Personal Injury Litigation in School Cases

Abstract

The case law on school torts has been controlled by propositions of the taught law that are unreal and obsolete in an era of risk-shifting and insuring. Nor is that condition unusual in torts where lawmaking and administration have been interlocked and codification has been superficial. Although workmen's compensation is an exception, lawmen have not produced much comprehensive legislation on torts.' Obviously there is much legislation touching personal injury litigation. There are statutory schemes on survival of actions2 and on the allowing of claims because of death by wrongful acts,3 some declaratory propositions on fault and defamation,4 and occasionally something like a retraction statute in libel5 or a statute on extended liability for automobile-using,6 but most legislation touching torts is local and special. Much of it is penal, and much of it is in city ordinances. It becomes important in tort cases through the doctrine of negligence per se. Most of the tort law vocabulary and the taught propositions are derived from an era of individualism when it was supposed literally that tortfeasors could pay for their conduct, but this special legislation by ordinance or statute, relating to particular businesses, persons or places, and conditioned by the doctrine of respondeat superior, smacks of status and absolute liability. It becomes practicable when typical risks and costs can be charged to overhead and reduced by insurance. Except for these special regulatory laws and instances such as workmen's compensation or extended liability for automobile-using, lawmaking and codification in torts have not caught up with the facts of life.8