Cases and Materials on Torts

Cases and Materials on Torts

Description

The fifth edition of this casebook appears 6 years after the fourth edition and some 31 years after the publication of the original Gregory and Kalven casebook. That period of over three decades has been marked by both continuity and change in the law. Five, perhaps even three years ago, these changes tended to be largely in one direction. With the exception of the law of defamation and privacy, tort lability had been expanding on all fronts. Today, however, the picture is far more clouded. In the traditional areas of physical injuries tort liability appears to have reached its high water mark, and in some jurisdictions—surely California and perhaps New York—the tides seem to be receding. Ironically, at the same time the law of defamation seems to have expanded, if not doctrinally, then surely in the frequency and intensity of suits. In the midst of these ebbs and flows in tort lability, certain questions have remained with us in more or less the same form in which they were faced by the earliest of common-law lawyers. The tension between the principles of negligence and strict lability in stranger cases surely falls into this class. The debates framed in the nineteenth-century cases have largely dictated the subsequent analysis. Yet in other areas we have witnessed major transformations both in the types of cases brought to litigate and in the choice of legal theories used to decide them. In 1959 the paradigm tort action was still the automobile collision. Torts against institutional defendants—products liability and medical malpractice cases most readily leap to mind—were, when viewed with the benefit of hindsight, still in their infancy, while mass torts and toxic torts (the two often go together) still lay in the future. The emergence of new types of litigation has taken its toll on traditional tort theory. The question of “proximate cause”—could this remote consequence be properly attributed to the wrongful conduct of the defendant?—was the dominant issue of causation in 1959 and the major source of contention among academic writers. That is no longer true today. Increasingly, modern tort litigation concentrates on the difficult questions of evidence and statistics necessary to establish the factual connection between, say, the defendant’s drug or waste discharge and the medical injuries of the plaintiff. These shifts in emphasis are duly take into account in this edition. Notwithstanding the enormous substantive changes, the education aims of this casebook are much the same as those of the previous four editions. The primary goal remains one of giving to the student an accurate sense of the current legal position in this, one of the most active and important branches of the law. But this casebook would fail in its essential mission unless it accomplished two other tasks. First, it should provide the student with an opportunity to examine the processes of legal method and legal reasoning. Second, it should give the student some sense of the different systematic and intellectual approaches that have been taken to the law of torts over the years. The importance of method cannot be underestimated in legal education. A casebook—certainly this casebook—is not a reference book, much less a treatise. The standard legal curriculum, of necessity, touches on only a tiny fraction of the huge and every-growing body of substantive rules, and even many of those will change with time. The education of the lawyer of the future therefore rests on an ability to deal with a mass of legal materials, to identify the underlying assumptions, to determine possible implications for analogous cases, and, above all, to deal with the persistent uncertainty, ambiguity, and at time downright confusion in the law. To help with these tasks it is essential to deal with the development of a legal principle over time, through a line of cases that illustrates its application and tests its limits. To that end this casebook contains many cases from the nineteenth century and before, even some that have long ceased to represent current law. Likewise, in order to capture the nature of legal debate, in many principal cases I have reprinted not only the opinion of the court but those of concurring or dissenting judges. With Fletcher v. Rylands, at page 85, infra, for example, five separate opinions from three different courts are reproduced, because each adds something to the total picture. A sound legal education requires more than attention to analytical skills. The law of torts in particular is one of the richest bodies of law, and it has been examined and explored from historical and philosophical perspectives not only by the common-law judges, but also by generations of academic writers. It is essential for all students to gain some sense of the diverse possible approaches to tort law, lest the constant probings of the Socratic method lead to an unhappy intellectual nihilism. The materials selected are designed, wherever possible, to allow torts to be confronted not only as a collection of discrete rules but also as a systematic intellectual discipline. There is in the tort law today fundamental disagreement about the proper orientation toward its subject matter and about the proper choice of its key substantive rule. Speaking first to the question of general orientation, it is possible to identify three major positions. The traditional view—largely unchallenged until recent years—was to look at the law of torts as a study in corrective justice, as an effort to develop a coherent set of principles to decide whether this plaintiff was entitled to compensation from this defendant as a matter of fairness between the parties. Issues of public policy and social control were of course not absent, but they did not dominate judicial or academic attitude toward either particular cases or general theory. Today the traditional approach is under attack from two flanks. On the one hand there is renewed insistence, which today is often expressly articulated in the cases, that the compensation of injured parties is in itself a valid end of the tort law and that the doctrines of tort law that frustrate that objective must be hedged about with limitations or totally eliminated unless strong justification is given for their retention. The older presumption that the plaintiff had to show “good cause” t hold a defendant liable—roughly speaking—has yielded in some quarters to a new presumption that requires the defendant to show why, with harm and causal connection established, liability should nonetheless not follow. That shift in presumptions, if accepted, has two major implications. First, the class of “inevitable accidents” that tended to fall outside the trot law under the older view is more likely to be brought within it under the new. The defendant charged with tort liability, it is said, can shift the loss to society at or by spreading the risk by way of liability insurance. Second, defenses based on plaintiff’s conduct—notable contributory negligence and assumption of risk—will receive a narrower interpretation and may serve not to bar but only to reduce the level of the plaintiff’s recovery. The second critique of the traditional approach comes from a different quarter, that of economic theory. Looking first at the tort law as a system of social control, advocates of the economic approach have generally argued that the proper function of the tort law is to lay down workable liability rules to create incentive for both individuals and firms to minimize (the sum of) the costs of accidents and the costs of their prevention. In this view of the subject, the compensation of individual parties is not an end in itself, but only a means to enlist private parties to help police, by private action, the harmful activities of others. The economic approach tends to downplay the importance of corrective justice in the individual case and compensation for individual victims of accidents, treating the first as largely incomprehensible and the second as better achieved through voluntary insurance arrangements. Until very recently its importance was largely academic, but today its influence is increasing in the decided cases. The diversity of opinions on the proper approach to the tort law carries over to disputes about the proper substantive basis of tortious liability. From the earliest times until today courts have entertained three main theories—each subject to many variants—for recovery in tort. There is, first, recovery for harms intentionally inflicted by defendant on plaintiff. Second, there is recovery for harms negligently—through the want of reasonable or ordinary care—inflicted on the plaintiff. Last, there is recovery under a theory of strict liability, this is, for harms inflicted on the plaintiff by a defendant who acts without negligence and without any intention to harm.

Publication Date

1990

Edition

5

Cases and Materials on Torts

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