More notes on the Double Quick constitutional arguments

I’ve now read through the briefs and came away thinking there’s a really good chance the Supreme Court won’t even reach the damages cap issue because of problems with the plaintiff’s case on premises  liability.

Even so, I want to make a couple of comments on the constitutional argument.  First, I came away unconvinced by both side’s arguments.  Lyon bases his argument on distinguishing two damage caps the court has upheld (workers comp and suits against the state), and his effort to distinguish them seems sound as far as that goes.  But after doing that, he doesn’t really stitch together a compelling argument for unconstitutionality (and, as I’ve already noted, does not mention what seems to me a possible due process argument).  On the other hand, Double Quick relies heavily on the cases upholding caps in suits against the state and workers comp suits, and strongly argues that there are no limits on legislative police powers here, and that’s about it.  But then, a tie will go to upholding the statute, so Double Quick has the advantage.

One argument Double Quick made jumped out at me as bad (and misunderstood) legal history, about how the law of negligence arose.  Double Quick argues that there was no common law liability for negligence, and therefore, the legislature does not tinker with a common law right when it limits damages for negligence.

This essentially turns tort law history on its head– it’s not that there was no cause of action that would cover negligence before 1850– what changed was doctrine that limited liability by requiring plaintiffs to prove failure of a duty of care.

In England in tort law, two kinds of liability had arisen claims for “trespass” against the person.  An example of the first would be if a workman dropped a beam out of a building and hit you on the head.  You could sue his employer “in trespass.”  However, if he dropped the beam to the ground and you tripped on it and hit your head, you had no trespass claim.  By the thirteenth or fourteenth century (yes, that long ago), the courts had developed another claim called “trespass on case” to cover the category of indirect injuries.  When you tripped on the dropped beam, you sued for trespass on case.

(Aside relating to Holmes’s comment about the common law causes of action ruling us from the grave:  At least when I was clerking for a federal judge in Alabama in 1981, the distinction between “trespass” and “case” still mattered to decide which statute of limitations applied).

This history is described in Gregory, “Trespass to Negligence to Absolute Liability,” 37 Virginia Law Review 359 (1951), part of which is repreinted in Presser and Zainaldin, Law and American History.

Blackstone outlines the nature of trespass in case in the third volume of his Commentaries (the one on Private Wrongs, from 1768) on pages 122 and 123– “For wherever the common law gives a right or prohibits an injury, it also gives a remedy by action; and therefore, wherever a new injury is done, a new method of remedy must be pursued.  And it is a settled distinction, that where an act is done which is in itself an immediate injury to another’s person or property, there the remedy is usually by action of trespass vi et armis [that is, trespass for an immediate injury]; but where there is no act done, but only a culpable omission, or where the act is not immediately injurious, but only by consequence and collaterally; there no action of trespass vi et armis will lie, but an action on special case, for the damages consequent on such omission or act.”

With the rise of railroads and factories in the 19th century, courts wanting to make the law more amenable to those changes developed a lot of rules that undercut the near strict liability imposed by the old causes of action.  The concept of negligence law developed in the first half of the 19th Century as a limit upon the ability to sue for trespasses by strangers– the plaintiff had to show a “duty of care” to win, not merely that he’d been hurt by something the stranger was doing.   But the courts didn’t invent this from whole cloth– Friedman’s A History of American Law (1973) cites an 1821 treatise in which negligence is treated as “a kind of residual category” for torts that could not “be brought conveniently under more particular heads.” One example from the treatise is clearly what we think of as negligence law– “If the owner of a ship, in the care of a pilot, through negligence and want of skill, sinks the ship of another, this owner is liable.”  The idea was there.  What happened in the first half of the 19th Century was a process of limiting the ways defendants could be made liable for injuries to others with doctrines that required showing some sort of duty on the defendant’s part.  It wasn’t enough to show that the defendant ran over a cow with his train, the plaintiff had to show the defendant wasn’t keeping a proper lookout and wasn’t issuing appropriate warnings.  But previously, that running over of the cow would have been actionable as a trespass.

So given that historical context, here’s some language from the defense brief in Double Quick. On page 36:

It is horn book law that the general tort of negligence, which is the gravamen of Lymas’ claim, was not recognized at common law or even when Mississippi first became a State in 1817.  The tort was first recognzed afer 1825 in the United States, and it did not become generally recognized in our countr until after 1850.

This is supported by a footnote:

Negligence began to take shape as a separate tort in the United States only after 1825. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton, & David G. Owen, Prosser & Keeton on Torts 160 & n. I Torts, 42 L.Q. Rev. 184, 195- 96 (1926); Charles O. Gregory, Trespass to Negligence to Absolute Liabilty, 37 Va. L. Rev. 359, 365-70 (51h ed. 1984); Percy H. Winfield, The History of Negligence in the Law of Torts, 31 Nineteenth-Centur America: A Reinterpretation, 90 Yale LJ. 1717, 1727-34 (1981); E. F. Robert, Negligence: Blackstone to Shaw to? An Intellectual Escapade in a Tory Vein, 50 Cornell L.Q. 191,200- the Common Law of La. L. Rev. 1,29-30,32,34-37,39-40 (1970); Gary T. Schwarz, Tort Law and the Economy in (1951); Wex S. Malone, Ruminations on the Role of Fault in the History of its Development in Tort Law During the Nineteenth Century, 18 Syracuse L. Rev. 728,728-30 (1967).

I’m not buying this particular argument at several stages– first, that negligence is not at root a common law cause of action;  second, that a cause of action had to exist at common law or at the time Mississippi became a state for the plaintiff to have a right to a jury trial (Does this mean there is no right to a jury trial in state court for strict liability claims?).

On the other hand, I am also not persuaded that the plaintiff makes a convincing argument that legislative tinkering with rights and remedies “violates” the right to a jury trial.  As I noted above, a tie goes to Double Quick.