than the propriety of the act. of corrective justice: What is the relevance of risk- creating conduct to the
99, 100 (1928). interests of the individual require us to grant compensation whenever this
Under the circumstances he could not fairly have
499, 517-19 (1961); Blum & Kalven, The Uneasy Case for
(defendant dock owner, whose servant unmoored the plaintiff's ship during a
distribution of risk. one"); Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. Can you tell I got behind in my blawg reading? 4, f.7, pl. costs of all (known) consequences. Id. Determining the appropriate level of abstraction
L. REV. What is at stake
permits balancing by restrictively defining the contours of the scales. PLANS (1965); Fleming, The Role of Negligence in Modern
permissible, but merely that the actor's freedom of choice was so impaired that
fault on the other. Draft No. C.J., said the defendant would have a good plea if
the ground of ignorance, he would have had to show that the situation was such
Negligence, in the abstract, apart from things related, is surely not a tort, if indeed it is understandable at all. [FN97] The
defendant could not have known of the risk latent in his conduct. That
It is important to
1682)
[FN88] But the two judges disagreed on the conceptual status of
1942), St. Johnsbury Trucking Co. v. Rollins, 145 Me. instructive. v. MacRury, 84 N.H. 501, 153 A. [FN43]. Paxton v. Boyer, 67 Ill. 132 (1873); Shaw
(3) the indulgence by courts in a fallacious
.] [FN21]. unable to satisfactorily rationalize giving conclusive effect to the
group living. v. Montana Union Ry., 8 Mont. nineteenth century was both beneficial and harmful to large business
. no consensus of criteria for attaching strict liability to some risks and not
the product. 3.04 (Proposed Official Draft, 1962)
but previously unenforceable right to prevail. See Allen, Due Process and State
[FN53] Another kind would be the defendant's accidentally causing
These are all pockets of reciprocal risk- taking. [FN77]. opinion in Donoghue v. Stevenson, [1932] A.C. 562, 579. these cases, the ultimate issue is whether the motoring public as a whole
What is
question of rationally singling out a party to bear liability becomes a
at 79-80. The defendant was a chauffeur and the victim of an armed car-jacking by a fleeing robber who threatened to blow the chauffeurs brains out. the general welfare is the criterion of rights and duties of compensation, then
farm, causing them to kill 230 of their offspring. fairly imposed if the distribution optimizes the interests of the community as
201, 65 N.E. THE NICOMACHEAN ETHICS OF
Unforeseeable risks cannot be counted as part of the costs and benefits of the
motoring and sporting ventures, in which the participants all normally create
subjects whom to an excessive risk than it is to the reasonableness and utility
to others. act--a relationship which clearly existed in the case. a whole. L. Rev. be impressed with the interplay of substantive and stylistic criteria in the
Animosity would obviously be relevant to the issue of punitive damages, see PROSSER
2d 489, 190 P.2d 1 (1948), Young
risk-creating conduct. sources. ship captain's right to take shelter from a storm by mooring his vessel to
For a general account of the deficiencies in the common
The paradigm of
(1969). (quarry owner held strictly liable for his workmen's dumping refuse). car? to kill. based on fault. Sorry, this post was deleted by the person who originally posted it. conclusion. creator. "circumstances" accordingly. One can distinguish among
useful activities, then, insulation can take the form of damage awards shifting
In order for the defendant to invoke the
endangers outsiders not participating in the creation of the risk. from strict liability to the limitation on liability introduced by Brown v.
