b'\x0cTorts: Cases, Principles, and\nInstitutions\n\nJohn Fabian Witt\nAllen H. Duffy Class of 1960 Professor\nYale Law School\n\nKaren M. Tani\nSeaman Family University Professor\nUniversity of Pennsylvania\n\nFifth Edition\nCALI eLangdell\xc2\xae Press 2020\n\n\x0cWitt & Tani, TCPI\n\nAbout the Authors\nJohn Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law and Head of Davenport\nCollege at Yale University. He is the author of Lincoln\xe2\x80\x99s Code: The Laws of War in American\nHistory, which was awarded the American Bar Association\xe2\x80\x99s Silver Gavel Award, was selected\nfor the 2013 Bancroft Prize in American history, and was a finalist for the Pulitzer Prize. He has\ntaught torts and other subjects for twenty years at Yale, Columbia, and Harvard. Professor Witt\xe2\x80\x99s\nother writings include The Accidental Republic: Crippled Workingmen, Destitute Widows, and the\nRemaking of American Law (Harvard University Press, 2004), Patriots and Cosmopolitans:\nHidden Histories of American Law (Harvard University Press, 2007), and To Save the Country: A\nLost Manuscript on Martial Law (Yale University Press, 2019) (with Will Smiley). He has\nauthored articles on legal history and tort law in the American Historical Review, the Columbia\nLaw Review, the Harvard Law Review, the Yale Law Journal, and other scholarly journals. He has\nwritten for The Atlantic, The New Republic, The New York Times, Slate, The Wall Street Journal,\nand The Washington Post. He is a John Simon Guggenheim Memorial Foundation Fellow and a\nfellow of the American Academy of Arts and Sciences. He served as law clerk to Judge Pierre N.\nLeval on the United States Court of Appeals for the Second Circuit.\nKaren M. Tani is the Seaman Family University Professor at the University of Pennsylvania, with\nappointments in the University of Pennsylvania Carey Law School and the Department of History.\nShe is the author of States of Dependency: Welfare, Rights, and American Governance, 19351972 (Cambridge University Press, 2016), which won the Cromwell Book Prize from the\nAmerican Society for Legal History in 2017. Her work has also appeared in the Yale Law Journal,\nthe Law and History Review, and other scholarly journals. In her torts teaching, she has worked to\nmake the standard curriculum more attentive to race, class, gender, sexual orientation, and\ndisability. Prior to joining the faculty at Penn, she was a member of the law faculty at the\nUniversity of California, Berkeley, a visiting professor at Yale Law School and Columbia Law\nSchool, and a law clerk to the Honorable Guido Calabresi of the United States Court of Appeals\nfor the Second Circuit.\n\ni\n\n\x0cWitt & Tani, TCPI\n\nNotices\nThis is the fifth edition of this casebook, updated July 2020. Visit http://elangdell.cali.org for the\nlatest version and for revision history.\nThis work by John Fabian Witt and Karen M. Tani is licensed and published by CALI eLangdell\nPress under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International (CC\nBY-NC-SA 4.0). CALI and CALI eLangdell Press reserve under copyright all rights not expressly\ngranted by this Creative Commons license. CALI and CALI eLangdell Press do not assert\ncopyright in US Government works or other public domain material included herein. Permissions\nbeyond the scope of this license may be available through feedback@cali.org.\nIn brief, the terms of that license are that you may copy, distribute, and display this work, or make\nderivative works, so long as\n\xe2\x80\xa2 you give CALI eLangdell Press and the author credit;\n\xe2\x80\xa2 you do not use this work for commercial purposes; and\n\xe2\x80\xa2 you distribute any works derived from this one under the same licensing terms as this.\nSuggested attribution format for original work:\nJohn Fabian Witt & Karen M. Tani, Torts: Cases, Principles, and Institutions, Fifth Edition,\nPublished by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 4.0\nLicense.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered trademarks owned by the Center\nfor Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all\nrights reserved. The cover may be used when otherwise using this material under the terms of its\nCreative Commons license. The CALI graphical logo is a trademark and may not be used outside\nof its permitted use on the original cover without permission.\nThis material does not contain nor is intended to be legal advice. Users seeking legal advice\nshould consult with a licensed attorney in their jurisdiction. The editors have endeavored to\nprovide complete and accurate information in this book. However, CALI does not warrant that\nthe information provided is complete and accurate. CALI disclaims all liability to any person for\nany loss caused by errors or omissions in this collection of information.\n\nii\n\n\x0cWitt & Tani, TCPI\n\nAbout CALI eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is: a nonprofit organization with over\n200 member US law schools, an innovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm, or organization. ELangdell\xc2\xae\nis our electronic press with a mission to publish more open books for legal education.\nHow do we define "open?"\n\xe2\x80\xa2 Compatibility with devices like smartphones, tablets, and e-readers; as well as print.\n\xe2\x80\xa2 The right for educators to remix the materials through more lenient copyright policies.\n\xe2\x80\xa2 The ability for educators and students to adopt the materials for free.\nFind available and upcoming eLangdell titles at The eLangdell Bookstore. Show support for CALI\nby following us on Twitter, and by telling your friends and colleagues where you received your free\nbook.\n\niii\n\n\x0cWitt & Tani, TCPI\n\nWhat did the banana say to the judge? I\xe2\x80\x99ll be sure to win my case on a peel.\nAugust Cooper Witt, July 2017 (h/t GERONIMO STILTON, THE QUEST FOR\nPARADISE: THE RETURN TO THE KINGDOM OF FANTASY 140 (2011))\n\niv\n\n\x0cWitt & Tani, TCPI\n\nTable of Contents\nAbout the Authors ................................................................................................................. i\nNotices .................................................................................................................................... ii\nAbout CALI eLangdell Press ............................................................................................. iii\n\nCHAPTER 1. AN INTRODUCTION TO AMERICAN TORT LAW .... 1\nA. Principles and Institutions .............................................................................................. 1\nB. An Introductory Case: The Tort of Battery .................................................................. 4\n1. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891) ............................................................... 4\n2. Anatomy of a Torts Case ................................................................................................ 6\n3. The Pervasiveness of Settlement .................................................................................... 8\n4. The Size of the Tort System ......................................................................................... 10\n5. Accident Rates and the Deterrence Goal ...................................................................... 14\n6. Expressing Moral Judgments and Correcting Injustice ................................................ 18\n7. Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955) ........................................................... 19\nNotes .............................................................................................................................. 21\n\nCHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS35\nA. Trespass .......................................................................................................................... 35\n1. Trespass to Land ........................................................................................................... 35\nDougherty v. Stepp ............................................................................................................ 35\nNotes .............................................................................................................................. 36\n2. Trespass to Chattels ...................................................................................................... 38\nIntel Corp. v. Hamidi ......................................................................................................... 39\nNotes .............................................................................................................................. 45\nB. Beyond Battery: Causes of Action for Other Personal Injuries ................................ 47\n1. Offensive Battery.......................................................................................................... 47\nFisher v. Carrousel Motor Hotel, Inc. ................................................................................ 47\nNotes .............................................................................................................................. 49\n2. Assault .......................................................................................................................... 50\nI. de S. & Wife v. W. de S. Assizes ................................................................................... 50\nNotes .............................................................................................................................. 50\nSpeicher v. Rajtora ............................................................................................................. 52\nNote................................................................................................................................ 53\n3. False Imprisonment ...................................................................................................... 54\nWhittaker v. Sandford ........................................................................................................ 54\nNotes .............................................................................................................................. 56\n4. Intentional Infliction of Emotional Distress ................................................................. 57\nGTE Southwest v. Bruce.................................................................................................... 57\nNotes .............................................................................................................................. 62\nC. Defenses to Intentional Torts ........................................................................................ 66\n1. Self-Defense ................................................................................................................. 66\nCourvoisier v. Raymond .................................................................................................... 66\nNotes .............................................................................................................................. 68\n2. Defense of Real Property.............................................................................................. 71\nBird v. Holbrook ................................................................................................................ 71\nNotes .............................................................................................................................. 72\nv\n\n\x0cWitt & Tani, TCPI\n\n3. Defense of Chattels....................................................................................................... 74\nGortarez v. Smitty\xe2\x80\x99s Super Valu ........................................................................................ 74\nNotes .............................................................................................................................. 76\n4. Consent ......................................................................................................................... 78\nMohr v. Williams ............................................................................................................... 78\nNotes .............................................................................................................................. 79\n5. Necessity....................................................................................................................... 84\nPloof v. Putnam .................................................................................................................. 84\nVincent v. Lake Erie Transp. Co........................................................................................ 85\nNotes .............................................................................................................................. 88\n\nCHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY\nAND INTRODUCTION ............................................................................. 94\nA. Common Law Beginnings ............................................................................................. 94\nHulle v. Orynge (The Case of the Thorns)......................................................................... 95\nNotes .............................................................................................................................. 97\nWeaver v. Ward ................................................................................................................. 98\nNotes .............................................................................................................................. 98\nScott v. Shepherd ............................................................................................................... 99\nNotes ............................................................................................................................ 102\nGibbons v. Pepper ............................................................................................................ 103\nNotes ............................................................................................................................ 103\nLeame v. Bray .................................................................................................................. 105\nNote.............................................................................................................................. 106\nWilliams v. Holland ......................................................................................................... 107\nNotes ............................................................................................................................ 108\nB. Negligence Versus Strict Liability .............................................................................. 109\nBrown v. Kendall ............................................................................................................. 109\nNotes ............................................................................................................................ 112\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 77, 81-96 (1881)............................ 114\nNote.............................................................................................................................. 118\nFletcher v. Rylands, 159 Eng. Rep. 737 (1865) ............................................................... 118\nFletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866).................................... 120\nRylands v. Fletcher .......................................................................................................... 121\nNotes ............................................................................................................................ 123\nBrown v. Collins .............................................................................................................. 124\nNote.............................................................................................................................. 125\nLosee v. Buchanan ........................................................................................................... 125\nNotes ............................................................................................................................ 126\nIves v. South Buffalo Ry. ................................................................................................. 127\nNotes ............................................................................................................................ 129\n\nCHAPTER 4. THE NEGLIGENCE STANDARD ................................ 133\nA. The Reasonable Person ............................................................................................... 133\n1. Introduction ................................................................................................................ 133\nVaughan v. Menlove ........................................................................................................ 133\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 107-09 (1881) ................................ 135\nNotes ............................................................................................................................ 136\n2. Physical Traits ............................................................................................................ 137\nvi\n\n\x0cWitt & Tani, TCPI\n\nSmith v. Sneller ................................................................................................................ 137\nDavis v. Feinstein............................................................................................................. 138\nNotes ............................................................................................................................ 139\n3. Children ...................................................................................................................... 142\nDellwo v. Pearson ............................................................................................................ 142\nNotes ............................................................................................................................ 