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57 Yale L.J. 549 (1947-1948)
Accident Liability Reconsidered: The Impact Liability Insurance

handle is hein.journals/ylr57 and id is 561 raw text is: ACCIDENT LIABILITY RECONSIDERED: THE IMPACT
OF LIABILITY INSURANCE
FLEMING JAMES, JR.'
DURING the formative period of most of the current doctrines of
negligence law, liability in tort was looked on as shifting a loss that
had already occurred from one individual to another-generally from
the person who suffered the loss to the person who caused it. It is
against the background of this way of looking at things that nearly all
of our conventional reasoning about the objectives of tort law has de-
veloped and that nearly all of our conclusions have been drawn and our
rules formulated. But society has no interest in the mere shifting of a loss
between individuals just for thte sake of shifting it. The loss, by hypoth-
esis, has already happened. A has been killed, or his leg broken or his
automobile smashed up. If the only question is whether B shall be
made to pay for this loss, any good that may come to society from
having compensation made to one of its members is exactly offset by
the harm caused by taking that amount away from another of its mem-
bers. In that view of the problem there had to be some additional rea-
son for a defendant to compensate a plaintiff for his injury before soci-
ety would compel compensation. These reasons might be (a) a feeling
of what is fair or just; (b) a desire to discourage dangerous conduct, or
of course a combination of both.
To a very considerable extent this last-named desire was tempered
by a strong counter-desire not unduly to discourage enterprising affirm-
ative activity-even when it was dangerous-because people were very
much imbued with the idea that unfettered enterprise and activity in
nearly all directions worked out through the laws of competition to
promote the general good. And again, these matters of fairness and
deterrence were all considered on the assumptions that plaintiff and
defendant were alone involved and that what happened between them
was the real issue-that tort liability was paid for out of the defendant's
own pocketbook. This focussed attention on the moral quality of the
conduct of the individual participants in the accident. The net result
was the general principle of no liability without fault.
There is however an altogether different approach to tort law. Hu-
man failures in a machine age cause a large and fairly regular-though
probably reducible-toll of life, limb, and property. As a class the
victims of these accidents can ill afford the loss they entail. The prob-
lem of decreasing this toll can best be solved through the pressure of
safety regulations with penal and licensing sanctions, and of self-inter-
t Lafayette S. Foster Professor of Law, Yale Law School.

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