I Need You to Lose

RUTGERS – THE STATE UNIVERSITY OF NEW JERSEY

SENIOR HONORS THESIS CANDIDATE

I Need You to Lose Defending a Benefit-Based Approach to

Necessary Harm and Compensation1

Brandon Ferrick

2/5/2015

1 I would like to give a very special thank you to the following people for both their help and their patience: Doug

Husak for putting up with my countless emails and questions and for posing numerous counter-examples to help me

strengthen my arguments, Craig Aronow and Michael Roberts for their legal definitions and interpretations of the

law, and Barak Shnaidman for his philosophical input and refutation of my arguments every step of the way.

Abstract: This paper examines the concept of necessity and when compensation follows from

necessary actions that cause harm. I posit that we can determine when compensation is due in

instances of necessity by referring to the distribution of benefits and losses that result from the

action.

I N e e d Y o u t o L o s e - F e r r i c k | 2

Jerry Garcia once said, “Constantly choosing the lesser of two evils is still choosing evil.”

I am inclined to disagree. Tough decisions are often made with the reality of having to choose

between two evils with no way out unscathed. Although the choice will ultimately end up with

evil or harm in some form, we do not actually consider the less harmful option to be evil, all

things considered. In fact, we often praise individuals who take the path which leads to less

negative consequences. All things being equal, we would much rather save 100 lives at the

expense of one than save one at the expense of 100. What this tells us about morality is the value

of the preservation of life and property and the promotion of more utility over less. In instances

where harm is unavoidable, we strive for the least amount of damage possible. This is one of the

rationales behind the necessity defense in the civil and criminal law. When people find

themselves in a scenario where harm is unavoidable and the only option is to break the law or

suffer greater harm, the law privileges deviations so long as a person is acting reasonably

{Model Penal Code 3.02}. Actions taken in situations of this sort are referred to as “necessary”

actions. These deviations may leave one without criminal prosecution, but the civil law may still

find a person liable to compensate an individual for the harm that was caused. When it comes to

compensation, the law is interested in returning victims back to where they would be, had the

injury never occurred. This is often referred to as “making the victim whole”. Effectively, the

law turns towards a principle of restitution: going from preserving utility to promoting equity and

fairness by annulling unfair benefits and burdens.

What I want to do in this paper is explore an area of harm in both moral philosophy and

in the civil law – necessity. My goal is to examine necessity and craft a resolution with respect to

determining when compensation is due in cases of three parties: a party in danger and at risk of

being harmed, a victim of an action used to alleviate the harm to the first party, and a third party-

bystander who causes the action which helps the first party who was in danger that also led to the

victim’s lesser harm. I plan to do so by analyzing how the tort system handles cases of a similar

sort and to draw out the philosophical underpinnings of the decisions. I then want to examine

what the response to these necessity scenarios would be from a philosophical standpoint and

reveal that the correct approach appeals to annulling unfair benefits and burdens. First I will give

a brief overview of the relevant category of civil law which will be addressed – tort law. Then I

will show that the correct interpretation of a claim to necessity appeals to the underlying

motivations of the individuals involved. Third, I will show that we must augment the

interpretation of the term “society” in public necessity in virtue of its semantic vagueness

because the distinction between the types of necessity does not do justice to the practical

interpretation and can lead to inconsistent rulings. Fourth, I will argue that the correct way to

interpret when compensation is due in necessity cases is to appeal to the distribution of benefits

and burdens. In order to prove this, I will present a hypothetical scenario to test my theory of

compensation. Before I conclude, I will try to answer potential objections and worries pertaining

to my thesis. At the end, an underlying theme will be established which ought to be the method

of determining from whom compensation can be claimed in cases of necessity: The party who


did or would have benefitted from a necessary action ought to bear the cost of compensation if

the action, which they intended to benefit from, caused harm.2

Part I: Introduction to Tort Law

Torts are civil suits that do not involve contracts3 which seek to compensate an individual

for an injury the individual suffered as the result of the wrongful (tortious) conduct of another.

The law of tort is the body of law which governs the compensation of accident victims (and

wrongful intentional or reckless acts) and in doing so allocates risk among society's members.

Risk is allocated among society’s members through insurance premiums or tax increases. The

roots of tort are in common law. Over time, the body of the law has been amended by statutes

and legislation which aimed to formalize and standardize rulings.

Tort cases are resolved by juries who are, assumedly, the reasonable and common

layperson. Since it is the jury who, in essence, sets the precedent on who is right and who is

wrong, tort cases should not be indecipherable by the layman. In fact, it is the job of the attorney

to advocate on behalf of their client to juries in a concise and easy-to-understand manner. By the

end of a trial, juries should be able to decide tort cases through a clear and traceable roadmap of

legal negligence, which well be defined later in the paper. Once juries have their roadmaps, they

are able to render a verdict using their own reasoning and common sense.

Tort law aims to compensate accident victims in such a way that they end up in the

position in which they would have been if their accidents never occurred. In order to bring a

person back to that position (“making the victim whole”) the jury is instructed to take into

account lost wages, medical bills, and other objective losses which were suffered. In addition to

the objective losses, the jury can consider the subjective losses –pain and suffering damages.

These are emotional tolls that the harm has taken on them, e.g. pervasive anxieties, fears, pain

suffered throughout the course of the injury, inter alia. In returning victims to their whole

position, the law, in effect, is promoting equity and balance. It promotes the idea that the losses

be made right – a victim-centered mentality.

An alternative way to look at compensation in tort law is to view the compensation not as

reparations for the victim, but rather as a punishment for the tortfeasor. This interpretation

justifies the need to take better care of ourselves and be more cautious in our actions. This is an

incorrect interpretation of tort law. In a nutshell, tort law is the law of accidents – when someone

is harmed, tort suits aim to undo that harm. We understand that accidents or injuries happen in

the real world. Torts don’t usually aim to punish tortfeasors for the injuries they cause.4 Even in

2 I say, “Who would have benefitted…” to cover those cases where actions which were intended to cause a benefit

go awry. 3 There are instances in which torts involve contracts. Those are cases where parties establish duties they have to one

another. 4 Unless there are punitive sanctions which act as punishments for especially malicious torts, like purposefully

running a car into your neighbor’s house, for example.


cases of intentional torts, the goal isn’t to punish the tortfeasor, but to make the victim whole

again. Although punishing tortfeasors may make the victims feel better, it won’t undo the harm

that has been done as effectively as ensuring that the victim is made whole. The difference, here,

can manifest in virtue of whose pockets the monetary compensation comes from. In a victim-

centered approach, compensation would be ensured from wherever it was available – the

tortfeasor’s insurance, the victim’s insurance, the tortfeasor, the government, etc. In a restitution-

centered approach, the goal would be to have the tortfeasor pay the price of the harm.

