DOCSLIB.ORG

Some Facets of Strict Tortious Liability in the United States and Their Mplici Ations Harry H

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Some Facets of Strict Tortious Liability in the United States and Their Mplici Ations Harry H Notre Dame Law Review Volume 33 | Issue 2 Article 5 3-1-1958 Some Facets of Strict Tortious Liability in the United States and Their mplicI ations Harry H. Ognall Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Part of the Law Commons Recommended Citation Harry H. Ognall, Some Facets of Strict Tortious Liability in the United States and Their Implications, 33 Notre Dame L. Rev. 239 (1958). Available at: http://scholarship.law.nd.edu/ndlr/vol33/iss2/5 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. SOME FACETS OF STRICT TORTIOUS LIABILITY IN THE UNITED STATES AND THEIR IMPLICATIONS Harry H. Ognall* INTRODUCTION Liability in the absence of fault is no novelty to the common law.' From the year 1868, and the final decision in Rylands v. Fletcher,2 this doctrine has been much discussed by legal theo- rists on both sides of the Atlantic. Even students of the civil law have taken part in the ventilation.3 Nevertheless, it seems fair to say that much wearisome repetition has not dulled the edge of controversy. One may note that consideration of the subject immediately brings forth divergent views as to termin- ology; some writers believe that inasmuch as this part of the law is riddled with exceptions,4 the term "absolute" is too rigid to describe this liability, and that "strict" is a better term. Since the whole discussion seems rather sterile, therefore, without in- nuendo, it is proposed to use the term "strict" hereafter. * B.A. (Oxon.); LL.M., University of Virginia, 1957. SWigmore, Responsibility for Tortious Acts-Its History, 7 HARv. L. REv. 315, 383, 441 (1894). 2 L.R. 3 H.L. 330 (1868). 3 See Takayanagi, Liability Without Fault in the Modern Civil and Comnzon Law, 16 ILL. L. REv. 163, 268; 17 ILL. L. Rlnv. 187, 416 (1920-23). 4 PROSSER, SE-LECTED Topics ON THE LAW OF TORTS 135 (1954). (239) NOTRE DAME LAWYER [Vol. XXXIII That the strict liability concept is significant cannot be dis- puted. One writer' has listed over sixteen manifestations of it in modem law. Nor, it is to be noted, is this significance confined to the law of torts; there is a growing trend to uphold criminal statutes which lay down no requirement of fault 6 and, seemingly, 7 strict liability may be imposed by contract. Professor Takayanagi8 has made an interesting analysis of the causes of the rise to prominence of strict liability; he suggests that the development of commerce, the use of motor power, and the sharp distinction between rich and poor are among many important factors. It seems that these technological changes have combined with the paternalistic philosophy of the 20th century to remove much of the emphasis on personal delinquency which was the product of the 19th century individualism. 9 Interestingly, at almost exactly the same time that strict liability became a real issue, negligence as an independent tort was crystallizing in England. 10 As will later be shown in discussing the relationship of negligence to strict liability, many contend that had negligence as a tort arisen twenty years earlier, strict liability might never have achieved its present significance. It is the object of this article to consider the acceptance in the United States of the strict liability concept and to show that such acceptance is causing a cogent re-appraisal of traditional notions within the law of torts. In so doing, no attempt will be made to discuss the more obvious applications of strict liability long known to the common law, such as liability for fire, cattle tres- pass or damage by animals "ferae naturae." Rylands v. Fletcher- Home and Abroad The "Red House Colliery Case" of Rylands v. Fletcher decided nothing radically new. The defendants constructed a reservoir upon their land; and upon the site chosen for this purpose there were five disused and filled-up shafts of an old coal mine, the Carpenter, The Doctrine of Green v. General Petroleum Corporation, 5 So. CALIF. L. REv. 263 (1932). 6 HALL, PRINCIPLES OF CRIMINAL LAW 282-97 (1947). 7 Keefer v. Lombardi, 376 Pa. 367, 102 A.2d 695 (1954). R Takayanagi, Liability Without Fault in the Modern Civil and Common Law, 16 Ill. L. REv. 268 (1921). 