Accidental Torts

47 Pages Posted: 12 Apr 2001

Abstract

Tort law today is commonly (though not universally) conceived as a functional response to the social problem of accidental personal injury. That conception downplays the intentional torts, the torts that do not involve physical injury, and the view of tort law as the elaboration of notions of corrective justice, while foregrounding the choice between tort and other legal regimes for dealing with the accident problem. The article examines the origins of the accident-centered conception at the time torts became established as one of the fundamental common-law categories in the latter half of the nineteenth century. The first commentator to sketch the basics of the accident-centered approach was the young Oliver Wendell Holmes, Jr. Holmes's view of the subject emerged from his reconsideration of an initial judgment, plausible at the time, that torts should not be a primary legal category at all. Neither Holmes's original doubts about torts as a category nor the theory with which he resolved them had much to do with his views about sound social policy toward industrial accidents. His tort theory rather arose out of the debate, remote and abstruse to us today, about what was the best taxonomic arrangement of the substantive law to adopt in the light of the abolition of the common-law forms of action. The influence of Roman and civil law theory favored adopting torts as a basic category, while the analytical jurisprudence of Bentham and Austin pressed the other way. After first taking the Bentham-Austin side against torts, Holmes found that centering tort law around the problem of accidents could justify its recognition as an important subject after all. Coincidentally, the burst of litigation over industrial personal injury in the late nineteenth century made Holmes's construction of tort law around accidents especially salient, and helped it to gain the dominance it holds today. The article first sketches the accident-centered conception of torts as currently understood. Then it shows why torts need not have emerged as a fundamental legal category in the late nineteenth century. Next it traces the steps through which Holmes moved from rejecting torts as a subject to justifying it as a body of law organized around the negligence action and the problem of accidental injury. It concludes by noting how the accident-centered conception undermines the continued survival of torts as a primary division of our substantive law, given the rise of alternative means of dealing with the accident problem.

Suggested Citation

Grey, Thomas C., Accidental Torts. Available at SSRN: https://ssrn.com/abstract=266547 or http://dx.doi.org/10.2139/ssrn.266547

Thomas C. Grey (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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