Negligence, Gary Schwartz, Strict liability, Strict enterprise liability, Theories of tort law, Restatement (Third) of Torts, Liability for physical harm
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 in 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 his work and supports his 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.
Henderson, James A. Jr., "Why Negligence Dominates Tort" (2002). Cornell Law Faculty Publications. Paper 808.
Published in: UCLA Law Review, vol. 50, no. 2 (December 2002).