Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
CHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY
AND INTRODUCTION
So far in this book we have been studying torts arising out of intentionally inflicted harms.
But the great majority of torts cases in the court system – and the great majority of the hard cases
– arise not out of intentional contacts but out of unintentional contacts. They are unintentionally
inflicted harms. In other words, they are accidents. If a defendant does not intend an injury,
ought the defendant be obligated to compensate the plaintiff for it? If so, what kinds of
unintentional injuries produce such obligations to compensate? These are the central questions
for the law of unintentional torts, and we turn to them now through the development of the
common law of torts.
A. Common Law Beginnings
In the first several centuries after the Norman Conquest, the Norman kings left the
resolution of many disputes to the local or church courts that were scattered choc-a-bloc across
the English landscape. Parties seeking the king’s justice in disputes involving real property or
interpersonal violence, however, could seek out the king’s justice. A petition to the king’s
chancellor could produce powerful royal intervention—but only if the chancellor determined that
it was the kind of dispute into which the king ought to intervene. Over time, as the number of
petitions grew, the chancellor came to recognize certain categories of dispute as entitled to royal
justice. Such disputes were causes for royal action—or causes of action, as we know them today.
A petition alleging the kinds of facts that constituted one of these stereotyped disputes would
produce a letter, or “writ,” from the chancellor to a local official ordering him to take steps toward
resolving the dispute in question.
Thus was born the so-called “writ system,” which formed the basis for the law common to
the king’s courts—the English common law—for nearly a thousand years. The chancellors’
categories hardened into particularized forms of action, which offered specific procedures and
remedies for complaints stated in terms of the stereotyped factual allegations that followed the
pattern of the chancellor’s category. From time to time, under pressure from parties seeking the
king’s justice, the chancellor slowly recognized new forms of action to address new kinds of
disputes. Moreover, parties seeking the advantages of the king’s justice often sought to fit their
disputes within the preexisting categories of the forms of action. And as the king’s
representatives recognized these expansions of the existing forms of action, the writ system grew
and expanded to meet new kinds of disputes.
The evolution of the writ system explains the common law beginnings of the law of
unintentional torts. The writ of trespass was first recognized in the twelfth century; it offered a
remedy in the king’s courts for intentional breaches of the king’s peace by force and arms—vi et
armis in the Latin. (Recall the recitations of “force and arms” in the action for trespass in Ploof v.
Putnam and the action for assault in I de S v. W de S in Chapter 2.) Over time, the recitation of
the key phrase “force and arms” in complaints initiating a cause of action for trespass became a
mere fiction; the terms were used solely because they were necessary to invoke the procedures of
royal justice, even where there was no real allegation that force or arms had been used at all. In
the late thirteenth century and fourteenth century, the clerks of the Chancery began to authorize a
subsidiary form of action as well, a writ known as the writ of trespass on the case. Trespass on
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