9 Note, 13 NOTRE DAME LAW. 226, 233 (1937). "The Scholastic idea that the individual is a moral unit and hence a political unit having equal responsibilities to his fellow men has promulgated the philosophical basis for a renewal of the rules of absolute liability." 10 Heaven v. Pender, 11 Q.B.D. 503 (1883). 1958] STRICT TORTIOUS LIABILITY IN THE UNITED STATES 241 passages of which communicated with the adjoining mine of the plaintiff. The mine shafts were not discovered during construc- tion of the reservoir and no precautions were taken. When the reservoir was filled, water escaped down the shafts and through the passages, flooding plaintiff's mine. The decision in the first instance of Rylands v. Fletcher was reversed the following year; this latter decision itself was affirmed by the House of Lords. In argument for a decision in the first instance, counsel for the plaintiff relied on the doctrine of trespass and the remarks of Blackburn, J. in In re Williams v. Groucott," but the court rejected his argument on the grounds that there was no fault, nor technically was there a trespass or a nuisance.'2 In dissent, Bramwell, B. said there was no need for any of these require- ments, citing Backhouse v. Bonomils and the long record of liability for the spread of fire. To show that the question before the court was no novelty, the court referred to Chadwick v. Trower,14 decided twenty-five years earlier.' 5 The case was appealed and Blackburn, J. delivered the judg- ment of the court.' The question of law therefore arises, what is the obligation which the law casts on a person who ... lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escapes out of his land ... We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He supported his statement by citing Holt, C. J. in Tenant v. Goldwin,'17 decided in 1705. In the House of Lords,' 8 Black- burn's decision was upheld. 11 4 B. & S. 149, 122 Eng. Rep. 416 (K.B. 1863). 12 3 H. & C. 775, 149 Eng. Rep. 737 (Ex. 1865). 13 9 H.L.C. 503, 11 Eng. Rep. 825 (1861). 14 6 Bing. N.C. 1, 133 Eng. Rep. 1 (C.P. 1841). 15 It should be noted that Pollock, C.B. (with the majority) added that the negligence of the contractors in not discovering the mine shafts had not been sufficiently established to form a ground of judgment. This seems sufficient rebuttal of those who still insist that Rylands v. Fletcher was really a negligence case. See, Thayer, Liability Without Fault, 29 HARv. L. REV. 801 (1916). It was not until eleven years later that an English court held that an employer might be liable for the negligence of an independent contractor. Bower v. Peate, 1 Q.B.D. 321 (1876)! 16 L.R. 1 Ex. 265, 279 (1866). 17 Isalk. 21, 91 Eng. Rep. 20 (1705). 18 L.R. 3 H.L.R. 330 (1868). NOTRE DAME LAWYER [Vol. XXXIII Though the break of the wall and the ensuing escape in this case appears to have been capable of supporting a legitimate averment of trespass, its significance is that Blackburn made no attempt to distinguish it. He thought it was direct authority for his decision. We have here a decision which seemed to those involved in it to be far from "epochal in its consequences,"19 yet it aroused almost instant controversy. Some attempted to "explain the case away" on the grounds of negligence, as has already been shown. Some attempted to justify it on sociological grounds.2" It seems, however, in the light of the rise of negli- gence, enhanced by the mechanization of the century, a case such as Rylands v. Fletcher was bound to stand out for all to observe, for the case occupied a most ambiguous territory, sus- pended between that which was clearly wrongful and that which was absolved from all blame. Its significance came from no consciously motivated policy of the mid-Victorian judges who decided it, but purely from its place in the time track of legal development. Rylands v. Fletcher came to be seen as an affront to the growing fault concept. This was particularly true of its immediate reception in the United States. In Massachusetts2 and Minnesota22 it was accepted; but this was not the beginning of 2 -4 2 " a trend, for New York,23 New Hampshire and New Jersey immediately rejected the decision. The reason for the mixed reception given Rylands v. Fletcher in the United States lay in the forms of action. The long estab- lished common law rule was that no question of fault was rele- vant in a writ of trespass, while it was vitally significant in the writ sur le cas for consequential damage.
