Priestley v. Fowler (1837) and the Emerging Tort of Negligence

Abstract

Priestley v. Fowler has long been noted as the source of the doctrine of common employment. This Article, however, argues that the case is better understood in the context of the then-emerging independent tort of negligence—specifically, as an unsuccessful attempt to require of masters a duty of care towards their servants. The Article re-examines the facts, arguments, personalities, and various reported versions of the case in tracing the effort to establish a new duty of care. The Article traces, as well, to another case, Hutchinson v. York, the true origins of the common employment doctrine. Finally, the Article compares the perspectives of nineteenth century authorities to those of modern writers hi establishing how Priestly came to be detached from its true significance.