144\n4. Mental Illness ............................................................................................................. 147\nBreunig v. American Family Ins. Co. .............................................................................. 147\nNotes ............................................................................................................................ 149\nGould v. American Family Mut. Ins. Co. ........................................................................ 150\nNotes ............................................................................................................................ 151\n5. Unreasonable Faiths?.................................................................................................. 153\n6. Sex and Gender: The Reasonable Woman? ............................................................... 154\nB. Cost / Benefit Calculations and the Learned Hand Formula .................................. 158\n1. Negligence Basics ...................................................................................................... 159\nStone v. Bolton................................................................................................................. 159\nBolton v. Stone................................................................................................................. 160\nNotes ............................................................................................................................ 162\nUnited States v. Carroll Towing Co. ................................................................................ 162\nNotes ............................................................................................................................ 164\n2. Critiques of Cost-Benefit Reasoning .......................................................................... 167\nCritiques from First Principles ......................................................................................... 167\nCritiques from Distributive Justice .................................................................................. 169\nCritiques from Administrability ....................................................................................... 170\nA Precautionary Alternative? ........................................................................................... 170\nKysar\xe2\x80\x99s Constructivist Critique........................................................................................ 171\n3. In Defense of Cost-Benefit Reasoning ....................................................................... 171\nRobert H. Frank, Why is Cost-Benefit Analysis so Controversial?................................. 171\nCass Sunstein, Cognition and Cost-Benefit Analysis ...................................................... 172\nCass Sunstein, Moral Heuristics ...................................................................................... 173\n4. The Logic of Cost-Benefit .......................................................................................... 174\nCooley v. Public Service Co. ........................................................................................... 174\nNotes ............................................................................................................................ 176\nAndrews v. United Airlines ............................................................................................. 181\nNote.............................................................................................................................. 183\n5. Claim Resolution in the Real World .......................................................................... 183\nRules of Thumb in Auto Collision Cases......................................................................... 183\nThe Failure of No-Fault Auto .......................................................................................... 185\nC. Judges and Juries......................................................................................................... 185\nBaltimore & Ohio Railroad Co. v. Goodman .................................................................. 186\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 111, 123-4 (1881) .......................... 186\nNotes ............................................................................................................................ 187\nPokora v. Wabash Railroad Co. ....................................................................................... 188\nNotes ............................................................................................................................ 190\nD. Custom .......................................................................................................................... 196\n1. The Basic Rule\xe2\x80\x94and Its Functions ............................................................................ 196\nThe T.J. Hooper ............................................................................................................... 196\nNotes ............................................................................................................................ 197\nvii\n\n\x0cWitt & Tani, TCPI\n\nTrimarco v. Klein ............................................................................................................. 199\nNotes ............................................................................................................................ 201\n2. Custom and Medical Malpractice Cases .................................................................... 202\nBrune v. Belinkoff ........................................................................................................... 202\nNotes ............................................................................................................................ 204\nCanterbury v. Spence ....................................................................................................... 205\nNotes ............................................................................................................................ 211\nDavid M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice .... 212\nNotes ............................................................................................................................ 213\nE. Statutes and Regulations ............................................................................................. 216\n1. Violations of Statutory Standards ............................................................................... 217\nMartin v. Herzog .............................................................................................................. 217\nNote.............................................................................................................................. 219\nTedla v. Ellman ................................................................................................................ 219\nNotes ............................................................................................................................ 221\nGorris v. Scott .................................................................................................................. 222\nThe Restatement Approach .............................................................................................. 223\n2. A Regulatory Compliance Defense? .......................................................................... 223\n3. Torts in the Modern State: Implied Private Causes of Action .................................... 225\nUhr v. East Greenbush Central School District ............................................................... 225\nNotes ............................................................................................................................ 228\nF. Proof of Negligence ...................................................................................................... 231\n1. The Basic Problem ..................................................................................................... 231\nHoward v. Wal-Mart Stores, Inc. ..................................................................................... 231\nNotes ............................................................................................................................ 233\n2. Res Ipsa Loquitur ....................................................................................................... 235\nByrne v. Boadle ............................................................................................................... 235\nGrajales-Romero v. American Airlines, Inc. ................................................................... 237\nNotes ............................................................................................................................ 240\nYbarra v. Spangard .......................................................................................................... 241\n3. Federal Constitutional Constraints on the Burden of Proof ....................................... 243\n4. A Note on Settlement Mills ........................................................................................ 245\n5. Aggregation and Sampling by Bellwether Trials ....................................................... 246\nSamuel Issacharoff, Commentary, \xe2\x80\x9cShocked\xe2\x80\x9d ................................................................. 246\nAlexandra D. Lahav, Bellwether Trials ........................................................................... 247\nNotes ............................................................................................................................ 248\nG. Negligence Puzzles ....................................................................................................... 250\n1. Should Wealth Matter? ............................................................................................... 250\n2. Seavey\xe2\x80\x99s Paradox........................................................................................................ 251\n3. The Utility Monster .................................................................................................... 252\n\nCHAPTER 5. PLAINTIFFS\xe2\x80\x99 CONDUCT ............................................. 253\nA. Contributory and Comparative Negligence .............................................................. 253\n1. Contributory Negligence ............................................................................................ 253\nButterfield v. Forrester ..................................................................................................... 253\nNotes ............................................................................................................................ 253\n2. Comparative Negligence ............................................................................................ 259\nLi v. Yellow Cab Company of California ........................................................................ 259\nviii\n\n\x0cWitt & Tani, TCPI\n\nNotes ............................................................................................................................ 263\nColeman v. Soccer Ass\xe2\x80\x99n. of Columbia ........................................................................... 264\nNotes ............................................................................................................................ 267\nB. Assumption of Risk ...................................................................................................... 268\n1. Implied Assumption of Risk ....................................................................................... 269\nMurphy v. Steeplechase Amusement Co. ........................................................................ 269\nNotes ............................................................................................................................ 271\nMaddox v. City of New York .......................................................................................... 273\nNotes ............................................................................................................................ 275\nLandings Association, Inc. v. Williams ........................................................................... 277\nNotes ............................................................................................................................ 279\n2. Express Assumption of the Risk................................................................................. 281\nDalury v. S-K-I, Ltd. ........................................................................................................ 281\nNotes ............................................................................................................................ 284\nWaivers in Modern Life ................................................................................................... 288\nNote.............................................................................................................................. 293\n\nCHAPTER 6. CAUSATION .................................................................... 294\nA. Causation: An Introduction ........................................................................................ 294\nLeRoy Fibre Co. v. Chicago, M. & S. P. Railway ........................................................... 294\nNotes ............................................................................................................................ 296\nB. Causation-in-Fact......................................................................................................... 299\nNew York Central R.R. Co. v. Grimstad ......................................................................... 299\nNotes ............................................................................................................................ 300\nStubbs v. City of Rochester.............................................................................................. 301\nNotes ............................................................................................................................ 304\nZuchowicz v. United States ............................................................................................. 306\nNotes ............................................................................................................................ 308\nC. Lost Chances and Indeterminate Plaintiffs ............................................................... 311\nHerskovits v. Group Health Coop. ................................................................................... 311\nNotes ............................................................................................................................ 314\nD. The Problem of Multiple Tortfeasors ........................................................................ 316\nKingston v. Chicago & N. W. R. Co................................................................................ 317\nNotes ............................................................................................................................ 318\nE. Alternative Liability and Indeterminate Defendants ............................................... 319\nSummers v. Tice .............................................................................................................. 319\nNote.............................................................................................................................. 320\nSindell v. Abbott Laboratories ......................................................................................... 320\nNotes ............................................................................................................................ 326\nThe Substantial Factor Test Revisited ............................................................................. 329\nF. Causation Beyond Torts .............................................................................................. 330\n1. The Criminal Law....................................................................................................... 330\n2. Employment Discrimination ...................................................................................... 331\n3. Environmental Law .................................................................................................... 331\n4. Securities Litigation.................................................................................................... 332\n5. Psychological Conventions around Causation ........................................................... 332\n\nCHAPTER 7. PROXIMATE (\xe2\x80\x9cLEGAL\xe2\x80\x9d) CAUSE............................... 334\nA. Introduction ................................................................................................................. 334\nix\n\n\x0cWitt & Tani, TCPI\n\nRyan v. New York Central R.R. ...................................................................................... 334\nNotes ............................................................................................................................ 336\nBerry v. Sugar Notch Borough ........................................................................................ 338\nNote.............................................................................................................................. 339\nB. Unexpected Harm ........................................................................................................ 339\nBenn v. Thomas ............................................................................................................... 339\nNotes ............................................................................................................................ 340\nIn re Polemis .................................................................................................................... 342\nNotes ............................................................................................................................ 