Load more

Recommended publications
  • Topic: LIABILITY UNDER the RULE in RYLANDS V FLETCHER IN
    1 CHAPTER 1 INTRODUCTION 1.1 Background of Research Liability under this topic is actually focused on the environmental liability in the construction industry which aims at making the perperator of environmental damage or the polluter to pay for remedying the damage that he has caused. Liability for environmental damage is an important part of any developed legal system. This study actually looks at the potential liabilities of owners, contractor and occupiers of land for damages caused to neighboring land under the common law, due to escapes from the defendant’s land of things with a known potential to cause damage, be that escape of chemicals, water and fire. The particular area of discussion is liability in the absence of 2 negligence under the rule in Rylands v Fletcher.1 The rule seems to be very helpful in environmental cases, where damage is the result of escape of dangerous substances2. All this while, Malaysia has been overwhelmed by the occurrence of indiscriminate development, which, at best, resulted in redundancy and visually unpleasant construction activities and, at worst, caused overcrowding, squeezing out of open spaces and environmental degradation, with affiliated effects on public well-being and health. In recent years, the uptrend in the occurrence of floods in urban areas and pollution of our water resources arising from land-use related causes amongst other signs of environmental degeneration, serve to highlight the harshness of the problems of poor development planning, disregard of planning laws and inadequate policing of developers.3 The origin of the problem lies in the lack of coordination of planning policies within and amongst States and between the Federal and State governments.
    [Show full text]
  • An Alternative Application of the Rule in Rylands V Fletcher to ‘Ultra-Hazardous’ Activities
    A Thing Less Likely to Do Mischief: An Alternative Application of the Rule in Rylands v Fletcher to ‘Ultra-Hazardous’ Activities Ryan Chan-Wei* Introduction hrough the past century, the rule in Rylands v Fletcher1 has been the subject of much debate, to the point where Francis Bohlen commented that yet another analysis of Rylands v Fletcher T would merely be ‘a thrashing out of old straw’.2 Considering how crowded the field is, it might be difficult to see what value yet another article can add, let alone one by an undergraduate. However, I humbly suggest that there is still more to be said, especially with respect to how Rylands v Fletcher has been applied in the specific context of ‘ultra-hazardous’ activities. In particular, the English courts have not adopted a distinct approach3 in applying the rule in Rylands v Fletcher to ‘ultra-hazardous’ activities despite valid concerns raised to the contrary, 4 instead preferring to subject both ‘ultra- hazardous’ and non-ultra-hazardous’ activities to the same Rylands v Fletcher standard. This article will demonstrate that such a position can, and should, be rethought. 1. Overview The existing debate concerning Rylands v Fletcher liability for ‘ultra-hazardous’ activities has largely been framed as a stark choice between two polarities, to the point where it was once described as ‘a storm centre’.5 On the one hand, some see Rylands v Fletcher as an opportunity to impose a blanket rule of strict liability for ‘ultra-hazardous’ activities, by embracing the enterprise liability approach that has significantly shaped American tort law, and leaving the non-‘ultra-hazardous’ Rylands v Fletcher cases to negligence.6 On the other hand, some see the principle as obsolete, arguing instead that the rule in Rylands v Fletcher is an anachronism in light of the development of the fault principle and that it should be subsumed into the broader tort of negligence, even in the context of ‘ultra-hazardous’ activities, as the Australian courts have done.7 In contrast, this article will suggest that a middle ground can be found.
