Negligence Doctrine Research Articles

The Theory of Enterprise Liability and Common Law Strict
 Liability

The proposed Restatement Third, Torts: General Principles takes the position that there is no general conception of strict liability, only special instances of such liability. This paper argues that there is indeed a general conception of strict liability, namely, enterprise liability, and that enterprise liability is a conception of responsibility for harm done equal to and competitive with the fault principle. Enterprise liability emerges early in the 1900's and expands in influence throughout most of the twentieth century. At the very moment when fault theorists like Ames and Jeremiah Smith were proclaiming the triumph of the fault principle in the common law of torts, enterprise liability burst full-blown on the legal landscape, with the enactment of the first Worker's Compensation Acts. These Acts, as Jeremiah Smith saw, were founded largely upon a theory inconsistent with the common law of torts. That theory - the theory of enterprise liability - went on to spread throughout the tort law of accidents, reshaping preexisting forms of strict and vicarious liability and blossoming in the products liability regime inaugurated by Section 402A of the Second Restatement. Enterprise liability played an important role in tort accident law throughout the twentieth century, expanding the domain of strict liability relative to negligence and increasing the strictness with which certain doctrines (such as res ipsa loquitur) were interpreted. Even during the current renaissance of negligence liability, enterprise liability continues to exert a powerful subterranean influence on the way negligence doctrine is formulated in such disparate areas as medical malpractice, special relationships and duty. The proposed Restatement, Third's portrayal of strict liability as a set of isolated exceptions to a general regime of fault liability is thus untrue to the history and theory of the tort law of accidents as it has come down to us at the start of this century. More disturbingly, this slighting of enterprise liability and celebration of fault liability covertly contributes to its own realization. By writing enterprise liability out of our law and treating all instances of strict liability as special cases with particular histories and peculiar rationales, the proposed Restatement, Third fosters the triumph of negligence over strict liability, a triumph it purports merely to find.

Heart versus Head: Judge Made Law in Nineteenth-Century America

Versus Head: Judge Made Law in Nineteenth-Century America. By Peter Karsten. (Chapel Hill: University of North Carolina Press, 1997. Pp. xv, 490. Illustrations, maps, tables. $55.00.) If you ask scholars specializing in United States legal history for a graduate reading list, Morton J. Horwitz's Transformation of American Law, 1780-1860 (1977) is bound to turn up. Horwitz argued that antebellum judges created new rules of law to benefit merchant and entrepreneurial classes at expense of labor, poor, and nonentrepreneurial capital. These instrumentalists usurped legislators' role determining public policy from bench. Despite criticisms, Horwitz's book created what Peter Karsten calls the reigning paradigm (3). Now, Karsten offers a mass of evidence to prove it wrong. With a handful of exceptions, nineteenth-century jurists did not create any new rules favoring capitalists, writes Karsten (5). When American jurists applied rules that benefited those who were better off, they were following English precedent, some of it dating back centuries, which exhibited, not a mythical preindustrial paternalism, but a ruthlessness befitting a fiercely hierarchical society. This deference to English precedent was of Head (Part I). When American jurists broke from precedent, their innovations tended to favor poor plaintiffs and penalize corporate defendants. These new rules were of Heart (Part II) and often expressed Christian and republican convictions of its creators. The Jurisprudence of Invisible Hand was itself virtually invisible (299). Karsten's subject is details of legal reasoning and their statistical results. It takes attention to grasp all he says, but as writing on legal doctrine goes, this is among best. Karsten's direct style makes for an intriguing journey through American courtrooms. To make his case, Karsten looked at hundreds of appellate decisions and many treatises and law journal articles. He also generously acknowledges his reliance on scholars of American and English legal history whose work adds hundreds of other decisions to his evidence. Karsten follows seventy rules of law from late eighteenth through early twentieth centuries. One-third of those rules changed, and almost all changes benefited plaintiffs. Although northeastern jurists tended to honor English precedent, those hailing from Midwest, South, and West tended to innovate. Karsten begins Part I, on of Head, noting how English precedents affected American jurists. He then turns to contracts, where he finds little change. For example, he quotes a dairy farmer in 1737 invoking expectation damages, of many supposedly nineteenth-century innovations. In his chapter on torts, Karsten refutes notion that one injured in premodern era had only to prove that defendant's act had caused injury to establish defendant's whereas by mid-nineteenth century ... a plaintiff ... had new obligation of establishing defendant's negligence or fault (81). Virtually strict liability was applied to exploding boilers, defective stagecoaches, and railroad equipment throughout nineteenth century. Although Wex Malone claimed in his widely-known article in Illinois Law Review in 1946 that New York appellate judges who invoked doctrine of contributory negligence were representative, Karsten's survey finds them part of a distinct minority (98). …

