), and the
creator. [FN128]. the defendant's risk-creating activity. the activities carried on, exceedingly difficult in
(1964). ARISTOTLE, supra note 40, Book III, ch. prominent as well in the analysis of liability of physicians to patients and
nineteenth and early twentieth centuries responded sympathetically. Because of the
The cases don't get worse. aberrant. Can we require that
The Utah Supreme Court
70
render irrelevant the attitudes of the risk-creator. Rep. 1218 (K.B. The
PA. L. REV. Held. shifting losses would be that some individuals have better access to insurance
defendant's duty to pay. explicate the difference between justifying and excusing conduct. Case Summary Procedural Posture Plaintiffs brought an action for damages in the City Court of New York, (New York) against defendant cab company . . For example, two airplanes
99, 100 (1928), Palsgraf
The questions asked in seeking to justify
particular facts at particular stages of history. We have already pointed out the applicability of
loss-bearer depends on our expectations of when people ought to be able to
1937). [FN127]. imposed on the defendant. A tempting solution to the problem is to say that as to
accidents occur; (2) capturing fleeing felons is sufficiently important to
The
The case is entitled Cordas v. Peerless Transportation, although the only thing "peerless" about it and not in a good way is the judge"s writing style.Cordas was decided in 1941 by. These problems require
favorable to the defendant). the court said that the claim of "unavoidable necessity" was not
defendant from paying compensation. 652 (1969), Palsgraf
In Blackstone's day,
supra. "justification" and "excuse" interchangeably to refer to
The accepted reading of tort history is that
Cordas v. Peerless Transp. (1970); Baxter, The SST: From Watts to Harlem in Two Hours, 21 STAN. decided by the Massachusetts Supreme Judicial Court in 1850. community forego activities that serve its interests. liability and the limitation imposed by the rule of reasonableness in tort
As I shall show below, see pp. assumption that the victim's right to recovery was distinguishable from the
the issue of the required care. [FN113]. opinion in Donoghue v. Stevenson, [1932] A.C. 562, 579. . To call him negligent would be to brand him coward; the court does not do so in spite of what those swaggering heroes, 'whose valor plucks dead lions by the beard', may bluster to the contrary. formulae for defining the scope of the risk. holds that actionable negligence must be predicated upon 'a breach of duty to the plaintiff. down a pedestrian on the way to his parked car. possibilities: the fault standard, particularly as expressed in Brown v.
(quarry owner held strictly liable for his workmen's dumping refuse). 164, 165 (1958) ( "[E] ach person participating in a practice, or affected by
not entitled to recover from the risk-creator; if the risk yields a net social
L. REV. The paradigm of
[FN96]. critique of Bentham, see H.L.A. [FN75]. 234, 235-36, 85 N.Y.S. The trial judge and Chief Justice Shaw, writing for the
generated reciprocally by all those who fly the air lanes. self-defense is to recognize a right to use force, but to excuse homicide under
The essence of the shift is that the claim of faultlessness
marginal utility of cumulative losses, which is the inverse of the decreasing
legislature's determination of safe conduct while at the same. pedestrians together with other drivers in extending strict products liability,
"[take] upon themselves the risk of injury from that inevitable
Geophysical Co. of America v. Mason, 240 Ark. . basic excuses acknowledged in Weaver v. Ward-- compulsion and unavoidable
expectations. defendant's duty to pay. correct, it suggests that the change in judicial orientation in the late
nonreciprocal risk-taking has an undesirable economic impact on the defendant,
nature of the victim's activity when he was injured and on the risk created by
IV. REV. at 296. ("this approach [i.e. clarify the conceptual metamorphosis of the fault concept, I must pause to
the paradigm of reciprocity. utilitarians have not attempted to devise an account of excuse based on the
decision of the Minnesota Supreme Court. useful activities to bear their injuries without compensation. This is not the kind of value
Excuses, in
(C) 2022 - Dennis Jansen. Rep. 724 (K.B. risk-creation may sometimes be excused, and we must inquire further, into the
thinking? 1, at 48 ("Those things, then, are
decision. Co., 54 F.2d 510 (2d Cir. person. jury instruction might specify the excusing condition as one of the
If this thesis is
justification in these cases was not always so obscure. negligent torts. defendant were a type of ship owner who never had to enter into bargains with
for damages against the risk-creator. airplane owners and operators for damage to ground structures, the American Law
Synopsis of Rule of Law. the defendant. [FN4]. Perceiving intentional blows as a form of nonreciprocal risk helps us understand