    [Show full text]
  • Liability for Injury Caused by the Emission of Noxious Gases - Wright V
    Maryland Law Review Volume 28 | Issue 1 Article 5 Liability For Injury Caused By The miE ssion Of Noxious Gases - Wright v. Masonite Corporation Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Torts Commons Recommended Citation Liability For Injury Caused By The Emission Of Noxious Gases - Wright v. Masonite Corporation, 28 Md. L. Rev. 33 (1968) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol28/iss1/5 This Casenotes and Comments is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Comments and Casenotes Liability For Injury Caused By The Emission Of Noxious Gases Wright v. Masonite Corporation' In an action to recover damages for the loss of grocery stock which had been contaminated by the infiltration of formaldehyde gas from defendant's manufacturing plant. which was located approximately 200 feet from the plaintiff's store, the Court of Appeals for the Fourth Cir- cuit held that the defendant was not liable in nuisance since the invasion was neither intentional nor negligent. The majority of the court stated that under North Carolina law the doctrine of Rylands v. Fletcher2 was inapplicable to non-ultrahazardous activities and that the rules of the Restatement of Torts governing liability for nuisance would be applied. Restatement § 822' provides that a defendant is liable in nuisance for a non-trespassory invasion of another's interest in land only if the invasion had been both intentional and unreasonable, or unintentional and otherwise actionable under the rules governing negligent, reckless, or ultrahazardous conduct.
    [Show full text]
  • The Right to Privacy's Place in the Intellectual History of Tort Law
    Case Western Reserve Law Review Volume 41 Issue 3 Article 11 1991 The Right to Privacy's Place in the Intellectual History of Tort Law David W. Leebron Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation David W. Leebron, The Right to Privacy's Place in the Intellectual History of Tort Law, 41 Case W. Rsrv. L. Rev. 769 (1991) Available at: https://scholarlycommons.law.case.edu/caselrev/vol41/iss3/11 This Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE RIGHT TO PRIVACY'S PLACE IN THE INTELLECTUAL HISTORY OF TORT LAW David W Leebron* FEW DOCTRINAL INNOVATIONS in the history of the common law can be precisely dated.1 However, as suggested by this symposium, the right to privacy is commonly dated2 to the publication of Warren and Brandeis's article, The Right to Pri- vacy 3 Yet one hundred years later there remain many questions regarding the legal status of privacy What was the conceptual basis of the right to privacy 9 What was its theoretical and histori- cal pedigree? And what was its destiny 9 This essay seeks to provide an answer to some of these ques- tions from one particular perspective, that of tort theory After all, what presumably has made the article so influential, so deserving of a centenary, is that it created a new tort.
    [Show full text]
  • Rylands V Fletcher
    1868 WL 9885 Page 1 (1868) L.R. 3 H.L. 330 (1868) L.R. 3 H.L. 330 © 2010 Sweet & Maxwell Rylands v Fletcher Also known as: Fletcher v Rylands House of Lords 17 July 1868 Case Analysis Where Reported (1868) L.R. 3 H.L. 330; Case Digest Subject: Real property Keywords: Causes of action, Damage, Land drainage, Mines, Neighbouring land, Negligence Abstract: Judges: Lord Cairns, L.C.Cairns, Lord, LC Appellate History affirming (1868) L.R. 3 H.L. 330 reversing (1865-66) L.R. 1 Ex. 265; [1865-66] All E.R. Rep. 1; (1866) 4 Hurl. & C. 263 159 E.R. 737; (1865) 3 Hurl. & C. 774 Related Cases Significant Cases Cited St Helens Smelting Co v Tipping 11 E.R. 1483; (1865) 11 H.L. Cas. 642 HL Allen v Hayward © 2010 Thomson Reuters. 1868 WL 9885 Page 2 (1868) L.R. 3 H.L. 330 (1868) L.R. 3 H.L. 330 115 E.R. 749; (1845) 7 Q.B. 960 QB In re Williams v Groucott 122 E.R. 416; (1863) 4 B. & S. 149 KB Smith v Kenrick 137 E.R. 205; (1849) 7 C.B. 515 QB Imperial Gas Light and Coke Co v Broadbent 11 E.R. 239; (1859) 7 H.L. Cas. 600 QB Bamford v Turnley 122 E.R. 25; (1860) 3 B. & S. 62 KB Pickard v Smith 142 E.R. 535; (1861) 10 C.B. N.S. 470 CCP Chadwick v Trower 133 E.R. 1; (1839) 6 Bing. N.C. 1 CCP Sutton v Clarke 128 E.R.
