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

Witt & Tani, TCPI 3. Strict Liability and Negligence
brought settle in advance of trial. Both of these characteristics of our system of trials may be
traced directly to the reform of the common law pleading system. The advent of elaborate pretrial
processes like discovery became necessary once the common law pleading had been abolished. In
turn, discovery has turned out to be so expensive and to produce so much information at the
pretrial stage that it has in most cases led the parties to settle rather than litigate to trial. For more
on this point, see John H. Langbein, The Disappearance of Civil Trial in the United States, 122
YALE L.J. 522 (2012).
2. Common law juries and the fault standard. Gibbons is important to us not only because
the case illustrates the choices to be made in designing a procedural system, but also because it
reveals more about the liability standard at common law for unintentional injuries. The judges of
King’s Bench emphasize the centrality for the law of trespass of identifying the relevant actor. To
act and cause injury is to have committed a trespass.
But the penultimate line of Gibbons suggests something more—it indicates that at least
some of the kinds of justifications and excuses that the defendant sought to offer could have been
raised and litigated at the jury trial stage of the proceedings. We have much less information
about the jury trials in the early common law than we do about the pleadings that took place at
Westminster. Trial transcripts do not exist. But the suggestion of Gibbons is that juries may have
been making distinctions between the parties that were subtler than the relatively crude pleading
categories.
3. Gibbons foreshadowed a crisis for the rigid forms of the common law writ system. The
crisis was especially apparent in highway cases, particularly in carriage accidents. The difficulty
appeared in the following case:
Leame v. Bray, 102 Eng. Rep. 724 (K.B. 1803)
[In a trespass action, plaintiff declared that the defendant “with force and arms” drove
“along the King’s highway with such great force and violence upon and against the plaintiff’s
curricle drawn by two horses,” that the plaintiff’s servant was thrown to the ground and plaintiff
himself leapt to the ground and was injured as his horses fled in fright, fracturing his collar bone.
Defendant pleaded not guilty, and the case went to trial where it appeared in evidence at trial
before Lord Ellenborough, C.J. that the accident occurred because the defendant drove his
carriage on the wrong side of the road on a dark night. The defendant objected that “the injury
having happened from negligence, and not wilfully, the proper remedy was by an action on the
case and not of trespass vi et armis. The trial judge dismissed the plaintiff’s case as having been
brought under the wrong writ.]
Gibbs and Park [for the defendant-respondent] now shewed cause against a rule for setting
aside the nonsuit, and admitted that there were many precedents of trespass vi et armis for an
injury immediately proceeding from the party, although his will did not go along with his act; but
here they contended that the injury was consequential and not immediately flowing from the
forcible act of the defendant, and in such a case trespass will not lie unless such act be done
willfully. . . .
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