Cases and Materials on Torts

Cases and Materials on Torts

Description

The fourth edition of this casebook follows by seven years the publication of the third edition, and its appearance marks the 25th year that the book has been used in first year tort classes throughout the nation. That 25 year period has been one of both continuity and change. Many of the traditional problems in the law of tort remain with us in the form in which they were first encountered by early common law lawyers. Yet in other areas we have witnessed major transformations in both the types of cases brought to litigation 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—when viewed with the benefit of hindsight, can now be said to have been still in their infancy, while mass actions, such as those involved in the so-called toxic torts lay wholly in the future. Even since 1977 the movement of events has been at a pace that called for substantial revision of the previous edition in order to keep the book suitable for contemporary use. The aims of this casebook are much the same as those of the three previous 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 ever 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 times 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 it limits. To that end this casebook contains many cases from the nineteenth century and before, even those which have long ceased to represent the current law. Likewise, in order to capture the nature of legal debate, in many principal cases we have reprinted not only the opinion of the court but that of concurring or dissenting judges. With Rylands v. Fletcher, at page 89, 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 rules. Speaking first to the question of general orientation, it is possible to identify there 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 attitudes either to particular cases or to 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” to hold a defendant liable is—crudely speaking—yielding today to a newer presumption that requires the defendant to show why, with harm established, liability should not follow. The major implications of the shift in presumptions are two. Where it was once the dominant sense of the common law that losses from “inevitable accidents” were outside the tort law, toady the view is increasingly that these losses should be shifted by the law first to some particular defendant, and then by use of market mechanisms throughout the society at large. Secondly, defenses based upon plaintiff’s conduct—notable contributory negligence and assumption of risk—have received narrower interpretations in recent years, and by degrees may yet be removed from the substantive law. 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 incentives 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 upon 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 upon plaintiff. Second, there is recovery for harms negligently—through the want of reasonable or ordinary care—inflicted upon the plaintiff. Lastly, there is recovery under a theory of strict liability, that is, for harms inflicted upon the plaintiff by a defendant who acts without negligence and without any intention to harm. In dealing with these theories it is important to keep in mind several important themes that reassert themselves throughout the law of torts. One set of issues concerns the relationships between the general approach to the law of torts and the choice of specific theories of liability in particular cases. To illustrate: when does concern for corrective justice require the use of a strict liability principle, a negligence principle, or an intentional tort principle? What about theories based upon the need for individual compensation, or upon the importance of the tort law as a means of minimizing accident costs by channeling scarce resources to their most efficient use? Second, it is important to ask what limitations upon recovery are consistent with the basic theories of liability, and with their basic orientation to subject matter. In this connection it is important to ask the extent to which a plaintiff who otherwise makes out a good cause of action should be denied recovery because of, to use the standard classification, his own conduct—be it called contributory negligence or assumption of risk—the conduct of a third party, or an act of God. Finally, it is crucial to consider what might conveniently be termed the “boundary” questions in the law of torts. As stated, any of the three theories of liability—strict liability, negligence liability or liability for intentional harms—could apply to any case involving harm. Why is it, no matter what general orientation is adopted, that one theory is chose for one particular case, while another theory is chosen for another?

Publication Date

1984

Edition

4

Cases and Materials on Torts

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