An interesting proposal of how to use tort law to hold liable those who fail to plan for predictable disaster, by Bark Orbach, titled “Accountability for Predictable Disasters.” Here is the abstract:
This Article seeks to make a contribution to the understanding of how legal rules can reduce the social costs of disasters. The Article identifies and studies a pattern of decisionmaking failures whose existence may appear implausible: situations where decisionmakers know (or should know) that a high-impact negative event is about to happen or is already happening yet they fail to consider the implications of the coming or unraveling disaster. For example, awareness of the real-estate bubble of the 2000s did not prompt policymakers and boards of a few large financial institutions to evaluate the inevitable collapse. Similarly, credible warnings about unsustainable risks do not always persuade decisionmakers to take action until disasters happen, such as large-scale foodborne outbreaks, the frequency of extreme weather events, shocking gun violence incidents, and financial schemes that hurt the public. The Article explains why the traditional legal and economic thinking are generally skeptical of the proposition that decisionmakers could fail to consider the inevitable consequences of catastrophes they know about. It argues that this skepticism directs both public policies and legal rules that address predictable disasters. Specifically, the Article shows that several core legal presumptions regarding decisionmaking are crude and inadequate for extreme situations. The Article concludes that the present denial of familiar patterns results in limited accountability for failures to consider the inevitable consequences of known catastrophes.
And from the article:
The Article’s central thesis is that, the legal system can reduce the social costs of predictable disasters through regulation and liability. The thesis is well situated within our legal tradition that utilizes ex ante regulation and ex post liability to reduce the costs of accidents.15 For example, under tort law, a person who displays “reckless disregard for risk” or “reckless indifference to risk” may be liable for recklessness.16 Under this rule, Ford Motors’ decision to save $4-$8 per car and sell Ford Pintos with fire-prone gas tanks was held “a conscious disregard of the probability of injury to others” and subjected the company to punitive damages.17 Similarly, Exxon paid $5 billion punitive damages for the Exxon Valdez oil spill because the company’s senior executives “gave command of an oil tanker to a man they knew was an alcoholic who had resumed drinking after treatment that required permanent abstinence, and had previously taken command in violation of Exxon’s alcohol policies.”18 And, of course, the modern purpose of regulation is to reduce the social costs of imperfections.19