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

Witt & Tani, TCPI 3. Strict Liability and Negligence
case might seem to be the only appropriate cause of action. Williams resolved this problem by
making clear that either way, a writ of trespass on the case would be an appropriate cause of
action in highway collisions, so long as the defendant’s act was not willful.
2. Trespass on the case. After Williams, trespass on the case became the standard form of
action in highway cases. Williams thus increased the association between showings of negligence
and highway cases. This made sense because the highway cases brought out an underlying
problem with the trespass cases reaching back all the way to the Case of the Thorns and Weaver v.
Ward. It was one thing to attribute great significance to the act that caused the plaintiff’s injury.
But on what principle did the common law courts conclude that the relevant cause of that injury
was the defendant’s act rather than the plaintiff’s own? In the middle of the nineteenth-century,
common law jurists would identify an answer to this problem. We now turn to the answer to
which they arrived.
B. Negligence Versus Strict Liability
Despite a smattering of older cases such as those in Section A above, the modern law of
unintentional torts is quite new. Scholars trace it back to the middle of the nineteenth century,
when a confluence of developments gave rise to something recognizable as modern tort law.
Industrialization produced a sharp increase in the sheer number of accidental injuries and deaths.
The demise of the writ system and the abolition of the old common law forms of action gave rise
to substantive conceptual categories for the law, such that for the first time law book publishers
issued treatises on tort law. Equally important, the rise of a market economy characterized by
male wage earners supporting families of dependent women and children gave rise to new
pressure for wage replacement when wage earners were injured or killed. See generally JOHN
FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004).
Just as modern tort law was beginning to emerge, an influential judge in Massachusetts
weighed in on the question that had animated the smattering of English cases since The Case of
the Thorns: when is a defendant obligated to compensate a plaintiff for unintentionally inflicted
harm? Strangely enough, the question would arise in a case that had nothing to do with the
industrial revolution or the kinds of wage work that seemed to have occasioned the new law of
torts. To the contrary, the case involved the kind of simple problem that torts jurists had posed as
hypotheticals for centuries.
Brown v. Kendall, 60 Mass. 292 (1850)
It appeared in evidence, on the trial . . . that two dogs, belonging to the plaintiff and the
defendant, respectively, were fighting in the presence of their masters; that the defendant took a
stick about four feet long, and commenced beating the dogs in order to separate them; that the
plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards
the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The
defendant retreated backwards from before the dogs, striking them as he retreated; and as he
approached the plaintiff, with his back towards him, in raising his stick over his shoulder, in order
to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.
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