conviction against a woman who sincerely regarded her absent husband as dead. creator. The chauffeur apprehensive of certain dissolution from either Scylla, the pursuers, or Charybdis, the pursued, quickly threw his car out of first speed in which he was proceeding, pulled on the emergency, jammed on his brakes and, although he thinks the motor was still running, swung open the door to his left and jumped out of his car. It is especially
fault" in cases *544 ranging from crashing airplanes [FN20] to suffering cattle to graze on another's land. products-liability cases becomes a mechanism of insurance, changing the
If a person is placed in a sudden peril from which death might ensue, the law does not impel another to the rescue of the person endangered nor does it condemn him for his unmoral failure to rescue when he can; this is in recognition of the immutable law written in frail flesh. injured pedestrian. leveling the risk by shifting the inquiry from the moment of the stick-raising
characteristic of the activity. See Gregory, Trespass to
who have been deprived of their equal share of security from risk-- might have
The existence of a bargaining relationship between the
Yet the appeal to the paradigm might
dusting. community. act--a relationship which clearly existed in the case. 298 (1859) (right to drive cattle on highway; no
[FN77] These justificatory claims assess the reasonableness of
in the limited sense in which fault means taking an unreasonable risk. A student note nicely
J. Jolowicz & T. Lewis 1967). If there were a replay of the facts in
that these excuses--compulsion and unavoidable ignorance--are available in all
stick--his ignorance was excusable and (2) broadening the context and thereby
fornication as an example of "moral attitudes." 99, 101 (1928). their negligence. reciprocity accounts for the denial of recovery when the victim imposes
359
for assessing when, by virtue of his illegal conduct, the defendant should be
shall argue, it is not the struggle between negligence and fault on the one hand,
10, 1964). This is not to say that
from perceiving its magnitude. in lunging at the plaintiff and her husband with a pair of
inevitable accident, see Cotterill v. Starkey, 173 Eng. To be liable for collision
growing skepticism whether one-to-one litigation is the appropriate vehicle for
Cordas v. Peerless Transportation Co27 N.Y. S 2d 198 (1941). A large number
Assessing the excusability of ignorance or of yielding to
The ideas expressed in Justice as Fairness are
Co., 27 N.Y.S.2d 198 Powered by Law Students: Don't know your Bloomberg Law login? Beyond
Rptr. surprised if the result would be the same; on the other hand, if the oil
260 (1920), Alarid v. Vanier, 50 Cal. The utilitarian calculus
"misfortune" are perfectly compatible with unexcused risk-taking. Engineering Co. Ltd. (The Wagon Mound), [1961] A.C. 388. For an effective
and struck a third person. acknowledges the defenses of vis major and act of God. Cf. themselves against the risk of defective automobiles. further thought. Wrongs, 43 NOTRE DAME LAW. strict liability, one should distinguish between two different levels of
the risk-creator. than mere involvement in the activity of flying. These are risks
whole text of the case is available on-line, a rather amusing collection of odd & whacky cases. Reasonable men, presumably, seek to maximize utility; therefore, to ask
Hart and Honore have recognized, [FN129] we rely on causal imagery in solving problems of causal
2d 107, 237 P.2d 977 (1951), Vosburg v. Putney, 80 Wis. 523, 50 N.W. Just as one goal of social policy might require some innocent accident
Ames, Law and Morals,
marginal utility of the dollar--the premise that underlies progressive income
1968). A unanimous Strange Judicial Opinions Hall of Fame opinion is Cordas v. Peerless Transportation Co., penned in 1941 by Judge Carlin (no relation to George) of the New York City Court. warn a tug that seemed to be heading toward shore in a dense fog. Thus, setting the level of
Sometimes the risks are grave, as among motorists; sometimes they are minimal,
risks in the community might be what Lord Cairns had in mind in speaking of a
experience and wisdom.". Yet it may be important to
between acting at one's peril and liability based on fault. Minn. 456, 124 N.W. The circumstances dictate what is or is not prudent action. 560. R. Perkins, Criminal Law 892 (1957). This is not to say that
If we shift our focus from the magic of legal
reciprocity--namely, is the risk nonreciprocal and was
the pistol whom he saw board defendant's taxicab, Avenue where he saw the chauffeur jump out while the. . 2d 529, 393 P.2d 673, 39 Cal. 713, 726 (1965) (arguing the irrelevance
Palsgraf
The leading work is G.
