behavior, 10 Femin. Criminol. 115 (2015).

⁹ Generally speaking, the gap in average totaled around 200 per cent more money spent by women rather than by men on prevention endeavors. Id., at 128.

¹⁰ The immunity was repealed in most U.S. countries during the second half of 20th century. Nevertheless, it was only by the 90 that tort suits emerged in the field of domestic violence. See Bruce Feldthusen, The Civil Action for Sexual Battery: Therapeutic Jurisprudence?, 25 Ottawa L. Rev. 203, 205–208 (1993).

¹¹See Ruth Gavison, Feminism and the Public/Private Distinction, 45 Stan. L. Rev. 1, 11–29 (1992) (introducing the many ways in which the private/public distinction has been used to marginalize women).

¹² Tort liability against the direct perpetrators themselves is often hard to impose. See generally, Sarah M. Buel, “http://heinonline.org.ezproxy.colman.ac.il/HOL/Page?handle=hein.journals/orglr83&div=26&start_page=945&collection=journals&set_as_cursor=3&men_tab=srchresults” Access to Meaningful Remedy: Overcoming Doctrinal Obstacles in Tort Litigation against Domestic Violence Offenders 83 Or. L. Rev. 945 (2004). When it comes to third parties, liability imposition becomes even more problematic. One of the most infamous cases to have set this line of no-liability rule was Joshua DeShaney, a minor, by his guardian ad litem, and Melody DeShaney, Petitioners v. Winnebago County Department of Social Services, et al., 489 U.S. 189.

¹³ See, e.g., Posecai v. Wal-Mart Stores, Inc., 752 So. 2d 762, 766 (La. 1999). See also Sturbridge Partners, Ltd. v. Walker, 482 S.E.2d 339 (Ga. 1997).

¹⁴ See, regarding police officers liability, e.g., Balistreri v. Pacifica Police Dept., 855 F.2d 1421 (9^thCir. 1988), amended and superseded by 901 F.2d 696 (9^thCir. 1990).

¹⁵ See Gardner Something, supra note 1, at 25–29.

¹⁶ One cannot but wonder whether that “missing formal contract” be redeemed through the notion of the unwritten “social-contract” according to which the state’s welfare system pledges to provide security to women’s integrity where their husbands or fathers set a threat to them?

¹⁷ See Gardner Something, supra note 1, at 35.

¹⁸ Courts repeatedly acknowledge that getting things to how they used to be is impossible to achieve, yet use this mainly as a disclaimer and move on to compensate the victim regardless. Death cases are the clearest manifestation of the physical limits of this conceptual idea.

¹⁹Gardner the Way, supra note 1, at 37.

²⁰ For the nature of tort law as providing limited protection to interests cherished by minority groups, see Martha Chamallas & Jennifer B. Wriggins, The Measure of Injury: Race Gender and Tort Law (2010).

²¹ See, generally, Fleming’s The Law of Torts 265 (10^th ed., 2011).

²² HCJ Menora Insurance Ltd. v. John Doe [2012] (soccer player); TA (Jerusalem) 1334/98 Mor v. Sahar Insurance Ltd. [2000] (soccer player).

²³Gardner the Way, supra note 1, at 39.

²⁴ HCJ 10064/02 Migdal, Insurance Company Ltd. v. Rim Abu Hana [2005] 13, 23.

²⁵Id., at 48–50.

²⁶ For the theory of power relations within which the parties interact as a basis for reconceptualizing tort law see: Yifat Bitton, Protecting Equality through Torts and Imposing Negligence Liability within Power Relations, 37 Mishpatim 145, 179–182 (2008) [Hebrew] (hereinafter: Bitton Protecting Equality). A concise version of this theory can be found at Yifat Bitton, Discriminatory Religious Practices, Compensatory H(wo)uman Rights Laws: Suspensions and Exclusions in Remedying Feminine Suffering, 14 Seattle J. Soc. Change 1, 52–54 (2016).

²⁷Id. at 541.

²⁸ George P. Fletcher, Fairness and Utility in Tort Theory, 85 Harv. L. Rev. 537 (1972).

²⁹ Bitton, Protecting Equality, supra note 26, at 162–172.

³⁰ In this case, the NGO the author found and chair filled an “amicus” cautioning against the claim that the plaintiff suffered no harm as a result of being raped.

³¹ The two cases were litigated by the author in trial courts in Israel, and culminated in a settlement outside the court. No official court decision was delivered for any of them.

³²Gardner the Way, supra note 1, at 37.