As a law student at Duke, Richard Nixon published a note on tort law. Entitled “Changing Rules of Liability in Automobile Accident Litigation,” Nixon’s note was published at 3 Law & Contemporary Problems 476 (1936). Nixon argued that in applying tort law to automobile accidents, the principle of fault was being relaxed. He examined four “fields” of auto accident law and found fault being relaxed in 3 of them, but strengthened in the fourth. Fault was relaxed in the standard of care because specific standards created by judges (like Holmes’s “stop, look, and listen”) were being abandoned to allow cases to get to the jury. Fault was being relaxed by the judiciary and legislature regarding contributory negligence. Finally, vicarious liability was being expanded (family purpose doctrine, etc.). However, in the area of guest liability, the principle of fault was actually strengthened by guest statutes requiring gross negligence to prevail. Nixon concluded:
The history of liability in automobile accident litigation discloses a definite trend away from the strict fault concepts of the common law. The courts, though speaking always in terms of fault, have at times stretched the traditional formulas to the breaking point in order to insure recovery to an injured plaintiff. In this respect they have found an always willing ally in the jury. Nor have the legislatures proved reluctant to aid them. Yet the decisions and statutes restricting the rights of the automobile guest indicate that, where reinforced by the average man’s dislike of the ingrate or of collusion in fraud, the concept of fault has gained, rather than lost, in vitality.
–CJR