3 Liability for Unintentional Harms: Strict Liability versus Negligence 3 Liability for Unintentional Harms: Strict Liability versus Negligence
3.1 Introduction to Part III 3.1 Introduction to Part III
Despite a smattering of older cases such as those in Section A above, the modern law of unintentional torts is quite new. Scholars trace it back to the middle of the nineteenth century, when a confluence of developments gave rise to something recognizable as modern tort law. Industrialization produced a sharp increase in the sheer number of accidental injuries and deaths. The demise of the writ system and the abolition of the old common law forms of action gave rise to substantive conceptual categories for the law, such that for the first time law book publishers issued treatises on tort law. Equally important, the rise of a market economy characterized by male wage earners supporting families of dependent women and children gave rise to new pressure for wage replacement when wage earners were injured or killed. See generally John Fabian Witt, The Accidental Republic (2004).
Just as modern tort law was beginning to emerge, an influential judge in Massachusetts weighed in on the question that had animated the smattering of English cases since The Case of the Thorns: when is a defendant obligated to compensate a plaintiff for unintentionally inflicted harm? Strangely enough, the question would arise in a case that had nothing to do with the industrial revolution or the kinds of wage work that seemed to have occasioned the new law of torts. To the contrary, the case involved the kind of simple problem that torts jurists had posed as hypotheticals for centuries.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
3.2 Brown v. Kendall 3.2 Brown v. Kendall
George Brown vs. George K. Kendall.
The defendant, having interfered to part his dog and the plaintiff’s, which were fighting, in raising his stick for that purpose, accidentally struck the plaintiff and injured him. In an action of trespass for the assault and battery, it was held, that the parting of the dogs was a lawful and proper act, which the defendant might do by the use of proper and safe means; and that if in so doing, and while using due care, and taking all proper precautions, necessary to the exigency of the case, to avoid hurt to others, the injury to the plaintiff occurred, the defendant was not liable therefor; and that the burden of proof was' on the plaintiff to establish the want of due care on the part of the defendant. It was held, also, that if, at the time of the injury, both the plaintiff and defendant were not using ordinary care, the plaintiff could not recover, without showing that the damage was caused wholly by the act of the defendant, and that the plaintiff’s own negligence did not contribute as an efficient cause to produce it.
This was an action of trespass for assault and battery, originally commenced against George IL Kendall, the defendant, who died pending the suit, and his executrix was summoned in.
It appeared in evidence, on the trial, which was before Wells. C. J., in the court of common pleas, that two dogs, belonging to the plaintiff and the defendant, respectively, were fig.iting in the presence of their masters; that the defendant took a stick about four feet long, and commenced beating the dogs in order to separate them; that the plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The defendant retreated backwards from before the dogs, striking them as he retreated ; and as he approached the plaintiff, with *293Ills back towards him, in raising his stick over his shoulder, in order to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.
Whether it was necessary or proper for the defendant to interfere in the fight between the dogs; whether the interference, if called for, was in a proper manner, and what degree of care was exercised by each party on the occasion; were the subject of controversy between the parties, upon all the evidence in the case, of which the foregoing is an outline.
The defendant requested the judge to instruct the jury, that “if both the plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care and the plaintiff was not, or if at that time both plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.”
The defendant further. requested the judge to instruct the jury, that, “under the circumstances, if the plaintiff was using ordinary care and the defendant was not, the plaintiff could not recover, and that the burden of proof on all these propositions was on the plaintiff.”
The judge declined to give the instructions, as above requested, but left the case to the jury under the following instructions : “ If the defendant, in beating the dogs, was doing a necessary act, or one which it was his duty under the circumstances of the case to do, and was doing it in a proper way; then he was not responsible in this action, provided he was using ordinary care at the time of the blow. If it was not a necessary act; if he was not in duty bound to attempt to part the dogs, but might with propriety interfere or not as he chose; the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word inevitable not in a strict but a popular sense.”
“ If, however, the plaintiff, when he met with the injury, was not in the exercise of ordinary care, he cannot recover, and this rule applies, whether the interference of the defendant in the fight of the dogs was necessary or not. If the jury believe, that it was the duty of the defendant to interfere, then the *294burden of proving negligence on the part of the defendant, and ordinary care on the part of the plaintiff, is on the plaintiff. If the jury believe, that the act of interference in the fight was unnecessary, then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of the plaintiff, is on defendant.”
The jury under these instructions returned a verdict for the plaintiff; whereupon the defendant alleged exceptions.
This case was argued at the sittings in Boston, in January last, by J. G. Abbott, for the defendant, and by B. F. Butler and A. W. Farr, for the plaintiff.
This is an action of trespass, vi et armis, brought by George Brown against George K. Kendall, for an assault and battery; and the original defendant having died pending the action, his executrix has been summoned in. The rule of the common law, by which this action would abate by the death of either party, is reversed in this commonwealth by statute, which provides that actions of trespass for assault and battery shall survive. Rev. Sts. c. 93, § 7.
