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Perhaps the biggest problem of tort law today is the adjustment of losses which are the more or less accidental by-product of legitimate activities not aimed at hurting people or property. It is one phase of the nation's accident problem which in itself and in its bearing upon the professional activity of lawyers is of no mean proportions. Before the industrial revolution, liability was imposed in this field, without much regard to fault, upon the person whose act directly produced the harm. The development of industry and business saw the rise of laissez-faire as the dominant economic philosophy and fault as the dominant principle of liability for the casualties of enterprise, each being a manifestation in its sphere of the individualism of the age. Fault is still the dominant principle though the crest of its dominance is past. There is a growing belief that in this mechanical age the victims of accidents can, as a class, ill afford to bear their loss; that the social consequences of uncompensated loss are dire and far exceed the amount of the loss itself; and that more good will come from distributing these losses among all the beneficiaries of mechanical progress than by letting compensation turn upon an inquiry into fault. The ultimate outcome of this belief would be some form of social insurance. Workmen's compensation statutes have carried this approach into practice in what used to be a large area of tort law, but in the rest of the field we are considering things have not gone nearly so far. The newer ideas are making themselves felt, however, and as a result a process of limitation, corrosion, and change of the fault principle is taking place. This was the most pronounced trend in tort law during the years before the war and it has apparently continued despite many cross-currents and recessions.
Date of Authorship for this Version
Accident Liability: Some Wartime Developments, 55 Yale L.J. 365 (1946)