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

Witt & Tani, TCPI 3. Strict Liability and Negligence
direct injuries, whereas the writ of trespass on the case was associated with indirect injuries like
the trampling incident we have hypothesized here.
Judge Fortescue of the King’s Bench gave the classic statement of the distinction between
trespass and case in 1726:
[I]f a man throws a log into the highway, and in that act it hits me, I may maintain
trespass, because it is an immediate wrong; but if as it lies there I tumble over it and
receive an injury, I must bring an action upon the case; because it is only prejudicial
in consequence for which originally [i.e., in trespass vi et armis] I could have no
action at all.
Reynolds v. Clarke, 92 Eng. Rep. 410 (K.B. 1726). The neat distinction offered by Fortescue,
however, soon gave way to great difficulty. The next case gives us a sense of how the early
modern common law tried to resolve the problem of indirect injuries. The underlying problem of
indirect injuries is especially important because it raises general considerations that are with us
still today.
Scott v. Shepherd, 96 Eng. Rep. 525 (K.B. 1773)
Trespass and assault for throwing, casting, and tossing a lighted squib at and against the
plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the
sight of it . . . .
[T]he cause came on to be tried before Nares, J., last Summer Assizes, at Bridgwater,
when the jury found a verdict for the plaintiff with £100 damages, subject to the opinion of the
Court on this case: On the evening of the fair-day at Milborne Port, 28th October, 1770, the
defendant threw a lighted squib, made of gun-powder . . . from the street into the markethouse,
which is a covered building, supported by arches, and enclosed at one end, but open at
the other and both the sides, where a large concourse of people were assembled; which lighted
squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread[.]
That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates,
took up the said lighted squib from off the said standing, and then threw it across the said markethouse,
when it fell upon another standing there of one Ryal, who sold the same sort of wares, who
instantly, and to save his own goods from being injured, took up the said lighted squib from off
the said standing, and then threw it to another part of the said market-house, and, in so throwing
it, struck the plaintiff then in the said market-house in the face therewith, and the combustible
matter then bursting, put out one of the plaintiff’s eyes. . . .
NARES, J., was of opinion, that trespass would well lie in the present case. That the
natural and probable consequence of the act done by the defendant was injury to somebody, and
therefore the act was illegal at common law. And the throwing of squibs has by statute . . . been
since made a nuisance. Being therefore unlawful, the defendant was liable to answer for the
consequences, be the injury mediate or immediate. . . . The principle I go upon is . . . that if the
act in the first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at
first, trespass will lie for the consequences of it. So, in . . . . [The Case of the Thorns,] for going
upon the plaintiff’s land to take the boughs off which had fallen thereon in lopping. . . . I do not
think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff. . .
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