The facts set forth in the bill of exceptions preclude the supposition, that the blow, inflicted by the hand of the defend • ant upon the person of the plaintiff, was intentional. Thu whole case proceeds on the assumption, that the damage sus - tained by the plaintiff, from the stick held by the defendant, was inadvertent and unintentional; and the case involves the question how far, and under what qualifications, the party by whose unconscious act the damage was done is responsible for it. We use the term “unintentional” rather than involuntary, because in some of the cases, it is stated, that the act of holding and using a weapon or instrument, the movement of which is the immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and hurting another is not within the purpose or intention of the party doing the act.
It appears to us, that some of the confusion in the cases on this subject has grown out of the long-vexed question, under the rule of the common law, whether a party’s remedy, where he has one, should be sought in an action of the case, or of *295trespass. This is very distinguishable from the question, whether in a given case, any action will lie. The result of these cases is, that if the damage complained of is the immediate effect of the act of the defendant, trespass vi et armis lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East, 593; Hugget v. Montgomery, 2 N. R. 446, Day’s Ed. and notes.
In these discussions, it is frequently stated by judges, that when one receives injury from the direct act of another, trespass will lie. But we think this is said in reference to the question, whether trespass and not case will lie, assuming that the facts are such, that some action will lie. These dicta are no authority, we think, for holding, that damage received by a direct act of force from another will be sufficient to maintain an action of trespass, whether the act was lawful or unlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame v. Bray, the damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark night, which was clearly negligent if not unlawful. In the course of the argument of that case, (p. 595,) Lawrence, J., said: “ There certainly are cases in the books, where, the injury being direct and immediate, trespass has been holden to lie, though the injury was not intentional.” The term “ injury ” implies something more than damage; but, independently of that consideration, the proposition may be true, because though the injury was unintentional, the act may have been unlawful or negligent, and the cases cited by him are perfectly consistent with that supposition. So the same learned judge in the same case says, (p. 597,) “ No doubt trespass lies against one who drives a carriage against another, whether done wilfully or not.” But he immediately adds, “ Suppose one who is driving a carriage is negligently and heedlessly looking about him, without attending to the road when persons are passing, and thereby runs over a child and kills him, is it not manslaughter ? and if so, it must be trespass; for every manslaughter includes trespass; ” showing what he understood by a case not wilful.
We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf, that the plaintiff must come *296prepared with evidence to show either that the intention, was unlawful, or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the defendant was free from blame, he will not be liable. 2 Greenl. Ev. §§ 85 to 92; Wakeman v. Robinson, 1 Bing. 213. If, in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom. Davis v. Saunders, 2 Chit. R. 639 ; Com. Dig. Battery, A.(Day’s Ed.) and notes; Vincent v. Stinehour, 7 Verm. 69. In applying these rules to the present case, we can perceive no reason why the instructions asked for by the defendant ought not to have been given; to this effect, that if both plaintiff and defendant at the time of the blow were using ordinary care, or if at that time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.
In using this term, ordinary care, it may be proper to state, that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger. A man, who should have occasion to discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less circumspection and care, than if he were to do the same thing in an inhabited town, village, or city. To make an accident, or casualty, or as the law sometimes states it,' inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and degree of care necessary to the exigency, and in the circumstances in which he was placed.
We are not aware of any circumstances in this case, requiring a distinction between acts which it was lawful and proper to do, and acts of legal duty. There are cas^s, undoubtedly, in which officers are bound to act under process, for the legality of which they are not responsible, and perhaps some others in which this distinction would be important. We can have no doubt that the act of the defendant in attempting to part the *297fighting dogs, one of which was his own, and for the injurious acts of which he might be responsible, was a lawful and proper act, which he might do by proper and safe means. If, then, in doing this act, using due care and all proper precautions necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose, he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident, or was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we think the plaintiff cannot recover without showing that the damage was caused wholly by the act of the defendant, and that the plaintiff’s own negligence did not contribute as an efficient cause to produce it.
The court instructed the jury, that if it was not a necessary act, and the defendant was not in duty bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was responsible for the consequences of the blow, unless it appeared that he was in the exercise of extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular sense. This is to be taken in connection with the charge afterwards given, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as before explained, not a duty incumbent on the defendant,) then the burden of proving extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff, was on the defendant.
The court are of opinion that these directions were not conformable to law. If the act of hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a lawful act, then the defendant was not liable, unless it was done in the want of exercise of due care, adapted to the exigency of the case, and therefore such want of due care became part of the plaintiff's case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85; Powers v. Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 11 Met. 460.
