1071415

The Role of Negligence in Modern Tort Law
Author(s): John G. Fleming

Source: Virginia Law Review , May, 1967, Vol. 53, No. 4 (May, 1967), pp. 815-846
Published by: Virginia Law Review
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THE ROLE OF NEGLIGENCE IN MODERN
TORT LAW
John G. Fleming*
S o central is the idea of fault to our past and present concept of tort
liability, that to inquire about its continued role invites speculation
about the very future of civil liability and the function that may remain
for it in taking care of the injured in the years to come. In large meas-
ure, that future will be determined by the extent to which the task of
compensation will increasingly be entrusted to other legal institutions,
especially to social security and other forms of insurance. Long-range
questions about loss bearing that we have been accustomed to debate
solely in terms of tort liability will increasingly demand consideration
in the wider context of the whole panoply of social institutions charged
with alleviating the lot of the community's unfortunates and allocating
the cost in a socially and economically acceptable manner. The part
played by tort law in that task is bound to shrink to ever more modest
proportions, to the point where today's postulates, based on very dif-
ferent assumptions about its work load, will be doomed to irrelevance.
That time however has not yet come. In the short run, therefore, it
is perhaps not entirely idle to venture a summation about the place of
negligence within the modest perspective of today's and tomorrow's
orientation.
THE ROOTS OF FAULI LIABILITY
The story of fault liability has been told many times. We may there-
fore content ourselves with merely sketching its outlines in order to
provide a setting for the ensuing discussion.
Concern with culpa is traceable to the earliest beginnings of delictual
liability, even as it separated from the criminal law. Certainly, by the
end of the Roman Republic, Aquilian liability for damage to person
and property was understood to require either an intent to injure or
negligence; for purely accidental harm, the injurer went free.' Germanic
as well as English law, it is true, seemed to maintain a longer tie witlh
*Professor of Law, University of California, Berkeley. B.A., 1939; M.A., 1943; D).
Phil., 1948; D.C.L., 1959 (Oxon.).
1 LAWsoN, NEGLIGENCE IN THE CIVIL LAW 36-43 (1950).
[815 ]

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816 Virginia Law Review [Vol. 53:815
liability based on sheer causation, but the picture is obscure, and at least
from the end of the medieval period onwards, fault was gradually
moving to the forefront of legal discourse. With the "Reception" of
Roman law Europe unreservedly embraced the culpa doctrine for tor-
tious no less than contractual liability.3 Whether under the influence
of this development or independently, English law at least manifested
the same cultural pattern, as its rather primitive "forms of action" were
remolded in a process that, by the turn of the 19th century, if not be-
fore, had made negligence a central element of injury law.4
For all practical purposes, these developments were already consum-
mated by the time the industrial revolution began to gather real momen-
tum. Though it is fashionable to discern an organic link between the
two, it is probably more in accord with historical evidence to assert
merely that, so reformed, the law was well attuned to the social and
economic demands of that dramatic leap forward in the volume and
scale of enterprise, which lay ahead as the 19th century unfolded.
Ideologically, the fault doctrine is inseparably linked with the philos-
ophy of individual responsibility, and it is to this cultural influence
rather than to economic factors that its rise must be fairly attributed.
Perhaps one could so interpret even the once current primitive view
which inferred intent from the mere happening of an injury: a mani-
festation, as Albert Ehrenzweig has sought to show,5 of an innate psy-
chological need to attribute misfortune to evil design. That modern
man continues to crave the consolations of a fault theology may only
go to demonstrate that he has not yet succeeded in emancipating him-
self from these atavistic shackles. However that may be, Hegelian philos-
ophy led to the general acceptance of the view that the very concept of
man as a morally responsible being had to find expression in the legal
notion of personal responsibility. It postulated that conduct can be con-
demned as reprehensible only if the actor could have conformed to the
norms prescribed by the legal order. Thus, in order to deserve con-
demnation, the actor must have been guilty of either intentional or
negligent misconduct. What is more, responsibility had to conform to
2 For English law see FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW 154-83 (1949).
For German law see Mvrris, DEUTSCHES PRIVATRECHT 113 (2d ed. 1953).
3 See the classical text by HASSE, DIE CULPA IM R6MISCHEN RECHT (Bethmann-Holl-
weg ed. 1828).
4 Goodhart & Winfield, Trespass and Negligence, 49 L.Q. REV. 359 (1933); Pritchard,
Trespass, Case and the Rule in Williams v. Holland, 1964 CAMB. L.J. 234.
5 Ehrenzweig, A Psychoanalysis of Negligence, 47 Nw. U.L. REV. 855 (1953).

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1967] The Role of Negligence 817
this test in relation to all and every consequence, even to the kind and
extent of the appropriate sanction.
This philosophical blueprint was, of course, never fully translated into
the law. Most notably, practical considerations, especially of administra-
tive convenience, militated in favor of objective standards of care, rather
than the individualistic test whether, given his personality and capacities,
the particular individual had done all that could reasonably have been
expected of him. Here again, economic determinists must be prepared
to allow that this position had little to do-indeed was pretty well at odds
-with the assumed socio-economic forces of burgeoning capitalism.
For one thing, the so-called objective or "abstract" view of negligence
was hardly an invention of the 19th century. Beginnings of it are al-
ready traceable in the postclassical Roman definition of negligence as the
care to be expected from a diligens pater familias6-that imaginary, if
somewhat bewildering personage, who has survived into modern con-
tinental law7 as the counterpart of our own "reasonable man." For an-
other, the tendency of the objective principle to promote increased lia-
bility severely taxes any monistic theory that the law consistently re-
flected the needs of the dominant capitalist interests for protection
against the imposition of liability. This is strikingly illustrated by the
fact that English law turned down its last chance to reconsider the
objective viewv at the very moment8 when it had just given hostage to
those same capitalist interests in laying down the fellow-servant doctrine.9
Another short fall from the postulates of individualistic philosophy is
the evident failure to insist on any correspondence between the degree
of the tort-feasor's fault and the extent of his liability. Attempts have
not been wanting to establish gradations of negligence, which found
their inspiration in postclassical Roman distinctions between light,
ordinary and gross negligence,10 were "received" into our law of bail-
ments,11 and attained renewed prominence in the modern American
6 DIGEST 13.7.14; INSTITUTES 6.18.pr.; see LAWSON, op. cit. supra note 1, at 40-41.
7 The Prussian Code of 1794 (for which see WIEACKER, PRIVATRECHTSGESCHICHTE DER
NEUZEIT 201-07 (1952)) specifically endorsed the objective view of negligence. 1
ALLGEMEINES LANDRECHT tit. 3, ? 24 (1794), provided: "Bey der Zurechnung der freyen
Handlungen nehmen die Gesetze auf die eigenthiimliche Beschaffenheit oder Geiste-
skrafte dieser oder jener bestimmten Person keine Riicksicht." For additional documen-
tation see DEUTSCH, FAHRLASSIGKEIT UND ERFORDERLICHE SORGFAILT 9-22 (1963).
8Vaughan v. Menlove, 3 Bing. N.C. 467, 132 Eng. Rep. 490 (C.P. 1837).
9 Priestley v. Fowler, 3 M. & W. 1, 150 Eng. Rep. 1030 (Ex. 1837).
10 See BucKLAND & McNAIR, ROMAN LAW AND COMMON LAW 259-63 (2d ed. 1965).
11 See Coggs v. Bernard, 2 Ld. Raym. 909, 92 Eng. Rep. 107 (K.B. 1704), a decision
which has (if for a different reason) cast a spell of fascination on Charles Gregory.

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818 Virginia Larw Revierw [Vol. 53:8 15
(and Canadian) rule of attenuated responsibility to guest passengers.12

These rules, however, are both exceptional in incidence and designed to
assure total immunity. They are not applied in all cases, and even where
invoked, do not provide a sliding scale of dollar-liability. In the upshot,
then, it is as true now as it always was, that the measure of liability is
dependent not on the nature of the defendant's conduct, but on the
severity of the plaintiff's injury. Accordingly, a rather slight lapse may
involve far greater liability than a more reprehensible transgression
which luckily does little harm. Even the most ardent champions of the
fault theory have had to swallow, albeit regretfully, this "injustice,"
although there is some support in Germany for a proposal to temper
liability, under certain stringent conditions, for lesser degrees of fault,'3
and some socialist legislation has accepted the principle that damages
may be exceptionally reduced having regard, among other things, to
the fault of the tort-feasor.14
In the broadest terms, however, it is no doubt true that the fault doc-
trine not only reflected the intellectual climate of 19th century's indi-
vidualistic credo, but responded adequately to the fundamental needs of
a developing economy which did not relish being unduly hampered in
its expansive thrust by sentimental concern for the injured. The delicate
and perhaps perennially shifting balance between the traditional twin
aims of tort liability-to punish the injurer and to compensate the injured
-which the older law seemed to weigh in favor of the latter was tilted
See Gregory, Gratuitous Undertakings cnd the Duty of Care, 1 DE PAUL L. REV. 30,
33-38 (1951).
12 See PRoSSER, TORTS ? 60, at 392 (3d ed. 1964). A few jurisdictions have arrived at
this conclusion via the bailment analogy without legislative help.
13 See Lange, 1 VERHANDLUNC zUM 43. DEUTSCHEN JURISTENTAG 13-14 (1960), especial-
ly Resolution 1 (b). However, according to the official legislative draft now under dis-
cussion in Germany, damages would be exceptionally reducible not in the light of the
defendant's lesser degree of fault, but because the injury was exceptionally great for
the circumstances from which it arose. See the proposed ? 255(a) of the Civil Code, in
1 REFERENTENENTWURF EINES GESETZES ZUR A NDERUNG UND ERGENZUNG SCHADENERSXTZ
LICHER VORSCHRIFTEN (WORTLAUT) 2 (1966); 2 id. (BEGRUNDUNG) 29-52.
The legislative model for scales of liability in accordance with degrees of fault
is the Prussian Civil Code of 1794, see note 7 supra. See 2 FORSTER-ECCIUS, PREUSSISCHES
? 151 (6th ed. 1892); 1 KOCH, ALLGEMEINES LANDRECHtr tit. 6 (7th ed. 1878). It left
its mark on the Austrian Code of 1811, but struck no sympathetic chord for the
framers of the German Civil Code of 1900.
14 SBIRKA ZAKONU1 REPUBLIKY CESKOSLOVENSKE ? 450 (1964) (Czech.) [hereinafter cited
as CZECH. CIVIL CODE]. See also R.S.F.S.R. 1922 GRAZH. KOD. (Civil Code) ? 458(2)
(1931) [hereinafter cited as U.S.S.R. CIVIL CODE]; KODEKS CYWILNY, 16 DZIENNIK USTAW
POLISKIKIEJ RZECZYPOSPOLITEJ LUDOWEJ ? 440 (1964) [hereinafter cited as POL. CIVIL
CODE]; BLEY, SCHAIDENERSATZ IM ZIVILRECHT 145-46 (1963).

