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