Perhaps the learned judge, by the use of the term extraordinary care, in the above charge, explained as it is by the context, *298may have intended nothing more than that increased degree of care and diligence, which the exigency of particular circumstances might require, and which men of ordinary care and prudence would use under like circumstances, to guard against danger. If such was the meaning of this part of the charge, then it does not differ from our views, as above explained. But we are of opinion, that the other part of the charge, that the burden of proof was on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover, he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant; the question of due care, or want of care, may be essentially connected with the main facts, and arise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when the proof is all in, and before the jury, from whatever side it comes, and whether directly proved, or inferred from circumstances, if it appears that the defendant was doing a lawful act, and unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury, that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence, the plaintiff fails to sustain the burden of proof, and is not entitled to recover. New trial ordered
3.3 NOTES: Brown v. Kendall 3.3 NOTES: Brown v. Kendall
Note 2. Tort law as industrial subsidy?
Setting aside the problem of characterizing the holding of Brown v. Kendall, it seems clear that Shaw meant to articulate a principle for distinguishing between the plaintiff and the defendant in accident cases. The principle Shaw identified was the negligence principle. He moved the liability standard as administered by judges toward something like a negligence test, holding defendants liable only when they fail to exercise ordinary or reasonable care—that is, when they act negligently. This negligence standard generally offers a more favorable approach for defendants than a test that holds them liable even if they exercise reasonable care, but fail to take the extraordinary care on which earlier cases sometimes seemed to insist. Why would Shaw have wanted to do this?
Given the historical influence of Shaw’s opinion, a substantial literature has tried to explain Shaw’s motivations. Harvard professor Morton Horwitz controversially claimed that Shaw adopted the negligence standard to subsidize industrialization and economic growth at the expense of poor constituencies. In contrast to the stricter liability standard that preceded it, Horwitz argues, negligence immunized emerging industries from legal liability absent fault, placing more of the burden of economic growth on the weakest groups in American society: groups like farmers and workers. Morton Horwitz, The Transformation of American Law, 1780-1860 97, 99-101 (1977).
Subsequent scholars have criticized Horwitz’s thesis. Some dispute Horwitz’s characterization of mid- and late-nineteenth-century tort law as having been especially friendly to defendants. For example, Peter Karsten has argued that nineteenth-century negligence plaintiffs faced no “new ‘roadblocks and hurdles’” in collecting damages. See Peter Karsten, Heart Versus Head: Judge-Made Law in Nineteenth-Century America 80 (1997). Gary Schwartz similarly rejected Horwitz’s claim that nineteenth-century courts favored major industries. See Gary T. Schwartz, The Character of Early American Tort Law, 36 U.C.L.A. L. Rev. 641, 717 (1988); Gary T. Schwartz, Tort Law and the Economy in Nineteenth Century America: A Reinterpretation, 90 Yale L.J. 1717, 1720 (1981).
The more perceptive critique of the Horwitz view begins with the observation that before the era of Brown v. Kendall, there were remarkably few tort actions for personal injuries of any kind. For them, Brown v. Kendall is thus not a decision narrowing an earlier era of relatively liberal liability, but precisely the opposite. It is the beginning of the modern liability regime, representing the end of an era of pervasive status-based immunities from suit, and also the halting beginning of a new era of tort-based responsibility for harms. For this account, see especially Robert Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 Ga. L. Rev. 925, 961 (1981), and also Richard A. Epstein, The Historical Origins and Economic Structure of Workers’ Compensation Law, 16 Ga. L. Rev. 75 (1982), and John Fabian Witt, From Loss of Services to Loss of Support, 25 L. & Social Inquiry 717 (2000).
Scholars have also objected to one of Horwitz’s underlying premises: that private law doctrine can redistribute wealth among social groups. For example, Richard Epstein has claimed that courts and common law doctrines typically lack the institutional capacity to redistribute wealth, since (after all) all parties—including industrialists—are simultaneously prospective defendants and prospective plaintiffs. In theory, they may stand to lose as much as they gain from new common law rules favoring one side or the other. See Richard A. Epstein, The Social Consequences of Common Law Rules, 95 Harv. L. Rev. 1717, 1718 (1982). Today’s lawyer-economists thus usually argue that common law rules are highly inferior to the tax system as mechanisms for redistributing wealth. See Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient Than the Income Tax in Redistributing Income, 23 J. L. Stud. 667 (1994).