Unfortunately, the costs can be mountainous and tortfeasors may not be able to afford the costly

medical bills.

In order to receive compensation, a plaintiff must prove that the defendants whom they

are suing caused the harm or damages to the plaintiff or the plaintiff's property intentionally or

unintentionally, depending on the defendant/tortfeasor's action. When someone acts intentionally

or negligently and causes a harm, the plaintiff is entitled to claim that their loss deserves

compensation. Negligence is understood as a failure to act as a reasonable and prudent person

would, such as to create an unreasonable risk of harm.5 In order to prove that a defendant was

negligent and thereby deserving of compensation, the actions of the defendant must have been

unreasonable for the situation and must have a causal connection to the harm which was created.6

There are, unfortunately, deviations to every clear-cut scenario which muddy the waters of tort

law and makes verdicts much more difficult to reach. One such deviation, which will be covered

in the next section, is when people act in the face of two evil options, choosing the lesser evil

(and thereby reasonably) and harm still manifests from their actions.

Part II: Defenses and Necessity

In the law, individuals can claim that they have a defense to combat the allegations they

are facing. At least two of the defenses are excuses and justifications. Excuses are defenses

which withhold blameworthiness from an actor. They are defenses which claim that the actor

cannot be blamed for what they had done because they were legally insane, under duress,

possessed, inter alia. Excuses imply that there is some sort of external or internal factor which

makes it the case that liability must be withheld. If one is using an excusing defense, they are

claiming that they cannot be held responsible for what they have done because of that factor.

In contrast to excuses, justifications are defenses which concede that an actor is to blame

for the action, pro tanto. They then claim that the action that was taken was not actually wrong

but rather morally permissible, all things considered. In fact, they claim that the actions ought to

5BLACK’S LAW DICTIONARY (8th ed. 2004)

6 On the other side of the coin is strict liability. Strict liability is a theory which does not rely upon a finding of fault

(looking for negligent behaviors) in determining who should bear the risk of loss. All that needs to be proved in a

strict liability case is that a tort has occurred and that the defendant caused it, typically exercised in employer-

employee relationships as well as cases of defective manufactured products which caused harm. The intentions and

degree of negligence of the defendant are not relevant in determining an outcome through strict liability.


be applauded in some instances. If a person has a justification for one’s actions, the law will

usually not hold them liable for compensation.

A necessity claim is a type of defense as well. It is under the umbrella of justification

defenses. An action is considered to be necessary, legally, if the absence of the action would

result in some greater harm.7 In the context of tort law and necessity, an action which prevents

the greatest loss of utility is the favored one. It follows that necessity defenses value efficiency:

less harm is better than more harm. In these cases, one isn’t trying to cause harm, they are trying

to stop it.

Within necessity defenses, there are even more specific types of defenses – public

necessity and private necessity. Public necessity refers to actions taken by individuals to prevent

a greater public harm (i.e. disease, wildfire, terrorism).8 These are instances where an individual

is left with two choices: either prevent a greater harm to the public by commandeering or using

another’s property, or to not use the individual’s property and see the greater loss to everyone. A

more modern case of public necessity is exemplified by Surocco v. Geary.9 In this case, a

wildfire in Los Angeles had broken out which would have consumed an entire town if no one

took action. A house was destroyed in order to halt the progression of the fire and the

homeowner sued the tortfeasor to recover damages for the loss of possessions. The courts held

that in cases of public necessity the greater interests of society supplant the right for

compensation for otherwise tortious acts. This holding prevents receiving compensation from the

tortfeasor who committed a necessary act; it grants the privilege.10

This means that the tortfeasor

was justified and did not do wrong. It can also be said that the private interests yield to the

interests of society. This ruling gives insight into what our society values when making these

decisions. The law values more utility over less. Society puts its greater interests first, the

collective interests, over the individual’s own interests. What we can draw from this is that when

one acts for society and not for one’s own interests, generally, and under necessity

circumstances, specifically, society will applaud the individual’s actions and deem the actions to

be favored.

Private necessity, on the other hand, pertains to the need to protect the actor’s own

property, but not society-at-large.11

It can be appropriately claimed as a defense in cases where

the actor had a choice between two options: harm to their property or a preventative measure

7 Necessity. In Wikipedia. Retrieved November 11, 2014, from://en.wikipedia.org/wiki/Necessity

8 BLACK’S LAW DICTIONARY 1059 (8th ed. 2004) (defining public necessity)

9 Surocco v. Geary. 3. Cal. 69, 1853.

10 Although the tortfeasor may not be liable for compensation, the plaintiff may still have the right to claim that their

harm deserves compensation from an alternative party. As it will be shown later, it should be within the rights of the

victim to collect compensation from the party who benefits from the commandeering of their property when it is

damaged. In the context of the Surocco case, the plaintiff should be allowed the right to claim compensation from

the town which was saved. 11

Cohan, John A. "PRIVATE AND PUBLIC NECESSITY AND THE VIOLATION OF PROPERTY

RIGHTS." North Dakota Law Review 83.2 (2007): 653.


which ends up in harm to another’s. In a more modern example, Vincent V. Lake Erie Transport

Co.12

, a large and valuable ship was about to be caught in an imminent storm which would have

destroyed it. The personnel on the ship had decided to dock it at a private dock in order to save it.

As the storm passed, the boat remained unscathed but the dock had suffered damage. The dock

owner then sued the shipping company for damages to the dock. The courts held that a party

acting under private necessity does not grant the same privilege as public necessity. The trespass

was privileged to save the boat, but the harm that was caused was not. The action was justified

(and thereby not wrongful), but since the defendants were acting for themselves, they were liable

to compensate. Whoever acts out of necessity to preserve their own property bears the risk that

their conduct may go awry and ought to bear the cost of compensation for any harm or damages

that are incurred during their conduct. This bolsters the previous claim that society values

altruistic acts more than acts which are for one’s own interests. Altruistic acts are given more of

a privilege than acts in one’s own interests.

