Inevitably, from time to time, one does something that causes
something else to happen that the person did not intend to happen. Less frequently, when one does such a thing,
the unintended effect hurts someone else; the act causes harm. For example, a visitor to a neighbor’s house
is carrying an urn of hot sauce, the pet of the house runs across his/her path,
and the visitor trips. This results in
the hot sauce spilling all over an expensive sofa, staining it. Oh well.
The visitor,
who if was on the lookout for the pet, would have avoided the accident. But he/she was not. One can say the pet caused the harm, but surely,
the pet did not set out to have that hot sauce all over the couch. One can also argue the visitor caused it. No one, though, would say the visitor was at
fault for the harm. Should the visitor
be held liable for making the sofa-owner whole?
To generalize the question:
should a person be held liable for a resultant harm if the person caused
the harm, but, as in the example, was not a fault?
This question,
one perhaps difficult to answer, was not difficult before the nineteenth
century. If a person caused a harm,
he/she was held responsible and liable in those earlier days. But, as pointed out in a previous posting, case
law – common law – does change. It
changes slowly, but it does change and this shift from automatically holding
the person who caused a harm liable – called strict liability – to the more
commonly held standard today, holding the person who is at fault – called
negligence – liable was a profound change.
As alluded to,
that shift took hold in the nineteenth century.
An historical question is why: why did this nation’s courts begin to
prioritize fault over cause? In tort
cases – ones that depend on determining fault – there are two types: intentional fault and negligence fault. Here, the focus is on negligence.[1] What is negligence?
To answer that
question, a look at one of the establishing cases for this newer standard, is
helpful. In Blyth v. Birmingham
Waterworks Co., a harmed citizen sued the waterworks company and based the suit
on a local statute. The statute
incorporated Birmingham Waterworks to supply that city with water. Further, the statute provides language as to
how the resulting piping should be maintained.
So, in this
case, Blyth is the plaintiff and Birmingham Waterworks is the defendant. The defendant had laid piping near the
plaintiff’s house. Due to cold weather,
that main leaked and caused damage to the plaintiff’s house. This led to the lawsuit in which the
plaintiff accused the defendant of negligence.
The court, after hearing the evidence, decided in favor of the
plaintiff. In so doing, the court
provided what has become the primary definition for negligence:
In Negligence to prove defendant’s
fault for liability to be established, the defendant must be in breach of a
duty of care … it means that the defendant must do something that a reasonable
person would not do, or omit to do something that a reasonable person would do
…[2]
Here is another version in more
common language:
Negligence is the failure to do
something a person of ordinary prudence would do or the taking of an action
that a person of ordinary prudence would not take. A mere accident that is not occasioned by the
failure to take such an action or the taking of such an action does not qualify
as negligence.[3]
This definition brings out certain concepts that will prove
to be central in applying the principles of what has become tort law in the
years that followed this mid-eighteenth-century case. They include duty and reasonableness.
From a
historical perspective, one question becomes central: why do the courts shift in this way, from
strict liability to negligence in the mid-1800s? Apparently, chief among the theories
explaining the change have to do with the effects of industrialization. Intuitively, this makes sense.
If one thinks
about it, industrialization transformed the demographics of the American
population. Prior to industrialization,
the nation was large and agricultural.
Consequently, the population was spread thin throughout the nation’s
landscape. Further, such a sparse
population finds it rare that people get into what are called joint
accidents. It was uncommon for one
person to run into another person or to have the situations that lead to
accidental and harmful events to occur.
When they occurred, accidents most likely happened between or among
family members.
Strict
liability, when rare accidents took place, satisfied any contention that arose
due to any harm. “You did it, you’re responsible”
could have summarized how people saw such events. But industrialization changed all that. With the factory system blossoming around the
country, the population was drawn into those factories’ locations – denser
factory towns sprung up. Also,
supporting those developments were the financial centers, like New York or
Chicago, and those cities became both industrial centers and supportive service
centers. Their populations exploded.
For example,
the New York urbanized area experienced the following growth: in 1800, population was 60,000; in 1850, it
was 590,000; in 1870, it was 1,443,000; in 1900, it was 3,802,000; in 1930, it
was 10,090,000; and in 1970, it was 16,207,000.[4] With those numbers, one can readily visualize
the incidence of joint accidents becoming ever more frequent and with that
increased frequency, one can also visualize the vast array of factors and
conditions leading to those accidents.
Yet strict liability doesn’t much
care about such factors in terms of determining fault. Even in the simplest car accident: driver A and driver B run into each
other. With strict liability, driver A
pays for driver B’s harm and vice versa.
One doesn’t ask who was to fault.
With industrialization, with the advent of automobiles, for example,
strict liability made less sense. If
driver A was at fault – perhaps ran a red light – then he/she should pay for
all the damages assuming driver B demonstrated no negligence.[5]
So, to answer the question – what to
do? – the obvious solution was to introduce the consideration of negligence. And so, one explanation of why strict
liability gave way to considering negligence was, as just demonstrated, naturally
worked into court decisions over the latter part of the nineteenth-century. But there is another view and Robert J.
Kaczorowski reports on this development.
He states:
[Morton] Horwitz argues, the original
standard of tort liability was not fault but strict liability. He maintains that the fault theory of
negligence was not established in tort law until the nineteenth century by
judges who sought “to create immunities from legal liability and thereby to
provide substantial subsides for those who undertook schemes of economic development.” The modern notion of negligence, then, was
incorporated into tort law by economically motivated judges for the benefit of
businesses and business enterprises.[6]
One can interpret this view as being
a more economic and political explanation.
By shifting to a negligence standard, the accusation is that the affecting
judges took a pro-business posture and, in effect, began to provide business,
especially big business, substantial subsidies.
The relevant court decisions allowed and continues to allow large
corporation to escape sizable judgements against them.
Today, there is a complex landscape
of tort law where there is a mixture of standards. This blog will address some of them. There is a reason why effective lawyers do
well in securing high incomes; it is a difficult field in which to practice. That field is composed of a few intentional
tort cases – usually treated as criminal matters – a large sector of negligence
cases, and a much smaller area of strict liability cases.
This blog will address this tension
between strict liability and negligence in, at least, the upcoming posting. It will also look at the tension between
malfeasance and nonfeasance, and factual causation and legal causation.
[1] Intentional tort will be addressed in the future.
[2] Following standard citation form for case law: 11 Exch. 781 (1856).
[3] “Blyth v. Birmingham Waterworks Co,” Case Briefs, n.
d., accessed September 16, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/negligence/blyth-v-birmingham-waterworks-co/
.
[4] “New York Urbanized Area: Population & Density from 1800
(Provisional),” Demographia, n. d.,
accessed September 16, 2018, http://demographia.com/db-nyuza1800.htm
. While the population numbers are
estimates, they are based, in part, on Census data.
[5] Or if
the accident is no one’s fault, still each driver pays for the other’s damage
or harm. With strict liability, fault
plays no role in assigning liability.
[6] Robert
J. Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort Law,”
Fordham Law School, 1990, accessed September 17, 2018, https://pdfs.semanticscholar.org/74ba/0630b8c59bb5fcef22fbffaf96e56b91282f.pdf
.
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