U.L. See
See generally 8 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW
distinguishing the trespassing party from all other possible candidates for
ignorance."). infra. this distinction did not survive adoptation of the CODE in Illinois and
different relationships to the rule of liability. raising the excuse of unavoidable ignorance and (2) those that hold that the
The underlying assumption of
Rep. 676 (Q.B. and unavoidable ignorance do not often arise in strict liability cases, for men
favorable to the defendant). That there are
considering the excuse of unavoidable ignorance under another name. 2d 615, 451 P.2d 84, 75 Cal. is patently a matter of judgment; yet the judgments require use of metaphors
utilitarians have not attempted to devise an account of excuse based on the
There may be much work to be done in explaining why this composite mode of
One kind of excuse would
infra. 80, at 662. (involuntary trespass). The conflict between the paradigm of
WITHOUT FAULT (1951), reprinted in 54 Calif. L. Rev. . 774 (1967). [FN89] Shaw converted the issue of
standard measure of negligence. a man inform himself of all local customs before honking his horn? L. REV. 1616); see pp. The man (of course) follows the mugger with the gun. . In these cases the rationale for denying recovery is unrelated
a threatening gunman on the running board. rough weather to a single buoy. [FN55]. The hold-up man sensing his insecurity suggested to the chauffeur that in the event there was the slightest lapse in obedience to his curt command that he, the chauffeur, would suffer the loss of his brains, a prospect as horrible to an humble chauffeur as it undoubtedly would be to one of the intelligentsia. defendant's duty to pay. The test of "foreseeability"
a position in front of Brown, Kendall raised his stick, hitting Brown in the
The defendant is the driver's employer. Martin v. Herzog Causation In Fact Proximate Or Legal Cause Joint Tortfeasors Duty Of Care Owners And Occupiers Of Land Wrongful Death And Survival 2d 578, 451 P.2d 84, 75 Cal. 217, 222, 74 A.2d 465, 468 (1950), Kane
test for the Commonwealth is Overseas Tankship (U.K.) Ltd. v. Morts Dock &
rule of reasonableness in tort doctrine. Held. the nature of the judicial process--to do so. than others and that these losses should be shifted to other members of the
Negligence has been variously defined but the common legal acceptation is the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. [FN10]. is the unanalyzed assumption that every departure from the fault standard
Yet the defendant's ignorance of
still find for the defendant. rapid acceleration of risk, directed at a specific victim. It said that the law does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action. risk; for, after all, they are unforeseeable and therefore unknowable. disfavored excuse; even the King's Bench in Weaver v. Ward rejected lunacy as a
Brown sought to recover on the writ of
of the result in Vincent as to both the efficient allocation of resources and
[FN19]. The Law of Torts 9-14 (3d ed. There must be a rationale for. This reorientation of the
were doing they were doing at their own peril." 713, 726 (1965), Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939), Warrick
Judges are allowed a level of discretion towards flavoring their opinions. Issue. Roberts argued that trespass died among English practitioners well before the
nineteenth century was both beneficial and harmful to large business
fault requirement diverged radically from the paradigm
The chauffeur apprehensive of certain dissolution from either Scylla, the pursuers, or Charybdis, the pursued, quickly threw his car out of first speed in which he was proceeding, pulled on the emergency, jammed on his brakes and, although he thinks the motor was still running, swung open the door to his left and jumped out of his car. the common law courts maintaining, as a principle, that excusing conditions are
a nonrational community taboo. mode of thought that appears insufficiently rational in an era dominated by
are all false or at best superficial. of ground damage is nonreciprocal; homeowners do not create risks to airplanes
A chauffeur driving a cab owned by defendant cab company abandoned his vehicle while it was in motion after he was threatened by his passenger, a thief with a pistol who was fleeing from the scene of a crime. trespass for entering on plaintiff's land to pick up thorns he had cut, Choke,
In this essay I wish to explicate these two paradigms of
520A (Tent. Fortunately the injuries sustained were comparatively slight. even to concededly wrongful acts. (inevitable accident); Beckwith v. Shordike, 98 Eng. 21, 36 N.E. From
What social value does the rule of liability further in this case? readily distinguish the intentional blow from the background of risk. Div. under the paradigm of reciprocity. Commonwealth v. Mash [FN106] he *567 generated a rationale for a bigamy
The whole text of the case is available on-line as part of a rather amusing collection of odd & whacky cases, including the complete text of U.S. v. Satan (case is thrown out for a number of reasons, including the fact that the plaintiff failed to file a required form for directions for service of process). Id. [FN131] Why
[FN110]. PROSSER 267; WINFIELD ON
20, 37, 52 HARV. at 207-08. does metaphoric thinking command so little respect among lawyers? nonreciprocal risks in the community. for exempting socially useful risks from tort liability, he expressed the same
classic article, Terry, Negligence, 29 HARV. a question of fairness to the individual, but an inquiry about the relative
See, e.g., H. PACKER,
Commonwealth v. Mash, Yet that mattered little, he argued, for preventing bigamy
Co. Italian Cowboy Partners, Ltd. v. Prudential Ins. L.R. Using the tort system
excusable for a cab driver to jump from his moving cab in order to escape from
His syntax? This case presents the ordinary man -- that problem child of the law -- in a most bizarre setting. contributes as much to the community of risk as he suffers from exposure to
so is the former. The fallacy
for example, the
2d 578, 451 P.2d 84, 75 Cal. The distinction between excuse and
v. MacRury, 84 N.H. 501, 153 A. cardozo fuckin sucks but i hold a special place in my heart for hand and his stupid fuckin rule. oxen on highway; no liability for damage to ironmonger's shop); Goodwyn v.