343\nThe Wagon Mound Cases .............................................................................................. 344\nWagon Mound (No. 1) ..................................................................................................... 344\nWagon Mound (No. 2) ..................................................................................................... 345\nNotes ............................................................................................................................ 346\nC. Unexpected Manner .................................................................................................... 350\nBrower v. New York Cent. & H.R.R. Co. ....................................................................... 350\nNotes ............................................................................................................................ 351\nMcLaughlin v. Mine Safety Appliances Co..................................................................... 353\nNote.............................................................................................................................. 355\nNallan v. Helmsley-Spear, Inc. ........................................................................................ 355\nNotes ............................................................................................................................ 356\nA Proximate Cause Case Study: Subsequent Negligent Medical Care .......................... 358\nRule of Thumb for No Proximate Cause? ...................................................................... 360\nD. Unexpected Person ...................................................................................................... 361\nPalsgraf v. Long Island R. Co. ......................................................................................... 361\nNotes ............................................................................................................................ 366\nWagner v. International R. Co. ........................................................................................ 366\nNotes ............................................................................................................................ 368\nE. Completely Unexpected? ............................................................................................. 368\nPetition of Kinsman Transit Co. (Kinsman Transit I) ...................................................... 368\nNotes ............................................................................................................................ 374\nF. Proximate Cause Beyond Torts .................................................................................. 377\n1. Proximate Cause and Criminal Law ........................................................................... 377\n2. Proximate Cause and Consequential Damages .......................................................... 377\n\nCHAPTER 8. THE DUTY PROBLEM .................................................. 379\nA. Is There a Duty to Rescue? ......................................................................................... 379\n1. Cases ........................................................................................................................... 380\nFarwell v. Keaton ............................................................................................................. 380\nHarper v. Herman............................................................................................................. 381\nNotes ............................................................................................................................ 383\n2. Liability for Good Samaritans? .................................................................................. 388\nSwenson v. Waseca Mutual Insurance Co. ...................................................................... 389\nB. Landowners and Occupiers ........................................................................................ 390\nUnited Zinc & Chemical Co. v. Britt ............................................................................... 390\nNotes ............................................................................................................................ 391\nBanker v. McLaughlin ..................................................................................................... 392\nNote.............................................................................................................................. 394\nRowland v. Christian ....................................................................................................... 395\nx\n\n\x0cWitt & Tani, TCPI\n\nNotes ............................................................................................................................ 398\nC. Negligent Infliction of Emotional Distress................................................................. 400\nMitchell v. Rochester Railway ......................................................................................... 400\nNotes ............................................................................................................................ 401\nFalzone v. Busch .............................................................................................................. 402\nNotes ............................................................................................................................ 404\nDillon v. Legg .................................................................................................................. 405\nNotes ............................................................................................................................ 408\nMetro-North Commuter Railroad Co. v. Buckley ........................................................... 411\nNotes ............................................................................................................................ 414\nD. To Whom Does a Defendant Owe a Duty? ................................................................ 416\n1. The Duty Debate (Part 1) ........................................................................................... 416\nWilliam L. Prosser, Handbook of the Law of Torts......................................................... 416\nJohn Goldberg & Benjamin Zipursky, The Moral of MacPherson.................................. 417\n2. Cases and Materials .................................................................................................... 418\nStrauss v. Belle Realty Co. .............................................................................................. 418\nNotes ............................................................................................................................ 420\nKline v. 1500 Massachusetts Ave. Apartment Corp. ....................................................... 422\nNotes ............................................................................................................................ 426\nEnnabe v. Manosa ............................................................................................................ 427\nNote.............................................................................................................................. 430\nTarasoff v. Regents of the University of California......................................................... 431\nNotes ............................................................................................................................ 433\nIn re September 11 Litigation .......................................................................................... 436\nNotes ............................................................................................................................ 440\n3. The Duty Debate (Part 2) ........................................................................................... 441\nE. Pure Economic Loss..................................................................................................... 442\nPeople Express Airlines, Inc. v. Consolidated Rail Corporation ..................................... 442\nNote.............................................................................................................................. 446\n532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ............................. 446\nNotes ............................................................................................................................ 449\nF. Relational Interests ...................................................................................................... 451\n1. Spouses ....................................................................................................................... 451\n2. Children ...................................................................................................................... 453\n3. Unmarried Partners ..................................................................................................... 454\nG. Tort Immunities ........................................................................................................... 455\n1. Intrafamilial Immunities ............................................................................................. 456\n2. Charitable Immunity ................................................................................................... 457\n3. Employers\xe2\x80\x99 Immunity ................................................................................................. 457\n4. Sovereign Immunity ................................................................................................... 458\nBaum v. U.S. .................................................................................................................... 459\nNotes ............................................................................................................................ 463\nRiss v. City of New York ................................................................................................. 466\nNotes ............................................................................................................................ 470\n5. Government Officer Immunity ................................................................................... 472\na. Federal Officials ........................................................................................................... 472\nb. State Officials............................................................................................................... 473\nc. Constitutional Torts ...................................................................................................... 473\nxi\n\n\x0cWitt & Tani, TCPI\n\n6. Statutory Immunity ..................................................................................................... 475\nThe Protection of Lawful Commerce in Arms Act of 2005 ............................................ 475\nCity of New York v. Beretta U.S.A. Corp. ...................................................................... 475\n7. Wartime and National Security Immunities ............................................................... 477\n8. Immunity Reconsidered.............................................................................................. 479\n\nCHAPTER 9. MODERN NON-FAULT LIABILITY?......................... 480\nA. Vicarious Liability ....................................................................................................... 480\nIra S. Bushey & Sons, Inc. v. United States..................................................................... 480\nNotes ............................................................................................................................ 483\nB. Wild and Abnormally Dangerous Animals ............................................................... 486\nRhodes v. MacHugh......................................................................................................... 486\nNote.............................................................................................................................. 489\nC. Abnormally Dangerous Activities .............................................................................. 489\nSpano v. Perini Corp. ....................................................................................................... 489\nNotes ............................................................................................................................ 492\nIndiana Harbor Belt R.R. v. American Cyanamid Co. .................................................... 494\nNotes ............................................................................................................................ 499\nD. Nuisance ........................................................................................................................ 500\n1. Private Nuisance ......................................................................................................... 500\nFontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. ........................................... 500\nNotes ............................................................................................................................ 502\nEnsign v. Walls ................................................................................................................ 505\nNotes ............................................................................................................................ 506\nBoomer v. Atlantic Cement Co. ....................................................................................... 510\nNotes ............................................................................................................................ 512\nSpur Industries v. Del Webb Development Co. ............................................................... 515\nNotes ............................................................................................................................ 517\n2. Public Nuisance .......................................................................................................... 519\nLeo v. General Electric Co............................................................................................... 519\n532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center ..................................... 521\nNotes ............................................................................................................................ 522\nLead Paint and Public Nuisance: Two Stories ................................................................. 523\nPeter B. Lord, 3 companies found liable in lead-paint nuisance suit, PROVIDENCE J. . 523\nJoe Nocera, The Pursuit of Justice, or Money?, N.Y. TIMES ...................................... 524\nPeter B. Lord, R.I. high court overturns lead-paint verdict, PROVIDENCE J.. ............... 524\nRhode Island v. Lead Industries Association ................................................................... 525\nNote.............................................................................................................................. 528\nCty. of Santa Clara v. Atl. Richfield Co. ......................................................................... 528\nNote.............................................................................................................................. 530\nCamden County v. Beretta ............................................................................................... 530\nNote.............................................................................................................................. 533\nE. Strict Liability for Products? ...................................................................................... 534\n1. Beginnings .................................................................................................................. 534\nWinterbottom v. Wright ................................................................................................... 534\nNotes ............................................................................................................................ 535\nMacPherson v. Buick Motor Company............................................................................ 536\nNotes ............................................................................................................................ 539\nxii\n\n\x0cWitt & Tani, TCPI\n\nEscola v. Coca Cola Bottling Co. of Fresno .................................................................... 541\nNotes ............................................................................................................................ 544\nTemple v. Wean United, Inc. ........................................................................................... 546\nNotes ............................................................................................................................ 548\n2. Manufacturing Defects ............................................................................................... 549\nSpeller v. Sears, Roebuck and Co. ................................................................................... 550\nNotes ............................................................................................................................ 551\n3. Design Defects............................................................................................................ 554\nBarker v. Lull Engineering Company, Inc. ...................................................................... 554\nNotes ............................................................................................................................ 558\nWright v. Brooke Group, Ltd. .......................................................................................... 561\nNotes ............................................................................................................................ 565\n4. Warning Defects ......................................................................................................... 