    [Show full text]
  • Holding Compromised Internet Platforms Strictly Liable Under the Doctrine of Abnormally Dangerous Activities
    NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY Volume 22 Issue 2 Article 6 12-1-2020 Too Dangerous to Exist: Holding Compromised Internet Platforms Strictly Liable Under the Doctrine of Abnormally Dangerous Activities Jordan Glassman Follow this and additional works at: https://scholarship.law.unc.edu/ncjolt Part of the Law Commons Recommended Citation Jordan Glassman, Too Dangerous to Exist: Holding Compromised Internet Platforms Strictly Liable Under the Doctrine of Abnormally Dangerous Activities, 22 N.C. J.L. & TECH. 293 (2020). Available at: https://scholarship.law.unc.edu/ncjolt/vol22/iss2/6 This Article is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina Journal of Law & Technology by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact [email protected]. NORTH CAROLINA JOURNAL OF LAW & TECHNOLOGY VOLUME 22, ISSUE 2: DECEMBER 2020 TOO DANGEROUS TO EXIST : HOLDING COMPROMISED INTERNET PLATFORMS STRICTLY LIABLE UNDER THE DOCTRINE OF ABNORMALLY DANGEROUS ACTIVITIES Jordan Glassman * In July 2020, the Twitter accounts of several prominent public figures were compromised. The maximally high profile of these targets raises the possibility of severe physical, or, more likely, economic damages from the fallout of these security failures. Because compromises of this type are foreseeable and inevitable in the context of software security, and because there is no feasible avenue for seeking damages for the resulting purely economic losses, a new scheme for relief is needed. This Article proposes that the doctrine of strict liability for abnormally dangerous activities be applied to internet platforms whose inevitable compromises are situated to proximately cause catastrophic economic damages.
    [Show full text]
  • Recovering Rylands: an Essay for Robert Rabin
    DePaul Law Review Volume 61 Issue 2 Winter 2012: Symposium - Festschrift Article 10 for Robert Rabin Recovering Rylands: An Essay for Robert Rabin Gregory C. Keating Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Gregory C. Keating, Recovering Rylands: An Essay for Robert Rabin, 61 DePaul L. Rev. 543 (2012) Available at: https://via.library.depaul.edu/law-review/vol61/iss2/10 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. RECOVERING RYLANDS: AN ESSAY FOR ROBERT RABIN Gregory C. Keating* INTRODUCTION Professor Robert Rabin's discussion of Rylands v. Fletcher appears as something of an aside in a lovely and influential article on the rise of fault liability. That article-The Historical Development of the Fault Principle:A Reinterpretation'-isone among a number of influ- ential, widely admired papers that Rabin has written on central topics in the law of torts.2 This Festschrift has provided the pleasurable op- portunity to revisit several of these papers and to discover that they are even richer and more instructive than I remembered. We-or at least I-remember important papers by recalling their fundamental claims and insights. There is much to be said for this form of mental indexing, but one of its costs is forgetting the enormous richness of genuinely distinguished papers. The best papers resist reduction even to their general lessons.