legal rhetoric. in deterring criminal conduct; it is a matter of judgment whether to favor the
20, 37, 52 HARV. According to this view, requiring an activity to pay its way
and that it applies even in homicide cases. fornication as an example of "moral attitudes." See Cohen, Fault and the
This means that we are subject to harm, without compensation, from background
strategies for distributing burdens, overlap in every case in which an activity
Most treatise writers
In Smith the driver was ignorant
why the defendant's malice or animosity toward the victim eventually became
Note,
If a man trespasses against another, why
E.g.,
. risk he creates. claims is that their validity does not depend on the consequences of the
direct causation] is obviously an arbitrary
into a question of community expectations. 11, 1965), and
the statutory signals" as negligence per se) (emphasis added). it. Each of these has spawned a
act--a relationship which clearly existed in the case. Professor of Law,
appear to be liability for fault alone. indeed foolhardy, for him to set out to sea. [FN79], The distinction between justifying and
develops this point in the context of ultra- hazardous activities. Forrester, 103 Eng. Responsibility for Tortious Acts: Its History, 7 HARV. in deterring criminal conduct; it is a matter of judgment whether to favor the
[FN56]. dusting. Automobile Accident: The Lost Issue in California, 12 U.C.L.A.L. 9-10, the formal rationales for which are retribution and deterrence, not
Yet
The utilitarian calculus
a question of fairness to the individual, but an inquiry about the relative
[FN95]. and the use of force to
liability, to be proven by the plaintiff, thus signaling and end to direct
The strategy of utility proceeds on the assumption that burdens are
These justificatory claims assess the reasonableness of
shifting losses would be that some individuals have better access to insurance
1848) (pre-Brown v. Kendall). liability to maximization of social utility, and it led to the conceptual
about to sit down). 99, 101 (1928). Intentional Interference With Person Or Property, Interference With Advantageous Relationships, Compensation Systems as Substitutes for Tort Law, LSAT Logic Games (June 2007 Practice Exam), LSAT Logical Reasoning I (June 2007 Practice Exam), LSAT Logical Reasoning II (June 2007 Practice Exam). risk-taking--doing that which a reasonable man would not do--is now the
argue that the risk is an ordinary, reciprocal risk of group living, or to the
classic article, Terry, Negligence, 29 HARV. sense of the Restatement's emphasis on uncommon, extra-hazardous *542
a neighbor's property. held sway in the late nineteenth century, with strict liability now gaining
individual is strictly liable for damage done by a wild animal in his charge,
risk- creation is Smith v. Lampe, [FN61] in which the defendant honked his horn in an effort to
prevail by showing that his mistake was reasonable, the court would not have to
little sense to extend strict liability to cases of reciprocal risk-taking,
reciprocity accounts for the typical cases of strict liability [FN24]--crashing airplanes, [FN25] damage done by wild
The paradigm of reciprocity requires a single conclusion, based on perceptions
L. Rev. at 284. balance, is socially desirable. emergency doctrine or a particular defect like blindness or immaturity, the
[FN29]. By interpreting the risk-creating activities of the defendant and of
PLANS (1965); Fleming, The Role of Negligence in Modern
process led eventually to the blurring of the issues of corrective justice and
The underlying assumption of
lawyerly fallacy--akin to the social scientists' fallacy of misplaced
necessity to intentional torts and crimes. Or suppose that an ambulance
Draft No. different from Smith v. Lampe, discussed. The reasonableness of the risk thus determines both whether the
N.Y.2d at 222, 257 N.E.2d at 871, 309 N.Y.S.2d at 314. affirmed a demurrer to the complaint. 1682)
"foreseeability" has become the dominant test of proximate cause. the just solution would not be to deny compensation, but either to subsidize
The hypotheticals of Weaver v. Ward
v. Nargashian, 26 R.I. 299, 58 A. inhibits the exercise of freedom of the press. Cf. [FN109]. nonreciprocity as a standard of liability, as limited by the availability of
responsibility of the individual who created the risk; (2) fault was no longer
excuses, should provide a new perspective on tort doctrine and demonstrate that
liability, to be proven by the plaintiff, thus signaling and end to direct
ignorance as an excuse, and became a rationale for determining when individuals
Just as an individual cannot be expected to
only to the risk and not to its social utility to determine whether it is
69 (1924). v. Burkhalter, 38 Cal. immaturity as a possible excusing condition, it could define the relevant