566\nLiriano v. Hobart Corp. (\xe2\x80\x9cLiriano I\xe2\x80\x9d) .............................................................................. 567\nLiriano v. Hobart Corp. (\xe2\x80\x9cLiriano II\xe2\x80\x9d) ............................................................................. 571\nNote.............................................................................................................................. 574\nLiriano v. Hobart Corp. (\xe2\x80\x9cLiriano III\xe2\x80\x9d) ............................................................................ 574\nNotes ............................................................................................................................ 578\nHood v. Ryobi Am. Corp. ................................................................................................ 580\nNotes ............................................................................................................................ 582\n5. Plaintiff\xe2\x80\x99s Conduct...................................................................................................... 583\nDaly v. Gen. Motors Corp................................................................................................ 583\nNotes ............................................................................................................................ 587\n6. The Preemption Question ........................................................................................... 588\nGeier v. American Honda Motor Co................................................................................ 588\nNotes ............................................................................................................................ 592\nWyeth v. Levine ............................................................................................................... 593\nNotes ............................................................................................................................ 599\nPLIVA, Inc. v. Mensing ................................................................................................... 602\nNotes ............................................................................................................................ 606\n\nCHAPTER 10. DAMAGES ..................................................................... 609\nA. Compensatory Damages.............................................................................................. 610\n1. Pecuniary Damages .................................................................................................... 610\nO\xe2\x80\x99Shea v. Riverway Towing Co. ..................................................................................... 610\nNotes ............................................................................................................................ 614\nFeldman v. Allegheny Airlines ........................................................................................ 616\nNotes ............................................................................................................................ 619\n2. Nonpecuniary Damages.............................................................................................. 623\nThe Rise of Pain and Suffering ........................................................................................ 623\nMcDougald v. Garber ...................................................................................................... 626\nNotes ............................................................................................................................ 631\n3. Environmental Damages ............................................................................................ 636\nUnited States v. CB & I Constructors, Inc. ...................................................................... 636\nNote.............................................................................................................................. 638\n4. Death Cases ................................................................................................................ 639\nWrongful Death Actions .................................................................................................. 639\nSurvival Actions............................................................................................................... 640\nxiii\n\n\x0cWitt & Tani, TCPI\n\nDeath Cases and Family Structure ................................................................................... 640\nThe Death Case Paradox .................................................................................................. 641\nB. Damages in Practice..................................................................................................... 641\n1. Plaintiffs\xe2\x80\x99 Lawyers and the Contingency Fee ............................................................ 641\n2. The Role of Defendants\xe2\x80\x99 Insurance ............................................................................ 645\n3. Subrogation; or, The Role of Plaintiffs\xe2\x80\x99 Insurance .................................................... 646\n4. The \xe2\x80\x9cBronx Jury\xe2\x80\x9d Effect ............................................................................................. 648\n5. Beyond Dollars ........................................................................................................... 650\n6. The Death of Liability? .............................................................................................. 651\nC. Mass Settlements.......................................................................................................... 654\n1. The September 11th Victim Compensation Fund ...................................................... 654\n2. Aggregation: Class Actions and their Limits ............................................................. 656\n3. The Vioxx Settlement ................................................................................................. 658\n4. The BP Oil Spill ......................................................................................................... 661\n5. State Attorneys General .............................................................................................. 663\nD. Punitive Damages ........................................................................................................ 663\nKemezy v. Peters ............................................................................................................. 664\nNotes ............................................................................................................................ 666\nState Farm Mut. Auto. Ins. Co. v. Campbell ................................................................... 669\nNotes ............................................................................................................................ 673\nPhilip Morris USA v. Williams ....................................................................................... 674\nNotes ............................................................................................................................ 679\n\nxiv\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nCHAPTER 1. AN INTRODUCTION TO AMERICAN TORT LAW\nA. Principles and Institutions\nTort law is the common law of civil wrongs not arising out of contract. Torts books often\nstart with a definition because tort law, unlike other mainstays of the first year in the American\nlaw school curriculum, can seem strange and unfamiliar to the new law student. Terms like\n\xe2\x80\x9ccontracts,\xe2\x80\x9d \xe2\x80\x9cprocedure,\xe2\x80\x9d \xe2\x80\x9cproperty,\xe2\x80\x9d and \xe2\x80\x9ccriminal law,\xe2\x80\x9d are relatively familiar to students long\nbefore they arrive for the first day of classes. \xe2\x80\x9cConstitutional law\xe2\x80\x9d will resonate with the law\nstudent who has even a passing interest in politics or public policy. Alone among first year\nsubjects, \xe2\x80\x9ctorts\xe2\x80\x9d has not made much headway into lay usage. Indeed, the situation is even worse\nthan this suggests, for to the extent the term has made its way into popular usage, the results have\noften been terrible misuse and misunderstanding.\nSo let\xe2\x80\x99s start with a definition: Tort law is the common law of civil wrongs not arising out\nof contract. Let\xe2\x80\x99s now take that definition piece by piece.\nWe call tort law a common law field because it arises out of the body of legal norms and\ninstitutions inherited by the United States from England more than two centuries ago, when the\nUnited States won independence from the British Empire. In England, the common law was the\nlaw of the King\xe2\x80\x99s courts in the centuries after the Norman Conquest in 1066. (The common law\nwas the law common to those courts, as opposed to the church courts, borough courts, and the\ncourts of the local nobility, each of which had its own law through the medieval and early modern\nperiods.) Today, to say that a body of law is made up of common law principles is to say that it is\nmostly judge-made law, though not necessarily exclusively so. State legislatures and the U.S.\nCongress increasingly alter the common law of torts. The Federal Constitution and its state-level\ncounterparts largely (but not entirely) give the Congress and state legislatures power to make such\nalterations, though as we shall see constitutional constraints touch tort law in several different\nways. Nonetheless, it is still fair to call torts a common law field. And as a common law field,\ntorts is made up predominantly of state law, rather than federal law, though federal law has always\nplayed a role, especially in the past century, and even more so in the last two decades. To the\nextent that torts remains a subject of state law, its basic norms will vary from state to state, though\nusually with a wide area of consensus at its core.\nTort law deals with civil wrongs as opposed to violations of the criminal law. This means\nthat tort law\xe2\x80\x99s norms and institutions exhibit a cluster of features characteristic of civil\nproceedings, not criminal proceedings. Private parties, not public prosecutors, typically initiate\ntort litigation (though the government may be a claimant in tort cases when certain harms befall\ngovernment property). The array of procedural protections for criminal defendants (many of them\nconstitutionally required) typically does not apply to defendants in torts cases. There is no\nprivilege not to testify on the grounds that you might concede liability, for example. There are no\nMiranda warnings in torts. And there is no constitutionally protected right to confront witnesses.\nThe Federal Constitution does not require states to offer jury trials in tort cases, though most\nstates do anyway. The standard of proof is a \xe2\x80\x9cpreponderance of the evidence\xe2\x80\x9d rather than the high\nthreshold of \xe2\x80\x9cbeyond a reasonable doubt.\xe2\x80\x9d Parties without lawyers are not usually offered free\ncourt-appointed counsel. Most importantly, perhaps, the fact that tort law is the law of civil\nwrongs means that, with one exception, tort law does not aim to punish. Punishment is a principal\n1\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nfunction of the criminal justice system. The remedies in a torts case aim not to punish the\ndefendant, but to compensate the plaintiff, almost always through a monetary award, aimed at\nmaking up for losses, and sometimes (though much less often) through an order by a court\nrequiring that a defendant cease some ongoing course of conduct. The exception to this rule is the\ndoctrine of punitive damages, which consist of monetary sums awarded by a judge or jury for the\npurpose of punishing tort defendants, and which are awardable in torts cases involving some\nespecially outrageous or reckless conduct. As we shall see, even though punitive damages are\nrare, they have attracted considerable attention because of concerns that they punish without the\ninstitutional protections offered to criminal defendants. The United States Supreme Court has\nsignificantly constrained the size of possible punitive damages awards in recent years.\nTort law is a field not merely of civil law: it is a field of civil law wrongs. The term \xe2\x80\x9ctort\xe2\x80\x9d\ncomes from the Latin meaning bend or twist. (It shares the same root as the word \xe2\x80\x9ctorture.\xe2\x80\x9d) For\ncenturies, tort law has thus been connected indelibly to the moral concept of wrongfulness. Most\nareas of tort doctrine thus ask about the wrongfulness of the parties\xe2\x80\x99 conduct. Some domains of\ntort law purport to do away with the concept of wrongfulness. Since at least the middle of the\nnineteenth century, important areas of the law (urged on by prominent jurists and commentators)\nhave embraced so-called strict or no-fault liability doctrines that ostensibly allocate accident costs\nwithout regard to questions of wrongfulness. In the field of product-related injuries, for example,\nwhich we will spend considerable time discussing later in this book, doctrine has moved toward\neliminating fault or wrongdoing from the analysis. Such \xe2\x80\x9cno fault\xe2\x80\x9d approaches remain the\nexception to the rule.\nLast, tort law is a common law field of civil wrongs not arising out of contract. This\nmeans that, as a conceptual matter, the obligations that tort law recognizes exist independent of\nany agreement between the parties. For a person to have a legal obligation to another arising out\nof tort law, they need not have promised the other person anything. The law of torts itself, not the\nterms of any agreement, specifies the contours of the obligations it enforces.\nYet this final piece of our definition, like each element of the definition that has preceded\nit, comes with caveats and exceptions, two of which are worth noting here. First, many and\nperhaps even most torts cases do arise out of the interactions of parties who are in contractual\nrelationships with one another, or at least in relationships akin to contracts. Consumers of\nproducts contract with sellers to buy those products, but if they sue for product-related injuries,\nthey often sue in tort law. Patients of doctors enter into contracts to purchase medical services,\nbut if they sue when those services go awry, they usually sue in tort law. And even when there is\nno formal contract, there are often relationships or social roles that could be construed as setting\nthe terms of the parties\xe2\x80\x99 interactions. Social settings such as classrooms or playgrounds, as we\nshall soon see, typically come with informal conventions and codes of conduct. Such conventions\nand agreements are crucially important in modern tort law. They require that we decide whether\nand when tort law should defer to private agreements and when it should override them, especially\nwhen they purport to abolish tort obligations altogether.\nSecond, and just as significant, contracts are vital for the resolution of tort claims because\nin the real world virtually every successful tort claim is resolved by a special kind of contract\ncalled settlement. Contracts of settlement discharge the underlying tort obligation and render it a\ncontractual obligation to pay some or all of the damages the plaintiff sought. In the everyday\npractice of tort law, such settlement contracts are pervasive. No one really knows what\npercentage of tort claims settle, but the percentage is thought to be stunningly high, probably well\n2\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nabove ninety-five percent of those tort claims that lead to monetary transfers. Settlement is thus at\nthe heart of how American tort law works. And it offers us a segue to a central theme in this\nbook. For settlement is one of the wide array of social practices and institutions that constitute\nAmerican tort law and that make it more than merely a formal legal definition or a dry and dusty\nconcept in the doctrinal analysis of the law. Tort law in the United States is a vast and highly\ndistinctive socio-regulatory system.\n****\nTort law in the United States consists of a sprawling set of social institutions and\npractices. One way to see this is to observe that formal definitions of tort law do not differ much\nfrom one legal order to another. But the institutions and sociology of tort law differ radically\nfrom legal system to legal system. In this book, we will attend to formal definitions and doctrines.\nBut we will keep an especially close eye on three features of American tort law that breathe life\ninto the field and give it a distinctive twenty-first-century character.\nFirst, tort law\xe2\x80\x99s doctrines and principles embody the law\xe2\x80\x99s basic norms of interpersonal\nobligation. The principles underlying those norms are subject to fierce debate, of course. Tort\njurists have argued for many decades about these principles, about what they are and what they\nought to be. For example, some see tort law as an opportunity for utilitarianism in action. In this\nview, tort law aims to maximize the aggregate welfare of the relevant society. Others see in tort\nlaw a commitment to the moral philosophy of corrective justice or civil recourse; in this view, tort\nlaw recognizes the obligation of a wrongdoer to repair wrongful losses. Still others understand\ntort law\xe2\x80\x99s motivating principle to be constructing and maintaining the basic norms of a\ncommunity, or shoring up the dignity and social standing of people whose injuries might\notherwise degrade them in the eyes of fellow community members. Ideas about the principles\nunderlying tort law are as varied as ideas about how society should be organized. This book will\nintroduce you to, but will not adjudicate for you, the basic controversies over tort law\xe2\x80\x99s\ncommitments. These controversies represent live debates in practical moral philosophy. They\nalso help us decide the hardest cutting-edge cases in the field, cases in which there is no obvious\nexisting answer in the doctrine and for which lawyers, judges, and juries will need to rely on the\nlaw\xe2\x80\x99s underlying principles.