Tuesday, December 6, 2011
Ellen Pryor (SMU) has posted to SSRN Peculiar Risk in American Tort Law. The abstract provides:
American tort law includes a significant strand of liability tied to an intriguing concept variously termed “peculiar risk,” “special danger,” and “special risk inherent in the work,” among others. Peculiar risk presents a basis for liability different from other standards or actions that trigger liability in tort law - it is different from intent, recklessness, negligence, nuisance, and abnormally dangerous activity. Both England and the United States endorsed versions of the doctrine in the late nineteenth and early twentieth centuries. Yet, by 1965, American and English tort law had sharply diverged on the doctrine. American courts continued to apply it; meanwhile, the doctrine had been severely limited in England and rejected in several other common law countries.
The divide between the American approach and treatment of the doctrine outside the U.S. is a puzzle. In countries that have rejected or severely limited the doctrine, the critiques have included decisional indeterminacy and shaky historical and normative justifications. Yet a doctrine subject to these criticisms elsewhere has remained well accepted in the United States in the last thirty years - a thirty-year period characterized by extensive tort reform across the bandwidth of tort law.
This Article explores three points about this divide between American tort law and the tort law of other common law countries: when and how the divide occurred; why this doctrine - whose breadth and indeterminacy spelled its disfavor elsewhere - remained well-accepted in America despite the intensity and duration of American tort reform; and whether the American version of the doctrine offers lessons for tort law outside the United States.