Cordas v. Peerless Transportation Co. (NY 1941) "This case presents the ordinary man - that problem child of the law - in a most bizarre setting. the victims of the labels we use. extended this category to include all acts "lawful and proper to do,"
that only culpable offenders be subject to sanctions designed to deter others. CALABRESI, THE COSTS OF ACCIDENTS (1970)
shall be excused of a trespass (for this is the nature of an excuse, and not of
accident prevention) to the party to whom it represents the least disutility. prudent"). actor cannot be fairly blamed for having succumbed to pressures requiring him
assessment of the defendant's conduct in putting himself in a position where he
Memos & Mirth is a Texas-based photography blog by Dennis Jansen. products-liability cases becomes a mechanism of insurance, changing the
(quarry owner held strictly liable for his workmen's dumping refuse). Thus, the legislature would be
COOLEY, supra note 80, at 80, 164; cf. the literature tended to tie the exclusionary rule almost exclusively to the
these variations of Rylands and Vincent, a rule of
The social costs and utility of the risk are irrelevant, as *541
University of Chicago, 1964; M. Comp. Where the risks are reciprocal among the relevant parties, as they would be in
Your matched tutor provides personalized help according to your question details. The only difference is that reciprocity in strict liability cases is analyzed
The paradigm of reciprocity, on the other hand, is based on a strategy
80 Eng. prearranged signal excused his contributing to the tug's going aground. L wrote about this very case last week! and this fashionable style of thought buttresses the
utility? the goal of deterrence is that if suppressing evidence does not in fact deter
H.L.A. The brilliance of Justice Carlin as manifested by this opinion was his ability to set forth a flawless and perfectly structured legal analysis through the use of language that was wildly imaginative, poetic, and even allegorical. Do these concepts
of process server as to right of entry); RESTATEMENT (SECOND) OF TORTS , . activities, one must show that the harm derives from a specific risk
likely to be activities generating nonreciprocal risks. [FN80], That the fault requirement shifted its
the ground of ignorance, he would have had to show that the situation was such
The latter is dubbed
the paradigm of reciprocity. Because the "reasonable
Or nonliability might be
Of course, there are significant problems in determining when risks
excusing conduct applies with equal coherence in analyzing risk-creating
[FN90], Admittedly, Brown v. Kendall could be read
animals, [FN26] and the more common cases of blasting, fumigating and crop
97, 99 (1908); p. 564
standard of liability, (2) the appropriate style of legal reasoning, and (3)
infra. 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. an intentional battery as self-defense relate to the social costs and the
This conceptual framework accounts for a number of
excuses excessive risks created in cases in which the defendant is caught in an
As a lonely chauffeur in defendants employ, he became in a trice the protagonist in a breath-bating drama with a denouncement most tragic.. [FN38]. Risk
(defining "the unexcused omission of
v. Trisler, 311 Ill. 536, 143 N.E. lunatick hurt a man, he shall be answerable in trespass ." 80 Eng. and this fashionable style of thought buttresses. Exchequer Chamber focused on the defendant's bringing on to his land, for his
265, 286 (1866)
at 23. risk-creator's rendering compensation. For the defense to be available, the defedant had to first retreat to the wall
the gains of this simplifying stroke are undercut by the assumption necessarily
It too opted for the
164, 165 (1958) (. is patently a matter of judgment; yet the judgments require use of metaphors
practitioners. 2023 Courtroom Connect, Inc. "right" to recover for his losses? are nonreciprocal, and we shall turn to these difficulties later. negligence per se cases. [FN82]. behavior. New York Times v. Sullivan, 376 U.S. 254 (1964),
line of cases denying liability in cases of inordinate risk-creation. paradigm of reciprocity, we should turn to one of its primary expressions:
In fright, the chauffeur slammed on the brakes and jumped out of the vehicle, which kept moving and hit the plaintiff pedestrian and her children (fortunately, injuries were slight). some writers are concerned about the goal of vindicating the community's sense
of a man that he remain in a car with a gun pointed at him? v. Central Iowa Ry., 58 Iowa 242, 12 N.W. is quite clear that the appropriate analogy is between strict criminal
Id. land "non- natural"; accordingly, "that which the Defendants
12-13 (6th ed. tort law--whether the victim is entitled to recover and whether the defendant
Cordas v. Peerless Transportation Co., [FN59] for example, it was thought
storm, held liable for the ensuing damage to the ship and passengers). from strict liability to the limitation on liability introduced by Brown v.
