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

Witt & Tani, TCPI 3. Strict Liability and Negligence
king’s judges at Westminster. He could issue a general denial (plead “the general issue”). Or he
could enter a special plea (plead “the special issue”) confessing the validity of the plaintiff’s
allegation but asserting some justification. The former plea sent the cause of action to a trial by
jury on the truth of the plaintiff’s story, a trial that was usually held in the vicinity of the acts
complained of. The latter plea put the plaintiff to a choice. Now the plaintiff could either issue a
general denial of the facts alleged in the defendant’s special plea in justification, which would
produce a jury trial on the limited question of whether the defendant’s story was true, or issue a
special plea of his own. Typically, the special plea at this stage would be a demurrer, asserting
that the defendant’s justification, even if true, was not sufficient as a matter of law.
The plaintiff’s lawyer in Gibbons adopted this latter strategy and demurred to the
defendant’s plea. Northey says—and the judges of the King’s Bench seem to agree—that it
would be a good special plea for a defendant in a trespass action to confess the trespass but justify
it some way. The defendant might, for example, say that the injury was inevitable in the sense
suggested in Weaver v. Ward. It would also have been permissible for the defendant to enter a
general denial and assert that there was no tort at all because the defendant’s acts were not the
relevant cause of the plaintiff’s injury. But this defendant, Northey claims, wants to have it both
ways: to say that the relevant cause was the fright given to the horse, not the defendant’s act, and
that the injury was inevitable. Northey’s response is to say that this is a bad plea—that the
defendant may not plead both ways but must instead choose one plea or another. And the court
agrees.
One might wonder at the fairness of this: why put the defendant to the burden of
specifying so precisely the kind of plea he means to enter? Over time, the demanding and highly
particular procedures of the common law became objects of derision and scorn. It would seem the
domain of pettifogging lawyers drawing obscure distinctions and laying traps for the unwary and
untrained. Our modern procedural system, since at least the middle of the nineteenth century, has
dropped the elaborate pleading requirements from the front end of civil actions.
But the early modern system was not merely a device for generating fine distinctions and
procedural niceties. People rarely create arbitrary and capricious systems; we create institutions
for reasons, and here the reason was that it served an important function. The common law trial
had no discovery stage: there was no sharing of information between the parties in advance of the
trial. The result was that the factual issues on which the jury would decide had to be narrowed by
the pleadings lest one or both of the litigants risk being completely taken by surprise by his
adversary’s trial strategy and not have prepared witnesses or other evidence on the relevant story.
(Consider Serjeant Darnall’s plea for the defendant in Gibbons: it impermissibly presented not
one but two different factual defenses to the plaintiff’s complaint, first that the horse had been
frightened by some third party or some other agency, and second that the injury was inevitable in
the sense suggested by the court in Weaver v. Ward.) The common law courts’ insistence on
extremely specific pleading was an effort to focus the proceedings on as narrow an issue as
possible.
Note that although to our eyes the common law’s early pleading system may seem
unappealing, our own procedural alternative is hardly free of dysfunction. Recall first how
incredibly expensive our system is. The pretrial process by which parties share information with
one another—discovery and depositions—is so overwhelmingly costly that many kinds of cases
simply cannot be brought at all, at least not in an economical matter. Recall also that our system
has essentially brought an end to the civil trial altogether, since virtually all cases that do get
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