Fault, No Fault or Strict Liability?

Author(s): C. L. Gaylord
Source: American Bar Association Journal , JUNE 1972, Vol. 58, No. 6 (JUNE 1972), pp.
589-593
Published by: American Bar Association

Stable URL: https://www.jstor.org/stable/25725872

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Fault, No Fault or Strict Liability?
by C. L. Gaylord
The long, tortuous road of liability
based on fault in automobile accident
cases began as early as 1910.
Early court decisions chose the
"negligence and fault" doctrine
instead of absolute or strict liability.
Automobiles are again posing new
legal and social problems. One
of the proposed solutions is "no-fault" dangerous contrivances" so as to ren
insurance?theoretically, the
elimination of the fault concept in
compensating accident victims
for their losses.
128.208.60.197 on Thu, 14 Mar 2024 10:58:29 +00:00
TN 1910, A SMALL TOWN lawyer with the American and most state bar
associations.
- from Outagamie County in Wiscon
sin argued to his Supreme Court that
the automobile was a dangerous instru "No Fault" is Unpopular
With Associations
mentality and should be put in that
legal category with "the locomotive, fe Generally the belief is that it is un
rocious animals, dynamite and other popular with professional associations
because it is against the economic in
der the owner absolutely liable for its terests of their members. It is sug
use. In view of the comparative sor gested that much revenue would be lost
rows and hardships the automobile has to the legal profession if "no-fault"
caused since then, he may well have were adopted, which is very likely true.
understated the case. The court re The associations give other reasons for
jected his argument and started Wis their opposition, but the explanations
consin law down its long tortuous road are suspect to the laymen. They seem
of liability based on fault in automobile
negative in nature, and what affirmative
accident cases (Steffen v. McNaughton, proposals are presented appear de
124 N.W. 1016). Five other states were signed to divert attention from the
already travelers on that same road. issue. The layman still believes that at
That lawyer is dead, and it probably torneys are a devious bunch of rascals
cannot cheer him that he may have and mainly dedicated to self-interest.
been right after all, as unsuccessful ap The reaction is unfortunate because
pellants often are. it may prevent a careful analysis of the
At that time, the automobile was a merits of the no-fault proposals. If
new factor, legally and socially. The some of them, as now proposed, are
court had to decide issues arising from passed, the remedy may be worse than,
its operation as matters of first impres or at least inappropriate to, the ail
sion. They had to search for precedents ment. But when the professional expla
arising out of situations before the au nations are considered, the layman
tomobile was known. They chose the probably should not be faulted for his
"negligence and fault" doctrine instead
attitude. Many lawyers themselves are
of absolute or strict liability. We may
embarrassed by the public statements
now have come full circle. Automobilesopposing no-fault, even though they
are again posing new legal and social may also be wary of the suggested no
problems, perhaps not foreseeable by fault plans.
the judges who made the first deci When a pamphlet of the American
sions. But the road these judges chose Trial Lawyers Association declares
has come to a dead end and things are that, instead of no-fault insurance,
piling up. Legislators and courts may safer cars should be designed, a merit
have to start over again, as a matter of rating system introduced to reduce pre
first impression, to find solutions. miums for safe drivers and law en
One of the solutions proposed is forcement improved, can the layman
"no-fault" insurance: theoretically, the be blamed for looking a little peculiar
elimination of the fault concept in and saying that, of course, these are all
compensating accident victims for very worthwhile proposals, but what
their losses. It is popular with most have they to do with no-fault insur
legislators and laymen. It is unpopular ance? Can't we have these things and
June, 1972 Volume 58 589
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No-Fault Insurance
no-fault insurance? And when it is thing much to do with it.
suggested that insurance companies Why should we feel so vindictive
should pay interest on successfully liti about them? If the so-called "wrong
gated or settled cases from the date of doer" loses an arm or leg, isn't he as
injury and that claims adjusters should disabled as an innocent person so in
be licensed to make them more respon jured? Isn't he as unable to care for
sible, can he be blamed for wondering himself and his family? Does the fact