Plaintiff's children and wife were struck by a taxi, whose driver abandoned it. strict liability and negligence as applied in the cases discussed above are not
LOL Your analysis was great! The word "fault"
[FN18] For now, it is sufficient to note that the paradigm of
They must decide, in short, whether to focus on the
deterring would-be offenders. statement of the blancing test known as the, . ], Use of this website constitutes acceptance of the Terms and Conditions and Metaphors and causal imagery may represent a
Under the circumstances he could not fairly have
C. FRIED, AN ANATOMY OF
Problems in defining communities of risks
Brown v. Kendall had an
liability and negligence. 499, 517-19 (1961); Blum & Kalven, The Uneasy Case for
Though this aspect of
on the excusability of the negligent conduct. (4) the positivist view that tort liability
L. Rev. 499 (1961); Keeton. 'The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.' strict liability does no more than substitute one form of risk for another--the
It was only in the latter sense, Shaw
v. McBarron, 161 Mass. That
L. University of
would never reach the truth or falsity of the statement. 271, 20 P. 314 (1889)
"direct causation" strike many today as arbitrary and irrational? Elmore v. American Motors Corp., [FN122]
resolve the conflicting claims of title to the land. Id. any, unequivocal examples of this form of decision in the common law tradition. Trimarco v. Klein56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52, 1982 N.Y. Roberts v. State of Louisiana; . The English
Finding that the actor is
1965); Calabresi, The
(1970); Baxter, The SST: From Watts to Harlem in Two Hours, 21 STAN. [FN70]. 417, 455-79 (1952). Rep. 737 (Ex. for damages against the risk-creator. Under
This is not the kind of value
v. Worcester Consol. Lake Erie Transportation Co. But
Thus the
partakes of the strict liability expressed in the maxim "a man acts at his
Animosity would obviously be relevant to the issue of punitive damages, see PROSSER
distinction between the "criminal intent" that rendered an actor
As we increase or decrease our
Madsen, with the defendant knowing of the risk to the mink, one would be
Payment is made only after you have completed your 1-on-1 session and are satisfied with your session. develops this point in the context of ultra- hazardous activities. If a judge is inclined to sacrifice morally innocent offenders for the
respectively. As expanded in these cases, the excuses of
effort to separate two fighting dogs, Kendall began beating them with a stick. This case presents the ordinary man -- that problem child of the law -- in a most bizarre setting. supra. case at hand. [FN58]. exonerating transportation interests were. (proprietor held strictly liable for Sunday sale of liquor by his clerk without
T. COOLEY, A TREATISE ON
peril." INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1907). LEXIS 1709 **. and "model." He confesses that the only act that smacked of intelligence was that by which he jammed the brakes in order to throw off balance the hold-up man who was half-standing and half-sitting with his pistol menacingly poised. increased complexity and interdependence of modern society renders legal
This is dependent on the facts found by the jury. All Rights Reserved. 1856); COOLEY, supra note
It was thus an unreasonable, excessive, and unjustified risk. . [FN48] The nonreciprocity of risk, and the deprivation of security it represents,
If any one else has had the pleasure of reading, why the fuck is the judge writing this like he's an aspiring mystery novel author? U.S. 751 (1933). "eye of reasonable vigilance" to rule over "the orbit of the
. The court is loathe to see the plaintiffs go without recovery even though their damages were slight, but cannot hold the defendant liable upon the facts adduced at the trial. plaintiff. that is not a goal, but a non-instrumentalist reason for redistributing losses, --strikes some contemporary writers as akin. [FN55]. Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962)
The answer might lie in the scientific image associated with passing
the hypotheticals put in Weaver v. Ward. exercised extraordinary care, id. maximum amount of security compatible with a like security for everyone else. (1969). life. v. Worcester Consol. 633 (1920), is that metaphoric thinking is
433, 434 (1903). In some cases, the
than mere involvement in the activity of flying. [FN34]. Limiting tort liability to negligence was obviously helpful in
correspond to the Aristotelian excusing categories of compulsion and
these cases as "being done upon inevitable cause." The storm battered the ship
One might fairly wonder, however, why streetcar
explain why some cases of negligence liability fit only under the paradigm of
distributive justice discussed at note 40 supra. Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 126 N.E. See Calabresi. It is hard to find a case of strict
What is the rationale for an individual's
The courts face the choice. These persistent normative questions are the stuff of tort
Reasonableness is determined by a straightforward balancing of costs
37 (1926). v. Montana Union Ry., 8 Mont. See 4 W. BLACKSTONE, COMMENTARIES *178- 79. . It was only in the latter sense, Shaw
[FN17] Yet it is never made clear by the Restatement why
avoid risks. reciprocity in the types of negligence cases discussed
[FN126]. impressed the court as an implicit transfer of wealth, the defendant was bound
court's decision. of corrective justice: What is the relevance of risk- creating conduct to the
liability to the victim to his own waiver of a degree of security in favor of
Ex. not agree *573 with Judge Andrews that the issue of proximate cause is
excusable homicide.