The distinction between the two types of necessity ought to be made by an appeal to the

motivations behind the actions at the time of the harm. What makes public necessity unique is

that the interests of society are at stake. These interests are causally efficacious to the actions

taken. This means that I am motivated to act for society’s interests, for others, rather than for my

own interests. If someone’s boat is at stake, they will act to save it; if a town is at stake,

individuals will act to save it. In taking an action, the actor assumes that the actor will be able to

create some type of benefit; they are acting to save something or prevent harm, not out of malice.

Since their actions are intended to produce a benefit, whether or not this benefit coincides with

their interests (their reason for action) is crucial. It is crucial because it will determine whether or

not someone is liable to compensate for their actions. Someone who is acting to save society may

not be directly benefitting from the action. In the Surocco case, the defendants who destroyed the

house may not have had their property at risk of being burned down by the fire; they acted for

the interests of society. In fact, it is very plausible that defendants could act in the interests of

society and not benefit from their actions at all, i.e. Good Samaritans. In public necessity, the

lack of benefit, or actions-for-oneself, by the actor justifies the claim to the public necessity

defense. On the other hand, if one is acting to save their own property, their interests are

entangled in their actions. In the Vincent case, the interests of the boat owners were to save their

boat. The benefit which they had hoped for was to save the boat which coincided with their

interests. Since they were the ones to benefit from tortious action, they ought to be the ones to

repay the victim. Furthermore, LaFave and Scott go on to explain that, “To have the defense of

necessity, the defendant must have acted with the intention of avoiding the greater harm. Actual

necessity, without the intention, is not enough. If A kills his enemy B for revenge, and he later

learns to his happy surprise that by killing B he saved the lives of C and D, A has no defense to

murder. He must believe that his act is necessary to avoid the greater harm.”13

Without the

proper motivations, we can end up with scenarios of ‘accidental justice’ whereby someone does

12

Vincent v. Lake Erie Transportation Co. 109 Minn. 456, 124 N.W. 221, 1910 Minn. 13

LaFave, Wayne R., and Austin W. Scott. Handbook on Criminal Law. St. Paul: West Pub., 1972.


not intend to produce a greater good, in fact, they may be attempting to cause harm, but

incidentally promote the greater good and get away with the harm they intended to cause (more

to be said on this later in the section discussing my worries on these issues).

Part III: Augmenting the Scope of Public Necessity

The extension of “society” needs to be more concretely defined in public necessity.

Public necessity revolves around a choice between preventing harm to society and preserving

one’s private interests, not helping one person versus helping many people. If I am correct that

public necessity is justified in virtue of a lack of acting-for-oneself and in virtue of preventing a

greater harm or evil, the extension of the term “society” in public necessity can be thrown into

question. If we were to take the definition of the term “society” hard-and-fast, we could end up

with cases where altruistic behaviors ended up in liability for damages. I aim to explain that

public necessity should be extendable to all Good Samaritan instances, not just the ones for a

larger society. I need to do this because my theory would be incoherent if the interpretation of

public necessity only applied to society while my theory supported that those with interests in

public necessity actions are liable. We may begin with the following three scenarios:

1. If someone, A, acts out of necessity to save the society in which persons B and C live

by infringing upon the rights of C, the doctrine of public necessity will justify the

behavior of A and preclude them from liability for harm.

2. If A acts out of necessity to save his own life or property by infringing upon the rights

of C, the doctrine of public necessity will not preclude him from liability for harm.

3. As it currently stands, if A acts out of necessity to help another person, B, by

infringing upon the rights of another person, C, the doctrine of public necessity will

not explicitly apply to the behavior of A and may not preclude A from liability.

The difference between (1) and (2) is whether or not the actor’s life or property is being

preserved or whether the greater society is being preserved; it depends on whether the actor

acted-for-themselves in the situation. The actor, A, in (1) and (3) had no stake in either matter. In

both cases (1) and (3), A did not benefit from the taking of the property or infringement on the

rights of C. The actor, A, in (1) and (3) could have very well performed the same action in both

scenarios. It then follows that (1) and (3) are functionally equivalent insofar as they are altruistic

behaviors. The rationale to have A compensate would be that A was not acting in society’s

interests, but rather in the interests of one individual. The rationale to punish A in (3) is flawed

based on these grounds. It is flawed because it can leave (1) and (3) with two different outcomes,

even though they are functionally equivalent cases. If the rationale to have A compensate in (3)

is flawed, one possible alternative would be to extend the scope of public necessity to include all

forms of Good Samaritan actions, regardless of the amount of people at risk. As it has already

been shown, society values altruistic behaviors more than behaviors out of one’s own interests. If

I am correct that the actor in (1) and (3) is acting out of altruism, insofar as he has no interests to


be protected directly through his actions, then A ought not to be liable for compensation in either

case.14

Furthermore, it is possible to apply an augmented Sorites argument to the term “society”

to reveal how we can reduce societies down to two individuals at the least. A Sorites argument is

a form of logical deduction and manipulation of the vague terms in our language which reveals

flaws in our ability to reference certain things.15

The argument, as formulated by Peter Unger, is

used to reveal the non-existence of ordinary things. Its purpose is to show that, while physical

objects and things may appear to be real and clump together in this way or that to form certain

clusters of molecules, when we call them ‘chair’, ‘heap’, or ‘table’ we are misusing our language

and in fact are referencing nothing at all. For heaps of sand, the argument works in the following

way:

1. There exists at least one heap of sand.

2. If heaps of sand exist, they consist of many grains of sand, but a finite number

nonetheless.

3. The taking of one grain of sand away from the heap does not make the difference

between having a heap and not having a heap.

From here, the argument is nearly evident. If we were to take one grain of sand away from the

heap, we would still have a heap of sand in virtue of premise (3). Following that logic, if we take

another grain of sand away from the heap which we still have, we are still left with a heap – one

grain of sand does not make the difference between having a heap and not having a heap. From

here, we wash, rinse, and repeat, until we are left with but one grain of sand. Since we already

postulated that the taking of one grain of sand does not make the difference between having a

heap and not having a heap, the removal of the last grain of sand will still leave us with a heap,

which is incoherent. Given the incoherence of the situation, Unger argues that heaps and other

ordinary things cannot possibly exist.

Taking the general framework of the Sorites argument and importing it on society, one

can already begin to see the issues in the vagueness of the term.

1. There exists at least one society.

2. For each thing that constitutes as a society, there are a number of people which

make it up, with a minimum of two (as per our working definition of “society”)

14

It may be obvious that the practicality of determining whether one is acting for-oneself or for-others can be

difficult. It is very hard to look at a person’s motivations and speculate about their internal mental states. Although I

do not have the time nor space to delve into the subject here, I do propose that a balancing test is used to determine

whether the actions were for others or for oneself. Possibly, it could include a weighing of the things which were

being saved, how directly or indirectly they would affect the life of the actor, etc.

