Theory and Fact in the Law of Accidents

Abstract

During the nineteenth century, the common law fashioned rules conditioning compensation for accidents on both causal agency and the fault of a party. This scheme of accident compensation has been under attack for nearly a century. Some of the battles have been fought within the common law itself; product liability emerged with Cardozo's opinion in MacPherson v. Buick Motor Co.1 That decision has served as an exemplary illustration of the adaptability of the common law. More often, the controversy has raged in the legislatures and in the legal literature. In the first of these arenas, the battle resulted in workers' compensation, which transformed the basis of compensation for industrial accidents from fault to injury within the scope of employment. In 1932, a Columbia University study made the first calls for the abandonment of fault as a basis for compensation for automobile accidents.2 Roughly forty years later, no-fault automobile accident plans were adopted in some states.3