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Bursting Reservoirs and the Adoption of Fletcher V. Rylands in the Gilded Age

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Bursting Reservoirs and the Adoption of Fletcher V. Rylands in the Gilded Age SHUGERMANFINAL.DOC NOVEMBER 8, 2000 11/8/00 6:08 PM Note The Floodgates of Strict Liability: Bursting Reservoirs and the Adoption of Fletcher v. Rylands in the Gilded Age Jed Handelsman Shugerman In the standard historical interpretation of American tort law, the era of laissez-faire and pro-industry fault liability dominated the nineteenth and early twentieth centuries,1 and the mid-twentieth century marked the gradual rise of strict liability.2 Scholars and judges presenting this narrative have focused on the reception of Fletcher v. Rylands,3 an English case from the 1860s in which a reservoir used for supplying water power to a textile mill burst into a neighbor’s underground mine shafts. In one of the most significant and controversial precedents in the strict liability canon,4 the 1.E.g., LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW, 409-27 (1973); MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 85-108 (1977); BERNARD SCHWARTZ, THE LAW IN AMERICA 55-59 (1974); G. EDWARD WHITE, TORT LAW IN AMERICA 3-19 (1980); Guido Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 YALE L.J. 499, 515-17 (1961); Albert A. Ehrenzweig, Negligence Without Fault, 54 CAL. L. REV. 1422, 1425-43 (1966); Charles O. Gregory, Trespass to Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951); A.W.B. Simpson, Legal Liability for Bursting Reservoirs: The Historical Context of Rylands v. Fletcher, 13 J. LEGAL STUD. 209, 209, 214-16 (1984); cf. Richard A. Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29 (1972) (examining the era of fault and arguing that fault prevailed as the most economically efficient doctrine). Contra Robert L. Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA. L. REV. 925, 927 (1981); Gary T. Schwartz, Tort Law and the Economy in Nineteenth-Century America: A Reinterpretation, 90 YALE L.J. 1717, 1720 (1981). 2.See Gregory, supra note 1; William K. Jones, Strict Liability for Hazardous Enterprise, 92 COLUM. L. REV. 1705, 1706-11 (1992); Virginia E. Nolan & Edmund Ursin, The Revitalization of Hazardous Activity Strict Liability, 65 N.C. L. REV. 257 (1987); Rabin, supra note 1, at 961. 3. 159 Eng. Rep. 737 (Ex. 1865), rev’d, 1 L.R.-Ex. 265 (Ex. Ch. 1866), aff’d, 3 L.R.-E & I. App. 330 (H.L. 1868). 4.See WILLIAM PROSSER, The Principle of Rylands v. Fletcher, in SELECTED TOPICS ON THE LAW OF TORTS 135, 135 (1953). 333 SHUGERMANFINAL.DOC NOVEMBER 8, 2000 11/8/00 6:08 PM 334 The Yale Law Journal [Vol. 110: 333 English courts held that proof of negligence was not required for “ non- natural” or potentially “ mischievous” activities.5 Scholars point to a series of decisions rejecting Rylands to conclude that American courts adhered to the fault doctrine and repudiated strict liability in the late nineteenth century, and the consensus has been that Rylands was not accepted until the mid-twentieth century.6 Many prominent works on American legal history feature this supposed rejection of Rylands as a centerpiece for their historical claims about the dominance of the fault doctrine as a subsidy for emerging industry.7 In fact, a significant majority of the states actually accepted Rylands in the late nineteenth and early twentieth centuries, at the height of the “ era of fault.” While New York’s highest court famously declared, in Ives v. South Buffalo Railway8 in 1911, that due process of law categorically required proof of fault, courts around the country had been applying Rylands over the previous three decades. A few states split on the validity of Rylands in the 1870s, but a wave of states from the mid-1880s to the early 1910s adopted Rylands, with fifteen states and the District of Columbia solidly accepting Rylands, nine more leaning toward Rylands or its rule, five states wavering, and only three states consistently rejecting it.9 Just after the turn 5. Fletcher v. Rylands, 1 L.R.-Ex. 265, 279-80 (Ex. Ch. 1866); Rylands v. Fletcher, 3 L.R.- E. & I. App. 330, 338-39 (H.L. 1868). 6.Infra Section I.B. 7. FRIEDMAN, supra note 1; HORWITZ, supra note 1; SCHWARTZ, supra note 1; WHITE, supra note 1; see also RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 134-36 (1995). 8. 94 N.E. 431 (N.Y. 1911). 