Liability without Negligence

By Katzenstein, Lawrence P. | St Louis Post-Dispatch (MO), May 15, 1995 | Go to article overview

Liability without Negligence


Katzenstein, Lawrence P., St Louis Post-Dispatch (MO)


A campaign to bring tort law under federal control centers on the idea that our courts have taken public policy into their own hands, "destroying centuries-old standards."

Among the opinions cited as evidence of judicial over-reaching is a 1944 concurring opinion in the California Supreme Court enunciating the theory that "even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market."

Regardless of the merits of strict liability of manufacturers for products that cause injury, the objection that the courts have no basis making policy in this area simply ignores legal history. Our entire law of personal negligence is essentially court made; and, until courts in the 19th century changed the rule, strict liability was the rule, not the exception.

For most of English legal history, if I caused injury to another person, I was liable even if I had not acted negligently. One commentator surveying the old cases notes that "apparently in no reported common law action . . . did the defendant actually prevail upon a showing that the injury, though caused directly by his voluntary act, did not result from any negligence on his part."

Not until the 19th century did the courts - undoubtedly reflecting society's view that in the Industrial Revolution we want to encourage people to act in new and perhaps dangerous ways - change public policy and develop lack of negligence as a defense in personal injury cases. An oft-cited example was the 1850 decision of the highest court of Massachusetts in Brown vs. Kendall. (The opinion was written by Lemuel Shaw, an eminent jurist and Herman Melville's father-in-law.)

In Brown, the defendant was attempting to separate two dogs with a stick. In doing so, he raised the stick above his head to strike the dogs, accidentally hitting the plaintiff in the eye. All parties agreed that the defendant had not acted negligently or carelessly. The court, in a much-cited decision that helped revolutionize the law of personal injury, held that the defendant could avoid liability by showing that he had not been negligent.

This was something new. The English courts had ruled to the contrary as early as 1466 in a case involving essentially the same facts.

So strict liability is not only nothing new, but was the law for most of our legal history until the courts wcreated the 19th-century defense of no negligence in personal injury matters. Those who do not like the outcome of recent decisions should not blame the judicial process.

Examples of strict liability are legion. The common law doctrine that makes employers responsible for negligent acts of their employees, even where the employer himself is totally free from negligence, is a well-known example. Workers' compensation laws, which impose liability on employers for on-the-job injuries to employees whether or not caused by the employer's negligence, are another familiar example.

The objection that the courts have no business making policy in this area is also off base. The law of torts (the branch of law that deals with the right of redress for personal injuries) was developed almost entirely by the courts, and it was transformed over many centuries by a gradual accretion of court-made law. …

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