\nSecond, tort law in the United States is the starting point for a vast and far-flung set of\nexceedingly important social practices, ranging from contingency fee representations and highway\nbillboard advertising, to class action litigation and claims adjustment, to contracting and risk\nassessment. We can barely even begin to evaluate the law of torts and its virtues and defects\nwithout taking these social practices into account. We will aim to take account of the tort system\nby referring to statistics and numbers and through the leading sociological, game-theoretical, and\nhistorical accounts. Indeed, to understand the distinctive features of tort law in the United States\nas opposed to in other legal systems, where tort law operates quite differently, these perspectives\nwill be decisive for illuminating the real stakes in long-running controversies.\nThird, American tort law shapes and is shaped by an important array of institutions,\namong them insurance companies, the administrative state, state-subsidized and state-provided\nsocial welfare programs, the jury, social customs, cost-benefit analysis, the plaintiff\xe2\x80\x99s bar, and\nmore. These institutions, along with the practices noted above, powerfully influence the law of\ntorts in the United States. We cannot understand the law without them. Indeed, we cannot\nunderstand contemporary American law more generally without placing these institutions front\nand center, and once we see tort law this way, the field serves as an ideal introduction to the\n3\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\ncentral features of our vast and multifarious legal system.\nHere, then, is the theory of this book: understanding the characteristic features of\nAmerican tort law requires exploring the field\xe2\x80\x99s principles, practices, and institutions. The benefit\nof approaching tort law this way is not only that we understand torts better, though that would be\nno small thing. The further payoff is that this approach allows us to turn the study of tort law into\nmore than an obligatory first-year purgatory of fusty and old-fashioned common law rules.\nInstead, we take up the law of civil wrongs as an introduction to some of the most important\nproblems faced by twenty-first-century American lawyers and lawmakers more generally.\nThankfully, we can begin to think in these ways by exploring one of the field\xe2\x80\x99s simplest and bestknown cases, a case that began as a classroom interaction between two boys in nineteenth-century\nWisconsin.\n\nB. An Introductory Case: The Tort of Battery\n1. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891)\nThe action was brought to recover damages for an assault and battery, alleged to have\nbeen committed by the defendant upon the plaintiff on February 20, 1889. . . . At the date of the\nalleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less\nthan 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon\nthe leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in\nWaukesha, during school hours, both parties being pupils in the school. A former trial of the\ncause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from\nsuch judgment to this court, and the same was reversed for error, and a new trial awarded.\n[The opinion of the court in the initial appeal provides the following additional facts:\n\xe2\x80\x9cThe plaintiff was about 14 years of age, and the defendant about 11 years of age. On the\n20th day of February, 1889, they were sitting opposite to each other across an aisle in the high\nschool of the village of Waukesha. The defendant reached across the aisle with his foot, and hit\nwith his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not\nfeel it, either on account of its being so slight or of loss of sensation produced by the shock. In a\nfew moments he felt a violent pain in that place, which caused him to cry out loudly. The next\nday he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr.\nBacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to\nsee him the next day, on the 25th. There was a slight discoloration of the skin entirely over the\ninner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations,\nand gave him anodynes to quiet the pain. This treatment was continued, and the swelling so\nincreased by the 5th day of March that counsel was called, and on the 8th of March an operation\nwas performed on the limb by making an incision, and a moderate amount of pus escaped. A\ndrainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another\nincision was made to the bone, and it was found that destruction was going on in the bone, and so\nit has continued exfoliating pieces of bone. He will never recover the use of his limb. There were\nblack and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of\nJanuary before, the plaintiff received an injury just above the knee of the same leg by coasting,\n4\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nwhich appeared to be healing up and drying down at the time of the last injury. The theory of at\nleast one of the medical witnesses was that the limb was in a diseased condition when this touch\nor kick was given, caused by microbes entering in through the wound above the knee, and which\nwere revivified by the touch, and that the touch was the exciting or remote cause of the\ndestruction of the bone, or of the plaintiff\xe2\x80\x99s injury. It does not appear that there was any visible\nmark made or left by this touch or kick of the defendant\xe2\x80\x99s foot, or any appearance of injury until\nthe black and blue spots were discovered by the physician several days afterwards, and then there\nwere more spots than one. There was no proof of any other hurt, and the medical testimony seems\nto have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff.\nThe jury rendered a verdict for the plaintiff of $2,800. The learned circuit judge said to the jury:\n\xe2\x80\x98It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say that ought not to\nhave come into court. The parents of these children ought, in some way, if possible, to have\nadjusted it between themselves.\xe2\x80\x99 We have much of the same feeling about the case.\xe2\x80\x9d]\nThe case has been again tried in the circuit court, and the trial resulted in a verdict for\nplaintiff for $2,500. . . . On the last trial the jury found a special verdict, as follows: \xe2\x80\x9c(1) Had the\nplaintiff during the month of January, 1889, received an injury just above the knee, which became\ninflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February,\n1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of\nFebruary, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff\xe2\x80\x99s right leg\nbecome inflamed or diseased to some extent before he received the blow or kick from the\ndefendant? A. No. (5) What was the exciting cause of the injury to the plaintiff\xe2\x80\x99s leg? A. Kick.\n(6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No.\n(7) At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars.\xe2\x80\x9d\nThe defendant moved for judgment in his favor on the verdict, and also for a new trial. The\nplaintiff moved for judgment on the verdict in his favor. The motions of defendant were\noverruled, and that of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages\nand costs of suit, was duly entered. The defendant appeals from the judgment.\nLYON, J.\n...\nThe jury having found that the defendant, in touching the plaintiff with his foot, did not\nintend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of\naction, and that defendant\xe2\x80\x99s motion for judgment on the special verdict should have been granted.\nIn support of this proposition counsel quote from 2 Greenl. Ev. \xc2\xa7 83, the rule that \xe2\x80\x9cthe intention to\ndo harm is of the essence of an assault.\xe2\x80\x9d Such is the rule, no doubt, in actions or prosecutions for\nmere assaults. But this is an action to recover damages for an alleged assault and battery. In such\ncase the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must\nshow either that the intention was unlawful, or that the defendant is in fault. If the intended act is\nunlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case,\nif the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to\nkick him was also unlawful.\nHad the parties been upon the play-grounds of the school, engaged in the usual boyish\nsports, the defendant being free from malice, wantonness, or negligence, and intending no harm to\nplaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he\ncould be held liable in this action. Some consideration is due to the implied license of the play5\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\ngrounds. But it appears that the injury was inflicted in the school, after it had been called to order\nby the teacher, and after the regular exercises of the school had commenced. Under these\ncircumstances, no implied license to do the act complained of existed, and such act was a\nviolation of the order and decorum of the school, and necessarily unlawful. Hence we are of the\nopinion that, under the evidence and verdict, the action may be sustained.\n...\nCertain questions were proposed on behalf of defendant to be submitted to the jury,\nfounded upon the theory that only such damages could be recovered as the defendant might\nreasonably be supposed to have contemplated as likely to result from his kicking the plaintiff.\nThe court refused to submit such questions to the jury. The ruling was correct. The rule of\ndamages in actions for torts [is] that the wrongdoer is liable for all injuries resulting directly from\nthe wrongful act, whether they could or could not have been foreseen by him. [The court\nexplained that in a cause of action \xe2\x80\x9cex contractu\xe2\x80\x9d and not \xe2\x80\x9cex delicto,\xe2\x80\x9d a different rule of damages\nwould be applicable in which unforeseeable damages would not be recoverable.]\n[Despite upholding the plaintiff\xe2\x80\x99s verdict in these two critical respects, the court nonetheless ruled\nin a separate part of its opinion that the trial court had erroneously overruled the defendant\xe2\x80\x99s\nobjection to one of plaintiff\xe2\x80\x99s counsel\xe2\x80\x99s questions. Accordingly, the court sent the case back to\nthe trial court for another new trial.]\n\n2. Anatomy of a Torts Case\nVosburg v. Putney was a simple case. By now, it is an old case. But getting to the bottom\nof it reveals much about the complexities of American tort law right up to the present day.\nAt an elementary level, the case presents two kinds of questions that will run through the\nrest of this book and that are omnipresent in legal analysis: questions of fact and questions of law.\nThere are, for example, questions of fact about causation. What caused the injuries to the leg?\nWould those injuries have come about anyway if Putney had not made contact with Vosburg on\nthe 20th of February? There are also questions of fact about Putney\xe2\x80\x99s intent: what did he mean to\naccomplish when he reached out and kicked his classmate?\nThe questions of law are different. They ask not what happened, but rather what the law\nis\xe2\x80\x94or what it ought to be. For example, what kind of mental state does the law require for\nholding Putney liable? Is it sufficient that he intended to make a certain kind of contact with\nVosburg? Or does Vosburg need to show that Putney further intended to harm him? Questions of\nlaw about Putney\xe2\x80\x99s causal relationship to Vosburg\xe2\x80\x99s leg injury would ask whether it is sufficient\nfor Vosburg to show that Putney\xe2\x80\x99s kick increased the likelihood of leg damage that was already in\nmotion, or that Putney\xe2\x80\x99s kick accelerated that damage.\nOnce we bring in some of the context for the court\xe2\x80\x99s opinion, this little case from long-ago\nWisconsin also serves as a remarkable introduction to the sociology, economics, and functions of\ntort law. Andrew Vosburg was a slight boy whose father, Seth (a Civil War veteran), worked as a\nteamster at a local lumber company. According to Professor Zigurds Zile of the University of\nWisconsin Law School,\n6\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nVosburg was frequently bedridden with a succession of childhood illnesses. He\ncaught scarlet fever at the age of eight and had two or three bouts with the measles.\nYet he was raised as an ordinary country boy, obliged to do the customary chores\naround the homestead, endure discomfort and face the usual hazards associated with\nrural life. Bumps, bruises and lacerations were part of his workaday experience.\nAccidents just happened to Andrew; or perhaps they happened to him more often\nbecause he lacked the strength and dexterity the rigors of his environment demanded\n....\nZigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 WIS. L. REV. 877, 879. George\nPutney, by contrast, was the only son of a prominent and prosperous local family. Zile reports\nthat George Putney was described by a contemporary as \xe2\x80\x9ca sucker of a boy\xe2\x80\x9d with \xe2\x80\x9ca bad temper.\xe2\x80\x9d\nId. at 882. In fact, George had a minor altercation with Andrew a couple weeks prior to the\nincident at the center of the litigation when George inexplicably prevented Andrew from\nretrieving his textbook before an exam.\nThe Vosburg family also initiated a criminal case against Putney. Passions, it seems, ran\nhigh in 1889 in Waukesha. Andrew\xe2\x80\x99s father went to the town justice of the peace to file a\ncriminal complaint against George on October 19, 1889. The justice of the peace issued a warrant\nto apprehend George, and a trial ensued. (This was the era before special criminal procedures for\njuveniles.) After witness testimony and cross-examination, the court found George guilty as\ncharged in the complaint. He was ordered to pay a fine of $10, plus costs, amounting to a total of\n$28.19. The conviction was later overturned on appeal.\nThe civil and criminal cases arising out of the schoolboy\xe2\x80\x99s kick soon involved substantial\ntime and expenses. During the first jury trial in the civil suit, witnesses included Andrew, George,\nthe boys\xe2\x80\x99 teacher, and Andrew\xe2\x80\x99s doctors. When the case was retried in the December term of\n1890, the plaintiff subpoenaed eight witnesses and the defendant subpoenaed eleven. The third\ntrial for Andrew\xe2\x80\x99s case seemed imminent until September 1893, when the circuit court dismissed\nthe case for the plaintiff\xe2\x80\x99s failure to pay overdue court costs. In still another proceeding,\nAndrew\xe2\x80\x99s father brought a claim against George Putney for the loss of his son\xe2\x80\x99s services. A jury\nawarded Seth $1200 in damages against George, which the Wisconsin Supreme Court later\naffirmed. But even then, it does not seem that the Vosburgs ever collected any damages from the\nPutneys, perhaps because parents are not liable for the torts of their children. At the end of this\nlong litigation process, there is no evidence that the parties ever exchanged any money.\nAll told, the dispute between these families lasted for four and a half years and never\nproduced even a dollar in actual damages changing hands. The litigation was expensive, too. Zile\nestimated that the Vosburgs \xe2\x80\x9cwould have incurred costs in the amount of $263 in order to get\nnothing.\xe2\x80\x9d Their lawyers probably spent considerably more in time and money in hopes of\nrecovering a portion, usually a third, of the winnings. The Putneys probably paid at least $560 in\nlawyers\xe2\x80\x99 fees and incurred additional costs summing to a further $677. Zile, supra, at 977.\nThe outsized expenses of the Vosburg case are not unusual in American tort law, at least\nnot in the narrow slice of cases that go forward to trial. Observers estimate the administrative\ncosts of the tort system\xe2\x80\x94lawyers\xe2\x80\x99 fees, expert witness fees, court costs, etc.\xe2\x80\x94amount to between\nfifty and seventy cents for every dollar transferred from defendants to plaintiffs. The Vosburg\ncase\xe2\x80\x99s costs were almost exactly in this range: the parties together incurred some $1500 in costs in\n7\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\na dispute over two claims that juries seemed to value at around $3700 (a $2500 claim for Andrew\nplus the $1200 claim for Seth). The Vosburgs\xe2\x80\x99 lawyers would have eaten up another one-third of\nwhatever money the Putneys paid, for a total of around $2700 in costs on $3700 worth of tort\nclaims. The Vosburgs would only have recovered $2500 after subtracting their lawyers\xe2\x80\x99 fees.\nThis is equivalent to a costs-to-value ratio of more than 1, a figure that is vastly higher than the\nadministrative cost ratios that attach to, say, disability claims in the Social Security system, where\ncosts are typically closer to ten percent of the value of the claim. Tort administrative costs are\nvastly higher than first-party insurance administrative costs, too: victims of injuries can much\nmore cheaply process claims for covered injuries from their own insurance companies than they\ncan prosecute tort claims through the courts.\n\n3. The Pervasiveness of Settlement\nGiven how counter-productive the litigation was, one great mystery in Vosburg is why the\nfamilies did not reach a settlement. The initial trial judge seems to have thought the matter ought\nto have been resolved before trial. The original appeals panel agreed. And there were settlement\nnegotiations. By the early fall of 1889, the Vosburgs had already incurred substantial medical\ncosts and were facing another year and a half of care, eventually costing at least $475. After the\nVosburg family retained a lawyer,\nSeth and Janet Vosburg and one of their attorneys called on Henry Putney [George\xe2\x80\x99s\nfather] at his store, and the incident \xe2\x80\x9cwas talked over amongst [them].