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the other way. This trend of the mid

pronounced in the sensitive areas of w
Here a number of doctrines reflecting
responsibility helped to cushion the e
dition to his overhead costs: the "unh
assumption of risk, contributory neg
and the privity shibboleth, which pro
against claims even for negligence by
consumer. It is hardly a coincidence, m
began to give way precisely after the
eration had been completed, when inc
combined with a heightened sense of social justice to countenance an
enlarged responsibility for the employer to his men and for industry
to the consumer.
RETREAT FROM NEGLIGENCE
Now, the pendulum is swinging so far in the opposite direction that

it is indeed becoming realistic to ask whether the future will hold a
place for negligence at all. What are the reasons for the progressive
skepticism about the capacity of the fault theory to remain the touch-
stone of our system of civil liability? Central of course is the issue of
its adequacy to cope with the problems posed by the highly techno-
logical society of our time.
Before adverting to any specific reasons for this skepticism about the
future of fault, it is as well to draw attention to one aspect of the neg-
ligence concept which, above all else, seems to me to raise the most
serious doubts about its utility in the context of today's most typical
accident problems. Negligence, with its familiar calculus of balancing
to arrive at the requisite standard of care, is appropriate for those
ordinary, commonplace activities with which the law was concerned
during its formative period. It was the realm of conduct that juries,
composed of people with ordinary experience, could adjudge. The
balancing process, which weighed the risk threatened on the one hand
against the utility of the proposed action on the other, assumed the
existence of a broad consensus about values-social values by which the
opposing pulls could be assessed. Typically, the cases involved the mis-
carriage of conduct that was safe enough if properly carried out. Rarely,
if ever, was or is a negligence issue raised over the propriety of a whole
enterprise, the expectation being that ordinarily it would be reasonably

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safe. Usually the issue was confined merely to the question whether
the disappointment of that expectation was due to something done or
omitted by the actor, but for which the activity would not have gone
amiss. If it was, the accident must be attributed to negligence; if not, to
pure mischance.
This image still fits well enough the familiar activities, especially
leisure activities, that have not changed measurably over the years. It
is, however, put under unbearable strain when applied to present-day
industrial operations, the most fertile source of injuries in the produc-
tion, distribution and consumption process. Two difficulties are most
perplexing. First is the virtually insoluble problem of pitting a social
against an economic judgment. A somewhat kindred, and all too fa-
miliar, difficulty is that encountered in so many professional negligence
cases when a professional decision, like a doctor's or surgeon's, must be
appraised for social adequacy. Here the law has come to rely on the
expert testimony of fellow practitioners and to adopt their opinion of
what is ordinarily done as the legal standard of due care. But this solu-
tion is regarded as altogether exceptional, finding its justification in the
alleged inability of laymen to penetrate the mysteries of medicine and
in the need to protect professional reputation against the vagaries of
jury verdicts. It is denied to all other defendants on the poignant ground
that, however significant may be the accustomed behavior of other
people in like circumstances, it cannot claim to be conclusive, because
that would be to substitute what is done for what ought to be done, as
the criterion for due care.
Yet how is the predominance of the legal standard to be asserted
when what is called in question is a deliberate decision based on com-
plex economic criteria? The conventional test ordains that, among the
factors to be weighed against the gravity and imminence of the risk,
are the utility of the defendant's conduct, as well as the cost and in-
convenience of safety procedures, if any, that might have minimized or
altogether eliminated the risk.15 Leaving aside altogether the difficulty
of establishing the existence, let alone the extra cost of such alternative
devices (especially when they are not used by others engaged in the
same line of endeavor), how is the jury to decide whether or not a
managerial decision, choosing safety procedures that made the best eco-
nomic sense, conformed to the legal standard of reasonable care?
Take for example the standard industrial practice of random sam-
15 RESTATEMENT (SECOND), TORTS ? 291 (1965); PROSSER, TORTS ? 31 (3d ed. 1964).

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pling.16 Rather than subject every unit of production to a quality test,

manufacturers are content to pick out every hundredth or thousandth
unit at the end of the production line for a more or less thorough quality
check. This practice is based on the assumption that to test every unit
is unduly costly, as well as disproportionately conservative, considering
the likelihood of defects which, if they exist at all, frequently affect
whole sequences. Instead, the desirable frequency of tests is determined
with an eye to maximizing cost efficiency. While seeking to detect the
largest possible number of defective units at the least cost, the system
is prepared to tolerate a certain margin of failure in the belief that to
reduce or eliminate it would not repay the extra expense.
Is it at all possible, and if so in what meaningful sense, to test such a
decision by the legal standard of "due care"? As already mentioned,
we cultivate the pretense that the cost factor deserves consideration in
that tally. Theoretically, there may be the distinction that, for pur-
poses of the managerial decision, cost is considered in terms of eco-
nomic efficiency, while for the legal test, cost must be weighed against
the risk of injury. Moreover, to the extent that casualties are taken into
account in the first calculation at all, they are reduced to the common
pecuniary denominator: the cost of compensation, liability insurance,
and perhaps the effect of adverse publicity. But not blood and bone.
In practice, however, these distinctions are likely to tax the ordinary
jury beyond its capacity. What is here thrown in doubt is the ability
of our traditional legal criteria to cope at all adequately with problems
of this caliber.
In one sense, the above-cited example taken from the industrial con-
text finds a fascinating analog in some of the perplexing issues that have
arisen since the disappearance, in so many jurisdictions, of sovereign
immunity. All manner of decisions are made by governments, their
agencies and representatives in which the risk (sometimes the certainty)
of injury to the interests of some citizens is deliberately subordinated
to competing factors of political, social and economic expediency.
Legislators and judges have variously striven to reconcile the resulting
conflicts, usually by setting up more or less arbitrary categories of
governmental decisions (e.g., "discretionary" or "at planning level")
which cannot be questioned in the courts.17 Not the least interesting
facet of this problem is that the government is not concerned solely
16 See Cowan, Some Policy of Products Liability, 17 STAN. L. REV. 1077 (1965).
17 The outstanding example is the Federal Tort Claims Act, 28 U.S.C. ? 2680 (a) (1964).
See 2 HARPER & JAMES, TORTS ?? 29.14 to .15 (1956).

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822 Virginia Latw Review [Vol. 53:815
with the expense of meeting such claims, predominant though that

concern may be. There is also the residuary, and from a legal point
of view more vexing, problem that to allow a claim for damages based
on negligence implies a condemnation of the injury-causing govern-
ment activity.
Yet we would gratuitously make ourselves prisoners of a shibboletht
if we categorically stipulated that compensation could never be claimed
except for injury resulting from blameworthy and reprehensible action.
Examples of publicly supported compensation schemes of all kinds
abound, from social security to funds for the compensation of victims
of crime and violence.'8 What practical or ideological obstacle is
there, then, to imposing such a duty to compensate for nonreprehensib
and in that sense "legal," injury on the actor himself instead of on
some public fund? That, nothing more nor less, is the essence of strict
liability.
The Province of Strict Liability
Strict liability compels payment of compensation for typical harm

associated with a dangerous activity that is not only legal, but generally
highly desirable: indeed so highly desirable that its utility alone justifies
incurring a substantial, if irreducible level of risk. Many enterprises
essential to the maintenance and progress of modern technology harbor
such an abnormal element of danger-abnormal in one or more of
several respects: (1) in the magnitude of the disaster potential it pre-
sents, as in large accumulations of electricity, gas, atomic energy and,
of course, water; (2) in its uncontrollability in the sense, so peculiarly
relevant to our present inquiry, that even the observance of all known
safety precautions reasonably to be expected gives no assurance that
the enterprise will be safe; (3) in the fact, finally, that its potential
victims are singularly ill-equipped to safeguard themselves against the
danger and are thus, so to speak, at the mercy of the enterprise. This
more than any other factor seems to account for the fervor with which
strict products liability has found acceptance in the interest of consumer
protection, just as it plays some part (e contrario) in the resistance to
proposals for extending strict liability to automobile accidents.
Associated with all of these is the difficulty confronting so many
18 The pioneer was an English scheme operating since 1964 (outlined in a White
Paper, Home Office, Compensation for Victims of Crimes of Violence, CMD. No. 2323
(1964)), although eventually beaten to the post by a New Zealand statute of 1963.
Criminal Injuries Compensation Act, 1 New Zealand Stat. No. 134 (1963).

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1967j The Role of Negligence 823
victims of accidents incidental to t

of proving negligence by identifyi
in an infinitely complex production process. When the accident should
more properly be looked upon as an inevitable (and thus in a sense ex-
pected) failure of an enterprise or activity-part and parcel of its normal
toll-it seems perfectly proper to relieve the plaintiff from such an
invidious and basically futile task.
This brief disquisition into the nature of strict liability was prompted
by the wish merely to demonstrate that, transcending all ideological
or functional considerations, negligence is just not equipped for appli-
cation to a substantial, and ever increasing, range of situations. Perhaps,
the point can best be summarized by recalling the familiar limitation
engrafted on the rule of strict liability for extrahazardous activities.
Included are only "abnormal" or "extraordinary" activities:19 "There
must be some special use bringing with it increased danger to others
...." 20 But while this was intended merely to set the boundaries of
strict liability, it also serves to define the province of negligence. The
latter concerns itself with the miscarriage of "ordinary" activities, the
former with the toll typical of "extraordinary" ones.
THE DECLINE OF DETERRENCE
It would be the height of folly, therefore, to insist on a one-and-only

basis of tort liability. Monistic theories in this sphere are as nonsensical
as those in politics are dangerous. Procrustes gains nothing in appeal
by being transposed from highway to courtroom. Yet the case for
neither negligence nor strict liability should be overstated. We must
return, then, for a closer look at the credentials of the former.
The primary appeal of negligence, as we have seen, is to the indi-
vidualistic postulates of our culture. As opposed to collectivist notions,
it claims both to punish and to reward. Those who violate the proper
norm, be it deliberately or heedlessly, risk being called to account;
those, however, who conform go free. Does this image really square
with reality? To what extent can the negligence concept fairly pre-
tend thereby to serve the important object of accident prevention?
The deterrent function of the law of torts was severely, perhaps fatal-
ly, undermined by the advent of liability insurance. Correspondingly, the
claim that negligence is superior to strict liability because of its deter-
19 See RESTATEMENT, TORTS ? 519 (1938).