15 Unger, Peter. "There Are No Ordinary Things." Synthese 41.2 (1979): 117-54. JSTOR. Web. 11 Nov. 2014.

<http://www.jstor.org/stable/10.2307/20115446?ref=no-


3. The net removal of one of these people does not make the difference between

having a society and not having a society until you reach two people.

What follows from this is the same concept as the heaps of sand framework. We take a person

away (a death occurred, someone moved to a different town, what have you) and we still have a

society. Then we take another person away and we are still left with a society. Then we take

more and more away until we are left with just two people. At this point, however, the logic must

cease. By definition, societies require at least two people. By no means am I here to argue that

there are no such things as societies by continuing the line of logic.

What these arguments reveal is that societies are reducible to the sum of their parts – the

individuals which make them up. By affecting individuals within the society, the greater society

is affected as well. The effect that this has on public necessity is tremendous. What this shows us

is that the extension of “society” can apply between two individuals. Acting altruistically

towards one individual promotes the interests of the greater society. Therefore, pubic necessity

ought to encompass not only cases where society at large is directly affected, but also cases

where someone acts in the interests of any individual, where the actor’s interests are not at stake.

Public necessity is not justified by the number of people that are being aided, but rather whether

the actor was acting for-themselves or not.

Part IV: Proposal

We have thus far established the following theory of liability in torts of necessity: if you

have an interest in the necessary actions which cause harm, you may be liable for compensation

for any damages. As I have shown in the previous section, necessity defenses aim to distribute

benefits and burdens fairly. Tort law wants those who benefit to repay those who suffer losses in

their wake. What I want to do in this section is review arguments from moral philosophers on

how to handle similar cases and see whether these views on compensation can support a theory

of annulling unfair benefits and burdens as well.

To begin, I would like to posit my own conditions for when one is liable to compensate

for causing harm in necessity scenarios.16

There are only two conditions here: (1) the retention

of an unfair benefit at the expense of another and (2) the beneficiary stands in relation to the

causal chain for which the action thereof produced the unfair gain and loss. What (2) means is

that the beneficiary was in such a condition that they needed the harm to occur so that they could

retain the benefit. For example, I need to steal your insulin pen so that my friend Dave does not

16

These conditions are what I take to be both necessary and sufficient for an individual to be found liable to

compensate for harm.


die of insulin shock. Dave’s being in insulin shock is what puts him in relation to the causal

chain which created the need to act and steal the pen.

Second, I posit my own conditions which are necessary and sufficient for one to deserve

compensation for a harm they have suffered. There are three conditions: (1) the victim must have

suffered a loss, (2) the suffered loss must have been unfair or unjust for the victim and (3) the

victim must not exist in any causal relation to the hazard which caused the loss. These conditions

are more-or-less straightforward. In (2), it is not the case that the victim must believe that they

have lost unfairly or unjustly to satisfy this condition. The truth of the matter must be that they

have suffered the loss unfairly or unjustly. In virtue of the loss that the victim suffered (once they

meet the above criteria), the victim can be said to be wronged by the action and thereby able to

make a claim for compensation. These conditions will be referenced in the paper going forward

and are the bases for my theory of compensation. Now, I will discuss the moral philosopher’s

input for necessity cases and compensation.

In contrast to a benefit-based approach, Judith Thomson adopts a rights-and-wrongs-

based approach to compensation. She looks for when rights have been infringed or violated as

indicators of when a victim is wronged and compensation is due, as well as from whom the

compensation ought to come from. In order to illustrate her stance, she offers the following

example17

:

(A) You are rich and own a lot of steak. You keep this steak in a locked freezer on your

back porch. Here is a child with a protein deficiency: he will die if I do not get him

some protein fast. I have no protein at the moment, you do. You’re out of town and I

cannot get a hold of you. The only way to get the steak is to break into your freezer

and take a steak.

She then proposes that you have been wronged by my infringing on your right to not have

your steak stolen. Since you have been wronged, you qualify for a claim to compensation for

your loss. The next question is to ask: from whom can you receive compensation? This is where

Thomson’s theory runs thin. She proposes that I am the one who ought to compensate for the

loss – I am the one who stole the steak, so I have to repay you. This is problematic because it

turns out that it’s incorrect to claim that I am the one to repay you. In necessity cases like the one

that Thomson proposed, the action that I take is justified, all things considered. It is justified in

virtue of promoting the greater good and preventing a greater harm. Since the action is justified,

it is no longer wrongful. In fact, my actions may even be applauded – I saved a life at the mere

expense of a steak. Since my actions are justified and thereby not wrongful, I cannot be said to

have wronged anyone, all things considered. Thomson would respond by trying to hold me liable

for the pro tanto wrong. She would claim that although I may not be responsible all things

considered, there is still a wrong-making quality of the action and I can be held liable for it –

17

Judith Jarvis Thomson, Rights Restitution and Risk: Essays in Moral Theory (Cambridge, MA: Harvard UP,

1986).


hence her infringing/violating of a right distinction. The issue, here, is that even though I did not

wrong anyone all things considered, you have still been wronged by the action. This is a problem

because we are looking to compensate victims for their losses, not just claim that someone is

liable, point fingers, and then let the loss fall where it lies. Although the victim does have the

right to claim that the pro tanto wrong makes me liable to an extent, my actions have a defense –

namely that they are justified all things considered. This would leave us with a scenario where

the victim just could not recover for the loss. Thomson, in this case, cannot effectively make the

distinction between causal responsibility and moral responsibility. Under a rights-based

approach, one is morally responsible for an action if they violate the rights of another which

implies that they are causally responsible for that violation. One cannot claim that the starving

child violated or even infringed upon any of the victim’s rights because the child is not the one

who performed the act which was pro tanto wrong.

This issue can also be resolved by appeal to the notion that you are wronged by the

circumstance and therefore not by me. Since you are wronged by the circumstance, you cannot

claim compensation from the starving child nor me because we were not the ones to wrong you,

all things considered. The issue, here, is that you have still been wronged and are deserving of

compensation which makes this scenario problematic. We can attribute blame to me for the

action pro tanto and you can still be wronged, but you cannot claim compensation for being

wronged. And surely we want to compensate you for your loss – it is easy to say that you are

owed something for your loss, and surely we want you to have that loss annulled.