\xe2\x80\x9d The Putneys\noffered to pay Dr. Bacon\xe2\x80\x99s bills [about $125 accrued to date] and an additional\namount of $125 towards medical and other needs in return for releasing George\nfrom any liability arising out of the February 20 incident. The Vosburgs, however,\nwere not willing to settle for less than $700, which to them was a paltry sum, barely\nsufficient to meet the financial obligations already accrued, to set aside a reserve\nagainst outlays associated with Andrew\xe2\x80\x99s convalescence and potential\ncomplications, like the amputation of Andrew\xe2\x80\x99s diseased leg, and to pay the lawyers\nfor negotiating the settlement. To the Putneys, by contrast, particularly if they\nlooked at George\xe2\x80\x99s role as peripheral, the sum of $250 might have seemed a\ngenerous price for the nuisance value of a threatened lawsuit.\nZile, supra, at 894.\nThe startling thing is that in hindsight any one of the proposals by either defendant or\nplaintiff would have been in the interest of the parties. Simply dropping the litigation in return for\nnothing would have been better than proceeding. Given the array of choices before them,\nlitigating the claims to judgment seems to have been the worst choice available to the parties, and\nyet each of them chose to litigate rather than to accept settlement offers from the other side that\n(again, in hindsight) were vastly better than the alternative of trial.\nSo why didn\xe2\x80\x99t the Vosburgs and Putneys settle if it was in their interest to do so? The\nmystery deepens when we see that virtually all cases end in settlement. One of the most important\ninstitutional features of American tort law is that it is almost entirely party-driven. The parties to\na lawsuit have virtually complete autonomy in deciding whether to bring claims, how to manage\n\n8\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nthose claims, and whether to withdraw from prosecuting them. The result is that almost all parties\nsettle their disputes before trial.\nSettlement has been widespread in American tort law for as long as modern tort law has\nexisted, for more than a century and a half, and there is reason to think settlement is growing even\nmore common in the past fifty years. In 2003, the American Bar Association Litigation Section\nheld a symposium titled The Vanishing Trial, which concluded that the \xe2\x80\x9cportion of federal civil\ncases resolved by federal trial fell from 11.5 percent [of all filings] in 1962 to 1.8 percent in\n2002.\xe2\x80\x9d Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in\nFederal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 459 (2004). Between 2008 and 2012,\na mere \xe2\x80\x9c0.56 percent or slightly more than one-half of one percent of all terminations\xe2\x80\x9d occurred\nby civil jury trials. Charles S. Coody, Vanishing Trial Skills, A.B.A. (May 22, 2013),\nhttps://perma.cc/QE5C-LPNS. The following chart, compiled by Marc Galanter, who led the\nABA study, and his co-author, shows the stark picture of settlement in civil litigation generally:\n\nPercentage of Civil Terminations During or After Trial, U.S. District Courts, 1962-2010\n\nSource: Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, POUND\nCIVIL JUSTICE INST. 1, 3 (2011), https://perma.cc/9NFE-AP2M.\n\nParties settle because, as the Vosburgs and Putneys learned, litigation is expensive and\ntime-consuming. Many parties are risk-averse; they have a preference for the certainty that\nsettlement offers. Moreover, there is reason to think that on the plaintiffs\xe2\x80\x99 side, lawyers paid on a\ncontingency basis, as a percentage of any settlement or award, will have an interest in avoiding\n9\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nlong drawn-out proceedings. Settlement minimizes their workload, allows them to take on\nadditional claims, and often allows them to maximize their imputed hourly wage.\nGiven the incentives for the parties and for the plaintiffs\xe2\x80\x99 lawyers, why is it then that some\nparties like the Vosburgs and Putneys don\xe2\x80\x99t settle? Looked at this way, the question is not why\nthere are so few trials. The question is why there are any trials at all! Why doesn\xe2\x80\x99t everyone\nsettle?\nOne especially influential view is that where a case proceeds to judgment, at least one of\nthe two parties, and perhaps both, must have incorrectly estimated the likely value of the claim.\nIn this account, which was first offered by George Priest and Benjamin Klein, trials are errors.\nSee George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD.\n1 (1984). Consistent with this view, some observers suggest that the trend toward settlement\nsince the middle of the twentieth century, at least in the federal courts, has been driven by the\nenactment of the Federal Rules of Civil Procedure (FRCP) in 1938, which authorized pre-trial\ndiscovery and deposition procedures that allow each side to learn virtually everything about the\nfacts of the case in advance of the trial itself. Lawyers are thus able to develop quite accurate\nestimates of the value of the claim\xe2\x80\x94much better estimates than pre-FRCP lawyers were able to\nform\xe2\x80\x94which in turn allow the parties to settle their cases before trial.\nAnother view is that parties do not settle because there is something other than dollars and\ncents at stake in tort disputes. Parties persist, in this view, as a matter of principle. And many\nargue that we should encourage them to do so. In this latter view, articulated memorably by\nscholars like Owen Fiss and Judith Resnik, trials are not errors. They are the public forums in\nwhich we work out our social commitments and hold our ideals up for testing. See Owen Fiss,\nAgainst Settlement, 93 YALE L.J. 1073 (1984); Judith Resnik, Whither and Whether\nAdjudication?, 86 B.U. L. REV. 1101 (2006). Of course, if trials are intrinsically valuable as\npublic fora, then settlement rates are startlingly high. For it appears that something about the tort\nsystem\xe2\x80\x94and indeed, civil litigation generally\xe2\x80\x94produces vast numbers of settlements and very\nfew judgments.\n\n4. The Size of the Tort System\nOne way to glimpse the tort system in the aggregate is to look at the total amount of\nmoney passing through the American tort system each year. It is here that little cases like\nVosburg connect up to the heated political controversies over tort law in the past several decades.\nInsurers estimate that the money transferred in the tort system amounts to more than $260\nbillion per year. This is a huge amount of money, comparable to the amount the United States\nspends annually on old age pensions in the Social Security system. Moreover, if we look at the\namount of money flowing through the tort system, we can see that it has increased sharply over\nthe past sixty years, though that growth has slowed (and by some measures has been reversed)\nsince the middle of the 1990s.\n\n10\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nUnited States Tort Costs\n\nYear\n\nU.S.\nPopulation\n(millions)\n\nAdjusted\nTort Costs\n(billions)\n(2010)\n\nTort Costs as\nPercentage of\nGDP\n\n1950\n1960\n1970\n1980\n1990\n2000\n2010\n\n152\n181\n205\n228\n249\n281\n309\n\n16\n40\n78\n113\n217\n227\n265\n\n0.62%\n1.03%\n1.34%\n1.53%\n2.24%\n1.80%\n1.82%\n\nSource: Towers-Watson, 2011 Update on U.S. Tort Cost Trends,\nhttps://perma.cc/4EGK-VXBY.\n\nTort Costs (billions) Adjusted for Inflation\n300\n250\n200\n150\n100\n50\n0\n1950\n\n1960\n\n1970\n\n1980\n\n1990\n\n2000\n\nSource: Towers-Watson data, adjusted by the Consumer Price Index.\n\n11\n\n2010\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nTort Costs as Percentage of GDP\n2.50%\n\n2.00%\n\n1.50%\n\n1.00%\n\n0.50%\n\n0.00%\n1950\n\n1960\n\n1970\n\n1980\n\n1990\n\n2000\n\n2010\n\nSource: Towers-Watson data.\n\nEven with the slower growth of recent years, the figures for transfers and administrative\ncosts in tort law are far higher in the United States than in any comparable legal system or\neconomy.\n\nComparative Tort Costs as a Percentage of GDP in 2000\nU.S.\nItaly\nGermany\nSpain\nBelgium\nJapan\nSwitzerland\nU.K.\nFrance\nDenmark\nPoland\n0\n\n0.5\n\n1\n\n1.5\n\n2\n\n2.5\n\nSource: Tillinghast-Towers Perrin, U.S. Tort Costs and Cross-Border Perspectives: 2005\nUpdate.\n\n12\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nThere is at least one country where tort costs as a percentage of GDP are near zero: New\nZealand simply abolished tort law for virtually all injuries forty years ago, replacing it with a\nsystem of social insurance.\nOne of the things we will want to be able to make sense of by the end of this book is why\nthe tort system is so much bigger in the United States than it is in other countries. The answer, it\nturns out, is not about the substantive doctrines of American tort law, which more or less resemble\nthe substantive tort doctrines of other developed legal systems. The real difference in American\ntort law lies in its institutions and procedures: jury trials, discovery, a plaintiffs\xe2\x80\x99 bar whose fees\nare contingent percentages of the plaintiff\xe2\x80\x99s ultimate recovery, and relatively restrictive programs\nof social provision. One recent study of 24 countries, for example, finds a strong negative\nrelationship between the generosity of government social programs, on the one hand, and tort\nliability, on the other, after controlling for income, accident rates, and other factors. See Dana A.\nKerr, Yu-Luen Ma, & Joan T. Schmit, A Cross-National Study of Government Social Insurance as\nan Alternative to Tort Liability Compensation, 76 J. RISK & INSURANCE 367 (2009).\nIt is worth noting that the data cited above, regarding torts costs in the U.S., is hotly\ncontroversial: it comes from a consultant to the insurance industry now named Towers-Watson,\nformerly Tillinghast or Towers-Perrin. Critics contend that the Towers-Watson data is misleading\nand tendentious and that the insurance industry aims to use it to promote legislation that would\nreduce tort costs and thus serve the interests of insurers and the tort defendants they insure. See,\ne.g., Lawrence Chimerine & Ross Eisenbrey, The Frivolous Case for Tort Law Change, ECON.\nPOL\xe2\x80\x99Y INST. (May 16, 2005), https://perma.cc/6BRJ-UYP5. The critics complain both that certain\nelements of the cost calculation, such as insurance executive compensation, ought to be excluded,\nand that Towers-Watson and its predecessors misstate the concept of costs in the tort system.\nBoth critiques have some force. The latter critique in particular has obvious merit. Why, after all,\ncall the monetary transfers in the tort system the \xe2\x80\x9ccosts\xe2\x80\x9d of tort law? The costs might much better\nbe described as the underlying injuries plus avoidance costs plus the costs of administering claims\nwhen injuries happen. Is it a \xe2\x80\x9ccost\xe2\x80\x9d when tort law transfers money from wrongdoer to victim? Or\nis it a \xe2\x80\x9ccost\xe2\x80\x9d when a wrongdoer injured the victim in the first place? For a general theory of the\nsum of accident costs, see GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970).\nDespite the criticisms, however, there is also a good reason to use the insurers\xe2\x80\x99 data as a\nbasic measure of the tort system. For the startling thing about tort law in the United States is that\ninsurers\xe2\x80\x99 private information is the only way we can even possibly begin to grasp the full size and\nscope of the tort system. This is worth emphasizing again: the biggest insurers and only the\nbiggest insurers are in a position to see the macro trends in the field. The reason is that the\npervasiveness of private settlement ensures that there is no public repository of information about\nthe fate of most tort claims, sometimes virtually all tort claims. Nothing in the law of torts or in\nthe law of settlement contracts even requires that a claim be filed with a court before it is\ncontractually extinguished in a settlement agreement. To the contrary, the parties can save money\non the cost of drafting and filing a complaint and share those savings between them if they settle\nbefore filing the claim in a courthouse. There is thus often not even a single trace in the public\nrecord of a tort claim, even one that produces a substantial settlement. Indeed, many plaintiffs\nreceive higher settlement awards precisely in return for their promise to keep the terms of the\nsettlement and even the fact of their claim confidential\xe2\x80\x94promises that are enforceable under\ncurrent law, despite the protests of many well-positioned observers.\n\n13\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nIn short, the only institutions that could possibly know the overall size of the American\ntort system are the insurers. And that tells us a lot about the system we are studying. It is partydriven, highly opaque, radically decentralized, and vast. Taken together, these features present\nthe tort lawyer with an important challenge: What goals or moral projects could possibly be so\nimportant as to make U.S. tort law worth its stunningly high costs?\n\n5. Accident Rates and the Deterrence Goal\nOne goal tort jurists often advance is the deterrence of unreasonably dangerous conduct.\nThe logic here is simple and intuitively attractive. Tort law raises the price of injurious behavior.\nAs a result, the logic goes, the prospect of tort liability should decrease the amount of injurious\nbehavior in the world. Deterrence theory has further implications and wrinkles. We will return to\nthese at a number of junctures later in the book. But the important point for now is that the risk of\ntort damages ought to lead rational parties to take into account the costs of their behavior in a way\nthey might not, absent tort liability.\nOf course, tort law is one of many regulatory mechanisms that aim to accomplish the goal\nof improving safety standards. Consider, for example, state inspection regimes for everything\nfrom housing code compliance to factory employment standards. The federal Food and Drug\nAdministration seeks to guarantee the safety of pharmaceuticals and food products. The Federal\nHighway Administration\xe2\x80\x99s Office of Safety issues regulations and guidelines with an eye toward\nautomobile accidents. The Consumer Product Safety Commission does the same for consumer\ngoods. Even aside from regulators, the market itself creates many incentives for safety on the part\nof market actors seeking to attract buyers, passengers, or clients.\nDoes tort law add to the deterrence function played by these other regulatory institutions?\nFormal evidence is considerably more difficult to come by, in no small part because of the\ndifficulties described above in obtaining good information about the size and significance of tort\ncosts. Nonetheless, anecdotal evidence suggests that in the United States tort law does shape\nbehavior around risk and safety. We routinely read news stories about firms that claim to have\nmade some decision\xe2\x80\x94often an unpopular one\xe2\x80\x94on the basis of the risk of litigation.\nConsider the big picture trends in accidental and violent injuries over time. For the past\nhalf-century and more\xe2\x80\x94precisely the time during which tort costs have soared\xe2\x80\x94rates of\naccidental death have declined substantially. This is not to say that tort law has caused that\ndecline. It might be the case that causation runs in the other direction: improvements in safety\nmay have generated higher expectations of safety and thus led to heightened standards in tort law.\nEither way, the trend is striking. Since 1960, accidental deaths in the United States have fallen by\nnearly half.\n\n14\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nSource: Statistical Abstracts of the U.S. (2014).\n\n15\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nMuch of this change continues a trend that began long before 1960. Excluding motor\nvehicle accidents, accidental deaths fell from around a hundred per 100,000 people in the\npopulation annually to less than thirty by 1975.\n\nEven motor vehicle accidental death rates have dropped during the past sixty years.\n\n16\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nAge-adjusted Death Rates for Unintentional Injuries and Motor-vehicle-related Injuries:\nUnited States, selected years 1950-2010 (per 100,000 population)\n90.0\n80.0\n70.0\n60.0\n50.0\n\nUnintentional\ninjuries..........................\n\n40.0\n\nMotor vehicle-related\ninjuries................\n\n30.0\n20.0\n10.0\n0.0\n1950\n\n1960\n\n1970\n\n1980\n\n1990\n\n2000\n\n2010\n\nSource: Center for Disease Control and Prevention, https://perma.cc/V87X-9W64.\n\nIf we adjust motor vehicle accidental death rates by miles traveled, the drop in motor\nvehicle traffic fatalities has been even more pronounced.\n\nMotor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles\nTraveled), 1899-2009\n\nSource: National Highway Traffic Safety Administration, An Analysis of the Significant Decline in Motor\nVehicle Traffic Fatalities in 2008, U.S. DEP\xe2\x80\x99T TRANSP. 12, (June 2010), https://perma.cc/F5SV-FKAV.\n\n17\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nYet if our goal in tort law is to deter unreasonably dangerous actions, as many observers\nargue it is or at least ought to be, the connections between deterrence and a case like Vosburg are\nnot at all clear. Is it reasonable to think that the prospect of tort damages payments\xe2\x80\x94or even the\nprospect of interminable tort litigation\xe2\x80\x94will alter the behavior of children in a classroom? In this\ndomain, at least, using tort law to induce appropriately safe behavior by children seems a fool\xe2\x80\x99s\nerrand, at least so long as we are trying to alter the behavior of children with monetary sanctions\naimed at the children themselves. (Monetary awards against the school or the teachers might be\nfar more effective, even if controversial for other reasons.)\nMany scholars believe that the notion of tort damages shaping behavior is unlikely even in\nother domains where it might seem more plausible than in the middle-school classroom. We will\nreturn to this problem repeatedly in this book. For now, it is sufficient to observe that the critics\npoint to a myriad of factors that they say get in the way of translating prospective tort damages\ninto a safer behavior. Some parties are not susceptible to being incentivized in the relevant\nrespect by cash. Others act irrationally. Still others act rationally and are responsive to monetary\nincentives, but are protected from tort damages by third parties who will pay the damages, such as\nliability insurers or employers. Some may be sheltered from the threat of paying tort damages\nbecause they have time horizons shorter than the 4-plus years that it took Vosburg to conclude.