20Rickard v. Lothian, [1913] A.C. 263, 280 (P.C.).

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rent function suffered a vital blow. The basic assumption of the penal
theory had always been that the financial impact of an adverse verdict
would serve to warn the tort-feasor and others against the consequences
of substandard conduct. But it could have such an educative effect
only so long as he would feel that deterrent lash. Liability insurance
cushioned him against its impact in advance, and thus removed the
primary incentive toward the observance of care so heavily emphasized
by the champions of the negligence criterion. Consistent with their
beliefs, they should perhaps have insisted that insurance against liability
for negligence violated the policy of the law as clearly as does insur-
ance against liability for deliberate harm. Such a proposal was, how-
ever, never seriously entertained, except in the Soviet Union, which
maintains a ban against liability insurance in conformity with its gen-
eral belief in the accident-preventive function of tort law, even to the
point that the Soviet counterpart of the workmen's compensation in-
surer has an unqualified right of recoupment against a negligent em-
ployer.21 However, so far as our law is concerned, in company with
most of the rest of the world, the endorsement of liability insurance
represented, if not an actual disavowal of the deterrent theory, at least
an admission that deterrence was a less important object of the law than
the freedom of would-be tort-feasors to secure themselves against its
impact.
The legality of insurance against strict liability has of course never
been questioned. In fact, the two have become virtually inseparable
twins: most frequently the imposition of strict liability upon a par-
ticular activity is accompanied by compulsory insurance, serving the
dual function of assuring a financially viable defendant for the victim
and spreading the cost of liability for the affected enterprise. Familiar
examples are found in the fields of aviation, motoring and nuclear
energy, not to speak of workmen's compensation. But to the extent
that insurance also covers liability for negligence-as it does now-
adays to an almost equal extent-the deterrence differential between
the two forms of liability has lessened. There may, of course, be other
reasons for preferring one over the other: the arguably lesser cost of
liability insurance for potential defendants may furnish an argument
in favor of negligence, but this may be countered by the advantage
which strict liability offers in terms of the efficiency of its loss-spread-
ing function.
21 Note 3 3 infra.

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In actual fact, liability insurance

the immediate deterrent effect of tort liability with another, perhaps
more effective, spur to accident prevention. Upward or downward
adjustment of premiums in accordance with the accident record of the
insured constitutes at least as reliable a pain-and-pleasure calculus, re-
warding the efficient and penalizing the substandard. Indeed, in certain
respects it touches more sensitive nerves than a mere tort judgment ever
could: in the case, for example, of such near universal activities as
automobile driving, a substantial segment of would-be defendants is
devoid of assets, fear of the loss of which might serve to induce con-
sideration for others, if not for themselves. These people are far more
likely to react to the specter of losing their no-claim bonus or of a
steep rise in next year's premiums. In the case of industrial and com-
mercial enterprises, the safety inspection service operated by liability
insurers becomes another valuable adjunct to accident-preventive pro-
cedures, side by side with the cost mechanism of premiums, the govern-
ment safety inspectorate and the pressure of trade unions. Substitution
of a flat rate for workmen's compensation, regardless of the industry or
the record of the particular operator, thus involves the sacrifice of at
least one important factor in the reduction of accidents.22
THE SOCIALIS-T THEORY OF DETERRENCE
In the light of these insights, the wholehearted commitment of the

new socialist codes23 of the Eastern bloc to the deterrent theory of tort
22 See FLEMING, INTRODUCTION TO THE LAW OF TORTS 102 (1967).

23 For a well-balanced review from the Western standpoint of socialist legislation in
the Eastern bloc, with specific reference to the proposed East German Code, see
Westen, Das ausservertragliche Schadenersatzrecht der SBZ, 9 RECHT IN Osr UND WEST
58 (1965). The Soviet Code is very thoroughly analyzed by RUDDEN, SOVIET INSURANCE
LAW 148-84 (Law in Eastern Europe Series No. 12, 1966) and by Gray, Soviet Tort
Law: The New Principles Annotated, 1964 U. ILL. L.F. 180; the Hungarian Code by
Brunner, Die Grundzuge des Schadenersatzrechts nach dem ungarischen Zivilgesetzbuch
von 1959, 8 RECHT IN OST UND WEST 229 (1964). Summaries of the Polish Code by
Szpunar, in English and French respectively, are found in The Law of Tort in the Polish
Civil Code, 16 INT'L & COMP. L.Q. 86 (1967) and La responsabilite civile dans le projet de
nouveau code polonais, 1963 REV. INT'L DROIT COMP. 19; also Gralla, Das polnische ZGB,
12 OSTEUROPA RECHT 81 (1966).
For references to the codes of Czechoslovakia (1964) and Poland (1964), I have relied
on German translations published under the auspices of the Osteuropa Institut of the
Free University of Berlin; for the code of Hungary, A MAGYAR NEPK5ZTARSAGAG
POLGARI T5RV`ENYK6NYVE (1960) [hereinafter cited as HUNG. CIVIL CODE], on a French
translation issued officially at Budapest and for Soviet legislation, on the English transla-
tion of the code of the R.S.F.S.R. by Kiralfy, KIRALFY, THE CIVIL CODE AND THE CODE

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liability24 must strike most outside observers, however sympathetic, as

painfully old-fashioned. According to the new orthodoxy, the over-
riding purpose of tort law in a socialist country is not so much to com-
pensate losses as to educate the public to avoid injury. The Soviet
Union, to be sure, is at least faithfully consistent with this avowed ob-
jective in discountenancing all liability insurance and thus giving fullest
scope to the imagined educative role of tort liability. Most dramatic,
of course, is the lack of such insurance for automobiles,25 especially in
view of the strict liability which is attached to driving there26 as in all
other socialist countries27 and, for that matter, in most of the rest of
Europe. That this cannot be explained simply as a device for dis-
couraging private motoring is borne out by the fact that the ban agains
liability insurance is not confined to autos.28
Other socialist countries have not followed the Soviet Union into
this thicket of dogmatism, but offer facilities for liability insurance,
even making it compulsory for some activities, such as motoring. True
to their general orientation, however, they seek to exploit the vaunted
deterrent potential of tort liability to the maximum extent compatible
with the competing desires to keep the liability of tort-feasors within
OF CIVIL PROCEDURE OF THE R.S.F.S.R. 1964 (Law in Eastern Europe Series No. 11, 1965),
as well as on the translation and analysis of Gray, supra.
24 Systematic credos of the socialist viewpoint abound. From among many sources,
I would single out especially BLEY, op. cit. supra note 14, at 70-78, and Edrsi, Die
Zivilrecbtliche Verantwortung im ungarischen ZGB, in DAS UNGARISCHE ZIVILGESETEBUCH
IN FUNF STUDIEN 261-312 (1963).
25 See Barry, Russians and Their Cars, Survey, Oct. 1965, p. 98, at 109.
26 U.S.S.R. CIVIL CODE ? 454, identical with PRINCIPLES OF CIVIL LEGISLATION art. 90
(U.S.S.R. 1961); see Barry The Motor-Car in Soviet Criminal and Civil Law, 16 INT'L
& COMP. L.Q. 56, 72-85 (1967); Gray, supra note 23.
27 CZECH. CIVIL CODE ? 427 (2); HUNG. CIVIL CODE art. 345 (traditionally interpreted to
define driving as a "particularly dangerous" activity); POL. CIVIL CODE ? 436. In East
Germany strict liability was inherited from the all-German law of 1909. In contrast
to the prevailing view, Czechoslovakia justifies strict liability not on the basis of special
danger, but on the difficulty of proving fault. BLEY, op. cit. supra note 14, at 123.
28 See RUDDEN, op. cit. supra note 23, at 171-73. The generality and intensity of the
current policy against liability insurance may be gauged by Rudden's quotation of
Rakhmilovich, a Soviet writer who propounds inter alia that
civil liability insurance-which represents a prior transformation of possible liability
into the price of paying insurance premiums-would contradict the very aim and
essence of the very institute of civil liability. . . . It is thought that the institute
of civil liability insurance-so widespread in capitalist society-is in principle cate-
gorically inapplicable to socialist society and law.
Id. at 173.

