Action on the Case

• Author: Jeffrey Lehman, Shirelle Phelps

Page 79

One of the old common-law FORMS OF ACTION that provided a remedy for the invasion of personal or property interests.

Action on the case is also called TRESPASS on the case because it developed from the common-law action of trespass during the fifteenth century in England. Often it is simply called case.

Case differs from trespass in that it redresses more indirect injuries than the willful invasion of the plaintiff's property contemplated by trespass. It was designed to supplement the action of trespass. For example, a person struck by a log thrown over a fence could maintain an action in trespass against the thrower. If, instead, the wrongdoer tossed the log into the street and the plaintiff were hurt by stumbling over it, the plaintiff could maintain an action on the case rather than in trespass.

In PLEADING an action on the case, the plaintiff sets forth the circumstances of the entire case. In pleading an action on the case, the complaint differed from the forms used in pleading other actions because other actions generally had highly stylized and rigid forms that had to be followed word for word. The plaintiff in the action on the case alleged facts to show that (1) the defendant had some sort of duty; (2) the defendant had violated that duty; and (3) the result was harm to the plaintiff or the plaintiff's property. Over the years, this action developed into a remedy for a wide variety of wrongs that were not redressed by the other forms of action. For example, a plaintiff could sue a defendant who maintained a NUISANCE in the neighborhood; who violated an EASEMENT or a right of way; or who committed LIBEL, slander, malicious prosecution, fraud, or deceit. Most importantly, the action on the case came into common use as the legal method for compensating victims of NEGLIGENCE. It thus became one of the most widely used forms of action in the common-law system and gave birth to the modern law of TORTS.

When EJECTMENT was still considered a modern improvement on trespass in England, it already had been abandoned in New England because of its complicated technical requirements. One of the reasons for the American experience is that law books were scarce in the colonies, and many judges were laymen. The most rigid applications of technical formalities came during...