Why Negligence Dominates Tort

Abstract

The last several decades of tort scholarship in this country reflect enthusiasm favoring strict enterprise liability as the end position toward which American tort law, appropriately enough, is moving. This Article argues that no such trend is underway; negligence does now, and will in the future, dominate tort. Professor Gary Schwartz reached these same conclusions ii a body of work spanning twenty-plus years, culminating in the Restatement (Third) of Torts: Liability for Physical Harm (Basic Principles) project on which he served as Reporter until his untimely death in 2001. This Article describes this work and supports its conclusions with two considerations that played only a minor role in Gary's scholarship: Strict enterprise liability would generate disputes that would be unadjudicable, and would assign to enterprises risks that would be uninsurable. Thus, even if broad-based strict liability were to be theoretically attractive, as a practical matter it would be manifestly unworkable. Regarding the continued dominance of negligence, Gary got it right.

28_50UCLALRev3772002-2003
By uclalaw