    [Show full text]
  • Winfield Tort
    WINFIELD ON TORT EIGHTH EDITION BY J. A. JOLOWICZ, M.A. Of the Inner Temple and Gray's Inn, Barrister-at-Law; Fellow of Trinity College, Cambridge; Lecturer in Law of the University of Cambridge AND T. ELLIS LEWIS, B.A., LL.M., PH.D. Of Gray's Inn, Barrister-at-Law; Fellow of Trinity Hall, Cambridge; Lecturer in Law in the University of Cambridge LONDON SWEET & MAXWELL 4967 CONTENTS page Preface vii Table of Cases xiii Table of Statutes xlvii References to Year Books lv 1. MEANING OF THE LAW OF TORT 1 The Foundation of Tortious Liability .... 10 2. GENERAL CHARACTERISTICS OF TORTIOUS LIABILITY . 14 Act or Omission 16 Intention or Negligence or the Breach of a Strict Duty . 16 Motive and Malice 20 3. NOMINATE TORTS 24 4. TRESPASS TO THE PERSON . .27 Assault and Battery 27 False Imprisonment 32 Intentional Physical Harm other than Trespasses to the Person 40 5. NEGLIGENCE 42 Essentials of Negligence 42 Trespass to the Person and Negligence .... 76 6. REMOTENESS OF DAMAGE AND CONTRIBUTORY NEGLIGENCE . 80 Remoteness of Damage 80 Contributory Negligence 102 7. NERVOUS SHOCK 118 8. BREACH OF STATUTORY DUTY 128 The Existence of Liability 128 Elements of the Tort 134 Defences 138 Nature of the Action 140 9. EMPLOYERS' LIABILITY 143 Introductory 143 Common Law 147 Breach of Statutory Duty 158 Employers' Liability 164 10. LIABILITY FOR LAND AND STRUCTURES . .168 Introduction 168 The Common Law 169 The Occupiers' Liability Act 1957 177 ix X CONTENTS 10. LIABILITY FOR LAND AND STRUCTURES—continued Liability to Trespassers 192 Liability to Children 199 Liability of Non-Occupiers 207 11.
    [Show full text]
  • The Law Commission
    THE LAW COMMISSION CIVIL LIABILITY FOR ANIMALS Laid before Parliament by the Lord High Chancellor pursuant to section 3(2) of the Law Commissions Act 1965 LONDON HER MAJESTY’S STATIONERY OFFICE PRICE 5s. 6d. NET LAW COM. No. 13 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commis- sioners are- The Honourable Mr. Justice Scarman, O.B.E., Chairman. Mr. L. C. B. Gower, M.B.E. Mr. Neil Lawson, Q.C. Mr. N. S. Marsh, Q.C. Mr. Andrew Martin, Q.C. Mr. Arthur Stapleton Cotton is a special consultant to the Commission. The Secretary of the Commission is Mr. H. Boggis-Rolfe, C.B.E., and its offices are at Lacon House, Theobald’s Road, London, W.C.l. 2 CONTENTS Page A. Introduction . 5 B. The General Principles of Liability . 6 (a) Strict Liability for Dangerous Animals . 6 (b) Suggestions for the Refom of Strict Liability for Dangerous Animals . 8 (c) Recommendations of the Law Commission on Strict Liability for Dangerous Animals . 10 (d)The General Liability for Negligence . 16 (e) The Searle v. Wallbanlc Exception to Liability for Negligence 17 (f)Trespassers and Liability for Negligence in respect of Animals . 26 (g) Summary of Recommendations regarding Liability for Negligence . 27 C. Liability for Cattle Trespass . 27 D. DistressDamageFeasant . , . 30 E. The Dogs Acts 1906 to 1928 . 32 F. The Person Liable for Injury or Damage inflicted by Animals . 33 G. The Protection of Livestock against Dogs . 35 H.