Choice of Law in Equitable Wrongs: A Comparative Analysis

AN English company is targeted in a hostile take-over bid. Its directors from British Columbia decide bona fide and reasonably that its best interests require them to ward off the takeover by issuing sufficient shares to a friendly third partyX Does this amount to a breach of the fiduciary duty to exercise their power for a ;'proper puwose' under English rules of equity, or does the more liberal business judgment doctrine of British Columbia provide a defence?t A fiduciary is sued in Canada for breaching equitable duties in New Zealand; Can he or she successfully raise the beneficiary's contributory negligence as a partial defence as allowed under New Zealand law; or not because the doctrine of contributory negligence does not apply to breaches of fiduciary duty under Canadian law?2 How does one determine the law governing equitable wrongs3 in a case with international contacts? There has been little analysis of th}s issue by Commonwealth4 conflicts scholars. Questions relating to breach of fiduciary duty by trustees and administrators of estates aside} this important area has been touched upon by only one commentator.S This seems to be

Risk Reduction Through Indemnification Contract Clauses

Traditional contractual relationships between the owner, architect or engineer, and construction contractors have changed significantly during the past 50 years. Professional liability insurance alone does not guarantee adequate protection from malpractice litigation. The wording of executory contract clauses must be carefully written and construed. This paper reviews recent common law indemnification judgments. Indemnification contract clauses are used by architects, engineers, and constructors as risk allocation mechanisms. Many times professional malpractice risk reduction is not achieved because the clause is not carefully constructed to meet the legal definition of “clear and equivocal” and cannot stand the test of the express negligence doctrine. An understanding of how indemnification can and cannot be used in contracts can prevent undue risks from being accepted and allow maximum protection from successful third party suits. Architects, engineers, and constructors face the development of new laws regarding the use of computer aided drafting and design equipment and software, which will undoubtedly increase future risks and include indemnification contract language.

Donald Davidson and section 2.01 of themodel penal code

Section 2.01 of Model Penal Code sets out Code's version of notoriously difficult or requirement of an actus reus. A number of philosophers of law have commented upon confusion which surrounds notion of an act as a requirement for criminal liability. Hyman Gross holds that ...acts are not bodily movements. Those who talk as though they were do not reflect common sense, but simply resolve summarily by fiat an important problem that all of us in a more thoughtful moment perceive as difficult and obscure.[1] Later he tells us that the act itself, or rather very idea of an act, still remains veiled in mystery.[2] Glanville Williams has also stated: Considerable confusion reigns, both in ordinary speech and in legal speech, on what is meant by an act.[3] And D. O'Connor has added that the thoroughgoing analysis of actus reus necessary for criminal liability has yet to arrive,[4] a claim that Douglas Husak cites with approval and agreement.[5] Problems Stemming From Act Requirement This issue is not merely a definitional one. There are several traditional legal problems surrounding act requirement. One involves omissions. If an affirmative act is paradigm for criminal liability, how can one be liable for not acting? A standard account of an act for purposes of act requirement in criminal law is that it be a muscular contraction. This is John Austin's[6] account, as it is Holmes's[7] and J.S. MNill,s.[8] This view of a criminal act has been roundly criticized by H.L.A. Hart, among others.[9] Hart's criticism turns on two points, one of which is precisely ours.[10] Omissions are not muscular contractions of any sort, willed or otherwise. In this sense, they are non-events. Hart tells us...it is absurd even to attempt to fit omissions into such a picture....[11] A broader, but essentially simpler, definition is exemplified by Model Penal Code (hereinafter Code), where wer are told 'act' or 'action' means a bodily movement whether voluntary or involuntary.[12] But this definition is faulted by Meir Dan Cohen precisely because it fails to include omissions (as well as possession).[13] A second, even more serious, problem is posed by negligence and strict liability. So-called involuntary actions, such as muscle spasms or movements while unconscious, must be excluded if act requirement is to mean anything. And they are excluded in Code.[14] Yet, unintentional action must be able to create liability in cases of negligence or strict liability, without throwing out act requirement. That is, if I negligently run over an infant in my car, it fails to be murder precisely because killing, indeed collision, was unintentional. How is this different from an involuntary act? The acts of driving, colliding, and killing are mine, and, based on a negligence doctrine, I can be held liable for them. But I cannot be held responsible if I lapse into unconsciousness at wheel (so long as it is not through earlier fault of my own). Intuitively, we sense a difference between an unintentional and an involuntary act, but how can we explain it? In neither case was I guilty of performing act of intentionally running over someone. What is conceptual difference between unintentionally driving over an infant and behavior of unconsciously doing so? And why should that conceptual difference make a moral and legal difference? In a way similar to negligence, but totally dissimilar to involuntary acts, actions giving rise to strict liability are unintentional. If I am liable, under a strict liability statute, for harm done to persons by my explosive demolition work, it is assumed that harm was unintentional, lest it be battery or murder, that is, an intentional wrong. Yet, I am responsible for effects of demolition, that is, of effects of my act. …

