Book Review

Prosser and Keeton on Torts, 5th ed.

West Publ. Co, 1984, ISBN 0-314-74880-6. 1286 pages + 252 page supplement


A passenger, behind schedule, runs to catch his train. The railroad employees, assisting the passenger, knock a package from his arms, causing the package to fall onto the tracks. Unfortunately, the package contains fireworks, which explode violently when the train runs over them. The concussion knocks over a large scale standing on the platform, which lands on a lady who is innocently standing there, injuring her. Of course, the lady sues the railroad. Under what legal theory, if any, can the railroad be held liable for negligence?

At an intersection, you, being a nice person, wave for the other driver to go ahead. The driver does so, and immediately is plowed into by an oncoming cement truck. The victim's surviving relatives, after watching the driver die an agonizing death, may demand compensation from you not only for negligence and wrongful death, but can they recover for their emotional suffering as well?

Almost every society has devised some formalized means of settling conflicts such as these between people. When the conflict arises because the one person, either through carelessness or an intentional action, causes injury or loss to another, without necessarily doing something technically illegal, this society resolves the dispute with tort lawsuits. The Prosser and Keeton Hornbook is undoubtedly the preeminent American textbook on the the guiding principles behind this branch of legal theory, and provides a thorough introduction to the principles behind black-letter law. Like other law books, it is heavily footnoted, and uses a precise, legalistic language style that, for a non-lawyer, takes some getting used to. But the authors convey a keen appreciation that their subject matter ultimately is based on those things that humans do that, in retrospect, were not such a good idea. For example, the principle of res ipsa loquitur is illustrated by the legal principle that "when a 2000 pound bull comes crashing through the ceiling, one can be fairly certain that someone upstairs has been very negligent".

However, what may seem like a clear-cut, actionable tort case to one party may not be viewed as such by the court, and may have unforeseen consequences to the plaintiff as well as the defendant. For example, the book describes the famous 1725 Highwayman's case from England, in which one highwayman sued another for 'accounting' their plunder. Unfortunately for the plaintiff, the court was not amused. The bill was dismissed, the plaintiff's solicitors were fined 50 pounds for contempt, and both plaintiff and defendant were hanged. Those were the days.

There are also excellent discussions of assault, strict liability, defamation, trespass, and immunities. Recent inventions such as class action, toxic torts, and products liability, which have split off into their own separate branches, are less well covered.

Although this book will give a solid background on tort law, students should probably also read an example book, such as Glannon's The Law of Torts, which gives numerous examples and explanations of why the court decided as it did. This is particularly important for complex concepts like assault. Unfortunately, some of these example books tend to be so politically correct that it can be annoying. For example, in one case described in Glannon, the plaintiff starts out as a 'he', then suddenly he is a 'she', and she undergoes 3 more sex changes before his case is over (in any event, he ... or was it she ... lost her case; his gynecologist presumably made a fortune, but her children, like the readers, will most likely just be totally confused). Abuses of the English language such as this, which denote at best poor and careless writing style, and at worst a crass attempt to impose the author's activist views on the reader, are abundant in legal books, but are mercifully absent from the skillfully and intelligently-written Prosser and Keeton.

In summary, anyone wishing to acquire an in-depth understanding of the complexities and historical roots of our legal system, or the extent to which they can be held liable for seemingly ordinary actions, or anyone who plans to be on a jury, should read this book (One caveat however, if you are on a jury, never mention that you have read something in a legal textbook or casebook, as it could cause a mistrial). This would also be useful for managers and others who need to improve their ability to resolve personnel conflicts justly and fairly. Our legal system was designed precisely for this sort of thing.