A. Three types of defendant conduct: Most Torts courses and casebooks organize the bulk of tort law into three categories, relating to the nature of the defendant’s conduct. This is also the approach followed here. Thus we consider, in order: (1) intentional torts; (2) the tort of “negligence” (i.e., roughly speaking, “carelessness”); and (3) torts in which the defendant’s conduct is neither intentional nor careless, but he is made “strictly liable” because of the nature of his activity (e.g., abnormally dangerous activity, manufacture of defective products, etc.).
B. Historical overview: The relations among these three categories have undergone vast historical development.
1. Early strict liability: Under early (15th century) common law, courts often imposed strict liability. Thus in Hulle v. Orynge (The Case of Thorns), King’s Bench, 1466, the text says, “[i]f a man does a thing he is bound to do it in such a manner that by his deed no injury or damage is inflicted upon others.” For instance, as that case stated, if A lifted his stick to defend himself against an attack by B, and the stick accidentally hit C, standing behind A, A would be liable, notwithstanding his carefulness, and the fact that he was engaged in lawful self-defense.
a. Trespass vs. trespass on the case: A distinction developed between the action of “trespass” (which was for a direct invasion of the plaintiff’s person or property) and “trespass on the case” (which was for an indirect invasion of these interests). A classic example was that of a log which falls on the road; if the log hit the plaintiff while she was walking, this was trespass. But if she stumbled on the log after it had landed, this was merely trespass on the case.
b. Significance of distinction: One important consequence of the distinction between the two causes of action is that for trespass, strict liability existed (as in Hulle, supra). For trespass on the case, however, it was normally necessary to show some fault on the defendant’s part.
2. Negligence for trespass: But the rule of strict liability for “trespass” began to break down, with respect to certain kinds of trespasses. Thus in Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616), P and D were soldiers engaged in military exercises. As they were skirmishing, D’s musket went off, wounding P. The court held for P, but noted that if D had been able to show that the accident was “utterly without his fault,” as would be the case if P had run in front of the gun at the moment of firing, D would not be liable. The burden of proving pure accident was upon D, however, and he did not make such a showing.