Is there any reason to think that in the real world firms or industries with deep pockets are more likely to be defendants than plaintiffs in tort litigation? It is a sociological fact that some actors are essentially not worth suing in tort: they are “judgment proof,” as the saying goes, because they lack the assets against which any tort judgment against them could be collected. Firms or industries with assets, by contrast, are judgment-worthy. They are worth suing. Note that assisting industries through the targeted manipulation of tort rules is something that policy-makers continue to do to this day. To take one recent example, several state legislatures have recently passed legislation to immunize the private space flight industry from liability. See, e.g., Colo. Rev. Stat. §§ 41-6-101(1) to (2)(a) (2014). These state immunity statutes protect and subsidize the “small but growing” private space flight industry. See Justin Silver, Note, Houston, We Have a (Liability) Problem, 112 Mich. L. Rev. 833, 838 (2014). At the federal level, to take two further examples, Congress has immunized firearm manufacturers from suits by the victims of criminal shootings, see Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2012), and vaccine manufacturers from tort actions for bad reactions to childhood vaccines, see National Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-11 (2012). These targeted, scalpel-like immunizations are considerably more precise than the blunderbuss of the general negligence standard. But they suggest that tort rules can accomplish some kinds of distributive goals, worthy or otherwise—or, at least, that lobbyists and legislatures think so. For a recent argument that the choice between private law rules or the tax system as the best vehicle for redistribution is a contextual and empirical question, see Zachary Liscow, Note, Reducing Inequality on the Cheap: When Legal Rule Design Should Include Equity as Well as Efficiency, 123 Yale L.J. 2134 (2014).
Note 3. Negligence and wrongfulness.
Are there other grounds that might have made the negligence principle appealing to Shaw? One view argues that the ordinary care standard advances the social interest, not merely the private interests of particular industries. This argument, to which we will return in Chapter 4, contends that the standard of ordinary care demands of actors only that they not engage in conduct that is, on balance, socially harmful and therefore wrongful. Another view comes from jurists who defend tort law as an institution primarily for correcting injustice or for expressing moral judgments about wrongfulness. For corrective justice theorists, tort law embodies the obligation to repair wrongful losses. For theorists who emphasize tort law’s expressive function, tort law is a crucial mechanism for signaling whose interests the community deems worthy of respect and when those interests have been wrongfully impinged upon. The negligence standard might be said to be consistent with this emphasis on wrongfulness because to act negligently is to behave wrongfully, even if not intentionally so. See Jules L. Coleman, Risks and Wrongs (1992).
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
3.4 Oliver Wendell Holmes, The Common Law 3.4 Oliver Wendell Holmes, The Common Law
The leading turn-of-the-twentieth-century jurist, and later Supreme Court justice, Oliver Wendell Holmes, Jr., organized much of the book with which he made his name around identifying a moral ground for the test that Shaw articulated in Brown v. Kendall:
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 77, 81-96 (1881)
The object of the next two Lectures is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is. . . .
[T]here are two theories of the common-law liability for unintentional harm. Both of them seem to receive the implied assent of popular textbooks, and neither of them is wanting in plausibility and the semblance of authority.
The first is that of Austin, which is essentially the theory of a criminalist. According to him, the characteristic feature of law, properly so called, is a sanction or detriment threatened and imposed by the sovereign for disobedience to the sovereign’s commands. As the greater part of the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows from this, according to the prevailing views of penal law, that such liability ought only to be based upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that negligence means a state of the party’s mind. These doctrines will be referred to later, so far as necessary.
The other theory is directly opposed to the foregoing. It seems to be adopted by some of the greatest common law authorities, and requires serious discussion before it can be set aside in favor of any third opinion which may be maintained. According to this view, broadly stated, under the common law a man acts at his peril. It may be held as a sort of set-off, that he is never liable for omissions except in consequence of some duty voluntarily undertaken. But the whole and sufficient ground for such liabilities as he does incur outside the last class is supposed to be that he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally immaterial that the detriment which followed from it was neither intended nor due to the negligence of the actor.
In order to do justice to this way of looking at the subject, we must remember that the abolition of the common-law forms of pleading has not changed the rules of substantive law. Hence, although pleaders now generally allege intent or negligence, anything which would formerly have been sufficient to charge a defendant in trespass is still sufficient, notwithstanding the fact that the ancient form of action and declaration has disappeared.
In the first place, it is said, consider generally the protection given by the law to property, both within and outside the limits of the last-named action. If a man crosses his neighbor’s boundary by however innocent a mistake, or if his cattle escape into his neighbor’s field, he is said to be liable in trespass quare clausum fregit. If an auctioneer in the most perfect good faith, and in the regular course of his business, sells goods sent to his rooms for the purpose of being sold, he may be compelled to pay their full value if a third person turns out to be the owner, although he has paid over the proceeds, and has no means of obtaining indemnity.
Now suppose that, instead of a dealing with the plaintiff’s property, the case is that force has proceeded directly from the defendant’s body to the plaintiff’s body, it is urged that, as the law cannot be less careful of the persons than of the property of its subjects, the only defences possible are similar to those which would have been open to an alleged trespass on land. You may show that there was no trespass by showing that the defendant did no act; as where he was thrown from his horse upon the plaintiff, or where a third person took his hand and struck the plaintiff with it. In such cases the defendant’s body is the passive instrument of an external force, and the bodily motion relied on by the plaintiff is not his act at all. So you may show a justification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and the defendant has voluntarily acted, he must answer for the consequences, however little intended and however unforeseen. If, for instance, being assaulted by a third person, the defendant lifted his stick and accidentally hit the plaintiff, who was standing behind him, according to this view he is liable, irrespective of any negligence toward the party injured.