why these recommendations have to be that he may have been more negligent
separated from a no-fault program? mean that he will not need medical at
Or when the moral approach is tention? Will the grocer give him free
food and the landlord free rent?
made that eliminating the fault concept
allows the wrongdoer to avoid paying Should his family be punished vicari
for the wrong he's done, should we be ously for what he may have done or
surprised that even lawyers have diffi failed to do?
culty rationalizing why the burden of One can reasonably infer from what
enforcing this punishment should rest some members of the legal profession
on the innocent injured person? Why have said that if a person is not re
should he bear the economic loss and C. L. Gaylord was educated at
sponsible in damages for what he does,
emotional trauma occasioned by hav he will go wild on the highways, may Wisconsin State University (B.A. 1952)
ing to prove the other fellow wrong? hem will result, and the highways will and Drake University (LL.B. 1951). He
Hasn't he suffered enough already? become a playground for the uninhi has been engaged in general prac
Why should society require him to as bited irresponsibles. tice in River Falls, Wisconsin, since
1951.
sume the prosecution of the guilty? If
Is there any wonder that some lay
the wrongdoer is to be punished, why
men feel the legal profession is putting
shouldn't it be done through the crimi
them on a bit? Laymen don't want per
nal laws? If he is guilty of an offense,
sons like that driving cars on the high
he should be charged criminally, but being acceptable in the foreseeable fu
ways with or without liability insur ture. He also knows that the "drunken
why should the civil remedies be used
ance. They don't want "uninhibited ir
for punitive purposes? driver", while the most inflammatory
responsibles" playing "bump-a-car" on
the roads under either a no-fault or comparison, would constitute a small
Should a Wrongdoer percentage of the no-fault beneficiaries.
fault plan. Obviously these drivers are
Recover for His Injuries? And, while he doesn't know the statis
uninsured anyhow. The insurance com
It is not infrequently said that no tics of hapless housewives who fall
panies are not fools and neither are
fault should be opposed because justice down the stairs each day, nor how
persons who purchase uninsured mo
requires that a wrongdoer should not many more do so on holidays and
torist coverage. They know that the
be allowed to recover for his own inju weekends, he is aware of the auto acci
fault concept is not keeping the j ockeys
ries. Eliminating the fault concept will off the racetrack. dent toll and that serious problems are
allow him to be rewarded for his own resulting from it.
wrongdoing. Is it unreasonable for the There are also lawyers who oppose And then, of course, we have the un
thoughtful layman to reply that he no-fault plans because the plans fail to answerable: It is not the "American
cover all victims of accident and ill
hopes there aren't very many drivers Way" to allow a person to escape indi
around who are insane enough to risk ness. They say they oppose these pro vidual responsibility for what he is and
death and criminal prosecution merely grams until a general national health what he does. But is the layman to
to become seriously injured so they insurance plan is provided for every infer that it is the "American Way" to
can profit from their own wrong one. For instance, a statement of be without compassion for the injured
doing? And he suggests that most per A.T.L.A. objects that the plans provide and disabled because of a fraction of
sons who have been in accidents, or coverage for the drunken driver but negligence on their part; to punish a
who have much to do with the investi not "for the hapless housewife who man economically for years because of
gation or litigation of issues arising falls down the basement steps". a momentary, often unintentional er
from them, know that usually there is There is, of course, logic to this ap ror; to visit his sins, if sins they are,
very little difference, even legally, be proach. But the layman wonders if the upon his family, and to force him and
tween the innocent and the wrongdoer; insistence that economic salvation must them on to the welfare rolls? If so,
that most persons involved in accidents be universal and simultaneous for ev then workmen's compensation laws,
aren't intentional "wrongdoers" or eryone before it is acceptable for any which do not depend on fault, should
criminals but rather just folks that one is really in good faith. He knows be abolished as un-American, as
something "happens" to without their there is no chance of a general national should social security for the perma
being "good" or "bad" having any health insurance plan of such scope nently and totally disabled.