\nThis is not to say that deterrence is an impossible goal, or that deterrence ought not be\nthought of as an important function of tort law. We will see considerable support for the idea that\ntort damages do shape behavior in many contexts. Nonetheless, the effort to shape behavior and\ninduce safety offers at best a partial justification for tort law.\n\n6. Expressing Moral Judgments and Correcting Injustice\nAnother way we could defend tort law in light of its high costs would be to describe it as\nexpressing our moral judgments about wrongful behavior and calling wrongdoers to account.\nJudgments of liability signify that a defendant has wronged a plaintiff\xe2\x80\x94and, further, that the\ncommunity sees and acknowledges that wrong. They also call upon the defendant to repair the\ndamage done.\nIf we understand tort law this way, we might care much less about the behavioral effects\nof particular legal rules or judgments, because deterrence would not be the most important goal.\nStating that a particular course of conduct crossed the line has a value that is separable from\ndiscouraging the conduct in the first instance. We also might think differently about cost: it might\nbe worth a lot to pursue the questions of right and wrong that torts cases commonly raise, both for\nthe actors involved and for society. And it might not be surprising that inquiries into such\nquestions are considerably more complex (and costly) than the kinds of inquiries Social Security\nclaims administrators or insurance claims adjusters need to make.\nAs with the deterrence goal, we will continue to discuss expressive values and corrective\njustice throughout this book. For now it is important to observe that these ideas may play an\nespecially powerful role in accounting for the distinctive features of intentional torts. These are\noften distinctively wrongful acts, arising out of conduct that has little or no social value. Our law\nof intentional torts helps mark out such acts as wrongful, reinforcing our moral commitments\nwhile providing wronged parties recognition and repair.\n18\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nLater in the book, we will often find ourselves wondering what, if anything, makes an\nactor\xe2\x80\x99s conduct wrongful. Where that line is unclear, ideas about expressing moral judgment and\ncorrecting injustice are less helpful, for they come with no internal metric for distinguishing\nwrongful conduct from conduct that is justified. In this discussion of battery, however, we face\nno such conundrum. Here, wrongfulness arises out of the relationship between the defendant\xe2\x80\x99s\nintentionality and the plaintiff\xe2\x80\x99s injury. A plaintiff in an intentional tort suit is essentially saying,\n\xe2\x80\x9cThe defendant meant to hurt me!\xe2\x80\x9d That meaning\xe2\x80\x94that intent\xe2\x80\x94makes the conduct wrongful.\nThe next case and the following notes take up intent with more specificity. What does it\nmean to act intentionally in the world of tort law?\n\n7. Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)\nHILL, J.\nBrian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a\nsister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff\xe2\x80\x99s home, on\nJuly 16, 1951. It is plaintiff\xe2\x80\x99s contention that she came out into the back yard to talk with Naomi\nand that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it\nout from under her. The only one of the three persons present so testifying was Naomi Garratt.\n(Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to\naccept this testimony, adopted instead Brian Dailey\xe2\x80\x99s version of what happened, and made the\nfollowing findings:\nIII. . . . [T]hat while Naomi Garratt and Brian Dailey were in the back yard the\nplaintiff, Ruth Garratt, came out of her house into the back yard. Some time\nsubsequent thereto defendant, Brian Dailey, picked up a lightly built wood and\ncanvas lawn chair which was then and there located in the back yard of the above\ndescribed premises, moved it sideways a few feet and seated himself therein, at\nwhich time he discovered the plaintiff, Ruth Garratt, about to sit down at the place\nwhere the lawn chair had formerly been, at which time he hurriedly got up from the\nchair and attempted to move it toward Ruth Garratt to aid her in sitting down in the\nchair; that due to the defendant\xe2\x80\x99s small size and lack of dexterity he was unable to\nget the lawn chair under the plaintiff in time to prevent her from falling to the\nground. That plaintiff fell to the ground and sustained a fracture of her hip, and other\ninjuries and damages as hereinafter set forth.\nIV. That the preponderance of the evidence in this case establishes that when the\ndefendant, Brian Dailey, moved the chair in question he did not have any willful or\nunlawful purpose in doing so; that he did not have any intent to injure the plaintiff,\nor any intent to bring about any unauthorized or offensive contact with her person\nor any objects appurtenant thereto; that the circumstances which immediately\npreceded the fall of the plaintiff established that the defendant, Brian Dailey, did\nnot have purpose, intent or design to perform a prank or to effect an assault and\nbattery upon the person of the plaintiff. (Italics ours, for a purpose hereinafter\nindicated.)\n19\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nIt is conceded that Ruth Garratt\xe2\x80\x99s fall resulted in a fractured hip and other painful and\nserious injuries. To obviate the necessity of a retrial in the event this court determines that she\nwas entitled to a judgment against Brian Dailey, the amount of her damage was found to be\n$11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a\njudgment in that amount or a new trial.\n...\nIt is urged that Brian\xe2\x80\x99s action in moving the chair constituted a battery. A definition (not\nall-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful\nbodily contact upon another. The rule that determines liability for battery is given in 1\nRestatement, Torts, 29, \xc2\xa7 13 [1934], as:\nAn act which, directly or indirectly, is the legal cause of a harmful contact with\nanother\xe2\x80\x99s person makes the actor liable to the other, if\n(a) the act is done with the intention of bringing about a harmful or offensive\ncontact or an apprehension thereof to the other or a third person, and\n(b) the contact is not consented to by the other or the other\xe2\x80\x99s consent thereto is\nprocured by fraud or duress, and\n(c) the contact is not otherwise privileged.\nWe have in this case no question of consent or privilege. We therefore proceed to an immediate\nconsideration of intent and its place in the law of battery. In the comment on clause (a), the\nRestatement says:\nCharacter of actor\xe2\x80\x99s intention. In order that an act may be done with the intention\nof bringing about a harmful or offensive contact or an apprehension thereof to a\nparticular person, either the other or a third person, the act must be done for the\npurpose of causing the contact or apprehension or with knowledge on the part of the\nactor that such contact or apprehension is substantially certain to be produced . . . .\nWe have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff\nproved to the satisfaction of the trial court that Brian moved the chair while she was in the act of\nsitting down, Brian\xe2\x80\x99s action would patently have been for the purpose or with the intent of causing\nthe plaintiff\xe2\x80\x99s bodily contact with the ground, and she would be entitled to a judgment against him\nfor the resulting damages. Vosburg v. Putney, supra.\nThe plaintiff based her case on that theory, and the trial court held that she failed in her\nproof and accepted Brian\xe2\x80\x99s version of the facts rather than that given by the eyewitness who\ntestified for the plaintiff. After the trial court determined that the plaintiff had not established her\ntheory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was\nin the act of sitting down), it then became concerned with whether a battery was established under\nthe facts as it found them to be.\nIn this connection, we quote another portion of the comment on the \xe2\x80\x98Character of actor\xe2\x80\x99s\nintention,\xe2\x80\x99 relating to clause (a) of the rule from the Restatement heretofore set forth:\nIt is not enough that the act itself is intentionally done and this, even though the\nactor realizes or should realize that it contains a very grave risk of bringing about\n20\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nthe contact or apprehension. Such realization may make the actor\xe2\x80\x99s conduct\nnegligent or even reckless but unless he realizes that to a substantial certainty, the\ncontact or apprehension will result, the actor has not that intention which is\nnecessary to make him liable under the rule stated in this section.\nA battery would be established if, in addition to plaintiff\xe2\x80\x99s fall, it was proved that, when Brian\nmoved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down\nwhere the chair had been. If Brian had any of the intents which the trial court found, in the\nitalicized portions of the findings of fact quoted above, that he did not have, he would of course\nhave had the knowledge to which we have referred. The mere absence of any intent to injure the\nplaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her\nwould not absolve him from liability if in fact he had such knowledge. . . . Without such\nknowledge, there would be nothing wrongful about Brian\xe2\x80\x99s act in moving the chair and, there\nbeing no wrongful act, there would be no liability.\nWhile a finding that Brian had no such knowledge can be inferred from the findings made,\nwe believe that before the plaintiff\xe2\x80\x99s action in such a case should be dismissed there should be no\nquestion but that the trial court had passed upon that issue; hence, the case should be remanded for\nclarification of the findings to specifically cover the question of Brian\xe2\x80\x99s knowledge, because\nintent could be inferred therefrom. If the court finds that he had such knowledge the necessary\nintent will be established and the plaintiff will be entitled to recover, even though there was no\npurpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such\nknowledge, there was no wrongful act by him and the basic premise of liability on the theory of a\nbattery was not established.\n...\nThe cause is remanded for clarification, with instructions to make definite findings on the\nissue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to\nsit down where the chair which he moved had been, and to change the judgment if the findings\nwarrant it.\n\nNotes\n\n1. Intentionality: the Restatement view. What counts as an intention with respect to some\nconsequence? One answer comes from the authors of the influential Restatement of Torts, an\nauthoritative account of the common law published by leading lawyers in a century-old private\norganization known as the American Law Institute (ALI) based in Philadelphia. The ALI\npublished the first Torts Restatement in 1934. Thirty years later, the organization published an\nupdate known as the Second Restatement. A third Restatement has been coming out in pieces for\nthe past decade. The ALI Restatements have been highly influential in torts, and each\nRestatement has adopted its own distinctive approach. Today, lawyers and judges commonly cite\nboth the Second and Third Restatements.\nSection 1 of the Restatement (Third) of Torts: Liability for Physical & Emotional Harm,\npublished in 2010, offers an updated definition of the intent required for battery\xe2\x80\x94one that is\nlargely similar to the definition adopted in the First Restatement in 1934 and quoted in Garratt v.\n21\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nDailey, 279 P.2d 1091 (Wash. 1955). According to the Third Restatement, \xe2\x80\x9cA person acts with\nthe intent to produce a consequence if: (a) the person acts with the purpose of producing that\nconsequence; or (b) the person acts knowing that the consequence is substantially certain to\nresult.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 1 (2010).\n\n2. Knowledge with substantial certainty as intent. The Restatement\xe2\x80\x99s position on\nknowledge of the substantial certainty that a consequence will result raises important questions\nabout the boundaries of intentional torts. When does knowledge of the likelihood of a\nconsequence amount to substantial certainty? Consider, for example, an employer who employs\nmany employees in work with known hazards. Is the employer substantially certain that injury to\none or more employees will result? It follows from the law of large numbers that a certain\nnumber of injuries will occur in such situations. Some courts have held that being aware of the\nrisk of harm is not the same as knowing that harm will occur with substantial certainty. See\nTomeo v. Thomas Whitesell Constr. Co., 823 A.2d 769, 772 (N.J. 2003) (holding that plaintiffemployee, who was injured by a snow blower in the scope of employment, could not use\ndefendant-employer\xe2\x80\x99s awareness of the inherent risks in operating a snow blower to establish\nsubstantial certainty). The Tomeo Court held that \xe2\x80\x9cmere knowledge and appreciation of risk\xe2\x80\x94\nsomething short of substantial certainty\xe2\x80\x94is not intent.\xe2\x80\x9d Id. (internal quotation marks omitted).\nCourts in other jurisdictions have echoed Tomeo\xe2\x80\x99s holding. See, e.g., Adams v. Time Saver Stores,\n615 So. 2d 460, 462 (La. Ct. App. 1993) (holding that the mere foreseeability of an injury does\nnot establish substantial certainty).\nOther cases, however, have approached the issue differently. For example, in Laidlow v.\nHariton Machinery Co., 790 A.2d 884 (N.J. 2002), the plaintiff-employee successfully established\nthat the defendant-employer acted with substantial certainty of the consequences of injury to the\nplaintiff where the defendant disabled a safety device and enabled it only when OSHA inspectors\nwere present.\nThe more common position, consistent with cases like Tomeo, was adopted in Shaw v.\nBrown & Williamson Tobacco Corp., 973 F. Supp. 539 (D. Md. 1997), in which plaintiff truckdriver, who shared a cab with a heavy smoker, sued his partner\xe2\x80\x99s cigarette manufacturer for\nbattery by smoke. The Shaw case also raised a different aspect of intent: its supposed\n\xe2\x80\x9ctransferability.\xe2\x80\x9d It is well accepted that the law of battery will allow for transferred intent: when\nA intentionally strikes at B and hits B\xe2\x80\x99s companion C instead, the error does not undercut A\xe2\x80\x99s\nbattery liability to C. If the common law recognizes a theory of transferred intent, why not also a\ndoctrine of transferred intent on a larger scale where the defendant knew to a certainty that its\nsmoke would come into contact with many third parties? District Judge Walter E. Black, Sr.,\nrejected the extension of the transferred intent doctrine to the more general smoking context:\nBrown & Williamson did not know with a substantial degree of certainty that\nsecond-hand smoke would touch any particular non-smoker. While it may have had\nknowledge that second-hand smoke would reach some non-smokers, the Court finds\nthat such generalized knowledge is insufficient to satisfy the intent requirement for\nbattery. Indeed, as defendant points out, a finding that Brown & Williamson has\ncommitted a battery by manufacturing cigarettes would be tantamount to holding\nmanufacturers of handguns liable in battery for exposing third parties to gunfire.\nSuch a finding would expose the courts to a flood of farfetched and nebulous\nlitigation concerning the tort of battery.\n22\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\n973 F. Supp. at 548. The Restatement authors agree with Judge Black. The substantial certainty\ndoctrine, the Restatement asserts, should be limited to cases in which \xe2\x80\x9cthe defendant has\nknowledge to a substantial certainty that the conduct will bring about harm to a particular victim\nor to someone within a small class of potential victims within a localized area.\xe2\x80\x9d RESTATEMENT\n(THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 1 cmt. e (2010) (emphasis added). Why limit the tort\nof battery in this way?\n\n3. Is intentionality intuitive? The famed Supreme Court justice Oliver Wendell Holmes, Jr.,\nonce claimed that \xe2\x80\x9ceven a dog knows the difference between being kicked and being stumbled\nover.\xe2\x80\x9d OLIVER WENDELL HOLMES, JR., THE COMMON LAW 3 (1881). Yet research from\ndevelopmental psychology paints a more complicated picture.\nIt is true that the ability to distinguish intentional from unintentional action is a\nfoundational skill that emerges early in development. Chimpanzees, orangutans, and eightmonth-old human infants can reliably discriminate between purposeful and accidental action.\nJosep Call & Michael Tomasello, Distinguishing Intentional from Accidental Actions in\nOrangutans (Pongo Pygmaeus) and Chimpanzees (Pan Troglodytes) and Human Children, 122 J.\nCOMP. PSYCHOL. 192 (1998). This faculty plays an essential role in helping children acquire\nlanguage and develop interpersonal skills. In fact, preschoolers whose ability to infer others\xe2\x80\x99\nintentions is disrupted, often due to maltreatment or physical abuse, are at heightened risk for later\nsocial maladjustment and behavioral problems. See Kenneth A. Dodge, John E. Bates & Gregory\nS. Petit, Mechanisms in the Cycle of Violence, 250 SCIENCE 1678 (1990). Indeed, some have\nargued that our ability to identify unintentional harms as accidents and to respond with\nforgiveness is what allows for the evolution of cooperative societies in which individuals\ncoordinate their behavior to maximize collective welfare. E.g., Drew Fudenberg, David G. Rand\n& Anna Dreber, Slow to Anger and Fast to Forgive: Cooperation in an Uncertain World, 102\nAM. ECON. REV. 720 (2012).