Strict Liability and Negligence: History and Introduction

• Author: John Fabian Witt
• Pages: 89-132

CHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY

AND INTRODUCTION

So far in this book we have been studying torts arising out of intentionally inflicted harms.

But the great majority of torts cases in the court system are not intentional tort cases at all.

They are unintentionally inflicted harms. In other words, they are accidents. But if a

defendant does not intend an injury, ought she be obligated to compensate the plaintiff

for it? If so, what kinds of unintentional injuries produce such obligations to

compensate? These are the central questions for the law of unintentional torts, and we

turn to them now through the development of the comn law of torts.

A. Common Law Beginnings

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

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action for trespass in Ploof v. Putnam and the action for assault in I de S v. W de S in

chapter 2.) 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 13th century and

14th 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.

All this may seem quite mysterious, but it is relatively simple once one drops the

unfamiliar language. The forms of action were simply the causes for which the king’s

justice might be invoked. The king’s writs were simply his orders to lower officials to

commence the process by which the cause in question might be redressed. A typical writ

issued by the Chancellor upon a complaint of trespass would have looked something like

this one:

The King to the sheriff of S., greeting. If A. shall give you security for

pursuing his claim, then put by gage and safe pledges B. that he be before us

on the octave of Michaelmas, wheresoever we shall then be in England [i.e., in

the King’s Bench], to show why [ostensurus quare] with force and arms [vi et

armis] he made assault on the selfsame A. at N., and beat, wounded and ill

treated him so that his life was despaired of, and offered other outrages against

him, to the grave damage of the selfsame A. and against our peace. And have

there the names of the pledges, and this writ. Witness etc.

J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 545 (4th

ed. 2002). To translate: “Dear Sheriff, Hello! If A is willing to put up a bond, then

please order B to put up a bond of his own and to find men who will vouch for him and

agree to offer their own assets to guarantee that he will appear at the fall term of the court

to answer A’s allegations. Yours as ever, King.” Thus would a medieval or early modern

tort case begin.

With the establishment of the writs of trespass and case, the basic building blocks

of early modern tort law were in place. But key questions remain unresolved in our

account thus far. The most important for our purposes is to determine the kinds of

unintentional harm for which the writs of trespass and case would offer remedies. As far

as we can tell, this question first arose in round-about fashion as part of a fifteenth-

century case. The late medieval report of the case appears below. As you will quickly

see, the dispute was not really about unintentional torts at all. Yet as the parties argued

the case in the royal court, they arranged for part of the case to turn on the answer to the

question of whether the defendant had committed an unintentional wrong. The lawyers

for the parties and the judges then weighed in with a startling variety of possible answers

to our central question: when is an actor liable for unintentional harms?

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Hulle v. Orynge (The Case of the Thorns), Y. B. Mich. 6 Ed. 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. The report, translated from Law French, is taken from a medieval Year-Book

during the reign of King Edward IV.]

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. Also, sir, if a man shoots at the butts and his

bow turns in his hand and kills a man at its own invitation [i.e., against the shooter’s will],

it is not a felony, as has been said. But if he injures a man by his shooting, he will have a

good action of trespass against him, even if the shooting was lawful, and the injury to the

other was against his will. Also here.

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 tough 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