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

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.
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.

I Need You to Lose - Ferrick |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 partybystander who causes the action which helps the first party who was in danger that also led to the
victims 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

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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 societys 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 dont 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 neighbors house, for example.

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cases of intentional torts, the goal isnt to punish the tortfeasor, but to make the victim whole
again. Although punishing tortfeasors may make the victims feel better, it wont 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 victimcentered approach, compensation would be ensured from wherever it was available the
tortfeasors insurance, the victims insurance, the tortfeasor, the government, etc. In a restitutioncentered 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

BLACKS LAW DICTIONARY (8th ed. 2004)

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 employeremployee 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.

I Need You to Lose - Ferrick |5

be applauded in some instances. If a person has a justification for ones 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 isnt 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
anothers property, or to not use the individuals 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 individuals own interests. What we can draw from this is that when
one acts for society and not for ones own interests, generally, and under necessity
circumstances, specifically, society will applaud the individuals actions and deem the actions to
be favored.
Private necessity, on the other hand, pertains to the need to protect the actors 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

BLACKS 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.
8

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which ends up in harm to anothers. 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 ones own interests. Altruistic acts are given more of
a privilege than acts in ones 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 societys interests, for others, rather than for my
own interests. If someones 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
13

Vincent v. Lake Erie Transportation Co. 109 Minn. 456, 124 N.W. 221, 1910 Minn.
LaFave, Wayne R., and Austin W. Scott. Handbook on Criminal Law. St. Paul: West Pub., 1972.

I Need You to Lose - Ferrick |7

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
ones 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 actors 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 societys
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 ones 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

I Need You to Lose - Ferrick |8

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 persons 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-

I Need You to Lose - Ferrick |9

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 actors 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.

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die of insulin shock. Daves 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 philosophers
input for necessity cases and compensation.
In contrast to a benefit-based approach, Judith Thomson adopts a rights-and-wrongsbased 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. Youre 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
Thomsons 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 its 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).

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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 victims 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, doesnt
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 doesnt 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 allthings-considered good. If we were to find that I am liable for your compensation, then were
18

Widerker, David. "Libertarianism and Frankfurt's Attack on the Principle of Alternative Possibilities." The
Philosophical Review 104.2 (1995): 247.

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saying that my actions werent actually good. If they were good, they wouldnt 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, Im left liable for the
damage, then I would have no incentive to want to help others. Every time Im 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, its 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.
Lets return back to the steak case where A takes a steak from B to save Cs 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.

I N e e d Y o u t o L o s e - F e r r i c k | 13

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. As 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 As actions. A was acting on behalf of C in order to aid in
accruing Cs 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 caf. 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

I N e e d Y o u t o L o s e - F e r r i c k | 14

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 Tims 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 doesnt 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 Tims 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.

I N e e d Y o u t o L o s e - F e r r i c k | 15

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 reexamine 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 Tims
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 Erics 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 Erics motivations for action were in
conformity with producing a greater good. At the same time, this is what holds Tims 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, Tims estate must compensate the owner of the
car. If Tims estate is flat broke and cannot afford compensation, then the loss falls where it lies
unless Tims 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

I N e e d Y o u t o L o s e - F e r r i c k | 16

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 actors 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.

I N e e d Y o u t o L o s e - F e r r i c k | 17

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 elses 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 ones motivations being for the greater good, not just acting and just-sohappening to produce a greater good. The reason behind this rationale is that ones 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 Brinas 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.

I N e e d Y o u t o L o s e - F e r r i c k | 18

knew the owner of the car, despised him, and was itching for a reason to mess with his
belongings. Luckily for Eric, Tims injury gave him the perfect opportunity to get blood in the
car and ruin the owner of the cars day. According to Robinson, since Eric produced the greater
good and saved Tims 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 Robinsons position,
he would get away without owing any compensation, which comes off as sneaky. It is sneaky
because Erics 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 ones 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 isnt 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).

Ibid.
29
Mill, John Stuart. Utilitarianism. Hackett Publishing Company, (1979, 17-18).
28

I N e e d Y o u t o L o s e - F e r r i c k | 19

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 neighbors house and only the neighbors 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 neighbors 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 agents action to create a backfire has moral worth under
Arpalys 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 Arpalys
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 didnt 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).

I N e e d Y o u t o L o s e - F e r r i c k | 20

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

I N e e d Y o u t o L o s e - F e r r i c k | 21

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