Chapter 1. A 4,000 Year Perspective on Tort Law - Development of Common Law

Following is an excerpt from Shigley & Hadden, Georgia Law of Torts: Trial Preparation & Practice (Thomson Reuters / Westlaw, 2010- present). The lead author, Kenneth L. Shigley, has served as president of the State Bar of Georgia (2011-12), chair of the Institute for Continuing Legal Education in Georgia Board of Trustees (2012-13) and chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section (2015-16). The entire book may be purchased at or accessed through Westlaw.

1:4. Development of Common Law

When Rome's dominance disintegrated and a dark age of feudalism descended across Europe, the sceptered isle of Britain was soon divided into a number of small kingdoms. Its laws evolved through the mists of the dark ages and the medieval period with a blend of ethnic and local influences from old Britons, Celts, Picts, Mericans, Rome, the Church, Angles, Saxons, Danes, and eventually Normans. By the twelfth century, the legal traditions of these diverse sources eventually merged into a single “common law.”

Under the common law, when the writ of trespass emerged in the thirteenth century,1 a form of strict liability or no-fault system prevailed, as causing harm to another resulted in payment for the loss, regardless of lack of fault or intent.2 Trespassers had to pay for the harm done, so that private vengeance was unnecessary and security in civil society was enhanced.3 In time there developed a distinction between trespass and trespass on the case, which gave injured parties a remedy for the less direct consequences of a defendant's conduct.4 Trespass and trespass on the case grew more distinct from each other as trespass focused on intentional misconduct, where actual damages did not have to be proven, and trespass on the case came to require proof of actual damages and began to include acts of negligence.5

Over the centuries, there were court decisions to restrict liability for trespass and trespass on the case, essentially “tort reform” long before the word “tort” came into common use to describe a category of law. Court decisions refined burdens of proof,6 created defenses such as contributory negligence,7 assumption of risk,8 the fellow servant rule,9 and limitations based on privity of contract.10 Of course, these early evolutionary reforms had the effect of constricting the plaintiff's ability to recover.

But then the pendulum swung again in favor of compensating injured plaintiffs. These decisions overturned much of the privity requirement,11 created the last clear chance doctrine12 and comparative negligence13 to soften the draconian harshness of the pure contributory negligence rule, and eroded the rule on assumption of risk defense.14

Georgia adopted the common law of England as it existed on May 14, 1776, by an Act of the General Assembly approved February 25, 1784,15 but not so narrowly limited as before the Revolution16 as our common law includes the progression of law that has developed by construction of the statutes and legal maxims since that time.17 The common law inherited from Britain was and is a living, growing body, flexible enough to address new conditions but rooted in the doctrines and precedents of the past.18

In Georgia, as in the rest of America, the law eventually responded to changes in technology and the economy. In the nineteenth century, the growth of railroads, industry, and large scale commerce corresponded with the adoption of code pleading that eventually supplanted common law writs. This led to legal scholars and judges beginning to address the law of private wrongs not arising from contract in a new paradigm which came to be known as tort law.19

1 Gary R. Smith, The Future of Tort Reform: Reforming the Remedy, Re-Balancing the Scales, 53 Emory L.J. 1219 (Summer 2004); C. H. S. Fifoot, History and Sources of the Common Law: Tort and Contract ch. 4 (1949); Frederic William Maitland, The Forms of Action at Common Law: A Course of Lectures (A.H. Chaytor & W.J. Whittaker eds., Cambridge at the University Press 1968) (1909).

2 See Matthew Hale, History of the Common Law of England 259-60 (Fred B. Rothman & Co. 1987) (1713); Prosser and Keeton on the Law of Torts (5th ed.).

3 Prosser and Keeton on the Law of Torts (5th ed.), §75, at 534.

4 Prosser and Keeton on the Law of Torts (5th ed.), §6, at 29.

5 Prosser and Keeton on the Law of Torts (5th ed.), §6, at 29.

6 See, e.g., Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616).

7 See Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809).

8 See Priestly v. Fowler, 150 Eng. Rep. 1030 (K.B. 1837).

9 See Priestly v. Fowler, 150 Eng. Rep. 1030 (K.B. 1837); see Richard A. Epstein, The Historical Origins and Economic Structure of Workers' Compensation Law, 16 Ga. L. Rev. 775 (1982).

10 See Winterbottom v. Wright, 152 Eng. Rep. 402 (Ex. 1842).

11 Gary R. Smith, The Future of Tort Reform: Reforming the Remedy, Re-Balancing the Scales, 53 Emory L.J. 1219, 1219-1220 (Summer 2004); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916).

12 See Davies v. Mann, 152 Eng. Rep. 588 (Ex. 1842).

13 See Victor E. Schwartz, Comparative Negligence (3d ed. 1994); Henry Woods & Beth Deere, Comparative Fault (3d ed. 1996).

14 See, e.g., Blackburn v. Dorta, 348 So. 2d 287 (Fla. 1977); Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90, 82 A.L.R.2d 1208 (1959); see also Restatement (Third) of Torts §3 cmt. c (2000).

15 Prince's 1837 Digest, p. 570; Cobb's 1851 Digest, (pp. 720-721). See Givens v. Ichauway, Inc., 268 Ga. 710, 493 S.E.2d 148 (1997); Azizi v. Board of Regents of University System, 132 Ga. App. 384, 385, 208 S.E.2d 153, 155 (1974); Crowder v. Department of State Parks, 228 Ga. 436, 439-440, 185 S.E.2d 908 (1971).

16 Coleman v. Housing Authority of Americus, 191 Ga. App. 166, 167, 381 S.E.2d 303, 305 (1989); Hannah v. State, 212 Ga. 313, 322, 92 S.E.2d 89 (1956).

17 See Moses v. Prudential Ins. Co. of America, 187 Ga. App. 222, 224, 369 S.E.2d 541 (1988); Davis v. Atlanta Gas Light Co., 82 Ga. App. 460, 463, 61 S.E.2d 510 (1950).

18 See 15A Am.Jur.2d 594-599, Common Law, §1-3, and cases cited.

19 See generally G. Edward White, Tort Law in America: An Intellectual History (2003).

On May 22, 2018, former State Bar of Georgia president Ken Shigley will be a candidate for election to the Georgia Court of Appeals. The only other candidate is Ken Hodges, a former Dougherty County District Attorney. Ken Hodges was the Democratic Party nominee for Attorney General in 2010.

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