Before we continue, it would be helpful to draw the distinction between types of

responsibility for actions. To be causally responsible for causing harm is different than to be

morally responsible for harm. Both are types of responsibility, but there are many forms of

responsibility. Moral responsibility implies that I am blameworthy for the action – that my

actions were either right or wrong and I can be praised or blamed as a result. Widerker offers a

useful definition of moral responsibility which holds that one is morally responsible for an action

when they performed the action but could have done otherwise at the time. This is often referred

to as the principle of alternative possibilities.18

Causal responsibility, on the other hand, doesn’t

claim whether or not someone is to be praised or blamed for an action, but rather that someone

was the cause of the action and nothing more. It doesn’t say that the action was right or wrong. A

person can be causally responsible but not morally responsible for an action, e.g. a legally insane

person who robs a bank. The insane person cannot be blamed, morally, because they have an

excuse for their actions (their insanity).

If I were to compensate you for your loss, I am conceding that I am morally blameworthy

for the harm based on me violating your rights. The problem is that my actions were just and all-

things-considered good. If we were to find that I am liable for your compensation, then we’re

18

Widerker, David. "Libertarianism and Frankfurt's Attack on the Principle of Alternative Possibilities." The

Philosophical Review 104.2 (1995): 247.


saying that my actions weren’t actually good. If they were good, they wouldn’t incur a

consequence which is functionally equivalent to a punishment19

or condemning of an action

(namely, paying someone for a loss). On top of that, if we were to have me pay you, it would

produce a deterring effect. If, when my altruistic actions went awry, I’m left liable for the

damage, then I would have no incentive to want to help others. Every time I’m left with the

option of taking a steak of yours to save a life, or not taking the steak and not incur liability for

damages, I may very well choose the latter option.20

In fact, it’s even common for us to want to

hold the good Samaritans of the world liable for their actions when they go awry.21

Punishing

Good Samaritans is never the correct choice to make. A rights-based approach will not be able to

determine from whom you can collect compensation. A benefits-based approach will, however.

Howard Klepper posits an approach to recovery by the injured party in necessity cases –

corrective justice. The corrective justice principle holds that wrongful gains and losses are

annulled.22

As Klepper argues, the principle of corrective justice supports the following three

propositions. (1) Compensation is due to the faultless victim when harm is caused by the fault of

another. (2) When a gain is secured by an injurer at the expense of another, the injurer ought to

forfeit that gain. (3) The claim to compensation by the faultless victim.23

This theory can be useful when applied to these instances of necessity. It coincides with

the underlying rationale that unjust benefits and burdens ought to be annulled, but a few terms

need to be changed for it to apply properly. I agree with (1) that compensation is due when harm

is caused. In (2), however, where Klepper posits that the injurer ought to forfeit the gain, I

believe that may not necessarily be the case. In instances where the injurer in not securing the

gain, but rather another is securing the gain and the injurer is acting to help the beneficiary, the

benefit ought to still be returned. There are residual unfair benefits if we have the injurer

compensate, namely the benefit retained by the one who was helped.

Mutatis mutandis, the theory is as follows: the party who benefits from the unfair loss of

another ought to annul the loss. This is the barebones principle of restitution. It aims to

compensate individuals by cancelling out any unfair advantages which they accrue through the

harm to another. Compensation for harm is easiest to decide when there is a clear case of unfair

or unjust gains and losses. In cases where there is no such gain, this theory would not apply.

Let’s return back to the steak case where A takes a steak from B to save C’s life. B is

owed compensation for his loss. The loss was unfair which justifies the claim to compensation.

19

A punishment, especially by the courts, involves two things: a deprivation of some right(s) and a stigma. In

compensation, you are deprived of your right to your money and stigmatized by getting sued. 20

This seems like a pretty harsh outcome, but it is very possible nonetheless. Punishment produces deterrence from

an action; this is seen even in very rudimentary systems of life. 21

Driver, Julia. "The Ethics of Intervention." Philosophy and Phenomenological ResearchLVII.4

(1997): 851-870. JSTOR. Web. Sept.-Oct. 2013. 22

Klepper, Howard. Torts of Necessity: A Moral Theory of Compensation. Law & Philosophy. Vol. 9, No. 3.

August, 1990. 223-239. 23

Ibid.


The next question to ask is, from whom? If we shrunk the case down to a two-person scenario

where I am the one who took your steak for my own benefit, then I would be the one to repay

you under the theory of restitution. The rationale is that I am the one who accrued the benefit

from your unfair loss of a steak. Once we throw in a third party to the scenario, the result should

not change. B is owed for the loss of the steak. Although A took from B, A is not the one who

retained a benefit. B ends up, effectively, in the same place B was as prior to the incident. C, on

the other hand, retains a benefit. C ends up in a better place than C had been prior in virtue of

receiving the steak and staying alive. We cannot have A repay B for the loss of the steak because

A did not benefit from the scenario.

With restitution as the basis for compensation, we end up with a satisfactory solution

which coincides with our posited theory of liability. Although A may be responsible for causing

the harm, A is not responsible for compensating the victim. A’s actions were justified which

entail that they were not wrong. Since B was still wronged, there is some residual culpability

which we cannot have floating around in logical space. The residual culpability, which would

have been left up in the air if we took a rights-based approach, is appropriated to the beneficiary

of the conduct – person C. There is no longer a conflict between A not doing anything per se

wrong and B being wronged by A’s actions. A was acting on behalf of C in order to aid in

accruing C’s benefit from B. Since C was the beneficiary and thereby the one who ought to

compensate, it can be said that since C began the causal chain of events which led A to aid and

save C, C is the one who “wronged” B. At the very least, C is the party who gained something

for nothing.

Part V: Hypothetical Test

Through the following hypothetical scenario, I am to defend my theory that whoever has

an interest or benefit to be realized in an instance of necessary, tortious conduct ought to bear the

cost of compensation if the conduct leads to harm.

