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Abstract

Any discussion of recent tort law developments in Maine should begin with the abrogation of sovereign immunity, for in the timing of that far-reaching act the Law Court revealed the essence of its approach to this entire area, at once expanding liability while ensuring its careful limitation. Other progressive changes, such as the judicial creation of a new tort remedy in the cause of action for invasion of privacy, have also been hedged with restrictions. Similarly, in charting the development of legislatively created or enlarged grounds of liability in such realms as products liability or owners' and occupiers' duties to entrants upon their land, the court has demonstrated a willingness to foster recovery which is tempered by strong concern that beneficial social energies not be dampened, nor abuses promoted. This last tendency perhaps remains most potent in malpractice law, but even here one can discern indications that the durability of the court's restrictive attitude may be severely tested when informed consent problems are properly before it. The cases dealing with these problems, and the many other decisions here surveyed, show much more than a court simply adjusting the volume and direction of the flow of tort liability. The court has been preparing the seedbed from which will grow new rules, new conceptions, new causes of action. Whether, for example, comparative negligence is a defense to a strict tort products liability claim and, if so, in what form, are questions whose answers will bear an organic relation to recent opinions in which the court, adopting a many-faceted role, has implemented the statutory loss-apportionment scheme, or established the part judicial review is to play, or adjusted the doctrinal underpinning of tort liability generally to accommodate the new system. The Law Court's tort opinions, which embrace a far wider spectrum than comparative negligence, range from the high drama of revolutionary innovation to the mundane practicalities of burdens and percentages. Yet they are all knit together by what was timeless in the great common law tort tradition, the ongoing necessity to test ideas such as causation, deterrence, compensation, or duty against the principles and the factual realities of a world in flux.

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