1 Introduction to Unintentional Torts 1 Introduction to Unintentional Torts
1.1 Common Law Beginnings (of Unintentional Torts) [from Witt Tani 6th ed.] 1.1 Common Law Beginnings (of Unintentional Torts) [from Witt Tani 6th ed.]
In the first several centuries after the Norman Conquest, the Norman kings left the resolution of many disputes to the local or church courts that were scattered choc-a-bloc across the English landscape. Parties seeking the king’s justice in disputes involving real property or interpersonal violence, however, could seek out the king’s justice. A petition to the king’s chancellor could produce powerful royal intervention—but only if the chancellor determined that it was the kind of dispute into which the king ought to intervene. Over time, as the number of petitions grew, the chancellor came to recognize certain categories of dispute as entitled to royal justice. Such disputes were causes for royal action—or causes of action, as we know them today. A petition alleging the kinds of facts that constituted one of these stereotyped disputes would produce a letter, or “writ,” from the chancellor to a local official ordering him to take steps toward resolving the dispute in question.
Thus was born the so-called “writ system,” which formed the basis for the law common to the king’s courts—the English common law—for nearly a thousand years. The chancellors’ categories hardened into particularized forms of action, which offered specific procedures and remedies for complaints stated in terms of the stereotyped factual allegations that followed the pattern of the chancellor’s category. From time to time, under pressure from parties seeking the king’s justice, the chancellor slowly recognized new forms of action to address new kinds of disputes. Moreover, parties seeking the advantages of the king’s justice often sought to fit their disputes within the preexisting categories of the forms of action. And as the king’s representatives recognized these expansions of the existing forms of action, the writ system grew and expanded to meet new kinds of disputes.
The evolution of the writ system explains the common law beginnings of the law of unintentional torts. The writ of trespass was first recognized in the twelfth century; it offered a remedy in the king’s courts for intentional breaches of the king’s peace by force and arms—vi et armis in the Latin. (Recall the recitations of “force and arms” in the action for trespass in Ploof v. Putnam and the action for assault in I de S & Wife v. W de S . . . .) Over time, the recitation of the key phrase “force and arms” in complaints initiating a cause of action for trespass became a mere fiction; the terms were used solely because they were necessary to invoke the procedures of royal justice, even where there was no real allegation that force or arms had been used at all. In the late thirteenth century and fourteenth century, the clerks of the Chancery began to authorize a subsidiary form of action as well, a writ known as the writ of trespass on the case. Trespass on the case, or simply “case” as it was sometimes known, dropped the recitation of force and arms and supplied a cause of action for the kinds of harms that seemed too indirect to be characterized as trespasses by force and arms.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
1.2 Hulle v. Orynge (The Case of the Thorns) [from Witt Tani 6th ed.] 1.2 Hulle v. Orynge (The Case of the Thorns) [from Witt Tani 6th ed.]
Y.B. Mich. 6 Edw. IV, fo. 7, pl. 18 (1466)
[Plaintiff Hulle brought a writ of trespass against defendant Orynge for breaking into his close with force and arms (“quare vi & armis clausum fregit”) and consuming and trampling his grass and crops on six acres of land in Devon. Defendant Orynge pleaded that he owned one acre adjoining the plaintiff’s land, that while cutting thorns there from a thorn hedge on his property, the thorns fell onto the plaintiff’s land by their own will (“ipso invito”), that he had gone immediately onto the plaintiff’s land to recover the thorns, and that this was the trespass of which the plaintiff complained. The plaintiff demurred. . . .]