The arguments for the doctrine under consideration are, for the most part, drawn from precedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is said, has an absolute right to his person, and so forth, free from detriment at the hands of his neighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has chosen to act. As between the two, the party whose voluntary conduct has caused the damage should suffer, rather than one who has had no share in producing it. . . .
In spite, however, of all the arguments which may be urged for the rule that a man acts at his peril, it has been rejected by very eminent courts, even under the old forms of action. In view of this fact, and of the further circumstance that, since the old forms have been abolished, the allegation of negligence has spread from the action on the case to all ordinary declarations in tort which do not allege intent, probably many lawyers would be surprised that any one should think it worthwhile to go into the present discussion. Such is the natural impression to be derived from daily practice. But even if the doctrine under consideration had no longer any followers, which is not the case, it would be well to have something more than daily practice to sustain our views upon so fundamental a question; as it seems to me at least, the true principle is far from being articulately grasped by all who are interested in it, and can only be arrived at after a careful analysis of what has been thought hitherto. It might be thought enough to cite the decisions opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with admitted doctrines and sound policy. But we may go further with profit, and inquire whether there are not strong grounds for thinking that the common law has never known such a rule, unless in that period of dry precedent which is so often to be found midway between a creative epoch and a period of solvent philosophical reaction. Conciliating the attention of those who, contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once more that there are weighty decisions to be cited adverse to it, and that, if they have involved an innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to prove that the change was politic, I think I may assert that a little reflection will show that it was required not only by policy, but by consistency. I will begin with the latter.
The same reasoning which would make a man answerable in trespass for all damage to another by force directly resulting from his own act, irrespective of negligence or intent, would make him answerable in case for the like damage similarly resulting from the act of his servant, in the course of the latter’s employment. The discussions of the company’s negligence in many railway cases would therefore be wholly out of place, for although, to be sure, there is a contract which would make the company liable for negligence, that contract cannot be taken to diminish any liability which would otherwise exist for a trespass on the part of its employees.
More than this, the same reasoning would make a defendant responsible for all damage, however remote, of which his act could be called the cause. So long, at least, as only physical or irresponsible agencies, however unforeseen, co-operated with the act complained of to produce the result, the argument which would resolve the case of accidentally striking the plaintiff, when lifting a stick in necessary self-defence, adversely to the defendant, would require a decision against him in every case where his act was a factor in the result complained of. The distinction between a direct application of force, and causing damage indirectly, or as a more remote consequence of one’s act, although it may determine whether the form of action should be trespass or case, does not touch the theory of responsibility, if that theory be that a man acts at his peril.
As was said at the outset, if the strict liability is to be maintained at all, it must be maintained throughout. A principle cannot be stated which would retain the strict liability in trespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for consequences of those acts. All actions of trespass are for consequences of acts, not for the acts themselves. And some actions of trespass are for consequences more remote from the defendant’s act than in other instances where the remedy would be case.
An act is always a voluntary muscular contraction, and nothing else. The chain of physical sequences which it sets in motion or directs to the plaintiff’s harm is no part of it, and very generally a long train of such sequences intervenes. An example or two will make this extremely clear.
When a man commits an assault and battery with a pistol, his only act is to contract the muscles of his arm and forefinger in a certain way, but it is the delight of elementary writers to point out what a vast series of physical changes must take place before the harm is done. Suppose that, instead of firing a pistol, he takes up a hose which is discharging water on the sidewalk, and directs it at the plaintiff, he does not even set in motion the physical causes which must co-operate with his act to make a battery. Not only natural causes, but a living being, may intervene between the act and its effect. . . . In Scott v. Shepherd . . . trespass was maintained against one who had thrown a squib into a crowd, where it was tossed from hand to hand in self-defence until it burst and injured the plaintiff. Here even human agencies were a part of the chain between the defendant’s act and the result, although they were treated as more or less nearly automatic, in order to arrive at the decision.
Now I repeat, that, if principle requires us to charge a man in trespass when his act has brought force to bear on another through a comparatively short train of intervening causes, in spite of his having used all possible care, it requires the same liability, however numerous and unexpected the events between the act and the result. If running a man down is a trespass when the accident can be referred to the rider’s act of spurring, why is it not a tort in every case . . . seeing that it can always be referred more remotely to his act of mounting and taking the horse out?