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reasonable bounds and to spread accident losses widely.9 Most obvious

perhaps is the indemnity permitted to liability insurers against any in-
sured who caused the loss intentionally or as the result of gross negli-
gence.30 This goes somewhat beyond the familiar pattern which is
limited to deliberate injury, although it is not entirely without parallel
in the West.31 More dramatic is that enterprises are not permitted to
pass to insurance their responsibility for fault-caused injuries32 sustained
by their staff33 or by strangers.34 This stern provision is based on the
conviction that enterprises are in a singularly strategic position to con-
tribute to accident prevention as well as to absorb the loss.
Duties to Prevent Accidents
How do the civil codes themselves reflect this policy? Most dramatic
perhaps as a tone-setter is the primacy given by the Czech Code of
196435 to the obligation to prevent harm and the various remedies,
judicial and nonjudicial (e.g. self-help), provided as sanctions to this
end. Appearing as a prelude to the torts section, the accident preven-
tion provision deliberately subordinates the idea of compensation to
29 The loss-spreading aspect of socialist law is discussed in text accompanying notes

61-63 infra.
30 E.g., HUNG. CIVIL CODE ? 560(3); POL. CIVIL CODE ? 826(2); ef. CZECH. CIVIL Cow
? 381 (drunkenness). The East German provision, now in the proposal stage, is dis-
cussed in BLEY, op. cit. supra note 14, at 103. See also Schmidt, Einige Probleme der
rechtlichen Gestaltung der Versickerungsverbdltnisse im ZGB, 18 NEUE Jusnz 746-49
(1964).
31 E.g., BUNDESGESETZ TBER DEN VERSICHERUNGSVERTRAG ? 14 (Insurance Law) (
1908) entitles the insurer, in case the insured has brought about the insured event
through gross negligence, to reduce the coverage to an extent corresponding to his fault.
32 This responsibility includes the cost of accidents caused through managerial fault,
as well as those caused through the fault of their servants to the extent that their
right of indemnity against such servants is limited.
33 As already mentioned, negligent employers are liable in full even to their own
employees and do not gain the protection even pro tanto of "workmen's compensation."
To the extent that the injured worker has received insurance benefits, the fund may
claim full reimbursement from the culpable employer. For Soviet law see Kiralfy,
Employers' and Employees' Civil Liability in Soviet Law for Industrial Accidents, 14
INTr'L & COMP. L.Q. 969 (1965); RUDDEN, op. cit. supra note 23, at 173-77. For Polish law
see Warkallo, Die Frage der Kumulierung von Sckadenersatz-und Persicberungsansprii-
chen aus Arbeitsunfaillen, 1966 ZEITSCHRIFT FUR VERSICHERUNGSWTESEN 595.
In the West workmen's compensation insurers have a right of indemnity against the
insured employer only if he caused the injury intentionally or, at most, as the result
of gross negligence.
34 For Hungary see Ebrsi, supra note 24, at 19, 22.
35 ?? 415-19. This model is also envisaged for the forthcoming Civil Code of the
East German Republic. See BLEY, op. cit. supra note 14, at 63-69.

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828 Virginia Law, Review [Vol. 53:815
the goal of deterrence. The secondary role accorded to accident claims

is intended to emphasize that they really represent failures of the primary
duty of accident prevention. While injunctive relief is perhaps more
readily available than in our own system, and duties of affirmative action
to prevent injury are more clearly formulated, the significant point of
departure lies less in any difference of substance than in the stress on
duties rather than rights.
Much of the indigenous commentary found in socialist literature
may be freely discounted as prompted primarily by the need to docu-
ment a separate identity, attesting its emancipation from the bourgeois
prejudices of the past and marking its independence from the intellec-
tual climate of the surrounding capitalist world. A good deal of this
is very strained, some of it self-contradictory or even taxing credibility.
Thus the disparagement that bourgeois society is basically indifferent
to the occurrence of damage, so strikingly evidenced by the tolerance
of economic injury resulting from competition, presents a grotesquely
distorted picture of the orientation of our own accident law. It is
really only a propaganda device to associate with the despised Western
culture the widespread antisocial attitude of indifference and thought-
lessness towards others which, alas, knows no frontiers and which
it is the laudatory purpose of socialist law (like our own) to combat.
We, for our part, have perhaps erred in not sufficiently making the
same point. True, we cannot fairly be accused of turning our back on
the ancient axiom "alienurn non laedere," but it is nonetheless part of
our individualistic culture to make some play of the competing pos-
tulate that what is not prohibited is permitted. Our starting point is the
assumption that damage has already occurred. Tort rules exist for us
very largely to deal with the aftermath of accidents, rather than to
regulate conduct. That this has been felt as a serious shortcoming is
shown by our increasing reliance on regulations which prescribe pre-
cisely the precautions considered necessary to reduce the accident toll
in factories, public places and traffic, and the readiness with which
our courts have added strict tort sanctions of their own to the penal
sanctions which are usually expressly provided in the relevant legisla-
tion. But as this example so well illustrates, our trouble is not so much a
lack of any social sense as an ill-directed reticence about our own goals.
In light of its professed concern with accident prevention, socialist
law is distinctly ill at ease over the problem of fault versus strict lia-
bility. To postulate standards beyond the reach of a given individual

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clearly serves no deterrent function.

port has been forthcoming for the subjective criterion of fault which
wvould demand no more than "what could have been expected from the
injurer in the circumstances." 36 So complete a commitment to the
deterrence theorem, however, has apparently made headway only in
East Germany,37 and seems to be under challenge even there.38 For one
thing, that commitment has proved no obstacle to the general ac-
ceptance of strict liability for ultrahazardous activities.89 While the
attempt is somewhat lamely made to relate accident prevention to strict
liability with the familiar argument that strict liability actually en-
courages maximum precautions, it does, however, demonstrate that in
the last resort doctrinal niceties are subordinated even by socialist sys-
tems to the paramount need of compensating the injured.
Besides, making allowance for the peculiar failings of the particular
defendant tends to limit liability to the disadvantage of accident vic-
tims. In the Western world, this more than any other factor has been
responsible for the opposite trend towards strict, or as I prefer to call
it, stricter liability.40 If we are witness to a progressive dilution of the
fault requirement41 promoting recovery against "[big] enterprise," it
is bad enough from the socialist point of view that this is so difficult
to reconcile with their crude propagandistic assertion that bourgeois
law was designed to deny the "little man" his due measure of protec-
tion.42 More galling to the socialists would be the fact, if such were
true, that their own law offered even less support to the injured under
86 See id. at 63.
37 See Westen, supra note 23, at 64. For acceptance of the "objective" theory in the
Soviet Union see RUDDEN, op. cit. supra note 23, at 152-54; for Poland see Szpunar,
The Law of Tort in the Polish Civil Code, 16 INT'L & COMP. L.Q. 86, 89 (1967).
38 See, e.g., Kietz & Miihlmann, Zurr Konzeption des Verschuldens inz Zivilrecht, 20
NEUE JUSTIZ 310 (1966).
39 See CZECH. CIVIL CODE ? 432; HUNG. CIVIL CODE ? 345; POL. CIVIL CODE ?? 435-36;
PRINCIPLES OF CIVIL LEGISLATION art. 90 (U.S.S.R. 1961). For the proposed East German
Code, see BLEY, op. cit. supra note 14, at 113. Only Bulgarian law, operating under
an older Law of Contracts and Torts, ZAKON ZA ZADULZHENIIATA I DOGOVORITE, 275
DURZHAVEN VESTNIK (1950), apparently does not recognize strict liability. Ebrsi, supra
note 24, at 15 n.9. The socialist theory of strict liability is fully explained in BLEY, op.
cit. supra note 14, at 113.
40 See FLEMING, TORTS 111-36 (3d ed. 1965); 2 HARPER & JAMES, TORTS ?? 16.1 to .15,
at 896-962 (1956).
41 See authorities cited note 40 supra.
42 E.g., DEUTSCHES INSTITUT FiUR RECHTSWISSENSCHAFT, SCHULDRECHT, BESONDERER TEIL
DAS ZIVILRECHT DER DEUTSCHEN DEMOKRATISCHEN REPUBLIK 499 (Such ed. 1956).

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830 Virginia Law Review [Vol. 53: 815
the pretense of doctrinal consistency with an individualistic version

of the policy of deterrence.43
Burden of Proof
Of special interest to us are two characteristic features of the new

socialist codifications which represent the first fruits of a basic reap-
praisal that was made possible, if not prompted, by a revolutionary
break with past tradition. First is the reversal of the onus of proof,
so that, instead of the injured having to establish the responsibility of
the injurer, the latter's negligence is presumed unless and until he
establishes that he exercised all due care." This can probably be justi-
fied, not only for its practical effect in facilitating recovery, but also
for its theoretical appeal to the cause of accident deterrence. It also
fulfills an important role which our law has so ingeniously met with
the doctrine of statutory negligence-to assure a system of stricter
liability for violation of safety regulations. Civilian systems of law
do not formally recognize any tertium quid between strict liability for
extrahazardous activities and negligence liability for ordinary activities,
so that violations of safety statutes are no more actionable without
negligence than any other harmful conduct.45 By casting the burden
of disproving negligence quite generally on the defendant, socialist
codes have taken at least one important step in mitigating the conse-
quences of the continuing civilian failure to take cognizance of this
third basic area of tort liability.
If we seek to place this socialist reform into perspective, it would
be at the cost of historical truth to dismiss it as a notion wholly alien
to our own culture. Let us remember that over the greatest part of
our own legal history, the injurer was presumed to be responsible and
that it was up to him to exonerate himself if he could. Positive proof
43 WVith respect to proximate cause, socialist theory postulates a correspondence

between the extent of liability and the effectiveness of deterrence. This ties responsi-
bility to foreseeable consequences alone. While proximate cause is a proverbially perilous
area in which to venture generalizations about our own law, let alone that of others,
it seems that here also socialist law tends to deal more leniently with defendants.
44 CZECH. CIVIL CODE ?? 420(2), 421 (2); HUNG. CIVIL CODE ? 339; U.S.S.R. CIVIL CODE
5 444(2) (1961). The German draft, as discussed in BLEY, Op. Cit. supra note 14, at 63,
seemed, however, to envisage the conventional allocation of burden of proof to the
plaintiff.
45 French law is tied to the fetters of "faute," C. Civ. art. 1382 (66e ed. Petits
Codes Dalloz 1967) and German law to the requirement of Verschulden, BURGERLIuHES
GESETZBUCH ? 823 (2) (C. H. Beck 1952) [hereinafter cited as GERMAN CIVIL CODE].

