The Classical Law of Tort
Coke's Institutes of the Law, No. 1, Series Editors: Amanda J. Owens & Charles K. Rowley
Industrialization
The writ system had become increasingly haphazard by the early nineteenth century. This was partly because of the diversity of American law and the tendency of courts to create exceptions to the rigorous requirements. In addition, the absence of inter-jurisdictional consistency in American jurisprudence contributed to the complexity. In 1848 reform took place with the introduction of the New York Code of Procedure, which abolished the forms of action upon which the writ system was based. By the 1870's twenty-three other states had followed suit introducing their own legislation to reform the writ system. At first glance this appeared to be a major step in law reform. However, in states such as Massachusetts, pleading under the writ system in the late eighteenth and early nineteenth centuries had been sporadically modified over a seventy-year period. When the writ system was abolished in 1851, the reform was not a major modification of existing practice.
Prior to the 1870's there was not a comprehensive standard of tort liability. 'Tort' originally simply meant a 'wrong', a wrong not arising out of contract and giving rise to civil liability. Torts were not even regarded as a separate area of law by eminent British seventeenth-century legal commentators such as Edward Coke or William Blackstone. There was no over-arching theory. Cases were decided with reference to their own features and current perceptions of equity and justice.
The standard explanation for the emergence of Torts as a separate body of law is the rash of lawsuits prompted by industrialization. Industrialization was important because more cases involving strangers were filed. In turn, this led to more writs being filed alleging tortious claims. Initially, following English precedent, courts strictly circumscribed which parties had standing. The English case of Winterbottom v. Wright, (1842) concerned a contractor who supplied a coach with latent defects to a mail delivery company. The coach broke down and injured the plaintiff, who was not a party to the contract. Lord Abinger, C.B. expressed concern that unless recovery was limited to parties to the contract, the 'most absurd and outrageous consequences, to which I see no limit, would ensue.' Similarly, the New York case, H.R. Moch Co., Inc. v. Rensselaer Water Co., (1928) concerned a contract to supply water. A building caught fire, spreading to the plaintiff's warehouse and destroying the contents. The defendant was accused of negligence for failing to supply sufficient water at the correct pressure to put the fire out. The court held that the supplier contract did not create a special relationship with all of the recipients of the city's water, for otherwise the enlarged zone of duty would extend liability unduly and indefinitely.
The courts were challenged further as more cases involving strangers evolved. The English case of Sturges v. Bridgman, (1879) is one of the first leading English cases to confront the effects of industrialization on property rights. A confectioner had used a mechanized mortar and pestle on his back premises for many years. Later, a physician extended his premises into his garden, which abutted the confectioner's place of business. The noise and vibration from the confectioner's activities adversely affected the use of the doctor's premises. Lord Justice Thesiger held that the confectioner did not have an easement over the doctor's property because the doctor had not given his consent to the noise and vibrations. The judge further commented that it is important to consider the circumstances when determining a nuisance. If a locality is devoted to a particular trade, judges and juries are justified in finding that the trade or manufacture carried on in that locality is not a private or actionable wrong. This English precedent influenced many court decisions in the United States.
The New York case of Ryan v. New York Central Railroad (1866) is an example of American courts adopting English common law principles to determine liability for fire damage. The railroad set its woodshed on fire by accident. The fire spread to the plaintiff's house, 130 feet from the blaze, and to other homes. Applying the general principle that every person is liable for the proximate results of his acts, but not for remote damages, the railroad was held liable for the plaintiff's fire damage. The railroad was liable to the plaintiff because the damage was the natural or necessary consequence of the initial fire. However, none of the other property owners had a claim against the railroad. The spread of fire beyond the first home was due to circumstances beyond the defendant's control, such as the degree of heat, atmosphere, condition of materials adjoining the structure, and wind direction. Interestingly, the court commented that the other property owners should have insurance to cover their loss, and that they should not be allowed to punish their neighbor because they failed to take precautions themselves. Nowadays, the courts and lawyers are forbidden discussion of insurance.
Similarly, in the New Hampshire case of Buch v. Amory Mfg. Co. (1898), a liability principle was applied which is extremely limited by modern standards. An eight-year old child, unable to speak or understand English, was injured by machinery in the defendant's mill. The child was a trespasser, and had been told to leave by the overseer, who did not speak the child's language. The defendants were held not liable because they did not owe the plaintiff a legal duty. The court commented:
"The law no more compels the owners to shut down their gates and stop business for the protection of a trespasser then it requires them to maintain a railing about an open scuttle or to fence in their machinery for the same purpose."
This narrow interpretation of liability is reflected in the Colorado case of Denver & R.G.R. Co. v. Sipes, (1896) when the company avoided liability for an employee's injury. The injury was caused when a railroad conductor negligently left open a switch, contrary to the company rules. Similarly, in the New York case of MacPherson v. Buick Motor Co., (1916) a car manufacturer was held to have a duty to make cars carefully, and to guard against all probable, proximate danger, but not all possible danger. In addition, the reseller was under a duty only to exercise reasonable care.
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