Controversial cases of liability without fault involve the third postulate. Systematic writers have found no difficulty in reconciling the law of negligence with the will theory of liability and the doctrine of no liability without fault. Yet they must use the term fault in a strained sense in order to fit our law of negligence with its objective standard of due care, or the Roman cases of liability for culpa judged by the abstract standard, into any theory of moral blameworthiness. The doctrine of liability for fault and for fault only has its roots in the stage of equity and natural law, when the moral and the legal are identified, and means that one shall respond for injuries due to morally blameworthy conduct upon his part. As Ames puts it, "the unmoral standard of acting at one's peril" is replaced by the question, "Was the act blameworthy?" But is an act blameworthy because the actor has a slow reaction time or was born impulsive or is naturally timid or is easily "rattled" and hence in an emergency does not come up to the standard of what a reasonably prudent man would do in such an emergency, as applied ex post facto by twelve average men in the jury box? If our use of "culpable" here were not, as it were, Pickwickian, we should allow the defendant in such cases to show what sort of man nature had made him and to call for individualization with respect to his character and temperament as well as with respect to the circumstances under which he acted. As the Romanist would say, we should apply a concrete standard of culpa. But what the law is really regarding is not his culpable exercise of his will but the danger to the general security if he and his fellows act affirmatively without coming up to the standard imposed to maintain that security. If he acts, he must measure up to that standard at his peril of answering for injurious consequences. Whenever a case of negligence calls for sharp application of the objective standard, fault is as much a dogmatic fiction as is representation in the liability of the master for the torts of his servant. In each case the exigencies of the will theory lead us to cover up a liability irrespective of fault, imposed to maintain the general security, by a conclusive imputation of fault to one who may be morally blameless. This is no less true of cases where we speak of "negligence per se."
Reconciliation of common-law absolute liabilities for the getting out of hand of things likely to escape and do damage with the doctrine of no liability without fault has been sought by means of a fiction of negligence, by pronouncing them disappearing historical anomalies, by an economic interpretation that regards them as results of class interest distorting the law, and by a theory of res ipsa loquitur. Blackstone resorted to the first of these. "A man is answerable," he said, "for not only his own trespass but for that of his cattle also; for if by his negligent keeping they stray upon the land of another ... this is a trespass for which the owner must answer in damages." But note that the negligence here is a dogmatic fiction. No proof of negligence is required of the plaintiff, nor may the defendant show that there was in fact no negligence. The negligence is established by the liability, not the liability by the negligence.
In the last century it was usual to refer to absolute liability for trespassing animals, for injuries by wild animals and for injuries by domestic animals, known to be vicious, as disappearing rudiments of the old liability to make composition. The common American doctrine as to cattle running at large upon uncultivated lands seemed to confirm this. Yet one need but look beneath the surface to see that the English rule was rejected for a time in America, not because it was in conflict with a fundamental principle of no liability without fault, but because it presupposed a settled community, where it was contrary to the general security to turn cattle out to graze, whereas in pioneer American communities of the past vacant lands which were owned and those which were not owned could not be distinguished and the grazing resources of the community were often its most important resources. The common-law rule, without regard to its basis, was for a time inapplicable to local conditions. It is significant that as the conditions that made the rule inapplicable have come to an end the rule has generally re-established itself. In England it is in full vigor so that the owner of trespassing animals is held for disease communicated by them although he had no knowledge or reason to suppose they were diseased. A rule that can re-establish itself and extend its scope in this way is not moribund. It must have behind it some basis in the securing of social interests. Nor have the attempts of some American courts to narrow common-law liability for injuries by known vicious animals to cases of negligent keeping made much headway. The weight of American authority remains with the common-law rule and in England the Court of Appeal has carried the rule out to the extent of holding the owner notwithstanding the animal was turned loose by the wrongful act of an intermeddling third person. Nor have the predictions that the doctrine of Rylands v. Fletcher would disappear from the law through the courts' smothering it with exceptions—predictions commonly made at the end of the last century—been verified in the event. In 1914 the English courts refused to limit the doctrine to adjacent free-holders and they have since extended it to new situations. Moreover in America, where we had been told it was decisively rejected, it has been applied in the past decade by more than one court. The leading American cases that profess to reject the doctrine did not involve it nor did they involve the postulate of civilized society on which, as I think, it is based. Also the Court of Appeals of New York, the leading exponent of no liability without fault, had theretofore imposed a liability without regard to negligence in the case of blasting.