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1967j The Role of Negligence 831
of fault is often difficult, and experience teaches that injury is usually

caused by fault.46 Obviously, there is nothing sinister about this foren-
sic disposition, and it is no idle conjecture that it was most probably
abandoned by us in the 19th century not for any profound doctrinal
reason, but simply in order to ease the burden of potential liability
for accident-creating enterprise.47
This explanation seems to be borne out not least of all by the startling
reversal in our own time. So far as formal principle is concerned, we
may still pay tribute to the "ancient" verity that the burden of proving
negligence generally lies on the plaintiff. The real picture however
is rather different. Most important of all, the burden is for all practical
purposes (above all theoretical niceties) shifted to the defendant when-
ever res ipsa loquitur; and, as is well known, this device enjoys such
enthusiastic judicial support that it is quite often plainly exploited for
the purpose of promoting some form of enterprise liability, strict in all
but name.48 Because of its generality of application, it goes far beyond
the few specific instances in which the burden of disproof is for reasons
of policy exceptionally placed on the defendant, as for example in the
case of bailees and, under so many Continental codes, keepers of ani-
mals, parents, etc. Besides, in practice general tendencies favoring
recovery against "enterprises" and other good loss distributors tilt the
scale so heavily against defendants that it is largely irrelevant that the
law formally places the burden of proof on the plaintiff.
On balance, therefore, the difference in this respect between the
socialist standpoint and our own is probably negligible. To say this does
not, however, detract from the importance of giving formal recognition
to what is probably a universal trend in accident law, transcending all
politico-social differences. Our approach is arguably better adjusted to
46Besides, shifting the onus avoids such obvious injustice as depriving a plaintiff of
a remedy where he cannot establish which one of several implicated defendants caused
the injury. Anglo-American law has shown signs of relenting in these cases. See Sum-
mers v. rice, 33 Cal. 2d 80, 199 P.2d 1 (1948); Ybarra v. Spangard, 25 Cal. 2d 486,
154 P.2d 687 (1944); PROSSER, TORTS ? 42, at 247, 254-55 (3d ed. 1964). German law
has specifically sanctioned the American departure. GERMAN CIVIL CODE ? 830.
47 Communist authors, of course, never tire of reiterating that placing the burden of
proof on plaintiffs was, and remains, a typical bourgeois maneuver designed to prejudice
the chances that proletarians will recover from capitalist entrepreneurs. They neither
allow for the changing viewpoint in the West nor mention the distinctly embarrassing
fact that Soviet law exceptionally places the burden of proof on plaintiffs in actions by
employees against employers! See Kiralfy, supra note 33, at 972.
48The most dramatic example of this phenomenon occurred in the field of products
liability, as a prelude to the imposition of outright strict liability.

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take account of those distinctions between different defendants which

seem to many of us to warrant a dual standard, depending on the indi-
vidual's capacity to absorb and distribute the loss. But probably this is
only because we are more familiar with our own way of manipulating
"rules." In the long run, the difference may well be nothing but one of
mood.
Limniting Liability
Perhaps the most interesting innovation of the socialist legislation lies

in its search for closer correspondence between fault and the extent of
the tort-feasor's liability. We had occasion earlier to comment on the
perplexing feature, common to all conventional systems of civil liability,
that the extent of liability is contingent on the fortuitous amount of
the damage done rather than on the degree of the defendant's guilt. Yet
since the injured person's claim to be fully compensated is obviously
more appealing than the injurer's plea for clemency, we have been
forced, however regretfully, to accept the consequence that, while
liability is avowedly based on fault, the extent of liability has no rela-
tion to fault whatever.
Some of the socialist codes have put forth at least a partial solution
to this seemingly intractable problem. In certain situations, it is pos-
sible without prejudice to the accident victim to adjust liability so that
it does not exceed what is necessary in order to exploit its educative
effect. This may be done where the excess can be absorbed by another
fund or institution better capable of absorbing or spreading it than the
tort-feasor himself. Employees, for example, are totally exempt from
civil liability for the torts they commit in the course of employment.49
Instead, their employer is vicariously liable to the full extent of the
injury.50 But so as not to lose the cautionary value of liability, the em-
49 Except when they intended the injury. In Hungary servants of private employers
are however subject to a contingent liability to the extent that their employer cannot
satisfy the claim. HUNG. CIVIL CODE ? 348(2).
50 CZECH. CIVIL CODE ? 421(2); HUNG. CIVIL CODE ? 348; POL. CIVIL CODE ? 430; U.S.S.R.
CIVIL CODE ? 445 (1961). On September 8, 1964, the East German Supreme Court adopted
the same position without even awaiting legislative authority. See Schlegel, Anmerkung,
19 NEUE JUs'rz 125 (1965); Prilfer, Versicherungsverhiltnisse im ZGB, 1965 STAAT UND
RECHT 1874, 1892-93.
For most of the countries involved, this represents a marked change from the past
when employers were liable only for culpa in eligendo et inspiciendo (negligence in
selection and supervision), following the GERMAN CIVIL CODE ? 831. Germany is cur-
rently debating a proposal of its own to adopt vicarious liability. See 1 REFERENTENENT-
WURF (W7ORTLAur), op. cit. supra note 13, at 4; 2 id. (BEGRUNDUNG) at 77-112.

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ployer is expected to exercise again

though one created by labor (not tort) law in an amount which, having
regard to his monthly wage, does not become downright oppressive.51
Similarly, subrogation by insurers can perfectly well perform its as-
sumed accident-preventive function without insisting on full indemnity
from the tort-feasor. Once the victim has been fully compensated, the
primary purpose of insurance is fulfilled. Its only remaining raison
d'etre is to serve the above-mentioned educative function, but the
surer has no inherent claim to be indemnified for the sake of merely
reducing his own costs. Accordingly, the tort-feasor's liability to reim-
burse the insurance fund should be proportioned to his degree of guilt,
the social consequences of his tort, his social attitude before and after
the accident and his social position.52
Vicarious Liability
These ideas enunciated in the socialist codes have a distinct relevance

for us. Nor are they entirely unfamiliar. To take the first example,
employees under our law are for all practical purposes no less im-
mune from civil liability for the consequences of the work accidents
they cause. So far as injuries to fellow employees are concerned, em-
ployees, like employers, generally enjoy an officially sanctioned im-
51 For Soviet law, where the limit is one third of any monthly wage, R.S.F.S.R.
KOD. ZAK. TRUD. (Labor Code) art. 83, para. 6 (1922), see Kiralfy, supra note 33,
at 982-84; ALEXANDROV, SOVIET LABOR LAW ch. 9, ? 6 (German transl. 1952). For
Hungarian law (where the limit is 15%) see Eorsi, supra note 24, at 16-17; for Czech
law see Law of Oct. 17, 1958, 1959 BuLL. DE DROIT TSCHECOSLOVAQUE 339-43, 309-12. Fol-
lowing the model of other socialist countries, the East German Supreme Court recently
applied the new Labor Code standard (ARBEITSGESETZBUCH ? 112 (E. Ger. 1962), fully
set out in GAMILLSCHEG, HAFIUNG DES ARBEITSNEHMERS 79-83 (1965), which limits liability
to one monthly wage) to indemnity arising from vicarious liability to third parties.
Schlegel, supra note 50; Prilfer, supra note 50, at 1892-93. See also BLEY, op. cit. supra
note 14, at 80-93.
A full indemnity is allowed against employees guilty of a criminal act or those acting
outside the scope of their duties. In practice this is mitigated either by financial in-
ability to respond or by art. 83, para. 6 of the Soviet Labor Code (and its counter-
parts elsewhere) which allows the "material condition" of the worker to be taken
into consideration.
52 This is the formula for the proposed East German Code provisions for subrogation,
see Schmidt, supra note 30, and the discretionaary power to limit tort damages, see
BLEY, op. cit. supra note 14, at 148. Its model is ? 368 (loss insurance) and S 382 (in-
demnity insurance) of the CZECH. CIVIL CODE. These provisions extend to subrogation
the discretion given by ? 450, typical of socialist legislation, to reduce tort damages on
grounds such as the social significance and cause of the injury, the personal and eco-
nomic circumstances of the tort-feasor and his victim.

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munity under workmen's compensation.53 As regards injury to stran-

gers, the immunity is hardly the less effective for resting on practice
rather than strict law. In actions by such third parties, employees are
joined as codefendants only pro forma: in the interest of plaintiffs, to
gain forensic advantages such as the benefit of admissions;"4 in the interest
of defendants to share the reflection of whatever jury sympathy the
luckless employee might focus on himself. Hardly ever, however, would
the successful plaintiff even contemplate executing a judgment against
the culpable employee, if he can have recourse against the employer.
Nor would the employer ordinarily call on him for indemnity, except
in cases of the most serious disobedience or other transgression. Most
European countries now insist that employers shoulder the cost of
such third party liability, as between themselves and employees guilty
of only ordinary negligence.65 Anglo-American law, it is true, has
not yet caught up with the social realities of today: it continues to
offer employers an unqualified right of indemnity,56 even when the work
is prone to cause accidents and the employee would expect to be covered
by his employer's insurance. In practice, however, this right is not in-
voked, save by an occasional wayward employer or wrong-headed
insurer. The British Government has now coerced insurance companies
into abiding by a "gentlemen's agreement" not to exercise their right
53For United States law see 2 LARSON, WORKMEN'S COMPENSATION ?? 72.10 to .20
(1961). See also Reichsversicherungsordnung ? 637, [1924] RGBI. 779 (German Social
Security Law); GAMILLSCHEG, op. cit. supra note 51, at 89.
54Admissions by a servant, authorized to act but not to speak about it, are ordinarily
not admissible in evidence against the master. They may, however, be brought before
the court by the simple device of joining the servant as codefendant, because theyr are
of course admissible against the latter. CROSS, EVIDENCE 433 (2d ed. 1963); 4 WIG.Mk(oRE,
EVIDENCE ? 1078 (3d ed. 1940).
55 Almost everywhere this reform has been accomplished by the courts without
legislative help. Typical is the Neue Lebre (new doctrine) in Germany which exempts
the employee, to the employer's cost, from the burden of civil liability for accidents
typical of the particular employment (gefahrgeneigte Tdtigkeit). The employer is
not only denied recourse against the employee, but the latter is entitled to reimbursement
by the former if the employee is called upon to compensate the victim. GAMTILSCHEG,
op. cit. supra note 51, ? 1 which also gives a summary of virtually identical judicial
practice in France, The Netherlands, Japan and Austria.
56 This was reaffirmed in the notorious decision of Lister v. Romford Ice Co., 1 19571
A.C. 555, where a 3-to-2 majority of the House of Lords endorsed the right of the
employer's liability insurer to an indemnity against the uninsured truck driver whose
negligence had caused the injury and involved the employer in vicarious liability. The
decision has been rendered nugatory by the "agreement" mentioned in text accompany-
ing note 57 infra. FLEMING, TomRS 692-93 (3d ed. 1965). A parallel American decision
is Continental Gas Co. v. Phoenix Constr. Co., 46 Cal. 2d 423, 296 P.2d 801 (1946),