Why is a man not responsible for the consequences of an act innocent in its direct and obvious effects, when those consequences would not have followed but for the intervention of a series of extraordinary, although natural, events? The reason is, that, if the intervening events are of such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. It seems to be admitted by the English judges that, even on the question whether the acts of leaving dry trimmings in hot weather by the side of a railroad, and then sending an engine over the track, are negligent,—that is, are a ground of liability,—the consequences which might reasonably be anticipated are material. Yet these are acts which, under the circumstances, can hardly be called innocent in their natural and obvious effects. The same doctrine has been applied to acts in violation of statute which could not reasonably have been expected to lead to the result complained of.
But there is no difference in principle between the case where a natural cause or physical factor intervenes after the act in some way not to be foreseen, and turns what seemed innocent to harm, and the case where such a cause or factor intervenes, unknown, at the time . . . .
To return to the example of the accidental blow with a stick lifted in self-defence, there is no difference between hitting a person standing in one’s rear and hitting one who was pushed by a horse within range of the stick just as it was lifted, provided that it was not possible, under the circumstances, in the one case to have known, in the other to have anticipated, the proximity. In either case there is wanting the only element which distinguishes voluntary acts from spasmodic muscular contractions as a ground of liability. In neither of them, that is to say, has there been an opportunity of choice with reference to the consequence complained of,—a chance to guard against the result which has come to pass. A choice which entails a concealed consequence is as to that consequence no choice.
The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid. In the language of the late Chief Justice Nelson of New York: “No case or principle can be found, or if found can be maintained, subjecting an individual to liability for an act done without fault on his part. . . . All the cases concede that an injury arising from inevitable accident, or, which in law or reason is the same thing, from an act that ordinary human care and foresight are unable to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility.” If this were not so, any act would be sufficient, however remote, which set in motion or opened the door for a series of physical sequences ending in damage; such as riding the horse, in the case of the runaway, or even coming to a place where one is seized with a fit and strikes the plaintiff in an unconscious spasm. Nay, why need the defendant have acted at all, and why is it not enough that his existence has been at the expense of the plaintiff? The requirement of an act is the requirement that the defendant should have made a choice. But the only possible purpose of introducing this moral element is to make the power of avoiding the evil complained of a condition of liability. . . .
A man need not, it is true, do this or that act, the term act implies a choice,—but he must act somehow. Furthermore, the public generally profits by individual activity. As action cannot be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of what is at once desirable and inevitable upon the actor. The state might conceivably make itself a mutual insurance company against accidents, and distribute the burden of its citizens’ mishaps among all its members. There might be a pension for paralytics, and state aid for those who suffered in person or estate from tempest or wild beasts. As between individuals it might adopt the mutual insurance principle pro tanto, and divide damages when both were in fault, as in the rusticum judicium of the admiralty, or it might throw all loss upon the actor irrespective of fault. The state does none of these things, however, and the prevailing view is that its cumbrous and expensive machinery ought not to be set in motion unless some clear benefit is to be derived from disturbing the status quo. State interference is an evil, where it cannot be shown to be a good. Universal insurance, if desired, can be better and more cheaply accomplished by private enterprise. The undertaking to redistribute losses simply on the ground that they resulted from the defendant’s act would not only be open to these objections, but, as it is hoped the preceding discussion has shown, to the still graver one of offending the sense of justice. Unless my act is of a nature to threaten others, unless under the circumstances a prudent man would have foreseen the possibility of harm, it is no more justifiable to make me indemnify my neighbor against the consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel me to insure him against lightning.
Note 1.
Holmes’s gloss on Brown v. Kendall has provided a theoretical defense for the reasonable care regime for more than a century now. Yet even as Shaw and then Holmes articulated the basic principles of the negligence regime, an alternative approach that turned neither on negligence nor on any failure of reasonable care sprang up. No-fault liability arose almost simultaneously with the negligence regime and remains alongside it in tort law today, a century and a half later.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
3.5 Fletcher v. Rylands 3.5 Fletcher v. Rylands
U.K. 1865
Fletcher v. Rylands
159 Eng. Rep. 737
[This was an action by a tenant coal-mine operator against the builder of a new reservoir for damages that occurred when the filling of the reservoir flooded the coal mining operation. In the 1850s, a tenant to the Earl of Wilton leased beds of coal from Lord Wilton for the purpose of extracting the coal. In the process of working the coal seam, the tenant came into contact with old abandoned coal workings from prior mining efforts. Soon thereafter, defendants—who did not know about the old coal workings, or about the plaintiff’s having found any such coal workings in the course of plaintiff’s mining—began to build a dam on an adjoining part of Lord Wilton’s land for purposes of building a reservoir that would power their mill. The defendant, everyone agreed, exercised due care in selecting competent engineers to build the reservoir. In the course of their work, the engineers discovered that the bed was in part built on top of “five old shafts, running vertically downwards” and “constructed of timber” but “filled up with marl or soil of the same kind as the marl or soil which immediately surrounded them.” The condition of the ancient shafts was such that the engineers did not know or suspect they were old coal mining shafts. When the reservoir was filled with water in December 1860, one of the shafts under the reservoir bed gave way, flooding the old workings underneath. The water flowed through into the plaintiff’s coal workings and forced the plaintiff to suspend its operations.]
