This chapter takes a psychological perspective on tort law decision-making, drawing on psychological theory, empirical research, and legal practices in tort litigation to assess the state of knowledge about decision-making in tort cases. It examines how plaintiffs decide to bring a lawsuit, how defendants respond, and the process of dispute resolution in tort cases. Most tort cases do not go to trial, but trial decisions remain significant as a framework for negotiations. The chapter also draws on psychological theory and research to describe how the judge and the jury as decision-makers resolve legal issues and reach liability verdicts and damage awards in tort cases. Psychological heuristics, biases, and other psychological phenomena affect decision-making in intentional tort, negligence, and strict liability cases, and judgments about liability and damages. The chapter closes with suggestions for further investigations of understudied topics in tort law decision-making.

In this chapter we discuss two doctrines that are interrelated in that they impose liability either because of the relationship between the defendant and the tortfeasor (D2–D1) (vicarious liability), or the relationship between the defendant and the plaintiff (D2–P) (non-delegable duty of care).

We will start by examining vicarious liability, which is a form of strict liability. We will learn that the employer–employee relationship is the most common instance of vicarious liability. At common law, the employee who commits the tort is always liable, and so vicarious liability of the employer is in addition to the direct liability of the employee (tortfeasor). We will distinguish the employer–employee relationship from the relationship of principal–independent contractor, as the employer is not vicariously liable for the acts of independent contractors. Then, we will establish when the employee acts in the course of employment. We will also note the employer’s right of indemnity from an employee.

This chapter covers the establishment, contents and implementation of international environmental liability of the contractor. It argues that the polluter-pays principle applies, the contractor shall assume primary liability for environmental damage caused by DSM activities. However, unlike the existing civil liability treaties which endorse a standard of ‘strict liability’ of the operator, liability in DSM requires an element of ‘internationally wrongful act’ on the part of the contractor. As to the contents of liability, it argues that ecological restoration shall be the primary objective of liability. However, owing to the big unknowns of the deep sea, the practicability of restoration is very uncertain. Other forms of remediation, complementary restoration and compensation, are available. As to the implementation of liability, this chapter argues that the ‘traditional civil liability approach’ of a transnational nature is not suitable to the DSM context, and the parallel existence of implementation methods at both international and national levels weakens the international mechanism and places unnecessary burden on the sponsoring State. Incidentally, it argues that the Enterprise can assume liability independently and a State contractor cannot claim State immunity.

A threshold question for designing liability rules is the degree of fault required to impose liability. This chapter begins with a discussion of the policy considerations that underlie the policy choice between strict liability and due diligence approaches to liability and an examination of the distributive implications of this choice. The chapter then describes the approaches to standards of liability found in the law of state responsibility and civil liability regimes, before examining the specific fault requirements that structure liability in the Antarctic, deep seabed and high seas regimes.

International responsibility law today is in great need of theorizing or, at least, that is the present volume’s argument. This introduction sets the stage for that argument. It unfolds in four steps: first, it clarifies the reasons that led to putting this collection of essays together and explains what it hopes to achieve; second, it introduces the main theoretical challenges addressed in the volume; third, it provides some information about how the book is organized; and, finally, it sketches out the content of its successive chapters and their articulation.

Since the second AI revolution started around 2009, society has witnessed new and steadily more impressive applications of AI. The growth of practical applications has in turn led to a growing body of literature devoted to the liability issues of AI. The present text is an attempt to assess the current state of the law and to advance the discussion.

The rapid development of robotics and intelligent systems raises the issue of how to adapt the legal framework to accidents arising from devices based on artificial intelligence (AI) and machine learning. In the light of the numerous legal studies published in recent years, it is clear that ‘tort law and AI’ has become one of the hot topics of legal scholarship both in national and comparative contexts.

The autonomy inherent in AI systems brings legal challenges. The reason is that it is no longer possible to predict whether and how explanations and actions emanating from AI systems originate and whether they are attributable to the AI system or its operator. The core research is whether the operator of AI systems is contractually liable for the damage caused by its malfunctioning. Is contract law sufficiently prepared for the use of AI systems for contract performance? The answer is provided through a review of the common law, CISG and the German Civil Code (BGB).

Tort law has a number of systems and structures by which the system will be used to address the challenges posed by AI technologies. It will not be necessary to significantly alter our understanding of tort law’s foundations to be ready for AI, and this may significantly and potentially affect AI innovation and utilization.

Allocation of liability for harm caused at least partially by AI or medical robot can be based upon a binary distinction. The binary is the distinction between substitutive and complementary automation. When AI and robotics substitutes for a physician, strict liability is more appropriate than standard negligence doctrine. When the same technology merely assists a professional, a less stringent standard is appropriate. Such standards will help ensure that the deployment of advanced medical technologies is accomplished in a way that complements extant professionals’ skills, while promoting patient safety.

Relying chiefly on the combination of costly, unsystematic, and unreliable FDA monitoring and state negligence actions, the current postapproval system for controlling medical device risks falls far short of assuring optimal levels of safety. The reform proposal we advance comprehensively addresses these law enforcement deficiencies. The contemplated changes are straightforward and simple to implement yet would substantially reduce cost while increasing the effectiveness of both FDA monitoring and civil liability deterrence. Monitoring would be improved by requiring first-party insurers to investigate and report to the FDA the potential existence of a causal connection between the personal injury for which they are funding treatment and the patient’s (insured’s) use of or exposure to a medical device. The FDA would be authorized to enlist DOJ Civil Division enforcement of a federal cause-based strict liability action against the medical device manufacturer. The manufacturer would bear liability in full, with no reduction for risk contributions from the injured patient or other parties and would pay damages in total to the US Government. We explain the regulatory advantages of this new regulatory rule of cause-based strict liability relative to conventional rules of negligence and strict liability.

This chapter defends the existence of negligence, understood here as a form of inadvertent moral wrongdoing for which the wrongdoer is presumptively and non-derivatively responsible and blameworthy. The wrong in question is failure of due care. This common-sensical claim needs defense in view of widespread skepticism about the possibility of non-derivative inadvertent wrongdoing. A major source of this skepticism is the conviction that all wrongdoing must ultimately derive from intentional or knowing violations.

The IoT raises several questions germane to traditional products liability law and the UCC’s warranty provisions. These include how best to evaluate and remedy consumer harms related to insecure devices, malfunctioning devices, and the termination of services and software integral to a device’s operations. Consider that the modern IoT vehicle with an infotainment system generates massive quantities of data about drivers, and that mobile applications can be used to impact the operations of these vehicles.