Prosser, p. 1-16: “Development of Liability Based Upon Fault”


A tort is anything bad you can do to another person that’s neither a crime nor a breach of contract.  Tort law used to be based mostly in common law and it was of limited interest to the public.  Now there are a lot more statutes and the public is interested in and concerned with those big fat lawsuits we hear so much about.


We see a lot of quote marks around words such as “liability crises”.  Does this mean that the authors will subsequently deny there is really any crisis, or are they sincerely trying to be even-handed?


The tortmeisters trot out four reasons to have tort law.  Here they are:


1.     It’s better to have people settle their differences in court than get violent with each other.

2.     The threat of a lawsuit will deter people from behaving badly.

3.     The threat of a lawsuit will encourage social responsibility.  Say what?

4.     The person who was hurt can be compensated, restoring them to their original condition as much as possible.


SKP mention the relationship of the tort system to the insurance system.  I think this is very important and I want to hear more about it.


Here we have some historical stuff.  It seems the main point is that at times there has been a “no-fault” system and at other times there’s been a “fault” system.  We’re told that early on, it certainly seemed to be “no-fault” and that intent didn’t matter.  If you hurt somebody, you paid, even if you didn’t mean to.


Now we’ve got some complicated stuff.  There were these “forms of action”.  You couldn’t sue somebody for just anything, you had to allege something that there was sort of a prepared, fill-in form for.  You needed to get the King to sign off on bringing your adversary into court, and there were only certain things you could get him to sign off on.


We hear a lot about two kinds of writs: the writ of trespass and the writ of trespass on the case.  The book starts referring to them as “trespass” and “case”, so that’s what I’ll do too.


Trespass grew out of regular old law enforcement.  If you did something bad, you could be tried, found guilty, and then imprisoned or fined.  But if you also hurt somebody while committing the crime, they could sue you for damages.


Case was sort of an extra-special catch-all kind of lawsuit for when something bad happened but it didn’t fall under one of the regular writs and you asked for a full-custom writ to be writ.  Case is where most of modern tort law comes from.


Trespass involves immediate, direct force while case involves any other injury that might be suffered.  Neither one had anything to do with intention.


Case: (or something) Anonymous


Case: Weaver v. Ward


Case: Brown v. Kendall


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