The question for the opinion of the Court was, whether the plaintiff was entitled to recover damages from the defendants by reason of the matter stated in the case.
Bramwell, B. . . . [W]hat is the plaintiff’s right? He had the right to work his mines to their extent, leaving no boundary between himself and the next owner. By so doing he subjected himself to all consequences resulting from natural causes, among others, to the influx of all water naturally flowing in. But he had a right to be free from what has been called “foreign” water, that is, water artificially brought or sent to him directly, or indirectly by its being sent to where it would flow to him. The defendants had no right to pour or send water on to the plaintiff’s works. Had they done so knowingly it is admitted an action would lie; and that it would if they did it again. . . . The plaintiff’s right then has been infringed; the defendants in causing water to flow to the plaintiff have done that which they had no right to do. [C]onsequently th[e] the action is maintainable. The plaintiff’s case is, you have violated my right, you have done what you had no right to do, and have done me damage. If the plaintiff has the right I mention, the action is maintainable. If he has it not, it is because his right is only to have his mines free from foreign water by the act of those who know what they are doing. I think this is not so. I know no case of a right so limited. As a rule the knowledge or ignorance of the damage done is immaterial. The burthen of proof of this proposition is not on the plaintiff. . . .
I think, therefore, on the plain ground that the defendants have caused water to flow into the plaintiff’s mines, which but for their, the defendants’, act would not have gone, this action is maintainable. I think that the defendants’ innocence, whatever may be its moral bearing on the case, is immaterial in point of law.
Martin, B. . . . I think there was no trespass. In the judgment of my brother Bramwell . . . the act of the defendants was a trespass, but I cannot concur, and I own it seems to me that the cases cited by him, Leame v. Bray (3 East, 593) . . . prove the contrary. . . . [T]o constitute trespass the act doing the damage must be immediate, and that if the damage be mediate or consequential (which I think the present was), it is not a trespass. . . . The digging a reservoir in a man’s own land is a lawful act. It does not appear that there was any embankment, or that the water in the reservoir was ever above the level of the natural surface of the land, and the water escaped from the bottom of the reservoir, and in ordinary course would descend by gravitation into the defendants’ own land, and they did not know of the existence of the old workings. To hold the defendants liable would therefore make them insurers against the consequence of a lawful act upon their own land when they had no reason to believe or suspect that any damage was likely to ensue.
[T]here is no better established rule of law than that when damage is done to personal property, and even to the person, by collision either upon the road or at sea, there must be negligence in the party doing the damage to render him legally responsible, and if there be no negligence the party sustaining the damage must bear with it. The existence of this rule is proved by the exceptions to it, the cases of the innkeeper and common carrier of goods for hire, who are quasi insurers. These cases are said to be by the custom of the realm, treating them as exceptions from the ordinary rule of law. In the absence of authority to the contrary, I can see no reason why damage to real property should be governed by a different rule or principle than damage to personal property. There is an instance also of damage to real property, when the party causing it was at common law liable upon the custom of the realm as a quasi insurer, viz, the master of a house if a fire had kindled there and consumed the house of another. In such case, the master of the house was liable at common law without proof negligence on his part. This seems to be an exception from the ordinary rule of law, and in my opinion, affords an argument that in other cases such as the present, there must be negligence to create a liability. . . .
Pollock, C. B. . . . I agree with my brother Martin that no action will lie. It appears to me that my brother Bramwell assumes too strongly that the complainant “had a right to be free from what is called ‘foreign water.’” That may be so with reference to surface-rights; but I am not prepared to hold that this applies to every possible way in which water may happen to come. There being, therefore, no authority for bringing such an action, I think the safer course is to decide in favour of the defendants. . . .
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
3.6 Fletcher v. Rylands 3.6 Fletcher v. Rylands
U.K. 1866
Fletcher v. Rylands
L.R. 1 Ex. 265
Blackburn, J. We have come to the conclusion that the opinion of Bramwell, B., was right, and that . . . the plaintiff was entitled to recover damages from the defendants . . . .
The plaintiff, though free from all blame on his part, must bear the loss, unless he can establish that it was the consequence of some default for which the defendants are responsible. The question of law therefore arises, what is the obligation which the law casts on a person who, like the defendants, lawfully brings on his land something which, though harmless whilst it remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that he must take care to keep in that which he has brought on the land and keeps there, in order that it may not escape and damage his neighbours, but the question arises whether the duty which the law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is, as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has brought on his land and kept there something dangerous, and failed to keep it in, is responsible for all the natural consequences of its escape. If the second be the limit of his duty, he would not be answerable except on proof of negligence, and consequently would not be answerable for escape arising from any latent defect which ordinary prudence and skill could not detect. . . .