590 American Bar Association Journal

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 No-Fault Insurance

Concept of "No-Fault" No-fault proposals can't remain is represented that claimants will not
Shouldn't Sound New merely academic concepts if they are have to hire attorneys to get adequate
Should lawyers be surprised that the to do any good. They must be imple compensation. It takes a real believer
parade of these horribles does not mented, and the implementation causes to accept the proposition that once
alarm laymen? Why should the super the problems. Some of the plans?the these bills are passed, some magic
ficially reported concept of no-fault in actual Massachusetts program and the transformation will occur and neither
surance sound new or ominous to proposed Wisconsin Assembly Bill? claimant nor insurer will be unreason
them? For years they have taken out deal primarily with claims of under able, that each will agree as to the na
hunting insurance, flight insurance and $2,000, plus medicals and other spe ture and extent of injuries and disabil
carried regular accidental death and cials. They are extremely bland legisla ity, and that each will trust the other.
dismemberment policies. They have tive acts and should not be objection It has not happened in workmen's com
also had collision and comprehensive able to even the most economically mo pensation cases. There is no reason to
insurance on their automobiles. They tivated attorney. These smaller claims believe self-interest will not enter into
know that under those policies negli are generally paid by insurers to claim no-fault cases.
gence doesn't have to be proved to re ants without attorneys' intervention
cover for their losses. If they are in unless there are substantial liability is Settlement of Claims
jured, they receive the amount of cov sues. The marginal cases which the Will Be Accelerated
erage purchased for the injury. If they lawyers do get involve a great deal of It is also claimed that settlement of
are killed, their beneficiary gets the difficulty for nominal compensation be claims will be greatly accelerated and
death benefits. If their car is damaged, cause of these liability factors. Since hardships accordingly reduced by
they collect the deductible coverage. this legislation eliminates the liability some administrative system. Nothing
All without fault being involved. Could problem, the attorney could conceiva in the history of administrative agen
something like this be adopted and bly do better on these cases than he cies encourages anyone to think this.
eliminate the complex problems we does now. What is understandably least pub
now encounter in trying to collect dam If these plans are acceptable because licly discussed by no-fault proponents
ages from the other person? of their blandness, they should be un and, therefore, least understood by lay
Leaving everyone to take out his acceptable to serious legislators and men is that no-fault plans also involve
own accidental injury and property lawyers for the same reason. They do sacrifices. If fault is eliminated, there
damage insurance, as distinguished not greatly help those who need help will be more claimants and a much
from liability insurance, would be fine the most: the seriously injured. larger percentage of them will success
if everyone operated a motor vehicle Proponents of no-fault argue for it fully prosecute their claims. There is
and if this were all there were to the because of the claimed great financial nothing necessarily wrong with this
no-fault proposals. An applicant for a losses incurred by long work layoffs, since this is the intent and purpose of
driver's license could be required to delays in getting cases to trial and no-fault. But who will pay the bill? It
purchase a minimal amount of acciden claimed exorbitant fees of lawyers. is reasonably safe to assume that insur
tal injury, death and property damage However, these factors are generally ers are not going to become suddenly
insurance to protect himself against not present in the minor cases covered philanthropic and reduce their margin
loss as a condition of being licensed. If by the plans. Persons with claims of of profit. And, since no-fault pro
someone placed greater value on him under $2,000 generally do not have ponents proselytize on the appealing
self and wished more coverage, he these hardships. The arguments apply promise that motorists will have lower
could buy more. But everyone would to claimants having serious injuries, insurance premiums, it seems apparent
have to provide for himself. but the legislation does not. Something they don't intend to have motorists, as
However, not everyone drives an au has taken a curious turn. a class, assume the increased costs.
tomobile, and not all injured persons Other plans depend on a pseudo Only two other groups remain: taxpay
are drivers of automobiles. Pedestrians workmen's compensation arrangement. ers and the victims themselves. Who

would not be protected by the driver's The surgeon who loses a finger or two picks up the tab depends on the social
attitudes of the planners.1
policy, for example, since it would not from his suturing hand and cannot
be a liability policy. And it isn't rea continue his profession receives the Whether the no-fault proposal is a
sonable to expect everybody to take same few hundred dollars as the jani social security arrangement, a work
out some accident insurance to protect tor who loses the same fingers but who men's compensation plan, or a Massa
themselves against injuries from the can continue with his job without loss chusetts-type plan, a limited amount of
of income. This should be satisfying to funds is spread among more claimants
operation of an automobile by some
one else. If they don't drive, why those who are democratic by nature through a scheduling or limitation of
should they have to buy insurance to and who believe in the equality of
protect themselves against those who man. The plans are great levelers. But 1. Blum and Kalven, Public Law Perspec
tive on a Private Law Problem?Auto Com
do? And that, of course, is not all are they really fair? pensation Plans, 31 U. Chi. L. Rev. 641
there is to the no-fault proposals. All of the plans are urged because it (1964).

