The Classical Law of Tort
Coke's Institutes of the Law, No. 1, Series Editors: Amanda J. Owens & Charles K. Rowley
Limitations
The scientists, though interested in developing a universal tort law, did not propose wholesale adoption of the negligence principle. They still adhered to the philosophy that one is responsible for oneself in society. The general duty of care had to be limited in case it undermined this essential principle.
A number of defenses were available to a negligence tort action. The limited defense of consent was discussed in the Minnesota case of Mohr v. Williams (1905). A patient had an ear examined and consented to an operation. Once in the operating room, the doctor conducted further tests and decided it was in the patient's best interests to operate on the other ear. Although the patient consented to an operation, and reasonable latitude is implied into this consent, the doctor had still committed a technical assault and battery.
The Vermont case of Ploof v. Putnam, (1908) discussed necessity. The plaintiffs were sailing when a terrible storm erupted. They moored themselves to the defendant's dock, but the servant loosened the boat. The boat was destroyed and the family thrown into the water. The doctrine of necessity justified entries upon land and interference with personal property, especially when human life was concerned. The defendant was liable for damages. On a similar theme, the Minnesota case of Vincent v. Lake Erie Transport Co. (1910) concerned a steamship which was moored to a dock during a tempest. The crew replaced the ropes that bound the ship to the dock each time they broke. After the storm, the dock was severely damaged by the ship. The court held that the crew exercised good judgment and prudent seamanship in keeping the ship in dock, but found the vessel owners liable to the dock owners for the damage to the dock.
Insanity does not exempt a wrongdoer from liability. This is for public policy reasons. An insane person who does intentional damage to the person or property of another is as liable for that damage as any other person, McGuire v. Almy, a Massachusetts case (1937). Similarly, infancy is not a defense to a tort action, Vosburg v. Putney, (Wisconsin 1891).
An act of God can exempt a defendant from liability. However, the act of God must be the sole proximate cause of the injury. Montgomery v. National Convoy & Trucking Co., (1938), a South Carolina case, concerned a car accident in icy conditions. Two truck drivers collided and did not erect flares or attempt to warn other traffic of the danger posed by their trucks. The plaintiff's car crashed into them. God may have been responsible for the weather conditions, but the truck drivers should have exercised reasonable care to warn others of their peril. Their failure to do so was negligence.
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