Entering the Twenty-First Century

Abstract

Abstract The history of tort law in America has revealed the multifaceted and elusive character of the subject. From its origins the field of torts has been defined by its residual status. It has been conceived as a field of civil actions, but not encompassing those arising out of contract; a field separate from criminal law, but often overlapping it. A field broad enough to encompass industrial accidents and slander suits, misrepresentations about the goodwill of a business, and suits by grandparents for the anguish caused by their fear for the safety of their grandchildren; but narrow enough to aspire to comprehensive principles of liability. A field in which class actions for damage brought by the release of toxic chemicals, with their extensive public policy implications, coexist with cases where a child slips on a patch of ice in a neighbor’s yard. A field, in short, combining cases that resemble the classic actions of private law-one plaintiff suing one defendant as a result of a single incident that caused harm and damage-with cases raising issues of risk distribution and allocation among multiple enterprises in an industrial society. An area of law that has periodically sought to determine whether its primary purpose should be admonitory, to deter and punish activity that creates substantial risks to others, or compensatory, to provide injured persons redress from their injuries.

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