An ingenious explanation of the doctrine of Rylands v. Fletcher by means of the economic interpretation of legal history demands more notice. We are told that the English courts were manned by landowners or by judges drawn from the land-owning class; that the doctrine of Rylands v. Fletcher is a doctrine for landowners and so was not accepted by artisans in the United States. But consider which states applied the rule and which rejected it. It was applied in Massachusetts in 1872, in Minnesota in 1872, in Ohio in 1896, in West Virginia in 1911, in Missouri in 1913, in Texas in 1916. It was rejected by New Hampshire in 1873, by New York in 1873, by New Jersey in 1876, by Pennsylvania in 1886, by California in 1895, by Kentucky in 1903, by Indiana in 1911. Is New York a community of artisans but Massachusetts a community of landowners? Did the United States begin to change from a country of artisans to one of landowners about the year 1910 so that a drift toward the doctrine began at that time after a steady rejection of it between 1873 and 1896? Rylands v. Fletcher was decided in 1867 and is connected with the movement Dicey calls collectivism, which, he says, began in 1865. It is a reaction from the notion of liability merely as a corollary of culpability. It restrains the use of land in the interest of the general security. If this view is well taken, if it was an attempt to take account of the social interest in the general security in a crowded country, this may explain the reluctance with which it was received in the United States at first, where pioneer ideas, appropriate to a less crowded agricultural country, lingered at least to the end of the nineteenth century. In the actual American decisions, some follow Rylands v. Fletcher as an authoritative statement of the common law. Other cases go rather on the principle that liability flows from culpability. Agricultural states and industrial states alike divide along these doctrinal lines. Massachusetts and Pennsylvania, both industrial states, are on opposite sides. So are Texas and Kentucky, which are agricultural states. Massachusetts and New Jersey, each with an appointive bench, are on opposite sides, and so are Ohio and New York, each with an elective bench. In truth the Massachusetts court followed authority. In New Hampshire Chief Justice Doe was not willing to go on mere authority and decided on the general principle that liability must flow from fault.
Another view is that the doctrine of Rylands v. Fletcher is a crude attempt, when negligence and the doctrine of res ipsa loquitur were none too well understood, to apply the principle of the latter doctrine, and that those doctrines will suffice to reach the actual result. No doubt res ipsa loquitur gives a possible mode of treating cases where one maintains something likely to get out of hand and do injury. For four possible solutions may be found for such cases. One is absolute liability, as in Rylands v. Fletcher. Another is to put the burden of proof of due care on the defendant, as French law does in some cases and as is done by some American decisions and some statutes in case of fires set by locomotives. A third is to apply the doctrine of res ipsa loquitur. A fourth would be to require the plaintiff to prove negligence, as is done by the Supreme Court of New Jersey where a known vicious animal breaks loose. That the fourth, which is the solution required by the theory of no liability without fault, has found but two courts to uphold it, and that only in the case of vicious domestic animals, is suggestive. Res ipsa loquitur may easily run into a dogmatic fiction, and must do so, if made to achieve the result of the doctrine of Rylands v. Fletcher, which does not permit the defendant to go forward with proof, short of vis maior or the unanticipated unlawful act of a third person beyond defendant's control. The vitality and persistence of the doctrine against theoretical assault for more than a generation show that it is more than a historical anomaly or a dogmatic blunder.
Another type of common-law liability without fault, the so-called liability of the carrier as an insurer and the liability of the innkeeper, is relational and depends upon a different postulate. Nineteenth-century courts in the United States endeavored to hold down the former, restricting it because of its inconsistency with the doctrine of liability as a corollary of fault. But it has proved to have abundant vitality, has been extended by legislation in some states to carriers of passengers and has been upheld by recent legislation everywhere.
Two other types of liability, contractual and relational, must receive brief notice. The former has long done valiant service for the will theory. Not only liability arising from legal transactions but liability attached to an office or calling, liability attached to relations and liability to restitution in case of unjust enrichment have been referred to express or implied undertaking and hence to the will of the person held. But beneath the surface the so-called contract by estoppel, the cases of acceptance of a wrongly transmitted offer, the doctrine that a public utility has no general power of contract as to facilities or rates except to liquidate the terms of its relational duties in certain doubtful cases, and cases of imposition of duties on husband or wife after marriage by change of law, have caused persistent and recurring difficulties and call everywhere for a revision of our ideas. Also the objective theory of contract has undermined the very citadel of the will theory. May we not refer these phenomena, not to the will of the person bound, but to another postulate of civilized society and its corollaries? May we not say that in civilized society men must be able to assume that those with whom they deal in the general intercourse of society will act in good faith? If so, four corollaries will serve as the bases of four types of liability. For it will follow that they must be able to assume (a) that their fellow men will make good reasonable expectations created by their promises or other conduct, (b) that they will carry out their undertakings according to the expectation which the moral sentiment of the community attaches thereto, (c) that they will conduct themselves with zeal and fidelity in relations, offices and callings, and (d) that they will restore in specie or by equivalent what comes to them by mistake or unanticipated situation whereby they receive what they could not have expected reasonably to receive under such circumstances. Thus we come back to the idea of good faith, the idea of the classical Roman jurists and of the philosophical jurists of the seventeenth century, out of which the will theory was but a metaphysical development. Only we give it a basis in social philosophy where they sought a basis in theories of the nature of transactions or of the nature of man as a moral creature.
Looking back over the whole subject, shall we not explain more phenomena and explain them better by saying that the law enforces the reasonable expectations arising out of conduct, relations and situations, instead of that it proceeds upon willed action and willed action only, enforcing the willed consequences of declared intention, enforcing reparation for willed aggression and enforcing reparation for culpable carrying on of willed conduct? If we explain more and explain it more completely by saying that the ultimate thing in the theory of liability is justifiable reliance under the conditions of civilized society than by saying that it is free will, we shall have done all that we may hope to do by any theory.