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of subrogation without the insured employer's consent.57 Nor is it

without signal interest that recent congressional legislation has gone to
the length of completely exempting all drivers of United States Govern-
ment vehicles, in the belief that the victims' interests are sufficiently
safeguarded by the responsibility of the United States itself and that
it would be unnecessarily wasteful of public funds to provide special
insurance coverage for the employee.58
Thus in practice we have attained a position not as different from
that of the socialist codes as our black letter rules might suggest. Indeed,
while the latter give our law the appearance of greater harshness, the
position is actually quite the reverse. For while our employee would
ordinarily go scot free, his socialist counterpart might well be called
upon to reimburse his employer at least in part and thus share in bearing
the loss to the reasonable limit of his financial capacity.
Subrogation
The socialist limitations on subrogation, however, are without real

parallel in our law. Quite obviously, they consistently serve the same
policy as the limits on indemnity against culpable employees: not to
push liability beyond the fulfillment of its admonitory function. Ad-
mittedly, most civilian systems of law exempt from subrogation tort-feas-
ors who are close relatives living with the assured, for the sound reason
that the assured would not himself have proceeded against them and to
allow the insurer to do so would therefore be prejudicial to the interests
of the assured; all the more so when the latter owes a duty of support
to the tort-feasor, as in the case of a spouse or minor child.59 Beyond
that, however, only the Scandinavian countries have drastically limited
subrogation, abrogating it altogether except against defendants who
mitigated by the fact, however, that there the employee wvas insured and the contest
(however futile) was between two insurance companies.
57See Note, 22 MODERN L. REV. 652 (1959).
58 Federal Torts Claims Act, 28 U.S.C. S? 2679(b)-(e) (1964), enacted in 1961. Similar-
ly, German law has taught its way to the same solution so far as governmental liability
is concerned. Not only is the state's liability exclusive, but a right of indemnity exists
only against officials guilty of deliberate or grossly negligent conduct. This new
judicial doctrine is scheduled for legislative introduction into the Civil Code. See 1
REFERENTENENTWURF (WORTLAUT), op. cit. supra note 13, at 4; 2 id. (BEGRUNDUNG) at 116.
59 The model was Gesetz jiber den Versicherungsvertrag ? 62(2), [1908] RGB1. 263
(German Insurance Law), adopted not only within the German orbit but also by
France in C. Civ. art. 36, para. 3 (30e ed. Petits Codes Dalloz 1930) and, now, by the
new socialist codes.

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caused the damage intentionally or with

for this, however, is entirely pragmat
subrogation recoveries is too high in term
by insurers or the educative functions it may perform in cases of mere
negligence. From that point of view, it is really a world apart from the
socialist principle under consideration.
Loss Spreading
So far we have directed our attention at the relationship between rules
mitigating liability and a policy of accident deterrence. The reverse side
is perhaps even more important. For what one might lose sight of in a
seriatim analysis of individual rules is the pervasive principle of socialist
legislation that the lion's share of accident liability is to be borne by pub-
lic institutions, either state employers or social or private insurance, which
are all singularly well suited to absorb the cost or spread it widely.
Typically, state enterprises are singled out as tort loss bearers in
three respects: (1) they are not allowed to insure at all against liability;
(2) they bear the principal share of losses caused by their employees
in view of their very limited right of indemnity against culpable em-
ployees, who are themselves exempted from direct claims by injured
parties; and (3) they are liable to subrogation claims by social insurance
if their own responsibility can be established. Similarly, the limitations
on subrogation by social and private insurers allocate to them a sub-
stantial share of tort losses in addition, of course, to all the nontort losses
which it is their function to absorb.61
Thus individual responsibility is combined with a large measure of
loss spreading in accordance with the pervasive social need, there as
much as here, to protect the individual (whether as victim or injurer)
against a crippling or inordinate burden from accident losses. Instead,
the cost, or at least a major portion of it, is channeled to public institu-
tions as conduits for wider and more painless distribution. Manifestly,
the extent to which state enterprises and employers generally are singled
out for this function reflects a policy favoring what has been so aptly
called "enterprise liability." 62 This has an advantage over more broadly
60 Text accompanying note 89 infra.
61 See E6rsi, supra note 24.
62 Rather than talk of enterprise liability (a phrase familiarized by Ehrenzweig in his
famous Negligence Without Fault)-with its overtones of capitalism-socialist authors
prefer to wrap up the same idea by stressing the community of interest and respon-
sibility between the culpable employee and his "collective." E.g., BLEY, op. cit. supra
note 14, at 80.

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funded systems such as Social Security in that the accident cost is al-
located as an overhead of the enterprise, to be eventually reflected in the
cost of its products. To this element of "resource allocation" 63 may be
added whatever disciplinary pressure potential liability may exert to
encourage maximum efforts towards accident prevention (and therewith
cost reduction) on the part of a unit best fitted to respond effectively
to such pressure.
How does this compare with our own picture? The transformation
of Anglo-American accident law during this century from individual
to collective loss bearing is now so universally recognized as not to need
detailed documentation. The principal media have been private and
social insurance. By far the most pervasive catalyst of loss spreading
has proved to be liability insurance; for it has made it possible to gear
conventional rules of law, without any radical reform of those rules
themselves, to the changing needs of a technological society with rising
living standards and ever growing expectations of physical and social
security. Instead of adverse judgments having a crushing effect on the
hapless defendant, his liability insurance at once affords him protection
against having to bear the impost singlehandedly and "pools" the risk
among all premium payers. Better still, to the extent that tort liability
falls on the enterprise as a whole the cost is passed on to its customers
as a negligible fraction of the price they are charged for its products.
ENTERPRISE LIABILITY
Many of our conventional rules of law are peculiarly fitted to assist

this process. Vicarious liability, more than any other, assures that the
cost of accidents inflicted on third parties in pursuit of an enterprise is
borne by the enterprise as part of its operational overhead cost.64 The
cost of injuries to workmen is likewise allocated to the enterprise, either
exclusively through workmen's compensation, as in the United States,
or additionally through tort claims based on managerial negligence and
vicarious liability for the negligence of fellow servants as in Great
Britain.65
On occasion, legal rules have been adjusted to fit them better for the
63 See Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70
YALE L.J. 499 (1961).
64 And, as already pointed out in text accompanying note 57 supra, employers are not
only liable at the suit of such third parties. They must also bear the loss as between
themselves and the culpable employee, and may not shift it to the latter.
65 FLEMING, INTRODUCTION TO THE LAW OF TORTS 99-107 (1967).

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task of enterprise liability. The most prominent example is in the field

of products liability where the long familiar warranties of the seller
(typically the retailer) were at last extended to the manufacturer in
order to assure that his enterprise would have to stand the losses caused
to ultimate consumers by defective products.66
Inevitably there has been a reciprocal effect between rules of liability
and liability insurance. While to start with the former obviously called
forth the latter as a shield, there has been counter-stimulation: first, in
blunting the edge of familiar pleas that liability would have a crushing
effect on would-be defendants; secondly, in outright exploitation of
liability as a means for spreading the cost of particular accidents. The
first is illustrated by the wholesale abrogation of immunities, such as
those of the state and its instrumentalities,67 and of charities,68 and by
encroachments even on those within the family.69 Among examples of
the second, apart from the extended products liability already mentioned,
are the statutory regimes imposing strict liability upon nuclear enter-
prises,70 aviation71 and (in many countries) automobiles,72 typically
accompanied by compulsory insurance and sometimes by an exclusive
channeling of liability to one defendant so as to avoid wasteful multiple
insurance."
66 REsrATEMENT (SECOND), TORTS S 402A (1965).

67 2 HARPER & JAMES, TORTS ? 29 (1955); PROSSER, TORTS ? 125, at 1010-13 (3d ed. 1964).
,68 2 HARPER & JAMES, TORTS ?? 29.16 to .17 (1955); PROSSER, TORTS ? 127, at 1023-24
(3d ed. 1964).
69 Id. ? 116, at 884-85, 888-90.
70 Vienna Convention on Civil Liability for Nuclear Damage art. 2 (1963) [hereinafter
cited as Vienna Convention]; Paris Convention on Third Party Liability in the Field
of Nuclear Energy art. 3 (1960). These conventions are reprinted in STAFF OF SUB-
COMMITTEE ON LEGISLATION OF THE JOINT COMMITTEE ON AToMIC ENERGY, 89-m CON
1ST SESS., SELECTED MATERIALS ON ATOMIC ENERGY INDEMNITY LEGISLATION (Comm. P
1965) at 302 and 256 respectively. See generally Note, 7 VA. J. INT'L L. 157 (1966).
71 E.g., Warsaw Convention for the Unification of Certain Rules Relating to Interna-
tional Transportation by Air, October 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934)
(injury to passengers and baggage). See generally Note, 7 VA. J. INT'L L. 140 (1966).
72 See Grad, Recent Developments in Automobile Accident Compensation, 50 ColuJM.
L. REV. 300 (1950).
73 Thus under the prevailing international and domestic pattern of nuclear energy
legislation, exclusive responsibility is borne by the "operator" of the installation, to the
exclusion of carriers, suppliers of equipment, operators of conventional vessels, etc.
E.g., Nuclear Installations Act, 1965, 13 & 14 Eliz. 2, c. 57; Vienna Convention; STREET
& FRAME, LAW RELATING TO NUCLEAR ENERGY 61-67 (1966). How acutely this departure
from traditional notions of individual responsibility is felt by the orthodox is reflected
by Fischerhof, Das Problem einer dogmatischen Begriindung der rechtlichen Kanali-
sierung der Haftung auf den Betreiber einer Kernanlage, 1966 VERSICHERUNGSRECHT 601.