And Catesby said, Sir, it has been argued that if a man acts whereby injury and damage are done to another person against his will, even though the act is lawful, nonetheless he shall be punished if he could by some means have avoided the damage. Sir, to me the truth seems contrary. As I understand, if a man acts in a lawful fashion, and damage occurs to another against his will, he will not be punished. Consider the case that I driving my cattle along the highway, and that you have an acre of land along the highway, and my cattle enter into your land and destroy your plantings, and I come immediately and chase the cattle from your land, in this case you will not have an action against me, because the driving of the cattle was lawful, and their entry into your land was against my will. No more here, because the cutting was lawful and the falling onto your land was against my will, and therefore the taking back was good and permissible. And Sir, I put it that if I cut my trees, and a bough fell on a man, and killed him, in this case I will not be attainted of a felony, because my cutting was permissible, and the falling on the man was against my will. No more here.
Fairfax. To me it seems the contrary. I say that there is a difference between when a man acts in a way that entails a felony, and when he acts in a way that entails a trespass, because in the case that Catesby advances there is no felony, because felony requires malice aforethought, but it was against his will, such that there was no animo felonico. But if someone cuts his plantings and a bough fell on a man and injured him, in this case there will be an action of trespass. [Just as there is trespass, but no felony, if an archer aims at a practice target and "his bow turns in his hand and kills a man at its own invitation."]
Pigot. To the same idea, I suggest that if I had a mill and the water that comes to my mill flows past your land and you cut your willows such that against your will they fall in the water and stop the flow so that I do not have enough water for my mill, in this case I have an action of trespass, even though the cutting was lawful and the falling was against your will. . . .
Yonge. It seems to me the opposite. In this case you have damnum absque injuria [damage without legal injury]. In this case you will have no action, because if there is no wrong [tort] there will be no reason for him to recover damages. So it was here where he went into the plaintiff’s close to retrieve the thorns that had fallen there: this entry was not wrongful [tortious], because when he cut the thorns and they fell into the close against his will, nonetheless the property in the thorns remained in him, and therefore it was lawful for him to remove them from his close. Notwithstanding that the plaintiff was injured, he has done no wrong [tort].
Brian. To me it seems the opposite. My idea is that when a man acts he is bound to do it in such a manner that by his act neither prejudice nor damage is done to others. In a case where I build my house and a timber falls on the house of my neighbor and damages his house, he has a good action, even though building my house was lawful and the timber fell against my will. Also if a man assaults me and I cannot avoid him without hitting him, and in my defense I raise my stick to strike him, and there is someone behind me, and in raising my stick I strike him, in this case he will have an action against me, even though my raising of my stick was lawful self-defense and his injury was against my will. The same is true here.
LITTLETON, J. In my view, if a man is damaged that is reason that he should be recompensed. To my understanding, the case that Catesby has put is not the law, because if your cattle comes onto my land and consumes my plantings, then even if you immediately come and chase your cows, it is obligatory of you to make amends for what they have done, be the damage great or small. . . . And sir if it were the law that he was able to come and take the thorns, then by the same reasoning if he cut a large tree he would be able to come in with carts and horses to carry the trees out; that would be unreasonable, because the plaintiff might have corn or other plantings there. Nor here, because the law is the same for big things and small, and he will make amends according to the size of the trespass.
CHOKE, J. This resembles my view, because where the principal thing was not lawful, then the thing that depends on it will not be lawful. When the defendant cut the thorns and they fell, this falling was unlawful and therefore his coming to take them was unlawful. As to what has been said about their falling against his will, that is no plea, but it obliges him to say that he could not have acted in any other way, or that he did all that he could to keep them out, otherwise he will render the damages. And Sir, if the thorns or a large tree had fallen onto the plaintiff’s land by wind, in this case he would have been able to go to take them, because the falling would not have been his act, but that of the wind.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
