Negligence without Fault

Abstract

Four children chasing a kite drowned in a frozen pond.Y Damages were sought from a railroad company by whose admitted negligence water had been diverted to form the fatal pond. The Supreme Court of Pennsylvania denied liability because a prudent man in the defendant's place could not have "anticipated and foreseen this unfortunate happening" and because "there was no breach of duty to the children." 2 Jury verdict, majority opinion, and dissent reflect the uncertainty and t Copyright, 1951, The Regents of the University of California. Reprinted by permission. Section numbers contained in the original printing have been retained since internal references to them are made in the text. The section numbers have been placed in brackets to conform as nearly as possible to the normal publication form of the California Law Review. No other changes in the original text or footnotes have been made, and consequently many footnotes are not in accord with the form prescribed by A Uniform System of Citation (10th ed. 1958). As in the original text, footnotes for Parts I and II are numbered separately.The Editors believe it appropriate to reprint this work by Professor Ehrenzweig, since the original book has long been out of print and since once again controversy has erupted over the proper bases of tort liability. Negligence Without Fault has been a significant contribution to the law and theory of tort liability, and its relevance has not been impaired by changes in some of the case law and uniform acts which it discusses. It is only fitting that an issue dedicated to Professor Ehrenzweig should make one of his most penetrating works available to a wider audience. Some of the ideas suggested in Negligence Without Fault have been further developed in the author's later works. The reader's attention is particularly called to the following:

Do societies prioritize harm prevention?

“…See, e.g., McBride 2004: 425-26;Bender 1988: 30-31. 4 See, for example, Abraham 2012: 288;Ehrenzweig 1966Ehrenzweig : 1431Ehrenzweig -32, 1435Ehrenzweig , 1444Gregory 1951: 380-84. (2019) 37 journal for constitutional theory and philosophy of law Do societies prioritize harm prevention?…”

The "Necessity" Defense And The Failure Of Tort Theory: The Case Against Strict Liability For Damages Caused While Exercising Self-Help In An Emergency

“…In one important article, he advocated liability for "the unavoidable and insurable consequences of lawful (enterprise) activities." 59 For him, so long as the harm was "typical" for the activity and "thus calculable and reasonably insurable" 60 the enterprise should be liable in tort. He called this "negligence without fault" and justified imposing the duty of compensation on the enterprise on the ground that "these liabilities are the price which must be paid to society for the permission of a hazardous activity."…”

Disciplinary Collisions: Blum, Kalven, and the Economic Analysis of Accident Law at Chicago in the 1960s

“…The Columbia report suggested that compensation should be paid from a general fund and that accident losses should be spread over a large population with a view to providing appropriate compensation to the maximum number of victims. 13 See, e.g., Ehrenzweig (1951;1955) and Green (1958). …”