WHEN HOSPITALS DONʼT LISTEN TO NURSESʼ COMPLAINTS

Liability for hospital negligence can come about in two ways. Most commonly, a hospital is held liable for the negligent acts of its nursing staff by the doctrine of respondeat superior. But the hospital, as a corporation or business entity, can also be liable when it fails in its obligation to the patient. A pattern of chronic inadequate staffing that is permitted by the administration, for example, exposes the corporation to an allegation of negligence. A system that permits unsafe nursing procedures also may fall prey to the doctrine of corporate negligence. In Fincke v. Peeples, the plaintiffs case was strengthened immensely when the court accepted as evidence testimony of several nurses who claimed that the defendant anesthesiologist's usual practice was to extubate surgical patients prematurely.1 In this case, a 17-year-old boy had a repair of a torn medial meniscus. After an uneventful two-hour operation, the orthopaedic surgeon and the anesthesiologist accompanied the boy to the postanesthesia room (PAR). According to the surgeon's testimony, immediately upon arrival in the PAR, the anesthesiologist placed his hand over the endotracheal tube to determine the depth of the young man's respiration and was about to extubate him when

Comparative Negligence

Traditionally, one of the standard defenses to a negligence action, including a professional liability suit, has been the doctrine of contributory negligence. This doctrine precludes recovery of damages by a person whose injury was, in part, caused by his or her own negligence, even if the negligence of the person being sued was also a proximate cause of the injury for which recovery would otherwise have been allowed. Courts have often been reluctant to apply the doctrine of contributory negligence because it can preclude recovery by a person whose negligence is substantially less than that of the person being sued. This is particularly true in professional liability actions due to the great disparity in medical knowledge between the patient and the physician. Thus, the defense of contributory negligence has been successful mainly in cases where the patient's conduct shows flagrant disregard for his own health or safety. To achieve more

Comparative negligence

Traditionally, one of the standard defenses to a negligence action, including a professional liability suit, has been the doctrine of contributory negligence. This doctrine precludes recovery of damages by a person whose injury was, in part, caused by his or her own negligence, even if the negligence of the person being sued was also a proximate cause of the injury for which recovery would otherwise have been allowed. Courts have often been reluctant to apply the doctrine of contributory negligence because it can preclude recovery by a person whose negligence is substantially less than that of the person being sued. This is particularly true in professional liability actions due to the great disparity in medical knowledge between the patient and the physician. Thus, the defense of contributory negligence has been successful mainly in cases where the patient's conduct shows flagrant disregard for his own health or safety. To achieve more

Prospects for Malpractice Suits in the Business Consulting Profession

A widely noted trend in society has been to fix responsibility more rigorously upon the experts in a diversity of fields upon whom society in general has grown increasingly dependent. Physicians and attorneys were among the first professional groups to be held accountable at law for the standard of their services to the public. Today, a doctor who errs in surgery or a lawyer who mishandles a case in court is increasingly likely to be sued by his client for malpractice, a field of law which is governed by the doctrine of negligence. Whereas just 15 years ago only 5 percent of the country's lawyers carried malpractice insurance, today it is estimated that more than 95 percent are covered for professional liability.' Recently business and management consultants have begun to feel the same malpractice pressures. Consulting is a relatively recent but rapidly expanding field which today includes 19,733 consulting firms employing 288,603 people.2 The survey reported here is concerned with the increasing responsibility and accountability of individuals and firms which offer professional consulting services to business, government, and other organizations. Particular attention is given to professional liability claims which are pursued to litigation by the client and to the methods by which the professional consultant can protect himself and/or his firm from legal action stemming from alleged malpractice or errors and omissions. As this article will reveal, consultants are relatively unaware of the rapid increase in professional liability suits against those in their profession. Lumley, Dennant and Company, Inc., one of the few insurance companies which insures consultants, has reported that its claims rose 75 percent from 1971 to 1972 and that in 1971 the company paid out 27 percent of its premiums in claims. Three groups were surveyed: (1) individual consultants and consulting firms, (2) professional associations to which consultants belong, and (3) law firms specializing in commercial law. In total, 215 questionnaires were mailed out during November-December 1972. A questionnaire was designed for each group surveyed. One hundred and twenty questionnaires were sent to consulting firms, 70 to professional associations, and 25 to law firms. In January-February 1973 follow-up letters and additional questionnaires