Eric is walking down the street. He sees Tim get hit by a car. The driver of the car takes

off and cannot be located. Tim is severely injured – bleeding out on the road, broken bones, and

unconscious. Tim needs immediate evacuation to a hospital. Eric is the only person around. Eric

has no cellular phone to call an ambulance. There is no reasonable way for him to contact the

proper authorities in such a way that Tim would survive. The only course of action that Eric can

take such that Tim would survive is for Eric to drive Tim to the hospital which is a few blocks

away. Eric sees a car parked outside of a café. The keys are in the ignition but the owner of the

vehicle is nowhere to be found. Eric hoists Tim into the backseat of the car. Tim bleeds all over

the back seat as Eric drives to the hospital. Tim survives the accident. Eric returns the car to its

rightful owner. The owner is very understanding: he will not press charges for the taking of the

vehicle since it was returned to him, but he does sue for the damages of the cost of removing the

blood from the back seat of the car. Eric does not want to pay the cost of removing the blood

from the backseat. He contests that Tim should pay – Tim bled all over the backseat, he cleans it


up. Tim does not want to pay to remove the blood – he did not ask to be saved nor did he ask to

be driven in a car to the hospital. Who should pay: Tim, Eric, or the owner of the car with the

blood in it? In other words, from who does the owner of the car have the right to collect

compensation?

Under my proposed theory, the owner of the vehicle should not pay to remove the blood

from his car. He was not present at the time it was used; he has nothing to do with the scenario

insofar as he was not an actor in determining the course of action and had no say in the matter. In

fact, since the car was taken without his consent at the time, he may even be considered to be

owed by Tim for the use of the car to save his life. Furthermore, he was the innocent victim in

this instance. The owner is not liable for the cost of removing Tim’s blood.

Eric contests that he is not liable for the blood removal. Eric presents a necessity defense

for his actions. He claims that he was a Good Samaritan in this instance and ought not to be held

liable for the damages. Eric had neither duty nor obligation towards Tim.24

Eric also had no

interests in the matter. Eric voluntarily intervened to help Tim, whom he saw in severe distress.

Eric did not benefit from driving Tim to the hospital. Upon seeing Tim hit by the car, Eric

decided to help in what is stipulated to be the only reasonable course of action. To have Eric pay

would be equivalent to punishing a Good Samaritan. The Good Samaritan ought not to be

punished or else future Good Samaritan actions will be deterred.

If one were to find that Eric should pay the cost of blood removal, the argument would be

grounded in the notion that Eric was the one who willfully took the vehicle in the first place.

Although Eric was the principle actor who directly caused the harm, had he not acted, a greater

harm would have manifested. This is what secures his immunity. It doesn’t matter that Eric took

the car; he did so out of public necessity. The only instance in which Eric would be liable, given

the same fact pattern, would be one in which Tim did not give consent for the rescue by Eric.

Luckily for Eric, since Tim was unconscious, Tim gave implied consent. If Tim had been

conscious and refused aid but Eric continued to help, Eric would be exposed to battery or assault

charges.

Tim is all that is left. My theory supports that Tim ought to pay the cost of the harms

which manifested from the actions which he benefitted. Tim was escorted to the hospital, where

the absence of that escort would have left him dead. Surely Tim has an interest in the matter; his

life. Along the ride, Tim spilled blood in the vehicle. Since the blood was spilled in the course of

the action of which he benefitted from, Tim ought to pay the cost of compensation for the blood

24

The objection can be raised that Eric assumed a duty upon intervening in Tim’s affairs. This bears no weight on

his liability in this issue. Eric had been acting as a reasonable and prudent person during the time of the emergency

situation. Pursuant to Dillon v. Twin State Gas & Elec. Co. (85 N.H. 449, 163 A. 111, 1932 N.H.), Eric does not

meet the criteria for being negligent after the assumed duty has been established. He therefore does not meet the

criteria for tort liability.


removal. If Tim were to claim a necessity defense, it would fall short. Tim would be left with a

mere private necessity defense, privileging him from some of the claims, but not damages.

Part VI: Worries and Hard Cases

In this section, I plan to test my theory against worries that I have come across. What I

have in mind are four worries which seem to pose a threat to my theory of compensation, but

ultimately are defeated. I will evaluate each using both my posited framework for compensation

liability as well the framework for when one is in a position where one has a claim to

compensation and respond to the objections accordingly.

The first worry is what happens when a greater good is not achieved. Let us now re-

examine the case of Vincent v. Lake Erie. If we change the fact pattern slightly and say that the

boat was not saved, but rather that it sank even though it was secured to the dock, would that

change the outcome of who is liable to compensate the dock owner? My answer is no, it does not

change the outcome. To reiterate, my proposal for liability to compensation has two conditions.

In order to be found liable to compensate for an action which causes harm and produces a benefit

elsewhere, there must be (1) a retention of an unfair benefit at the expense of another and (2) the

beneficiary must stand in relation to the causal chain of events which led to the unfair gain and

loss. What (2) means is that the beneficiary must have been in a position where they needed the

unfair loss to occur in order for them to benefit and promote the greater good. It is neither

necessary nor sufficient that the production of the good actually obtains. So long as the

motivations behind the action which caused the harm were directed towards producing a good

(benefitting the beneficiary), the beneficiary is liable for the action. This is motivated by the idea

that accidents can and do occur which lead certain good actions awry. Take another example of

Tim and Eric. Tim gets hit by a car and Eric saw it happen. The only way for Eric to save Tim’s

life is to steal a nearby car and drive Tim to the hospital. If Tim died on the way to the hospital,

Tim surely did not retain the benefit of Eric’s stealing a car and escorting him to the ICU. When

the owner of the car comes back and demands that someone pays to get the blood out of the

backseat, what precludes liability from Eric is that Eric’s motivations for action were in

conformity with producing a greater good. At the same time, this is what holds Tim’s estate

liable to pay; Tim was the one who should have benefitted had the actions not gone awry.

Whether Tim actually retained the benefit as a matter of fact is not important. What are

important are the motivations and beliefs of the actor. Tim being deceased does not get him off

of the hook. Since there still exists an unfair loss, Tim’s estate must compensate the owner of the

car. If Tim’s estate is flat broke and cannot afford compensation, then the loss falls where it lies

unless Tim’s estate becomes able to cover the loss.

The second worry that I am concerned with involves cases in which the greater good is

achieved, yet the person who achieves it acts impermissibly. What I have in mind are instances

in which the action taken by the third party is not justified, yet they produce the greater good.

Take, for example, Trolley scenarios. In these scenarios, there is a trolley on a track that is


rolling down a hill out of control. In the direct path of the track, there are 5 innocent individuals.