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Strict liability, obviously a more effective mechanism for promoting

enterprise liability, has made long strides since the heyday of 19th cen-
tury economic liberalism. The most notable legislative and judicial re-
forms in that direction have already been mentioned. In most "ad-
vanced" countries, moreover, negligence has been transformed into
some form of stricter liability in its application to defendants who are
good loss distributors.74 Thus there has grown up a "twin-tracked"
law of negligence; one track representing "negligence without fault" 76
for the last mentioned group, the other conventional negligence suitable
for residuary defendants. These surreptitious and somewhat underhand
developments are in large measure attributable to the retarded growth
of officially recognized strict liability in most Western countries. Few
of them have developed even so much as a general theory of strict liabil-
ity for extrahazardous activities. Typically, legislatures have been con-
tent with the enumeration of concrete instances, such as electrical in-
stallations, nuclear reactors, automobiles-not forgetting the ubiquitous
wild animals. Anglo-American law has been even less hospitable, ranging
from the English position of complete bewilderment78 to the ambivalence
of the Restatement (Second), Torts.79 With so little guidance, it is
rather understandable that courts have preferred the shadowland of
ambiguity where rules of negligence are manipulated, at varying levels
of understanding, to serve the goals of enterprise liability.80
A voice in reply is Berger, 1967 VERSICHERUNGSRECHT 114. Only Austria is an exception,

allowing indemnity for deliberate and grossly negligent injury.
74 For the United States see generally GREGORY & KALVEN, CASES ON TORTS 609-88
(1959); 2 HARPER & JAMES, TORTS (1955); for Great Britain and the Commonwealth,
see generally FLEMING, TORTS (3d ed. 1965). The same tendency has been noted on the
Continent. For France, see ViNEY, LE DECLIN DE LA RESPONSABILITE INDIVIDUELLE Pt. 2
(1965); for Germany, Esser, Die Zweispurigkeit unseres Haftpflichtrechts, 1953 JURI-
STENZEITUNG 129.
75 The phrase (Zweispurigkeit) is from Esser, supra note 74. Others, like myself,
have been blunter and called it schizophrenia.
76 The title of Ehrenzweig's masterly monograph, first published in 1951, reprinted
in 54 CALIF. L. REV. 1422 (1966).
77 This is in contrast to the socialist codes which typically content themselves with
general reference to "specially dangerous activities." See CZECH. CIVIL COnE ? 432;
HUNG. CIVIL CODE ? 345; PRINCIPLES OF CIVIL LEGISLATION art. 90 (U.S.S.R. 1961)
U.S.S.R. CIVIL CODE ? 454; cf. POL. CIVIL CODE ? 435 (enterprise carried on with
natural forces like steam, gas, electricity or liquid fuels).
78 See FLEMING, INTRODUCTION TO THE LAW OF TORTS 164-68 (1967).
79 Id. ? 520.
80 I derived some comfort from the fact that Andre Tunc, author of the new
French automobile strict liability statute, see Tunc, Traffic Accident Compensation in
France: The Present Law and a Controversial Proposal, 79 HARV. L. REV. 1409 (1966),

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In this field, then, the prospects of surviv

like its pure form are frail. Negligence, as
ill-adjusted bedfellow for extrahazardous a
enterprises which spearhead our industrial development and are so
essential for its continued growth typically engage in activities which
can only be described as extrahazardous. Moreover, contemporary
notions of the social function of tort law increasingly insist that all
enterprises bear responsibility for the typical toll their activities exact
in injury and loss from a public which is unable to protect itself and
which must rely instead on the enterprises' assurance of safety.
COMMONPLACE ACTIVITIES
Our present setup leaves most to be desired in the residuary area of

injuries incidental to ordinary, commonplace activities.8' Liability here
frequently tends to be oppressive, incommensurate with the fault at-
tributable to the defendant, and to bear no relation to his financial ability
to bear the loss. If there is no liability insurance, as there usually is not,
the defendant is driven to seek such long-range protection as the benef-
icent bankruptcy law may afford him in the United States. With in-
creasing prosperity, however, he still stands to lose his accumulated
savings. In any event, it offers cold comfort to the victim who must
always face the possibility that, however solid his legal rights against
the injurer, the latter will turn out to be a man of straw, not worth
powder and shot. This parlous position is exacerbated by the lump-
sum system of damage awards which, beside numerous other disad-
vantages, may confront the defendant with an awesome demand that
he cannot even hope to meet. This situation may be contrasted with
the widespread Continental practice of making awards in the form of
periodic rents which are easier to comply with and-most important
from the victim's point of view-are not dischargeable in bankruptcy.
This state of affairs continues to stimulate the spread of liability in-
surance into previously virgin areas. Most familiar perhaps is the in-
evidently shares this belief, at least in the sphere of accidents de circulation. For the rest
he leaves unanswered the problem of our present topic: "II sera alors plus aise de
discerner quel domaine devra rester celui de la responsabilite individuelle fondee sur la
faute." Preface to VINEY, op. cit. supra note 74, at iv.
81 To my delight I found the other day, rereading some old treasures, Ehrenzweig's
reference to "backyard cases" involving "small people" for which he recommended
continuing conventional negligence rules. Comment, Loss-Shifting and Quasi-Negligence:
A New Interpretation of the Palsgraf Case, 8 U. CHI. L. REV. 729, 736 (1941).

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creasing prevalence of comprehensive householders' policies which cover

injury resulting not only from defects in private premises but also from
activities engaged in by the householder, his family or licensees. But
this trend is unlikely to make substantial progress in the direction, for
example, of insurance against accidents involving most leisure activities
(except those which are plainly dangerous, such as motoring, speed-
boating, etc.). By the same token, accident insurance is carried by a
mere random handful of would-be injury victims, and is certainly much
too tenuous a basis for the construction of legal rules, except perhaps
in the case of airline and automobile passengers.82
Much more promising for the future would be an increased and more
rational participation by public funds, especially by Social Security, in
the task of meeting accident losses. Recent statistical studies of auto-
mobile accidents reveal that, even in the United States, this source
already accounts for a far from negligible share of the funds available
for repairing such injuries.83 If its share is still relatively modest com-
pared with that in many other countries, the reason must be sought not
in any significantly lesser proportion of the national wealth devoted to
Social Security in the United States,84 but in the manner of distribution
which affords little or nothing to persons temporarily or even perma-
nently disabled in the prime of life (aside from work injuries covered by
workmen's compensation) .83 In most other "advanced" Western coun-
82 A good case can be made for limiting the liability of airlines, leaving it to each
individual passenger's private choice whether he desires extra coverage which is readily
available to him at reasonable rates across the counter at airports-almost a Hayeck
paradigm. Whether there is compulsory insurance (e.g., through strict liability backed
by indemnity insurance) or voluntary insurance (e.g., accident policies), it is the pas-
senger who has to pay the cost: in the first case it is simply included in his fare, in
the second he pays for it separately.
83 The Conard study in Michigan estimated it at 7%. CONARD, OIORGAN, PRAtt, VOLTZ &
BOMBAUGH, AUTOMOBILE ACCIDENTS COSTS AND PAYMENTS 147 (1964) (Tables 4-9).
84 Currently the United States spends about 8% of GNP on social services, compared
with 11% by Great Britain, 13.9% by France and 16.1% by Germany. The most re-
cent comprehensive statistics are for 1960, from which the non-American percentages
cited above are taken. Hasenberg, Relation of Social Security Expenditures to G.N.P.
in 45 Countries, Social Security Bull., June 1965, p. 28. The relevant United State per-
centage was then 6.3, but had increased to 7.8 by 1965-1966, even prior to Medicare.
Merriam, Social Welfare Expenditures 1965-66, Social Security Bull., Dec. 1966, p. 14.
85 Some of the gap is increasingly filled by provision for medical treatment and dis-
ability pay in labor contracts. The coverage period, however, is limited and the in-
cidence of such arrangements, despite impressive strides during the last decade, very
far from universal. See Krislov, Employee-Benefit Plans, 1954-1962, Social Security

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tries, social security assures victims the cost of basic medical treatment
and a subsistence allowance during incapacity of varying levels, de-
pending on what the particular society can and wants to afford for this
national purpose. So far as the injured person is concerned, therefore,
an economic underpinning to meet his most basic needs is guaranteed.
Tort recovery, in consequence, no longer offers the victim the sole
alternative to footing the accident bill unaided; it appears now in the
role of meeting only excess losses, i.e., those not covered by social secur-
ity.
So far we have been viewing the situation through the eyes of the
victim. If we now look at who foots the compensation bill, we find
social security associated with the tort-feasor in that common task. One
may of course take the limited view that its function is merely to guaran-
tee tort victims against the inability of tort-feasors to meet even a mini-
mum of their obligations, but not to relieve all tort-feasors in principle
to the extent of the social security benefits.8e The other possibility is to
let social security participate more fully in the compensation of tort
injuries by assuming, vis-a-vis the tort-feasor no less than his victim, the
cost of its own contributions.
The first choice would allow social security a right of reimbursement
from the tort-feasor, the second would deny any further shifting of the
loss. The second solution alone endorses a division of tort losses in
principle; for the first countenances at most a provisional assumption of
part of the compensation cost by social security, not an eventual loss-
sharing.
Almost all countries have aligned themselves with the first view and
permit subrogation against the tort-feasor.87 As in the case of private
Bull. No. 4, p. 4 (1964); Risenfeld, Medical Care Organization and the Law, 79 PUB.
HEALTH REP. 709 (1964); Skolnic, Income-Loss Protection Against Short-Term Sickness,
1048-62, Social Security Bull. No. 1, p. 4 (1964).
86There are acutally two variants of this solution, both of which would make the
tort-feasor bear the full loss. This can be accomplished either by reimbursing the col-
lateral source, or by allowing the victim to take the collateral benefit and damages
cumulatively. The first of these is the most favored formula throughout the world for
all social and private indemnity insurance because it prevents the injured person from
profiting through a double recovery. The second solution has its principal base of
support in the uniquely American "collateral source rule." Although that rule only
denies the tort-feasor a setoff, it tends to promote cumulation because of the wide-
spread absence of subrogation. Subrogation is sanctioned only interstitially and un-
systematically, e.g., for workmen's compensation. See Fleming, The Collateral Source
Rule and Loss Allocation in Tort Law, 54 CALIF. L. REV. 1478 (1966).
87 Most countries adhere fairly consistently to this view. Exceptions are the United

