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Understanding Tort Law

Updated on September 7, 2009

The law of tort, or private wrong, like that of contract has had a long history. Procedural accidents have played an important part in the development of tort, as in that of contract. At first the wrongs most commonly litigated in the royal courts were wrongs to land. Promptly it was observed that they could be committed either by disseisin, applying force directly (as by invading the land and driving the owner out), orĀ 

By 'nuisance', indirectly and without touching the land (as by diverting a watercourse or blocking a way leading to it). Such was the situation by the end of the 12th century.

Having taken care of the really serious matter of disseisin, the royal courts were content to let the local courts deal with assaults and batteries and with minor wrongs to real and personal property- at least until the late 13th century. At that time, actions of trespass assumed more importance and appeared more frequently in the king's courts.

The term trespass was used for cases where force had been applied directly to the person, chattels, or land of the plaintiff. But many acts cause damage only indirectly, and the action of trespass on the case came to remedy them. For a long time the distinction between trespass and case, as trespass on the case came to be called, was fairly easy to maintain. The boundaries or trespass, at least, were tolerably clear. Case, on the other hand, embraced an ever-increasing variety of situations and spread far and wide, even including contract; assumpsit itself was a subvariety of case. In the course of this long history the word negligence often appeared in actions on the case and finally came to be characteristic of it. It further contributed to the development by a subtle change in its meaning. Its first significance was that the defendant had "neglected" to do something that he ought to have done, but slowly it changed so as to imply that he had acted, but had acted carelessly and "negligently". Finally, some very technical changes in pleading resulted in plaintiffs almost always framing their cases in terms of case instead of trespass, so that the conception of negligence covered the whole field.

Under the rule of contributory negligence a plaintiff may fail to recover damages if his own negligence contributed to the damage. Much subtle case law grew up around this rule, which is peculiar to the common law. A number of jurisdictions in Canada and the United States have modified it. In England, legislation in 1945 enacted the alternative of making both parties contribute to the damage in proportion to their degree of fault: a rule worked out by admiralty courts in connection with collisions at sea.

A vast enlargement of the field of tort liability was effected at the beginning of the 18th century, when the common-law courts began to hold an employer liable for the torts committed by his employee while engaged in his employer's business- another principle borrowed from older maritime law. The wide use of machinery in factories during the 19th century brought many risks and injuries, and the common-law principle that tort liability attaches only when the defendant can be shown to have been negligent or otherwise at fault proved to be entirely unsuitable for an increasingly industrialized society. The conviction grew that injuries from industrial accidents were not so much an issue between an employee and his employer as a grave social problem. By the workmen's compensation acts, adopted in England and, more tardily, in the states of the United States, a principle of liability without proof of fault was established for industrial injury claims, and jurisdiction over such claims was taken from regular courts and given to special administrative commissions.

The examples given here are only a slight indication of the wide range of tort law and of the many problems it is faced with. Automobile accident cases, for example, have come to dominate tort litigation and, indeed, account for perhaps three fourths of all American civil cases of this type. The social costs of automobile transportation are appallingly high, and the mass of automobile accident litigation has put courts in the United States years behind in their dockets. Suggestions have been made that the fault principle should be abandoned in automobile accident cases, as it is in industrial accident cases, and that something resembling workmen's compensation procedures should be substituted for formal court litigation of automobile accident claims. The automobile accident problem and the problem of manufacturers' liability to consumers for injuries caused by defective products are the most important areas in the contemporary law of torts.


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