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West Virginia University School of Law
Cady, Thomas C.

DEVELOPMENT OF LIABILITY BASED ON FAULT – CH. 1                                                     
“TORT” – twisted or wrongful conduct – INJURY
             – a civil, non-contractual wrong giving rise to a civil action, usually for damages
            – imposes duty to act in manner that will not injure others
Tort law – developed in recent times – middle of 19th century
– some ancient undeveloped cases hinting at torts
– 1st case in 15th century was Anonymous
– tort law now concerns COMPENSATION for injuries – a.k.a. “personal injury” law – includes wrongful death, property losses, invasion of other legally protected interest (defamation to good name; invasion of privacy etc.)
-Auto accidents compromises bulk of tort practice in US
Legal system – establishes system of rules to distribute rights and wrongs in society
1.      Labels conduct as right or wrong
2.      Sorts out advantage – provides mechanism/procedural process
3.      Substitute for revenge and private self-help which disturbed King’s peace
4 Purposes of Tort Law:
       1. TO COMPENSATE VICTIMS – shift loss from victim to wrongdoer
       2. Deterrence – punishment = imposition of liability ($$$damages$$$) – will deter by
                  transferring loss from victim to actor and making wrongdoer pay
 3. Non-violent dispute mechanism
       4. Encourage Social Responsibility
Deter = “ex ante”                            Compensate = “ex post”
Goal in tort law is to find reason to shift loss
MAJOR PREMISE: To determine appropriate basis of liability!!!
Common Law Writ System – genesis of tort law – form of action – needed writ to bring action
**NOTE: distinx not b/t intentional and negligent conduct; emphasis on CAUSAL
                 CONNEX not character of Ds wrong
1.   Writ of trespass
-criminal character = no proof of actual damages
-purpose to punish
2.      Writ of trespass on the case
-developed from no writ applicable and applied to Chancellor
-through this action on the case, most of tort and contract law developed
-purpose to award civil damages = must prove indirect injury was done w/ fault – prove damages
            **NOTE: In modern law, must prove actual damages EXCEPT for assault, offensive
                             battery, false imprisonment, and trespass to land
OLIVER WENDELL HOLMES – “The Path of the Law” – 1897 Harv. L. Rev.
General principle of Tort Law: Loss from accident must lie where it falls and principle not affected b/c human is instrument of misfortune, UNLESS a good reason exists to shift loss from where it fell
No case or principle can be found or if found can be maintained subjecting individual to liability for an act done without fault on his part…..all case concede that an injury arising from an inevitable acci

But now want to relax strict rules of strict liability – Defense = “utterly without fault”
D can escape strict liability from direct injury with these MAGIC WORDS – UTTERLY WITHOUT FAULT
No fault system with fault based escape – mixing oil and water
Transitional phase from old rule to new one – part of system development, very pragmatic 
Represents new scheme/value – coming out of transition
Identical fact pattern to Weaver and Anon. – writ of trespass form b/c D “directly” injured P
FACTS: D separating two dogs – and hit P in eye with stick
If apply Anon: P wins – Kendall strictly liable for direct injury in no fault system – no escape
If apply Weaver: P wins but excuse available (“utterly without fault) – since Weaver, legal system developed this excuse to be “high care or extraordinary care” as excuse for liability – if D could prove was doing necessary or required act, could escape if exercising extraordinary care
Now escape is extraordinary care – but incorrect statement of Holmes
FAULT IS BASIS OF LIABILITY & BASIS TO SHIFT LOSS – reverse of where we started in Anon