You are watching these events unfold. Next to you there is a lever which will divert the trolley to

an alternate track. However, on this alternate track there is one innocent individual who will

most certainly be killed if you divert the trolley onto the alternate track. All things being equal,

the permissible action would be to pull the lever and save the 5 lives of the individuals. When all

things are not equal, however, the scales may tip. Where the permissible action when all things

were equal would have been to save 5 lives at the expense of 1, if that one person who would be

sacrificed on the alternate track had the cure for all biological diseases and illnesses which afflict

humanity, we may reconsider and decide that the life of the one individual is more valuable. If

we save the one life at the expense of 5, we would be producing the greater good. Those who are

stern about saving the 5 people regardless of the credentials or qualifications of the 1 other would

find the action to pull the lever to be impermissible. All-in-all, the potential to save countless

lives seems like it would produce the greater good, and if you are stern about saving the 5 people

immediately, we would run into a scenario where the action is impermissible yet produces a

greater good. I believe that it is actually impossible to have scenarios where a greater good is

achieved and the person who achieved it acted impermissibly, these cases would be incoherent.

What justifies the permissibility of the action to pull the lever is that it will produce the greater

good. If I have an action which is impermissible, then it cannot be producing a greater good. If

the action is all things considered permissible, then it must be producing the greater good.

Producing a greater good entails the action being permissible under these necessary

circumstances.25

My second worry involved cases of doing the wrong thing yet producing the greater

good. My third worry is a spin-off of my second worry that involves cases where you do the

wrong thing for the right reasons (or doing more than is necessary for the right reasons). If one

acted impermissibly, yet they were motivated to produce a greater good, their actions would be

permissible so long as their motivation for action conformed to the intention to produce a greater

good. For example, if there was a raging fire that was coming to burn down the town and the

only thing that I can do to stop the fire is burning down your crops, my actions would be

permissible because they conformed to the motivation to produce a greater good. Furthermore, if

I only needed to burn down 2 of your 20 acres of land to prevent the fire, yet chose to burn down

all 20, the action would still be permissible. Producing the greater good is what is at stake, and to

be better safe than sorry, burning the rest of your field to be certain that the fire would cease is

the reasonable action to take. However, under a different set of facts where the action was

deemed to be unreasonable, then I would be liable to compensate you for whatever unreasonable

excess of loss you suffered. Actions are justified and permissible so long as they can pass a test

of reasonableness. So long as a reasonable person in the actor’s situation would have done the

same, the action is reasonable and thereby justified and permissible.

25

I would like to add a caveat that producing a greater good does not justify any action to be permissible. Surely it

would produce a greater good to kill all of those who pose a threat to our communities, but that does not mean that

the action is permissible. The applications of these theories apply in cases of necessity only.


A potential objection to this rationale would be cases in which preventative actions are

taken. For example, I murdered someone to prevent them from blowing up the United States.

Prima facie, it would appear to be the case that my theory commits me to applauding this action

because it produces the greater good, making the murder permissible. That is far from true. The

action would only be permissible if it was necessary. The action is only permissible if there are

no ways to leave the scenario unscathed. If the facts were such that the man who I killed has his

hand on the button which would blow up the White House and he did in fact plan to do so, then

surely my actions to kill him would be permissible. But if he merely had the potential to blow up

the White House and did not pose an immediate threat to others, the action of killing him would

not be justified. I am not committed to preventative measures which produce a greater good. I am

only concerned with matters of necessity.

My final worry deals with doing the right thing for the wrong reasons. These are cases

where my motivations are not for the greater good, but the greater good is still brought about by

my actions. For example, suppose that I wanted to stab Brina. I reach for something long and

sharp to stab Brina with in order to hurt her and what I grab is an epinephrine pen that I stole

from someone else’s purse. Suppose, also, that at the same time that I went to stab Brina with the

epinephrine, she had a severe and adverse allergic reaction to something in the air which required

the rescue and service of an epinephrine pen. I then proceed to stab Brina in the chest, hoping to

harm and kill her, but lo-and-behold, I save her life at the expense of the epinephrine pen. In this

scenario, I am liable to compensate you for the loss of your pen. One must to act for the right

reasons in order to be granted the preclusion from liability to compensate. One of the prongs of

my theory involves one’s motivations being for the greater good, not just acting and just-so-

happening to produce a greater good. The reason behind this rationale is that one’s motivations

to produce the greater good are what distinguish the actor as a Good Samaritan; one worthy of

their actions being considered justified and permissible. Imagine a scenario just like the one

above, but in this scenario, Brina dies. If my motivations for action were to kill Brina, my actions

would be impermissible. However, if the motivation for my actions were to produce a greater

good and try to save Brina’s life, then we would consider them to be permissible because I had

attempted to save a life, rather than try to kill.

This consideration is in stark contrast to what Paul Robinson believes. He finds that, so

long as the greater good is brought about that the motivations behind the action are irrelevant.

Specifically, he posits that any justified act should never be punished even if the actor produced

the conditions requiring the otherwise illicit act.26

His rationale for this conclusion is that we

want to promote strivings for the greater good. Even if an individual chooses to not to act for the

right reasons, so long as they can achieve the greater good through their actions, we ought to

commend their efforts. For example, suppose in my proposed Tim and Eric example that Eric

26

Paul H. Robinson, “A Theory of Justification: Societal Harm as a Prerequisite for Criminal Liability,” UCLA Law

Review, no. 23 (1975): 267-68.


knew the owner of the car, despised him, and was itching for a reason to mess with his

belongings. Luckily for Eric, Tim’s injury gave him the perfect opportunity to get blood in the

car and ruin the owner of the car’s day. According to Robinson, since Eric produced the greater

good and saved Tim’s life, Tim ought to not be held liable to compensate the owner of the car,

which appears to be consistent with my conclusion. Actually, it is inconsistent because it allows

for Eric to get away with a malicious action unscathed, in his eyes. For Eric, he just got away

with what he wanted – he managed to harm the owner of the car. If we took Robinson’s position,

he would get away without owing any compensation, which comes off as sneaky. It is sneaky

because Eric’s motivations did not coincide with producing the greater good – they were

malicious. What this promotes are sneaky actions which, while they do promote the greater

good, allow for the actors to cause the harm they desire to cause and not have to worry about

consequences for their actions.

A relevant corollary point to the evaluation of the motive behind action is the idea of

moral worth. Nomy Arpaly (2002) describes the moral worth of an action as, “The extent to

which the agent deserves moral praise or blame for performing the action, the extent to which the

action speaks well of the agent.”27

In the context of this paper, the extent to which an agent

deserves praise amounts to how much liability to compensate for the otherwise tortious action is

precluded by the justified action. What this means is that whether or not an action that is

justified, which causes harm, ought to lead to compensating the victim depends on the moral

worth of the agent for that action.