June, 1972 Volume 58 591

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No-Fault Insurance

damages. The victims pay by receiving The only questions would be: Were would let a person suffer because that
less compensation than they would re you injured or have property losses person may have been in the intersec
ceive under the fault system. The vic arising from the operation of a motor tion a second or two later than the
tims, of course, can generally least vehicle by someone else ? What amount other would be severely rebuked. He
afford it. These plans exhibit a strange will make you as economically whole should and does do what he can to give
compassion. as you were prior to the accident? relief based on need, not on fault. Per
The taxpayers, of course, will not be Some will say, of course, that allow haps legal remedies should attempt to
neglected since they will share the cost ing an injured person to recover with do the same.
of the numerous personnel that will be out regard to his own fault is the ulti
required to administer the particular mate in freedom from responsibility Auto Accident Court
system. The more complex the system, and is objectionable for all the reasons Cases Would Be Reduced
the more personnel required. Assuming mentioned. But maybe the reverse is A review of almost any state's su
the fondest hope of no-fault proponents true: It is the ultimate in human re preme court's reports reveals a high
?the elimination of private legal coun sponsibility. If the other person can re percentage of the court's time devoted
sel?all that has happened is that the cover for injuries arising from your to appeals in automobile accident
taxpayers are now providing legal operation of a motor vehicle, negligent cases. In most of these the court has
counsel at taxpayer's expense in the or not, it means that you are responsi had to decide arguable issues of fault.
form of personnel, to represent claim ble for all of your acts and the conse When one considers pretrial investiga
ants and insurers. Realistically, of quences therefrom. Your intentions, tions and preparations, the trials in the
course, there will still be private legal lower courts, the appellate preparation
good or bad, careful or careless, make
counsel in addition to the personnel no difference. It recognizes a basic and the work of the supreme courts,
hired by the taxpayers, as in workmen's truth of life: All acts have conse the total judicial and lawyer time de
compensation cases. quences. The intent of the actor is ir voted to haggling over whose fault the
relevant to the consequence. Things incident was, in just these reported
Is it necessary for no-fault insurance
proposals to be complex and to involve happen regardless of the motives or cases, is cause for dismay.
costly administative systems? Some character of the initiator. Surely judges, as well as laymen and
think not. They believe that the diffi This strict accountability, retaining many lawyers, must become exasper
culties arise from the failure to sep the common law measure of damages, ated with the enforced continuous con
arate the concept of "no-fault" from should meet with the approval of the templation of the many legal and fac
the matter of damages. The legislative opponents of no-fault. What is more in tual uncertainties involved in determin
proposals are really misnamed. They dividualistic than this concept? What ing and apportioning blame. Surely,
aren't just "no-fault" proposals. They should cause a driver to be more care they have something better to do with
are also enactments to dictate and limit ful than the knowledge that he is fully their time and talents than this.

damages. If, as the proponents of no responsible for someone else's injuries In February-of 1969, an article ap
fault suggest, it is the fault concept if he has an accident? The courts rec peared in the American Bar Associa
that is slowing up settlements, forcing ognize that strict liability is a deterrent tion Journal which recommended that
people into lawyers' offices, tying up when they impose it on persons using other states try Wisconsin's limited
court calendars and causing the hard other dangerous instrumentalities. comparative negligence doctrine as the
ships, why not simply eliminate the These devices are used at the peril of answer to no-fault compensation
fault concept and leave damages to be the user. Why shouldn't it have the schemes.4 The article asked: "Why ex
determined as they now are? same deterrent effect on automobile periment with an untried scheme that
That is the simple solution proposed drivers? Shouldn't it promote defen dispenses with the adversary system
by the lawyer from Outagamie County sive driving? And, if an accident hap when the Wisconsin doctrine is sue
years ago: Make the driver of an auto pens, attention can then be concen
mobile strictly liable for injuries to trated on making the injured persons
others which arise from his use of the as whole, physically and economically, 2. The grandfather case, of course, is
Rylands v. Fletcher, [1868] L.R. 3 H.L. 330.
automobile, without regard to fault, as possible, instead of niggling over It has had a varying acceptance in the
but utilize the traditional method of who was most to blame and thereby in United States, but there is probably no
state that does not now utilize the prin
determining damages. The strict liabil creasing the hardships on the injured ciple under some name or other. The term
"strict liability" has developed various nu
ity concept has been applied to certain persons. ances and conditions. We use it in its basic
situations for many years by most Isn't it time to free the courts and sense of "absolute liability".
3. France, Mexico, Finland, Norway and
courts.2 They hint at it in others. Otherattorneys from the imposed preoccupa Denmark are reported to impose liability
countries have successfully utilized it tion with whose fault an accident was without reference to fault. Russia and Ger
many have modified approaches. Malone,
in automobile cases.3 Perhaps it is time and the fetish of apportioning blame? Damage Suits and the Contagious Principle
to recognize the automobile as a dan Who, except the moralists, care who is of Workmen's Compensation, 12 La. L. Rev.
231.
gerous instrumentality and impose that to blame? The injured need help. The 4. Heft & Heft, Comparative Negligence:
standard of care with reference to it. distressed need relief. A physician who Wisconsin's Answer, 55 A.B.A.J. 127 (1969).