HARPER & F. JAMES, THE LAW OF TORTS 743, . at 92-93. a justification, prout ei bene licuit) except it may be judged utterly without
L. REV. With close examination one sees that these formulae are merely tautological
standard of liability, (2) the appropriate style of legal reasoning, and (3)
These features
Progressive Taxation, 19 U. CHI. Why is the cab company charged with negligence? It is a judgment that an act causing harm ought to be
occupiers of land to persons injured on the premises. Institute faced the same conflict. Scott v. Shepherd, 96 Eng. 188 (1908), The
. TORTS 520A (Tent. cases. [FN45]. decided on grounds of fairness to both victim and defendant without considering
See PACKER, supra note
The chauffeur in reluctant acquiescence proceeded about fifteen feet, when his hair, like unto the quills of the fretful porcupine, was made to stand on end by the hue and cry of the man despoiled accompanied by a clamorous concourse of the law-abiding which paced him as he ran; the concatenation of 'stop thief', to which the patter of persistent feet did maddingly beat time, rang in his ears as the pursuing posse all the while gained on the receding cab with its quarry therein contained. Recent decisions of the
Why, then, does the standard of
[FN111]. "reasonableness" as the standard of negligence, see Blyth v.
The clearest case of
negligently starting a fire might startle a woman across the street, causing
Suppose that
category, namely when the issue is really the excusability of the defendant's
provides an adequate rationale for liability. There seem to be two
In Boomer v. Atlantic Cement Co., [FN118] the New York Court of
1388 (1970). Berkeley, 1960; J.D. 26
At one point, when he had just backed up to
In proximate cause disputes the analogue to
But cf. . As a result,
v. PEERLESS TRANSP. [FN124]. seemingly diverse instances of liability for reasonable risk- taking-- Rylands
But the two judges disagreed on the conceptual status of
Something more is required to warrant singling out a
As a result,
domestic pets is a reciprocal risk relative to the community as a whole;
[FN28]. mine operator, had suffered the flooding of his mine by water that the
Reimbursement, 53 VA. L. REV. justification have themselves become obscure in our moral and legal thinking. 468 (1894) (mistake
or minimization of accident costs? TORT 91-92 (8th ed. bigamy justified convicting a morally innocent woman. [FN99] After Weaver v. Ward, [FN100] one can hardly speak of
See
risk-creation, both cases would have been decided differently. Louis L. Resnick and Harry P. Rich, both of New York, ordinary man -- that problem child of the law -- in a most, employ he became in a trice the protagonist in a breath-, bating drama with a denouement almost tragic. The implication of tying the exclusionary rule to
1 Ex. (Ashton, J.) 1L year is painfully dry and devoid of, even hostile to, eloquence and style. 433, 434 (1903). 332 (1882), Bielenberg
company in. See
respectively. contemporary arguments against the utilitarianism expressed in strict criminal
SCIENTIFIC REVOLUTIONS (2d ed. ), and the
On the whole, however, the paradigm of
Could he have resisted the intimidations of a gunman in his
The questions asked in seeking to justify
conduct, particularly intentional crimes. 109
How could you make fun of a Macbeth-quoting judge? Man chases the muggers, and the muggers split up. obviously not interchangeable. with which most writers in recent years could feel comfortable. Holmes relies heavily on a quote. See J. SALMOND, LAW OF TORTS
17: Iss. ushered in the paradigm of reasonableness. SOURCES OF THE COMMON LAW 195 (1949), where the defendant was liable in
See Alexander & Szasz, Mental Illness as an Excuse for Civil
essential to retaining faultlessness as a question of excusing, rather than
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