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 can excuse himself by shewing that the escape was owing to the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be sufficient. The general rule, as above stated, seems on principle just. The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali works, is damnified without any fault of his own; and it seems but reasonable and just that the neighbour, who has brought something on his own property which was not naturally there, harmless to others so long as it is confined to his own property, but which he knows to be mischievous if it gets on his neighbour’s, should be obliged to make good the damage which ensues if he does not succeed in confining it to his own property. . . .
The case that has most commonly occurred, and which is most frequently to be found in the books, is as to the obligation of the owner of cattle which he has brought on his land, to prevent their escaping and doing mischief. The law as to them seems to be perfectly settled from early times; the owner must keep them in at his peril, or he will be answerable for the natural consequences of their escape; that is with regard to tame beasts, for the grass they eat and trample upon, though not for any injury to the person of others, for our ancestors have settled that it is not the general nature of horses to kick, or bulls to gore; but if the owner knows that the beast has a vicious propensity to attack man, he will be answerable for that too. . . .
[T]here does not appear to be any difference in principle, between the extent of the duty cast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on him who brings on his land, water, filth, or stenches, or any other thing which will, if it escape, naturally do damage, to prevent their escaping and injuring his neighbor. . . .
. . . [I]t was . . . said by Martin, B. that when damage is done to personal property, or even to the person by collision, either upon land or at sea, there must be negligence in the party doing the damage to render him legally responsible, and this is no doubt true . . . . But we think these cases distinguishable from the present. Traffic on the highways . . . cannot be conducted without exposing those whose persons or property are near it to some inevitable risk; . . . those who go on the highway, or have their property adjacent to it, may well be held to do so subject to their taking upon themselves the risk of injury from that inevitable danger . . . . But there is no ground for saying that the plaintiff here took upon himself any risk arising from the uses to which the defendants should choose to apply their land. He neither knew what these might be, nor could he in any way control the defendants, or hinder their building what reservoirs they liked, and storing up in them what water they pleased, so long as the defendants succeeded in preventing the water which they there brought from interfering with the plaintiff’s property. . . .
We are of [the] opinion that the plaintiff is entitled to recover.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
3.7 Rylands v. Fletcher 3.7 Rylands v. Fletcher
U.K. 1868
Rylands v. Fletcher
L.R. 3 H.L. 330
The Lord Chancellor (Lord Cairns) My Lords, the principles on which this case must be determined appear to me to be extremely simple. The Defendants, treating them as the owners or occupiers of the close on which the reservoir was constructed, might lawfully have used that close for any purpose for which it might in the ordinary course of the enjoyment of land be used; and if, in what I may term the natural user of that land, there had been any accumulation of water, either on the surface or underground, and if, by the operation of the laws of nature, that accumulation of water had passed off into the close occupied by the Plaintiff, the Plaintiff could not have complained that that result had taken place. If he had desired to guard himself against it, it would have lain upon him to have done so, by leaving, or by interposing, some barrier between his close and the close of the Defendants in order to have prevented that operation of the laws of nature.
On the other hand if the Defendants, not stopping at the natural use of their close, had desired to use it for any purpose which I may term a non-natural use, for the purpose of introducing into the close that which in its natural condition was not in or upon it, for the purpose of introducing water either above or below ground in quantities and in a manner not the result of any work or operation on or under the land,—and if in consequence of their doing so, or in consequence of any imperfection in the mode of their doing so, the water came to escape and to pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to which I have referred, the evil, namely, of the escape of the water and its passing away to the close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the Defendants would be liable. . . .
My Lords, these simple principles, if they are well founded, as it appears to me they are, really dispose of this case.
The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his judgment, in the Court of Exchequer Chamber . . . .
My Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your Lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present appeal be dismissed with costs.
Lord Cranworth Lords, I concur with my noble and learned friend in thinking that the rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. . . .
. . . I come without hesitation to the conclusion that the judgment of the Exchequer Chamber was right. . . . If water naturally rising in the Defendants’ land . . . had by percolation found its way down to the Plaintiff’s mine through the old workings, and so had impeded his operations, that would not have afforded him any ground of complaint. . . . But that is not the real state of the case. The Defendants, in order to effect an object of their own, brought on to their land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass of water, and stored it up in a reservoir. The consequence of this was damage to the Plaintiff, and for that damage, however skillfully and carefully the accumulation was made, the Defendants, according to the principles and authorities to which I have adverted, were certainly responsible.
I concur, therefore, with my noble and learned friend in thinking that the judgment below must be affirmed, and that there must be judgment for the Defendant in Error.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.