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insurance, they purport to see in subro

cating central policies of the law of to
I have tried elsewhere to probe the stre
it here to point out merely that the d
as it is) would surely be adequately safeguarded by compelling the
tort-feasor to bear the residue of the loss: the socialist solution, pre-
viously considered, concedes at least that much!
Mounting scepticism over the attractions of subrogation is reflected
in modern reforms of several countries. The Scandinavians were pio-
neers7 abrogating in their "uniform" insurance laws of the twenties
subrogation against merely negligent tort-feasors, preserving it only for
the few instances of harm caused intentionally or by gross negligence,
and for cases of strict liability.89 The first exception was but an empty
gesture to the champions of deterrence, while the second seems to have
been rooted in the belief that ultrahazardous activities, especially motor-
ing, should bear their own losses fully for reasons of proper cost ac-
counting. The tendency of this reform was of course to single out
commonplace activities without any loss spreading capacity as unsuitable
targets for subrogation in order to preclude shifting the loss from a
good to a bad loss spreader.
An even more radical solution was adopted in Great Britain on recom-
mendation of the Monckton Committee,90 which made the only thorough
investigation on record into the whole problem of the relations between
social security and tort remedies. It rejected subrogation on a number
of grounds, the most important being that it could not be justified as
a worthwhile deterrent and that the cost and other inconveniences were
disproportionate to the financial relief it would afford the social security
system. As a result, the latter now assumes a far from negligible propor-
tion of the cost of compensating tort casualties, which is all the greater
since contemporaneous legislation replaced workmen's compensation
with industrial injury insurance, bringing the latter within the same
States which permits cumulation, see note 86 supra, and the Swedish-British bloc which
credit the amount to the tort-feasor, see text accompanying notes 59-60 szipra.
88 See Fleming, supra note 86.
89 The authoritative treatment is by HELLNER, F6RSXKRINGSGIVARENS REGRESSRXTT (The

Insurer's Right of Subrogation) (1953). See also HELLNER, F6RSXKR[NGSRATT (Law of
Insurance) ch. 18 (1959). See also note 92 infra.
90Departmental Comm. on Alternative Remedies, Final Report, CMD. No. 6860
(1946). See Fleming, supra note 86, at 1539-42; Friedmann, Social insurance and the
Principles of Tort Liability, 63 HARV. L. REV. 241 (1949).

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social insurance regime.91 It applies as much to cash benefits as to free

medical treatment under the aegis of National Health. This model was
recently followed in Sweden.92
If subrogation is undesirable for private insurance, it is all the more
so for all forms of social insurance, including workmen's compensation.
These schemes are very broadly funded and are therefore excellent loss
distributors; it is their function to provide benefits for qualified bene-
ficiaries and there is no reason, budgetary or otherwise, why they should
not absorb the cost of tort losses along with all the rest of the risks of
the particular description. Finally, by renouncing subrogation and thus
becoming loss sharers, they promote a spreading of part of the risk
among the community at large, or a very substantial segment of it. Even
when they thereby relieve defendants who are insured against liability,
the effect is not altogether undesirable. All members of the community
participate to some extent in the benefits of insured activities, like
motor transport or industrial and commercial enterprise, and might
fairly be required to contribute a fraction to the cost of their typical
accidents. To the extent, however, that they partially relieve uninsured
defendants whose commonplace activities have been the cause of ac-
cidents, they contribute appreciably to reducing such tort-feasors' load
of liability at a time when this is becoming widely regarded as desirable
in view of the steeply increasing cost of accidents and the correspond-
ingly growing discrepancy between fault and loss bearing capacity on
the one hand and damage awards on the other.
The English-Swedish system is thus a notable contribution to the solu-
tion of the modern problem of loss allocation. Appropriate to the con-
temporary belief in a "mixed economy," it imports a joint participation
of the public and private sectors into accident compensation much like
that obtaining in the commercial branches of the economy. As such,
it is our counterpart to the socialist solution, which, as we have seen,
seeks to temper the wind to the shorn lamb by (1) restricting his liabil-
ity generally to indemnification of social insurance funds, and his liability
especially as employee93 and by (2) investing the trial court with dis-
91 National Insurance (Industrial Injuries) Act, 1946, 9 & 10 Geo. 6, c. 62, which
went into effect in 1948. For a thumbnail sketch see Fleming, supra note 86, at 1514-15.
92 The Swedish reforms are discussed by Hellner in CONARD, MORGAN, PRATrr, VOLTZ
& BOMBAUGH, op. cit supra note 83, at 438-54; bv KEETON & O'CONNELL, BASIC PROTEC-
TION FOR THE TRAFFIC VICTIM 212-17 (1965); see Fleming, supra note 86, at 1535-39. See
also Hellner, Tort Liability and Liability Insurance, 1962 SCANDINAVIAN LEGAL STUDIES
131; Strahl, Tort Liability and in.suravce, 1959 SCANDINAVIAN LEGAL SThDIES 199.
93 Text accompanying notes 51 52 supra.

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cretion to reduce damages with due

circumstances of the injurer as well as the injured.94 Neither solution,
of course, is altogether ideal, but that is rarely if ever the case with legal
solutions in so complex an area as this. In addition to all else, cultural and
political values will continue to influence the pattern of the law in this
area.
A CALL TO REFORM
American law is, alas, in this respect most retarded. For our primitive
"collateral source rule," whatever its justification as applied to private
benefits of a casual nature, tends in a quite irrational direction when
extended (as it fairly consistently has been) to public contributions.95
In contrast to most countries, which impose full responsibility on tort-
feasors only for the purpose of relieving the public purse through subro-
gation, the American rule condones cumulative recovery by the victim
who may as a rule keep his damages as well as his collateral benefit from
the public fund. This amounts to a painfully obvious misallocation of
resources, supporting the "feast and famine" cycle under which one
lucky victim may turn his plight into a bonanza with multiple windfalls,
while many another will go empty-handed-unqualified for Social Se-
curity and unable to collect damages from a financially irresponsible
tort-feasor.
Our efforts must be directed toward correction on two fronts: we
must provide more widespread coverage for compensating the injured,
94 E.g., CZECH. CIVIL CODE ? 450; POL. CIVIL CODE ? 440 (specifically limited to
"natural persons"); U.S.S.R. CIVIL CODE art. 458, para. 2; BLEY, SCHADENERSATZ IM ZIVIL-
RECGIT 141-48 (1963). Discretionary power to reduce damages is also found in some
Western codes. Indeed, the idea is gaining support. But its efficacy in easing the lot
of defendants is severely limited because, in the nature of the thing, it entails cor-
responding prejudice to plaintiffs. A quite explicit mandate for clemency on economic
grounds is art. 44, para. 2 of the Swiss OBLIGATIONSRECHT (Law of Obligations) (Switz.
1911) which authorizes reduction in order to save a merely negligent defendant from
ruin. See 1 OFTINGER, HAFTrPFLICHTRECHT 242-43 (1952). See also the proposed Ger-
man draft, supra note 13.
95 Case law applying the collateral source rule to Social Security and unemployment
benefits respectively are collected in Annot., 84 A.L.R.2d 764 (1962) and Annot., 4
A.L.R.3d 535 (1965). Only in the case of free medical services supplied by state-sup-
ported hospitals or other public charities has the anti-cumulation bias made any headway.
RESTATEMENT, TORTS ? 924, comment f (1939) propounded setoff, but signally failed to
gain general acceptance. See Annot., 68 A.L.R.2d 876 (1959). Instead, there has been a
more pronounced tendency to reimburse hospitals through subrogation, assignment and
similar devices. E.g., 42 U.S.C. ? 2651 (1964) (subrogation); 38 C.F.R. ? 17.48(f) (1966,
(assignment).

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846 Virginia Law Review
and we must seek to mitigate the lot of defendants. While it is perfectly

understandable that the first has virtually preempted all reforming zeal,
we will be doing ourselves a disservice, besides looking ever more archaic
to outside observers, if we do not begin to tackle the second. Some of
our future effort must be directed toward evolving new patterns of
loss spreading in which accident insurance and Social Security are more
coherently aligned with tort liability in a more rational relation of co-
operation as loss sharers than today.

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The Role of Negligence in Modern Tort Law

Author(s): John G. Fleming

Stable URL: https://www.jstor.org/stable/1071415

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THE ROOTS OF FAULI LIABILITY

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(and Canadian) rule of attenuated responsibility to guest passengers.12

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the other way. This trend of the mid

RETREAT FROM NEGLIGENCE

Now, the pendulum is swinging so far in the opposite direction that

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pling.16 Rather than subject every unit of production to a quality test,

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with the expense of meeting such claims, predominant though that

The Province of Strict Liability

Strict liability compels payment of compensation for typical harm

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victims of accidents incidental to t

THE DECLINE OF DETERRENCE

It would be the height of folly, therefore, to insist on a one-and-only

19 See RESTATEMENT, TORTS ? 519 (1938).

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In actual fact, liability insurance

THE SOCIALIS-T THEORY OF DETERRENCE

In the light of these insights, the wholehearted commitment of the

22 See FLEMING, INTRODUCTION TO THE LAW OF TORTS 102 (1967).

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liability24 must strike most outside observers, however sympathetic, as

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reasonable bounds and to spread accident losses widely.9 Most obvious

Duties to Prevent Accidents

29 The loss-spreading aspect of socialist law is discussed in text accompanying notes

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the goal of deterrence. The secondary role accorded to accident claims

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clearly serves no deterrent function.

86 See id. at 63.

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the pretense of doctrinal consistency with an individualistic version

Of special interest to us are two characteristic features of the new

43 WVith respect to proximate cause, socialist theory postulates a correspondence

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of fault is often difficult, and experience teaches that injury is usually

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take account of those distinctions between different defendants which

Perhaps the most interesting innovation of the socialist legislation lies

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ployer is expected to exercise again

These ideas enunciated in the socialist codes have a distinct relevance

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munity under workmen's compensation.53 As regards injury to stran-

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of subrogation without the insured employer's consent.57 Nor is it

The socialist limitations on subrogation, however, are without real

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caused the damage intentionally or with

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Many of our conventional rules of law are peculiarly fitted to assist

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