592 American Bar Association Journal

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 No-Fault Insurance

cessfully meeting the test of time?" find the better solution to the problem, causing the problems and injustices,
Under the limited comparative negli but the media releases have been more and it eliminates "fault". If the propo
gence doctrine, the defendant, if he is in the nature of vituperative attacks on nents are candid and not merely using
guilty of the greater negligence, pays the legal profession than a discussion the no-fault programs to insinuate more
the plaintiff an award diminished by a of the merits of the proposals.6 currently unacceptable proposals into
percentage equivalent to the plaintiff's eventual legislation, this should satisfy
negligence. Recently, in a reasonable Legal Niceties Will them.
effort to moderate escalating tensions, No Longer Suffice On the other hand, it salvages the
the American Bar Association recom What should be clear from the Wis common law measure and method of
mended the adoption by other states of consin experience is that legal niceties determination of damages. For those
the Wisconsin system as an alternative in the negligence field are no longer who oppose no-fault plans but are
to no-fault plans.5 The impression ap going to suffice. It may have been al aware of the intensity of the plans'
parently is that Wisconsin is relatively ready too late, when Justice Hallows supporters, this may be a wise settle
free from discontent because of its wrote his dissent, for the acceptance of ment.
unique doctrine. the pure comparative negligence doc Justice Hallows recently quoted Jus
The unrest among laymen, sponta trine as a specific to quiet the restless tice Frankfurter of an earlier era and
neous or otherwise, has been underesti ness of the proponents for no-fault. said: "Wisdom too often never comes,
mated by the Bar. There was and is no Introspective court decisions, hidden and so we ought not to reject it merely
reason for complacency in Wisconsin. in advance sheets and sepulchered in because it comes late." Perhaps the
Within eighteen months of the appear books, are having difficulty being heard time has come at last for the wisdom
ance of the article, the Wisconsin Su above the hostile clamor of the news of those who argued years ago, and
preme Court in Vincent v. Pabst Brew media. And, along with the noise, there lost, for the concept of strict liability
ing Company, 111 N.W. 2d (1970), is great confusion. Something new and in automobile accident cases.
was asked to adopt a "pure compara dramatic and simple is needed.
tive negligence system", to eliminate Perhaps that something "new" is 5. 57 A.B.AJ. 762 (1971).
the necessity of plaintiff's negligence something old. We often get the best 6. The Wisconsin legislature has recently
enacted a modification of the limited com
being less than defendant's in order to view from a distance and maybe we parative negligence doctrine which allows
recover damages but diminishing the can now see a little more clearly that recovery by a victim if he is 50 per cent or
less negligent. (Assembly Bill 50, Chapter
award by the percentage of negligence the old argument for strict liability has 47). From the legislative bulletins (WLRB,
apportioned to plaintiff. The court de considerable merit after all. 71-2) and informed comments of representa
tives of the State Bar of Wisconsin, there
nied the request, and urged the state It takes the proponents of "no-fault" seems little chance that this will stop the
legislature as the proper deliberative at their word that it is "fault" that is no-fault clamor.

body, to study the two doctrines?

"limited comparative" and "pure com
parative" negligence?thoroughly and
to make the choice between the two.
The warning that there was a third
choice was mentioned by Justice Hal
lows, who dissented, and wrote: "What
I do fear is that if the doctrine of
pure comparative negligence is not
adopted, the whole fault system in torts
will be repudiated and a no-fault sys
tem akin to workmen's compensation
adopted."
The legislature did not pay much
more attention to the majority's
suggestion that it choose between the
two comparative negligence doctrines
than the majority paid to Justice Hal
low's warning. By that time, the assem
bly members had discovered the politi
cal popularity of no-fault and have
been lambasting the legal profession
with it ever since. Hearings have been
held by the assembly and no doubt
many of its members are attempting to
Environmental Law Conference at Ghost Ranch
N ENVIRONMENTAL law semi
nar, entitled "Defending the En
vironment: A Problem for Lawyers and
Laymen Alike", will be held at the
Ghost Ranch Conference Center, Abi
quiu, New Mexico, on July 17-23,1972.
Ghost Ranch is a conference and rec
reational facility in northern New
Mexico, and families are invited to ac
company the person attending the con
ference.
The conference staff will consist of
Joseph L. Sax of the University of
Michigan Law School, Marvin Durning
of Seattle and Richard B. Wilks of
Phoenix. Joining them will be G. Dan
iel Little, Coordinator of Planning for
the Department of Strategic Studies of
the United Presbyterian Church in the
U.S.A. The seminar is open to both
lawyers and laymen.
The registration fee is $100, and the
room and board charges are $6.50 a
day, except $3.25 a day for children
nine years and under. Further informa
tion may be obtained from Ghost Ranch
Conference Center, Abiquiu, New Mex
ico 85710.

June, 1972 Volume 58 593

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