Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 3. Strict Liability and Negligence
chase your cows, it is obligatory of you to make amends for what they have done, be the damage
great or small. . . . And sir if it were the law that he was able to come and take the thorns, then by
the same reasoning if he cut a large tree he would be able to come in with carts and horses to carry
the trees out; that would be unreasonable, because the plaintiff might have corn or other plantings
there. Nor here, because the law is the same for big things and small, and he will make amends
according to the size of the trespass.
CHOKE, J. This resembles my view, because where the principal thing was not lawful,
then the thing that depends on it will not be lawful. When the defendant cut the thorns and they
fell, this falling was unlawful and therefore his coming to take them was unlawful. As to what has
been said about their falling against his will, that is no plea, but it obliges him to say that he could
not have acted in any other way, or that he did all that he could to keep them out, otherwise he
will render the damages. And Sir, if the thorns or a large tree had fallen onto the plaintiff’s land
by wind, in this case he would have been able to go to take them, because the falling would not
have been his act, but that of the wind.
Notes
1. The liability standard for unintentional torts. How many different positions on the
liability threshold in unintentional torts are articulated by the lawyers and the judges in The Case
of the Thorns? Are there arguments to be made on behalf of some or all of these views? Are
there still further possible positions the law might adopt?
2. Why so few cases? One striking feature of the Thorns case is that it poses the question of
what the liability standard ought to be for unintentional torts—but it does so in the context of an
intentional tort dispute. We rely on the case as a way of identifying the liability standard for
unintentional torts in the early modern period because torts cases were few and far between prior
to the nineteenth century. Why so few torts cases until then? Professor Norma Landau suggests
one explanation: seventeenth- and eighteenth-century plaintiffs often took advantage of the nowlong-abandoned
system of private prosecution to initiate criminal processes against those who
injured them. See Norma Landau, Indictment for Fun and Profit: A Prosecutor’s Reward at
Eighteenth-Century Quarter Sessions, 17 LAW & HIST. REV. 507 (1999). Professor Landau notes
that plaintiffs “were not really interested in bringing defendants before [a] court” for punishment.
Instead, plaintiffs “were interested . . . in obtaining compensation for the offense.” Id. at 529.
The threat of criminal punishments must surely have been a very powerful club with which to
induce settlement from the accused. The rise of the modern system of public prosecution in the
early nineteenth century, however, eliminated this criminal process option and helped bring about
the rise of tort law.
3. Over a hundred years later, the English Court of Common Pleas weighed in with another
ruling on the question of what sorts of unintentional injuries created a legal obligation of
compensation, this time when an injury arose out of a soldiers’ skirmish in London.
97