Autonomy of Corrective Law: A Projection of the Doctrine of Constructive Negligence

Il y a des criminels que le magistrat punit, il y en a d'autres qu'il corrige … Ainsi il ne faut pas confondre les grandes violations des lois avec la violation de la simple police: ce sont choses d'ordre différent.(Montesquieu,Esprit des Lois,liv. xxvi, chap. 24)Here is this important body of law … where … there is going on a judicial task that is one of interest and also one of considerable difficulty … That is what gives scope for students of law. Do not ignore it or brush it on one side or dismiss it as impossible of study.(Sir Patrick Devlin, “Statutory Offences” (1958) 4Soc. Pub. Teachers of Law 215)The present article responds to Sir Devlin's appeal in favour of that body of law which, in the spirit of Montesquieu, deserves the distinctive name of “corrective law”. Its province mainly coincides with what is commonly called “public welfare” or “regulatory” offences, of which violations of traffic rules provide the most typical example.Their common feature is that they are penalized independently of the state of mind of the perpetrator, being based on the principle of absolute or, at least, strict liability. To this principle the most authorized teachers of criminal law have expressed their hostility; and their reasons therefor are undeniably impressive. Nevertheless, far from dying out, the field of strict liability offences increases constantly and, by sheer weight of number and variety, they greatly exceed those of “ordinary” crime.

Vagaries in Liability for the Escape of Fire

The vexed question of liability for the escape of fire, described by Winfield as a “confusing medley of remedies for the same wrong,” has re-emerged recently with all its customary vigour. The reason for the bewildering complexity of this branch of the law is clear: whereas other fields of tortious liability were allowed to advance within the expanding nineteenth-century doctrine of negligence, the development of liability for the escape of fire was hindered by section 86 of the Fires Prevention (Metropolis) Act 1774, a provision which was relevant only to a form of liability which had become outmoded in the nineteenth century. The initial confusion resulting from the conflicting and unhistorical approaches of the courts was aggravated by an irrational flirtation with the doctrine of Rylands v. Fletcher. The object of this study is to place the statutory provision in its true historical context, to extract and explain the various threads of development which have been indiscriminately intermingled by the judges and finally to propose that section 86 be repealed, leaving negligence or nuisance as the basis of liability.

Personal Injury Litigation in School Cases

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

Problems in Contributory Negligence

Few lawyers find practical value in analyses of the rationale of negligence or its branches; and in a sense this attitude of disinterest is justified. The many and difficult essays upon negligence and its complement, legal cause, can seldom be of more assistance in the winning of a given litigation than the wordy searches for philosophical absolutes in which the schoolmen are supposed to have reveled. Nevertheless, in the lifetime of many lawyers practicing today pressures arising within the judicial process have wrought considerable, if unacknowledged, alterations in the operation of certain aspects of the common law negligence doctrine. Outside pressure has removed from its sphere of operation certain problems typical of those which are usually assigned to it for solution by practitioners and commentators alike. And it is quite possible that there is a trend in this latter direction which has not yet reached its fullest development. For example: It is assumed without statistical research that the two greatest sources of accidents which would ordinarily give rise to typical negligence litigation are the industrial process and the automobile. Workmen's Compensation and Employers' Liability Acts have now created a system of compensating the injured party in accidents arising from the first source which would appear almost wholly foreign to the jurists who gave us the negligence doctrines we still use.' Already there are proposals that automobile accidents be similarly removed from the operation of negligence law 2 even as it now stands, expanded and distorted by the incorporation of multitudes of criminal statutes aimed at diminishing the dangers of automobile operation.3 The arguments

Automobiles. Liability of Driver to Guest. Gross Negligence Doctrine

Automobiles. Liability of Driver to Guest. Gross Negligence Doctrine

Tort—Master and Servant—Negligence—Doctrine of Common Employment—Supply and Nature of Stage Appliances

Tort—Master and Servant—Negligence—Doctrine of Common Employment—Supply and Nature of Stage Appliances