9. See infra Section I.D. The criterion in this Note for defining a state’s adoption of Rylands is the existance of an approving citation relating to its strict liability rule, without accompanying comments about the fact that states generally disapprove of Rylands, and without a subsequent case doubting Rylands (in the relevant time period). The standard for rejection is an explicit statement rejecting Rylands’s rule itself or declaring that most American states have not adopted it. States that adopted a rule similar to Rylands (finding strict liability for an activity because it is “ non-natural” or “ artificial” ) or generally approved of Rylands, despite a case or two rejecting it, are considered to be “ leaning.” States that vacillated between accepting and rejecting Rylands for a significant part of the relevant time period are categorized as wavering. This Note’s criterion for acceptance is slightly stricter than William Prosser’s implicit standard in The Principle of Rylands v. Fletcher, the only other work to assess thoroughly Rylands’s acceptance nationwide. PROSSER, supra note 4. For example, Prosser listed Missouri as accepting Rylands, based upon French v. Center Creek Powder Manufacturing, 158 S.W. 723 (Mo. Ct. App. 1913). PROSSER, supra note 4, at 153. However, after the Missouri Supreme Court adopted Rylands in Mathews v. St. Louis & San Francisco Railway, 24 S.W. 591 (Mo. 1893), a lower court temporarily rejected it in Murphy v. Gillum, 73 Mo. App. 487, 492-93 (Mo. Ct. App. 1898), and the state supreme court expressed some doubt in Gannon v. Laclede Gaslight, 47 S.W. 907, 912 (Mo. 1898) (declining to apply Rylands to electricity and noting that Rylands “has not met with approval in all American jurisdictions” ). Thus, this Note categorizes Missouri as “ wavering” over this period. Two more examples are Colorado and West Virginia, which Prosser counts as “ accepting.” PROSSER, supra note 4. Because of other cases in this time period that were critical of Rylands, this Note categorizes Colorado as “ leaning,” infra note 70, and West Virginia as “ wavering,” infra note 88. One final example is Iowa. Prosser characterized Healey v. Citizens’ Gas & Electric Co., 201 N.W. 118 (Iowa 1924), as adopting Rylands. Because this case also discussed several other cases questioning or rejecting Rylands, however, this Note considers Healey as only “ leaning” toward Rylands. However, Iowa had adopted Rylands in 1886 in SHUGERMANFINAL.DOC NOVEMBER 8, 2000 11/8/00 6:08 PM 2000] The Floodgates of Strict Liability 335 of the century, the California Supreme Court declared, more correctly than not, that “ [t]he American authorities, with hardly an exception, follow the doctrine laid down in the courts of England [in Rylands].” 10 In the following years, some states shifted against Rylands, but an equivalent number of new states also adopted Rylands.11 Accordingly, a strong majority of states has consistently recognized this precedent for strict liability from about 1890 to the present. In addition to presenting the new evidence about Rylands’s adoption, this Note also explores the various factors influencing the adoption: broad social changes, economic patterns, political shifts, and a series of reservoir accidents and floods. While urbanization, economics, and politics played a role, this Note concludes that a series of tragic dam failures, particularly the Johnstown Flood of 1889, was the most direct and substantial cause. By focusing on particular disasters, this account seeks to challenge the previous assumptions that either long-term socioeconomic forces or academic and political elites primarily caused Rylands’s adoption in the mid-twentieth century. Part I presents an overview of Rylands v. Fletcher and then discusses the phases of the American response: the initial acceptance; the Northeastern rejections in the 1870s, which have been the basis for the erroneous scholarly conclusions; and the overlooked tide of acceptances across the country, beginning in the late 1880s and increasing in the 1890s. Part II places this wave of acceptance in its historical context of changing social forces, although these brief sketches are not the primary emphasis of this Note. First, during a period of rapid urbanization, a small number of courts sought to protect residential areas against the risks of industrialization.12 Second, courts adopted or rejected Rylands partially in response to business cycles: The phase of rejections in the 1870s loosely corresponded to the depression of the 1870s, when courts would have been most eager to subsidize industry, and the subsequent industrial boom in the 1880s and early 1890s corresponded with the wave of acceptances.13 However, this economic link is undermined by a closer examination of the Phillips v. Waterhouse, 28 N.W. 539 (Iowa 1886), and thus, for the period studied by this Note, Iowa qualifies as “ accepting.” This Note’s criterion for rejection is about the same as Prosser’s, but this Note’s two middle categories attempt to offer a clearer and more nuanced perspective. A mere recognition of nuisance is not enough to qualify as “ leaning toward Rylands,” but a case that explicitly targets “ artificial” or “ non-natural” uses as the cause of the nuisance can fall under the Rylands doctrine, depending on the court’s language. This Note provides a fuller explanation of why particular states are leaning or wavering.
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