1.3 NOTE re: the Thorns case [from Witt Tani 6th ed.] 1.3 NOTE re: the Thorns case [from Witt Tani 6th ed.]
2. Why so few cases? One striking feature of the Thorns case is that it poses the question of what the liability standard ought to be for unintentional torts—but it does so in the context of an intentional tort dispute. We rely on the case as a way of identifying the liability standard for unintentional torts in the early modern period because torts cases were few and far between prior to the nineteenth century. Why so few torts cases until then? Professor Norma Landau suggests one explanation: seventeenth- and eighteenth-century plaintiffs often took advantage of the now-long-abandoned system of private prosecution to initiate criminal processes against those who injured them. See Norma Landau, Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions, 17 Law & Hist. Rev. 507 (1999). Professor Landau notes that plaintiffs “were not really interested in bringing defendants before [a] court” for punishment. Instead, plaintiffs “were interested . . . in obtaining compensation for the offense.” Id. at 529. The threat of criminal punishments must surely have been a very powerful club with which to induce settlement from the accused. The rise of the modern system of public prosecution in the early nineteenth century, however, eliminated this criminal process option and helped bring about the rise of tort law.
3. Over a hundred years later, the English Court of Common Pleas weighed in with another ruling on the question of what sorts of unintentional injuries created a legal obligation of compensation, this time when an injury arose out of a soldiers’ skirmish in London.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
1.4 Weaver v. Ward [from Witt Tani 6th ed.] 1.4 Weaver v. Ward [from Witt Tani 6th ed.]
80 Eng. Rep. 284 (C.P. 1616)
Weaver brought an action of trespass of assault and battery against Ward. The defendant pleaded, that he was amongst others by the commandment of the Lords of the Council a trained soldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they were skirmishing with their musquets charged with powder for their exercise in re militari, against another captain and his band; and as they were so skirmishing, the defendant casualiter & per infortunium & contra voluntatem suam [accidentally and by misfortune and against his will], in discharging of his piece did hurt and wound the plaintiff . . . .
And upon demurrer by the plaintiff, judgment was given for him; for though it were agreed, that if men tilt or tourney in the presence of the King, or if two masters of defence [i.e., prize-fighters] playing [for] their prizes kill one another, that this shall be no felony—or if a lunatick kill a man, or the like—because felony must be done animo felonico; yet in trespass, which tends only to give damages according to hurt or loss, it is not so. And therefore if a lunatick hurt a man, he shall be answerable in trespass. And therefore no man shall be excused of a trespass (for this is the nature of an excuse, and not of a justification . . .) except it may be judged utterly without his fault.
As if a man by force take my hand and strike you, or if here the defendant had said, that the plaintiff ran cross his piece when it was discharging, or had set forth the case with the circumstances, so as it had appeared to the Court that it had been inevitable, and that the defendant had committed no negligence to give occasion to the hurt.
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
1.5 NOTE re: Weaver [from Witt Tani 6th ed.] 1.5 NOTE re: Weaver [from Witt Tani 6th ed.]
3. Attenuated causation? One question that the Weaver case does not explicitly address is what might have happened had the causal connection between plaintiff Weaver and defendant Ward been considerably more attenuated? In the actual event, as the court at the time understood, the plaintiff had been the man nearest in the ranks to the defendant. But what if Weaver had been on the far side of the soldiers’ infantry square as they skirmished? Or what if Weaver was injured by a panic and stampede among the skirmishers after Ward’s musket went off unexpectedly? Recall from the introduction to this section that the writ of trespass was associated with relatively direct injuries, whereas the writ of trespass on the case was associated with indirect injuries like the trampling incident we have hypothesized here.
Judge Fortescue of the King’s Bench gave the classic statement of the distinction between trespass and case in 1726:
[I]f a man throws a log into the highway, and in that act it hits me, I may maintain trespass, because it is an immediate wrong; but if as it lies there I tumble over it and receive an injury, I must bring an action upon the case; because it is only prejudicial in consequence for which originally [i.e., in trespass vi et armis] I could have no action at all.
Reynolds v. Clarke, 92 Eng. Rep. 410 (K.B. 1726). The neat distinction offered by Fortescue, however, soon gave way to great difficulty. [Cases like Scott v. Shepherd, which we'll read when we get to causation, exemplify how the early modern common law tried to resolve the problem of indirect injuries.]
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Reprinted from John Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Sixth Edition, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0 License.
1.6 Brown v. Kendall 1.6 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