    [Show full text]
  • Ruminations on the Role of Fault in the History of the Common Law of Torts Wex S
    Louisiana Law Review Volume 31 | Number 1 December 1970 Ruminations on the Role of Fault in the History of the Common Law of Torts Wex S. Malone Repository Citation Wex S. Malone, Ruminations on the Role of Fault in the History of the Common Law of Torts, 31 La. L. Rev. (1970) Available at: https://digitalcommons.law.lsu.edu/lalrev/vol31/iss1/4 This Article is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusion in Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact [email protected]. RUMINATIONS ON THE ROLE OF FAULT IN THE HISTORY OF THE COMMON LAW OF TORTS* Wex S. Malone** Any attempt to assign negligence its proper role in the his- tory of tort law must be deferred until a determination of the role that fault in any of its varieties played in early law. Even this deferment does not lead us back far enough, for we must also ask whether we can isolate a distinct role for tort law itself in the dawn of the history of the common law. The answer here must be clearly, No, if by "torts" we mean some sort of organized scheme for determining when and under what conditions the monetary costs of a harm suffered by one person should be shifted to the shoulders of another by means of some authori- tative order. The very prospect of a civil suit for damages pre- supposes a sophistication that simply did not exist in the earliest half-organized legal societies.
    [Show full text]
  • Fletcher V. Rylands a Reexamination of Juristic Origins*
    FLETCHER V. RYLANDS A REEXAMINATION OF JURISTIC ORIGINS* ROBERT TtomAs MOLLOYt The person who wrote that the human being lets himself be guided by self-interest alone stated a general maxim that is almost entirely devoid of practical value..... -GAETANO MoscAt I HE long-continued fascination of the legal mind with attempts Tto determine the "law behind the law" has recently been quick- ened with the current general revival of interest in matters juris- prudential., The sociological factors conditioning the formulation of legal doctrines, together with the personality traits that shape judicial behavior, when studied in relation to their institutional context in the general cli- mate of opinion of the particular age, are generally recognized as the ele- ments to be looked to for a genuine understanding of the basis of legal decision. In view, therefore, of this consensus, a reexamination of the three cele- brated decisions 2 arising out of the controversy between Thomas Fletcher, John Rylands, and the latter's little known co-defendant, Jehu Horrocks, may be quite in order. For although these decisions have for years been subjected to analysis from many angles, Professor Bohlen is the only writer who has seriously attempted to explain why the case was decided * The writer wishes to express his appreciation to Professors Walton H. Hamilton, Myres S. McDougal, and Harry Shulman of Yale Law School for their generous help in the preparation of this article. f Member of the New York Bar in service with the United States Coast Guard. Mosca, The Ruling Class I4 (Kahn's trans. 1939).
    [Show full text]
  • 1 the FAILURE of UNIVERSAL THEORIES of TORT LAW James
    THE FAILURE OF UNIVERSAL THEORIES OF TORT LAW James Goudkamp* and John Murphy** Many scholars have offered theories that purport to explain the whole of the law of torts. At least some of these theories do not seem to be specific to a single jurisdiction. Several appear to endeavour to account for tort law in at least the major common law jurisdictions, or even throughout the common law world. These include Ernest Weinrib’s corrective justice theory, Robert Stevens’s rights theory, and Richard Posner’s economic theory. This article begins by explaining why it is appropriate to understand these three theories as universal theories of tort law, which is an important feature of these theories that has not hitherto been properly appreciated. This explanation draws upon various overt claims (or other strong intimations) made by the theorists themselves to the effect that this is how their respective accounts should be understood. The article then proceeds to test these theories, all of which are leading accounts of tort law, against the evidence in Australia, Canada, the United Kingdom and the United States. Not all of these theories have received a proper airing in these major common law jurisdictions, which is a gap in the literature that this article seeks to fill. The parts of tort law on which we focus are (1) the breach element of the action in negligence, (2) the law that determines when a duty of care will be owed in respect of pure economic * Fellow, Keble College, Oxford; Associate Professor, Oxford Law Faculty; Academic Fellow, Inner Temple; Senior Honorary Research Fellow, Faculty of Law, University of Western Australia, Honorary Principal Fellow, School of Law, University of Wollongong, barrister, 7 King’s Bench Walk.
    [Show full text]