Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews
Review -- Chapter One
Development of Liability Based on Fault

What was the purpose of this chapter and the accompanying discussions?

We first explored the underlying purposes of Tort law. We compared and contrasted these purposes to those of the Criminal Law and of Contract Law. We saw that the major purpose of Tort law is to compensate victims of tortious conduct for injuries they have suffered. But we also saw that Tort law has additional policy purposes -- providing a vehicle for resolution of disputes without resort to violence, deterring people from engaging in harm-causing behavior, and even, to some extent, punishing those who commit wrongful behavior. Torts arise by operation of law to protect individuals from wrongful conduct of others.

The Criminal Law, while having some similar overall purposes, seeks to protect society as a whole, and does not focus on the individual. Wrongful behavior towards an individual is a wrong to society, and society prosecutes the wrongdoer to punish, deter and rehabiliate. The Criminal law does not seek to compensate the victim.

Contract law seeks to protect rights created between parties by their mutual agreement. While it provides remedies to the victim of a breach of contract, the rights protected by the law grow out of the relationship created by the intention of the parties, and belong only to those parties, and not to other members of society. Contract law seeks to assure the sanctity of promises.

We next examined how Tort law seeks to compensate victims of tortious behavior. We looked at the various elements of damages that may arise, and how tort remedies seek to make the victim “whole.” We recognized that for serious injuries, there really is no way of making a person whole, of restoring the victim to the health and happiness that existed prior to the defendant's conduct, but that the law attempts to do this in the only way it can, by awarding monetary damages to replace financial and physical losses; sometimes, the courts provide additional remedies, such as enjoining future tortious conduct.

The primary purpose of the written materials was to demonstrate, (as the chapter heading connotes,) the historical development of the law of Torts. We have seen that in the earliest part of the common law, the moral beliefs of the times led to the adoption of legal doctrines that held a person liable for damages for any harm inflicted by that person, or others for whom he was responsible, without considering whether the person had done anything “wrong” to cause the injury. In other words, the early common law imposed absolute liability. The Anonymous and Weaver cases illustrate that one could be liable even if an injury resulted from an “accident”, when the defendant did not intend to affect the plaintiff, nor was careless in any manner.

Gradually, over time, the mores of the people changed, and the common law similarly changed. Much of this change was undoubtedly due to the industrialization of England and the need for industrialization in colonial America. If industry-defendants were to be held liable for harm caused without fault, commerce would be severely hampered; the growth of the nation would be impeded. From then until now, with several exceptional kinds of cases, the courts required that a person have done something “wrong” to be held liable for damages.

The categories of “wrongs” came to range from (1) the most culpable behavior, the intent to harm or intrude on plaintiff's rights, to (2) recklessness, conduct bordering on intentional, where the defendant acted under circumstances creating a high probability of harming plaintiff and a conscious disregard for the consequences, to (3) the least culpable conduct, injuring someone through carelessness -- called negligence. The concomitant result was that if the defendant had not acted in a wrongful manner -- lacked any fault -- the injury was said to be a “pure accident,” and the plaintiff had to bear his/her injuries without compensation. Fault of some kind was required. A defendant could not be liable for causing injury if she/he had not committed an intentional, reckless or negligent act.

However, there are two common law categories that today call for strict liability – i.e., liability without fault.

One category of strict liability is where the defendant decides to engage in abnormally dangerous or ultrahazardous activity. This is activity that is so dangerous that it cannot be made completely safe for others even if the defendant uses all possible care. While the activity has social value, and thus is not banned or made illegal, the common law determines that the defendant who engages in the activity should bear the responsibility for any injuries proximately resulting, even if they could not have been prevented.

The other common law category creating strict liability is a fairly recent development. For policy reasons, most state courts have adopted a strict liability standard to be applied to sellers of products that turn out to be defective and unreasonably dangerous. Strict liability for defective products is not based on a determination that the product is abnormally dangerous or ultrahazardous, but more on the basis that, in the present state of manufacturing and distribution, it is inevitable that some products may be introduced into the stream of commerce in a defective condition, not necessarily through the fault of anyone, and will do damage to consumers or others. The law's policy is that these foreseeable mishaps should be borne by the sellers as a cost of doing business, and spread, through the acqusition of insurance, across society as a whole by the insurance costs being factored into the price of the product.

With the introduction provided in this chapter, we now will turn to an examination of the specific kinds of modern torts. We begin with an examination of the most culpable tortious conduct -- the so-called Intentional Torts.