The Classical Law of Tort
Coke's Institutes of the Law, No. 1, Series Editors: Amanda J. Owens & Charles K. Rowley
Jurisprudence in the Nineteenth Century
Jurisprudential thought was not only challenged by industrialization. In the late 1800's, a cultural and intellectual ethos developed which originated in America during the middle years of Queen Victoria's reign. It developed from the tensions associated with material progress in an urban, industrial society, which tended to undermine traditional sources of societal stability, such as religion. After the American Civil War, scholars looked for secular and scientific theories to promote order and unity in a modern industrialized setting. They focused on 'conceptualization' - the transformation of data into comprehensive theories of potentially universal applicability. Unity was to be achieved by the 'scientific' ordering of knowledge.
The 'scientific' thinking that was developed and applied to American law was based on four assumptions. The first assumption was that knowledge is neither finite nor fixed in content and that there is too much information for one person to assimilate. Additionally, there was a movement away from the belief that training, moral philosophy and/or the classics could supply answers to all questions. The second assumption was that knowledge was built on empirical observation, allowing organization, classification and mastery of a specialized subject matter. The goal was to have a scheme in which an area of knowledge was ordered using inductively derived principles. Third was the belief in specialized, intensive exposure to a limited area of knowledge. Fourth was the requirement of a rite of entry before a graduate could enter into a profession.
The writ system was not based on scientific universal principles, but on arbitrary historical cases. Inevitably, dissatisfaction arose with the writ system, with its lack of cohesion and logical basis. Under the existing system, greater emphasis was placed on the procedural requirements than on the substantive elements of an action. This was completely illogical to the nineteenth century scholar.
The first three principles were applied in the late nineteenth century to develop torts as an independent branch of law. Scholars such as Holmes, with his concentration on fault-based claims, developed a field of legal knowledge with a distinct theoretical perspective from the diverse collection of actions. Where possible, existing tortious rules and maxims were transformed to serve a theoretical view.
Legal theorists began to hammer out a separate body of law, to be known as 'torts law'. In the 1830's state courts in New York, Massachusetts and Pennsylvania associated negligence with acts of misfeasance, which were evaluated by a general standard of care. Brown v. Kendall is often cited as the first American torts case to employ a "fault" standard of liability. It was preceded by several other cases in New York and Pennsylvania. Justice Shaw in the Massachusetts case of Brown v. Kendall in (1850) recognized that "fault" could be a universal standard, inferring that persons were under a universal but confined duty to take care not to injure another.
Greater inroads were made in the 1870's when Holmes examined the tort writs and classified them. In certain civil wrongs, such as allowing wild animals to escape, liability attached regardless of the culpability of the actor. With other actions, such as assault and fraud, culpability was a prerequisite for liability, while in other actions the culpability of the defendant, although pivotal to recovery, did not determine the case. The decisions hinged on the social utility of the conduct. Using this discovery as a compass, Holmes divided the subject matter of Torts into three categories: absolute liability, intentional torts and negligence.
Holmes isolated negligence as the comprehensive principle of tort law. Negligence stemmed from an increased number of cases involving accidents with persons who had no pre-existing relationship with each other, or, 'stranger' cases. Pre-industrialization, there were few cases of accidents between persons with whom there was no pre-existing relationship. After industrialization, there were numerous incidences of cases between stranger parties. The writ system could not encompass these cases, and Holmes ushered in a new era in tort law.
Even more importantly, Holmes established a moral standard, fault, as a prerequisite for a successful recovery. Reliance was used as a touchstone to determine fault. Erie R. Co. v. Stewart, (1930), a federal case in the sixth circuit, concerned an accident when a truck driver was hit by an oncoming train. The driver was accustomed to a watchman signaling the presence of an oncoming train. The reliance on this practice of warning created a positive duty of care by the railroad. Responsibility attached because the service was negligently performed or abandoned without notice to those who had come to rely on it.
|
...