Moral worth can come in different amounts. As Arpaly explains, two people can both

donate equal amounts to charity, but one may be doing it out of a concern for the world, while

others may be doing so purely because their accountant urged them to.28

What this means is that,

at the very least, motivations are how one’s moral worth is calculated. Mill is inclined to agree

with this as well. Mill finds that, “The motive… makes a great difference in our moral estimation

of the agent.” Although Mill stands true to the idea that motive has nothing to do with whether

the action was moral or immoral (much like Robinson), how we evaluate the agent does hinge on

their motivations.29

For example, if there is a raging forest fire, creating a backfire to stop it is

surely the desirable action to take (especially if it is the only option to take). The difference, here,

is that an agent who creates the backfire out of a motivation to save the town deserves more

praise than an agent who creates a backfire to try and stop the raging fire that they created to

spite their neighbor. It isn’t enough that the backfire was halted for the action to be deserving of

praise – the motivations behind the action give the action its moral worth. This refutes the claim

by Robinson from earlier. Where Robinson would claim that the action and the agent did nothing

wrong, Arpaly would conclude that the action may be desirable, yet the agent may not have the

type of moral worth that is appropriate to not owe compensation for the fire. We may praise the

27

Arpaly, Nomy. Moral Worth. Journal of Philosophy 99 (5):223-245 (2002). 28

Ibid. 29

Mill, John Stuart. Utilitarianism. Hackett Publishing Company, (1979, 17-18).


action itself for being desirable, but since the actor did not behave in accordance with the

desirable motivations, he cannot be said to be deserving of the same moral worth as one who

acted with the desirable motivations, creating the distinction between when you owe

compensation and when you do not as a third party actor.

We may question, however, what becomes of the malicious fire-starter who then tries to

extinguish the fire by creating a backfire with a different motivation. Suppose the following: A

man plans to burn down the neighbor’s house and only the neighbor’s house. He does rigorous

calculations to determine that the fire will only burn the one house. To ensure his calculations, he

places a flame-retardant coating around the perimeter of the property in order to ensure the fire

will not exceed his neighbor’s yard. Unbeknownst to him, the day before he plans to burn the

yard, a parade troupe comes to celebrate the birthday of the man whose home he wants to burn

down, marching around the perimeter and destroying the flame-retardant layer. The following

day, the man creates the fire and it goes out of control. His initial motivations were to only harm

the one home. Now, he is motivated to stop the fire and protect the neighboring homes. In order

to stop the raging fire, he must create a backfire to protect the rest of the town. He does so in

order to save the rest of the town. Morally, what is he liable to compensate for? Under these

circumstances, it appears that the agent’s action to create a backfire has moral worth under

Arpaly’s definition: (1) he did the right thing for the relevant moral reasons which make the

action itself right– namely, that he wants to save the rest of the town – and (2) the agent has

moral concern – that he was concerned for what is morally relevant, not just what he thought was

morally relevant30

. It may seem as though he would have a justification for his action and not

need to compensate for the loss of land, since his action to save the town has moral worth. The

fire-starter acted in the right way for the right reasons and showed sincere concern – he put out

the fire to save the town by creating a backfire. However, I am inclined to disagree with Arpaly’s

conclusion. In order to determine whether the action has moral worth, we cannot look at it in a

mere vacuum. There has to be a tracing of causation back to the original fire, which he had

caused. In order to not be liable to compensate, a Good Samaritan actor must not have been in a

causal relation to the events which required them to act. Their motivations for action must not

have been a part of the series of events which led to the need for their help in the first place. In

this instance, he created the original fire for the wrong reasons and didn’t show concern for that

individual. His actions are blameworthy in that instance, which created the unreasonable risk of

harm that led to the fire getting out of hand. The creation of the backfire has moral worth and

may be deserving of praise, but in virtue of the causal chain of events which led to the need to

create the backfire, the action warrants compensation.

There is a difference between a good action gone awry and a bad action gone awry. In

both instances, the action has moral worth. The difference is that in the former, the moral worth

deserves praise and in the latter, it deserves blame. When one commits a good action that goes

awry, we cannot punish or blame them because they gave an effort to promote the best outcome

30

Arpaly, Nomy. Moral Worth. Journal of Philosophy 99 (5):223-245 (2002).


and preserve or promote utility. They had the right motivations which led them to act in the right

way; the problem was that their valiant effort was for naught. In the latter scenarios, one begins

with a bad action. Even if the fire-starter genuinely wanted to save the town and not create the

backfire out of remorse or a desire to mitigate his own punishment by preventing greater harm,

he still created the initial fire, which was a bad act. When one commits a bad act and it goes

awry, it is their fault for what follows; they opened Pandora’s box.

Conclusion

What I have done in this paper is propose a theory of liability and compensation based on

an analysis of the distribution of benefits and burdens across actions that cause harm. The theory

proposes that when an unfair loss is sustained, the beneficiary on the other side of that loss ought

to compensate whomever they harmed in order to restore a balance and make the victim whole

again. In order to have the ability to claim that one is owed compensation; one must have been

unfairly harmed and have not been in any causal relation to that harm. This implies that one can

be morally responsible for an action without being causally responsible for an action. I have also

argued against the rights-based approach to compensation offered by Judith Thomson. I have

shown that her rights-based approach to compensation is problematic because it leaves

individuals in a scenario where they have been wronged but no one has wronged them, yet they

still claim that they are owed compensation from an individual.

At the end of the paper, I examined four different worries that posed potential problems

for me. The first was an examination of scenarios where an action that is intended to produce a

greater good does not actually produce that good. I have shown that there is no actual

requirement for the greater good to come to fruition for my theory to hold. All that is required is

that the actions and intentions taken by the Good Samaritan were in line with producing the

greater good for the actor to be precluded from liability. The second worry involved cases where

the greater good was achieved yet the actor acted impermissibly. I have argued for the idea that

these cases are impossible because one’s acting for the greater good (with the right intentions) is

what makes these actions permissible. The third worry involved cases where one does the wrong

thing for the right reasons. These were cases where someone goes beyond the scope of what is

necessary to produce the greater good. To resolve these cases, an analysis of what would have

been a reasonable action is appropriate to determine whether or not the action is permissible. My

final worry involved cases of doing the right thing for the wrong reasons. In these cases, an

individual acted in accordance with malice instead of acting to produce the greater good. I

maintain that those who act with ill-intentions do not deserve the preclusion of liability that this

theory proposes.

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