Accidental Harms: Historical and Analytical Foundations of Negligence and Strict Liability

Accidental Harms: Historical and Analytical Foundations of Negligence and Strict Liability

1. 
   Historical Considerations
   
   1. 
      Holmes, The Common Law
      
      1. 
         SL leads to inconsistent results and public policy discourages application of SL
         
      2. 
         Incentives under SL undesirable—“public generally profits by individual activity.”
         
      3. 
         Justice based—fairness to parties. Liability should be based on fault.
         
      4. 
         Social Welfare—insurance and incentives
         
      5. 
         Really critiquing extreme and endless liability
         
      6. 
         Holmes isn’t really addressing harms that could be foreseen or a SL that is cut off at a certain point.
         
   2. 
      General
      
      1. 
         Unless there is a clear benefit, loss from accident must lie where it falls because the machinery of litigation is complex and expensive
         
2. 
   Analytic Foundations
   
   1. 
      Possible justifications
      
      1. 
         General Welfare—social benefits and costs
         
         1. 
            Private insurance better than government insurance
            
         2. 
            Imposing loss on D—just shifts loss
            
         3. 
            Incentives—makes you want to take care
            
         4. 
            Sanction—tort liability is almost penalty for failing to live up to social norm
            
3. 
   Decisional Foundations
   
   1. 
      Brown v. Kendall (1850): If D’s act is lawful, P must establish the D didn’t use ordinary care. D struck P while trying to separate dogs.
      
   2. 
      Rylands v. Fletcher (Eng, 1865): Landowner is strictly liable for harm caused by the escape from his property of anything likely to cause harm. D’s reservoir collapsed and flooded P’s mine shafts.
      
      1. 
         Trial court: This was just consequential, not immediate harm. No liability
         
      2. 
         Intermediate (Blackburn): True Rule: Person who for his own purposes brings on his lands anything likely to do mischief must keep it in at his peril, prima facie answerable for damage in case of escape.
         
      3. 
         House of Lords:
         
         1. 
            Cranworth agrees with Blackburn
            
         2. 
            Cairn: Non-natural use of land makes SL the right rule
            
      4. 
         US jurisdictions that have embraced SL have used Blackburn rule. English courts have used Cairns rationale. British also have affirmative defenses.
         
   3. 
      Brown v. Collins (1873): Rylands-type SL incompatible with modern industrial age. Railroad engine scares horses who destroy P’s stone lamp post.
      
      1. 
         Sounds a lot like Holmes rationale—the extreme counsequences of SL
         
      2. 
         Amounted to a subsidy to railroad.
         
   4. 
      Powell v. Fall (Eng, 1880): Users of dangerous things—SL. Railroad liable for destroying hay, although sparks unintentional.
      
   5. 
      Stone v. Bolton (Eng, 1950): P, who lived next to a cricket ground, was struck on the head by a cricket ball that had been hit out of the grounds.
      
      1. 
         Appellate: Negligent D is liable for reasonably foreseeable harm.
         
      2. 
         House of Lords: Negligence assessed by balancing risk of harm with cost of reducing harm.
         
      3. 
         Dangerous enough to shift liability? Would it have mattered if P hadn’t left her property?
         
   6. 
      Hammontree v. Jenner (1971): D driver, an epilectic, had seizure and crashed into bike shop. Negligence governs liability, not SL.
      
   7. 
      Vincent v. Lake Erie
      
4. 
   Handout #1
   
   1. 
      Types of Situations:
      
      1. 
         Unilateral Harm, Unilateral Care
         
         1. 
            Under SL, D decides on appropriate level of care. Under NEG, judge and jury decide. Who is better equipped?
            
         2. 
            Incentives given to active party
            
         3. 
            E.g. Rylands, Stone v. Bolton
            
         4. 
            Strong arguments for SL under both deontological and welfarist approaches
            
      2. 
         Unilateral Harm, Bilateral Care
         
         1. 
            E.g. Powell v. Fall, rancher v. farmer
            
         2. 
            Negligence is the better rule because bargaining is not costless.
            
         3. 
            This category is the least clear cut.
            
         4. 
            From deontological view, SL for harm done, but NEG when care taken on both sides.
            
      3. 
         Bilateral Harm, Bilateral Care
         
         1. 
            E.g. Brown v. Kendall, collision cases
            
         2. 
            Negligence is better rule from incentive perspective.
            
         3. 
            Strong NEG argument under Deontological, weak welfarist argument for imposing SL.
            
5. 
   Fundamental Theories
   
   1. 
      Deontological
      
      1. 
         Overview:
         
         1. 
            Function of legal system is to enforce moral rights
            
         2. 
            Non-consequentialist, non-instrumentalist
            
         3. 
            Establish and maintain legal rights between parties
            
         4. 
            Backward looking—let’s restore equilibrium
            
      2. 
         Theories
         
         1. 
            Conventional fault-based
            
            1. 
               SL is barbarous—doesn’t account for moral character
               
            2. 
               Intentional torts and NEG should be proper rules
               
         2. 
            Epstein’s causation-based approach to corrective justice
            
            1. 
               Derived from common law—SL for acts that cause harm
               
            2. 
               Those who act, causing harm, are prima facie liable, with no showing of fault or intention, but subject to affirmative defenses.
               
            3. 
               Takes exception with collision cases
               
         3. 
            Fletcher—non-reciprocal risks
            
            1. 
               Those who take higher risk are liable
               
            2. 
               Higher risk takers internalize the costs—society should shift loss even when care is taken
               
            3. 
               Not concerned with distributive justice
               
   2. 
      Welfarist
      
      1. 
         Overview:
         
         1. 
            Overall welfare of society
            
         2. 
            Function of legal system, like gov’t, is to advance human welfare.
            
         3. 
            Legal rights are instrumental, consequential, engineered to achieve desirable state of society.
            
         4. 
            Intentional harms—SL imposed to promote contractual, welfare-enhancing interactions.
            
      2. 
         Considerations
         
         1. 
            Incentives—tries to get appropriate level of activity by cost internalization of precautions
            
         2. 
            Loss Spreading—insurance, prohibits risk bearer to fall from rich to poor
            
         3. 
            Transaction Costs—Under SL, more litigation suits, but each less costly than under NEG
            
      3. 
         Other institutions can help achieve welfarist goals, while not addressing corrective justice