Negligence

History of Negligence Law

Prior to the 19th century, unintentional accidents causing personal harm in the English and American common-law tradition were generally governed within tort law under the principle of strict liability. (In contrasting legal systems such as continental Europe, the Canadian province of Quebec, and Puerto Rico, negligence is regarded as a form of extra-contractual obligation within the Law of Obligations). Under liability rules, plaintiffs usually only had to show that they were harmed by the defendant's conduct and were not required to demonstrate “fault.” In other words, citizens were responsible for the harm their actions caused. Negligence, on the other hand, was a more complex concept that required that plaintiffs also prove “unreasonable conduct” on the part of the defendant. In theory, it was thus much easier to win a liability case than a negligence case since the burden of proof required for success was considerably lesser.

From the 1840s onward, the negligence standard had begun to replace strict liability in American tort law. Legal theorists in the second half of the century successfully attempted to systematize civil law by deriving logical and foundational principles to guide torts. They criticized what they saw as the arbitrary character of juries and their supposed predilection to favor the ordinary person against the corporate defendant. The most dominant school of American legal historians, often called [Page 562]the subsidy theorists, have argued persuasively that judges and legal thinkers in the 19th century, largely sharing the interests of industrial capitalists, successfully sought to make the negligence principle central to tort law in order to encourage the free market and development of laissez-faire capitalism. Since negligence was usually more difficult to prove, such a legal development would be beneficial to corporations who would face a lesser risk in the event they were sued for their products or behavior as an employer. As Morton Horwitz argues, “it was the doctrine of an emerging entrepreneurial class that argued that there should be no liability for a socially desirable activity that caused injury without carelessness.” Older notions of strict liability were seen by defenders of this viewpoint as anomalies to a scientific, ordered, and certain set of legal principles in line with the developing capitalist economy.

...