\nYet while the distinction between intentional and accidental behavior is intuitive for apes\nand babies alike, we do not always use this distinction when forming moral judgments. For\ninstance, the celebrated developmental psychologist Jean Piaget observed in 1932 that young\nchildren consider it morally worse (\xe2\x80\x9cnaughtier\xe2\x80\x9d) for a child to make a large ink stain accidentally\nthan to make a small stain intentionally. Older children, he noticed, felt just the opposite. Since\nPiaget\xe2\x80\x99s discovery, this developmental trajectory has been extensively documented. Preschoolers\ntend to judge the moral valence of an act by focusing on its outcome and largely ignoring the\nagent\xe2\x80\x99s beliefs and intentions. By around age 6, children begin to condemn actions on the basis of\nthe agent\xe2\x80\x99s mental states such as intent to harm. In other words, children shift from outcomebased moral judgment to intent-based moral judgment as they age. Fiery Cushman, Rachel\nSheketoff, Sophie Wharton & Susan Carey, The Development of Intent-Based Moral Judgment,\n127 COGNITION 6 (2013).\nUnder some circumstances, adults will also exhibit a tendency to focus on outcomes rather\nthan intentions when judging actions that result in harm. Research from cognitive psychology\ndemonstrates that adults who are placed under time pressure and asked to make hurried moral\njudgments show a systematic bias toward judging actions as intentional. In their haste, these\ndecision-makers will say that harms were intentional. Given more time to make their decisions,\nthey revert to saying that harms were unintentional. Evelyn Rosset, It\xe2\x80\x99s No Accident: Our Bias\n23\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nfor Intentional Explanations, 108 COGNITION 771 (2008). This work suggests that we tend to\nadopt a default assumption that actions are undertaken intentionally and that it takes mental effort\nto persuade ourselves to abandon our initial stance. This finding is consistent with the\ndevelopmental pattern showing that sensitivity to harm is relatively automatic, manifests early in\nchildhood, and is continuous throughout development, while sensitivity to intentions emerges\nlater and requires more cognitive resources.\n\n4. Intent to be harmful or offend? In cases where a defendant has the requisite mental state\nwith respect to the consequences of a volitional act\xe2\x80\x94the movement of his foot, culminating in\ncontact with another\xe2\x80\x99s leg\xe2\x80\x94there is still a question of whether the defendant\xe2\x80\x99s mental state must\nextend not only to the fact of the contact but also to its harmfulness or offensiveness. Need the\nplaintiff show that the defendant intended a harmful or offensive contact, with specific intent to do\nharm or cause offense? Or is it sufficient to establish that the defendant intended a contact, where\nthe contact is properly deemed harmful or offensive by the community? By whose standards must\na contact have been harmful or offensive? The defendant\xe2\x80\x99s or the court\xe2\x80\x99s? Vosburg sheds a little\nlight on this question, but not much. Judge Lyon held that the plaintiff need not establish that a\ndefendant intended to harm him, but merely that the defendant intended to make an \xe2\x80\x9cunlawful\xe2\x80\x9d\ncontact. But Judge Lyon\xe2\x80\x99s formulation is decidedly unhelpful, since, after all, what we want to\nknow is what kinds of contact the law rules out. Telling us that the law will sanction unlawful\ncontacts gets us nowhere!\nThe Utah Supreme Court took on precisely this question in Wagner v. State, 122 P. 3d 599\n(Utah 2005), involving a mentally disabled person who, while out at a K-Mart store with\ncaretakers, allegedly grabbed another shopper by the head and hair and threw her to the ground.\nIf it was true, as one party to the litigation argued, that the person who inflicted the harm did not\nhave the capacity to appreciate the harmful or offensive nature of his actions, could the intent\nrequirement for battery be established? The Court offered the following discussion:\nThe Restatement defines a battery as having occurred where \xe2\x80\x9c[an actor] acts\nintending to cause a harmful or offensive contact.\xe2\x80\x9d Restatement (Second) of Torts\n\xc2\xa7 13. The comments to the definition of battery refer the reader to the definition of\nintent in section 8A. Id. \xc2\xa7 13 cmt. c. Section 8A reads:\nThe word \xe2\x80\x9cintent\xe2\x80\x9d is used throughout the Restatement of this Subject to denote\nthat the actor desires to cause the consequences of his act, or that he believes\nthat the consequences are substantially certain to result from it.\nId. \xc2\xa7 8A (emphasis added).\nAlthough this language might not immediately seem to further inform our analysis,\nthe comments to this section do illustrate the difference between an intentional act\nand an unintentional one: the existence of intent as to the contact that results from\nthe act. Because much of the confusion surrounding the intent element required in\nan intentional tort arises from erroneously conflating the act with the consequence\nintended, we must clarify these basic terms as they are used in our law before we\nanalyze the legal significance of intent as to an act versus intent as to the\nconsequences of that act.\n24\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nSection 2 of the Restatement (Second) of Torts defines the term \xe2\x80\x9cact\xe2\x80\x9d as \xe2\x80\x9can external\nmanifestation of the actor\xe2\x80\x99s will and does not include any of its results, even the\nmost direct, immediate, and intended.\xe2\x80\x9d Id. \xc2\xa7 2. To illustrate this point, the\ncomments clarify that when an actor points a pistol at another person and pulls the\ntrigger, the act is the pulling of the trigger. Id. at cmt. c. The consequence of that\nact is the \xe2\x80\x9cimpingement of the bullet upon the other\xe2\x80\x99s person.\xe2\x80\x9d Id. It would be\nimproper to describe the act as \xe2\x80\x9cthe shooting,\xe2\x80\x9d since the shooting is actually the\nconflation of the act with the consequence. For another example, the act that has\ntaken place when one intentionally strikes another with his fist \xe2\x80\x9cis only the\nmovement of the actor\xe2\x80\x99s hand and not the contact with the others body immediately\nestablished.\xe2\x80\x9d Id. Thus, presuming that the movement was voluntary rather than\nspastic, whether an actor has committed an intentional or negligent contact with\nanother, and thus a tort sounding in battery or negligence, depends not upon whether\nhe intended to move his hand, but upon whether he intended to make contact\nthereby.\nThe example the Restatement sets forth to illustrate this point is that of an actor\nfiring a gun into the Mojave Desert. Restatement (Second of Torts) \xc2\xa7 8A cmt. a. In\nboth accidental and intentional shootings, the actor intended to pull the trigger. Id.\nBattery liability, rather than liability sounding in negligence, will attach only when\nthe actor pulled the trigger in order to shoot another person, or knowing that it was\nsubstantially likely that pulling the trigger would lead to that result. Id. \xc2\xa7 8A cmts.\na & b. An actor who intentionally fires a bullet, but who does not realize that the\nbullet would make contact with another person, as when \xe2\x80\x9cthe bullet hits a person\nwho is present in the desert without the actor\xe2\x80\x99s knowledge,\xe2\x80\x9d is not liable for an\nintentional tort. Id.\nA hunter, for example, may intentionally fire his gun in an attempt to shoot a bird,\nbut may accidentally shoot a person whom he had no reason to know was in the\nvicinity. He intended his act, pulling the trigger, but not the contact between his\nbullet and the body of another that resulted from that act. Thus, he intended the act\nbut not the consequence. It is the consequential contact with the other person that\nthe actor must either intend or be substantially certain would result, not the act\xe2\x80\x94\npulling the trigger\xe2\x80\x94itself. He is therefore not liable for an intentional tort because\nhis intentional act resulted in an unintended contact. On the other hand, the actor is\nliable for an intentional tort if he pulled the trigger intending that the bullet released\nthereby would strike someone, or knowing that it was substantially likely to strike\nsomeone as a result of his act. Id. at cmts. a & b.\nCan an actor who acknowledges that he intentionally pulled the trigger, and did so\nwith the intent that the bullet make contact with the person of another, defeat a\nbattery charge if he can show that he did so only as a joke, or did not intend that the\ncontact between the bullet and the body of the person would cause harm or offense\nto that person?\nNo, the court answered, he may not. \xe2\x80\x9cThe linchpin to liability for battery is not a guilty mind, but\nrather an intent to make a contact the law forbids. The actor need not appreciate that his contact is\nforbidden; he need only intend the contact, and the contact must, in fact, be forbidden.\xe2\x80\x9d Id. at 60405.\n25\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nAs for what kind of contact is \xe2\x80\x9cin fact, forbidden,\xe2\x80\x9d the Wagner court offered the following\nguidance:\nA harmful or offensive contact is simply one to which the recipient of the contact\nhas not consented either directly or by implication. Prosser [and Keeton on the\nLaw of Torts], supra, \xc2\xa7 9, at 41\xe2\x80\x9342. Under this definition, harmful or offensive\ncontact is not limited to that which is medically injurious or perpetrated with the\nintent to cause some form of psychological or physical injury. Instead, it includes\nall physical contacts that the individual either expressly communicates are\nunwanted, or those contacts to which no reasonable person would consent.\nWhat is not included in this definition are the uncommunicated idiosyncratic\npreferences of individuals not to be touched in ways considered normal and\ncustomary in our culture. Instead, the law assumes consent to contacts \xe2\x80\x9caccording\nto the usages of decent society,\xe2\x80\x9d and unless an individual expressly states that he\ndoes not want to shake hands, for example, someone who shakes his hand against\nhis silent wishes has not committed a harmful or offensive contact. Id. \xc2\xa7 9, at 42.\nAs Prosser notes in his analysis on the subject, \xe2\x80\x9cin a crowded world, a certain\namount of personal contact is inevitable, and must be accepted. Absent expression\nto the contrary, consent is assumed to all those ordinary contacts which are\ncustomary and reasonably necessary to the common intercourse of life.\xe2\x80\x9d Id.\nAmong the contacts Prosser noted as part of this common intercourse were: \xe2\x80\x9ca tap\non the shoulder,\xe2\x80\x9d \xe2\x80\x9ca friendly grasp of the arm,\xe2\x80\x9d and \xe2\x80\x9ca casual jostling to make a\npassage.\xe2\x80\x9d Id. Thus, the tort of battery seeks to strike a balance between preserving\nthe bodily integrity of others and recognizing and accommodating the realities of\nour physical world.\nBecause the law defines \xe2\x80\x9charmful and offensive\xe2\x80\x9d with reference to the mores of\npolite society, and protects against invasions of bodily integrity perpetrated outside\nthose bounds, whether consent is assumed also depends upon who is making the\ncontact. For example, it seems clear that \xe2\x80\x9cthe usages of a decent society\xe2\x80\x9d and\n\xe2\x80\x9cpolite manners\xe2\x80\x9d are in nowise offended when a baby reaches out to perform the\nnon-medically injurious act of stroking the hair of a nearby stranger. Such\nencounters with babies are \xe2\x80\x9ccustomary ... in the course of life.\xe2\x80\x9d Id. \xc2\xa7 9, at 42.\nThus, we can include this type of contact from babies in the category of contacts\nfor which we are assumed to have consented. A grown man, on the other hand,\nperpetrating the same act for equally complimentary reasons, would not enjoy the\nsame privilege, for his behavior would not be considered by reasonable people to\nbe a customary contact in decent society to which members consent.\nId. at 609. How does this discussion of harmfulness and offensiveness square with the court\xe2\x80\x99s\nopinion in Vosburg? Does it capture Judge Lyon\xe2\x80\x99s sense of what is \xe2\x80\x9cunlawful\xe2\x80\x9d?\nNote that not all jurisdictions agree with the Wagner court\xe2\x80\x99s holding on the nature of the\nintent requirement for battery. Some tolerate a body of case law that, when examined closely, is\nambiguous and inconsistent. And some go the other way, affirmatively embracing the \xe2\x80\x9cdual\nintent\xe2\x80\x9d formulation that the Wagner court rejected. See, e.g., White v. University of Idaho, 595\n26\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nP.2d 108 (Idaho 1990). For these dual intent jurisdictions, the plaintiff must prove that the\ndefendant (1) intended to make contact with another person, and (2) understood that the contact\nwould be harmful or offensive.\nIn many cases, this difference in interpretation will not produce different outcomes. But\nsometimes it will. The following note raises implications for persons with mental, intellectual, or\ncognitive impairments. In what other kinds of scenarios might this interpretive difference (single\nintent versus dual intent) prove determinative?\n\n5. Capacity, ability, and the intent requirement. Should it have mattered in Wagner that the\nperson who allegedly struck the plaintiff had \xe2\x80\x9cthe mental age of a small infant,\xe2\x80\x9d according to one\nparty? 122 P.3d at 604. Should such a divergence from typical adult mental functioning preclude\na finding of intent? The Wagner court rejected this argument. It was true, the court noted, that\nsuch a person\xe2\x80\x99s mental capacity might \xe2\x80\x9cinsulate him from criminal liability,\xe2\x80\x9d given the criminal\nlaw\xe2\x80\x99s stricter mens rea requirements. Id. at 610. But civil liability is different. Here, the\nultimate question is who should bear the cost of the plaintiff\xe2\x80\x99s injuries, and according to the\nWagner court, it should be the person who inflicted the harm, or that person\xe2\x80\x99s caretaker(s). The\ncourt also noted that \xe2\x80\x9clawmakers ha[d] specifically declined to exempt mentally handicapped or\ninsane individuals from the list of possible perpetrators of this tort for the express reason that they\nwould prefer that the caretakers of such individuals feel heightened responsibility to ensure that\ntheir charges do not attack or otherwise injure members of the public.\xe2\x80\x9d Id.\nAn oft-cited decision with a similar underlying fact pattern is McGuire v. Almy, 8 N.E.2d\n760 (Mass. 1937), in which the plaintiff, a private nurse, sued her patient, described by the court\nas \xe2\x80\x9can insane person,\xe2\x80\x9d for injuries that the defendant inflicted on the plaintiff during a violent\noutburst. On appeal from a judgment in the plaintiff\xe2\x80\x99s favor, the defendant\xe2\x80\x99s lawyer argued that\nthe defendant\xe2\x80\x99s insanity should have precluded a finding of intent. According to the court,\nhowever, the great weight of authority cut the other way\xe2\x80\x94not so much because the \xe2\x80\x9cunderlying\nprinciples of civil liability\xe2\x80\x9d dictated this result but because of \xe2\x80\x9cpublic policy\xe2\x80\x9d concerns and \xe2\x80\x9ca\npopular view of the requirements of essential justice\xe2\x80\x9d:\nThus it is said that a rule imposing liability tends to make more watchful those\npersons who have charge of the defendant and who may be supposed to have some\ninterest in preserving his property; that as an insane person must pay for his support,\nif he is financially able, so he ought also to pay for the damage which he does; that\nan insane person with abundant wealth ought not to continue in unimpaired\nenjoyment of the comfort which it brings while his victim bears the burden\nunaided; and there is also a suggestion that courts are loath to introduce into the\ngreat body of civil litigation the difficulties in determining mental capacity which\nit has been found impossible to avoid in the criminal field.\nId. at 327. Applying the dominant rule to this case, the court found that the jury could reasonably\nhave concluded \xe2\x80\x9cthat the defendant was capable of entertaining and that she did entertain an intent\nto strike and to injure the plaintiff and that she acted upon that intent.\xe2\x80\x9d Id. at 329. Whether some\n\xe2\x80\x9cdelusion or other consequence of h[er] affliction\xe2\x80\x9d caused her to do so was not relevant and would\nnot prevent the court from holding her financially responsible. Id. at 328. What does the\nreasoning in Wagner and McGuire suggest about the underlying goals or functions of tort law?\n27\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nDo these decisions vindicate utilitarian aims? Do you see in them corrective justice? What\nmessage do these decisions send about the community\xe2\x80\x99s values and commitments?\nFor a contrasting, more recent opinion, see White v. Muniz, 999 P.2d 814 (Colo. 2000), in\nwhich a plaintiff caretaker alleged battery by an elderly patient with senile dementia. Asked to\nreview the trial court\xe2\x80\x99s instructions to the jury on the intent requirement, the Colorado Supreme\nCourt emphasized Colorado\xe2\x80\x99s embrace of the dual intent approach and described insanity as \xe2\x80\x9ca\ncharacteristic, like infancy, that may make it more difficult to prove\xe2\x80\x9d that a defendant \xe2\x80\x9cintended\noffensive or harmful consequences.\xe2\x80\x9d Id. at 818. The court then reinstated the jury\xe2\x80\x99s verdict in the\ndefendant\xe2\x80\x99s favor. Given tort law\xe2\x80\x99s concern with wrongfulness, should courts be even more\nforgiving of people who cannot appreciate the wrongfulness of their conduct? Should the law of\nintentional torts treat mental illness or mental incapacity as a complete defense?\n\n6. The boundaries of intentionality. As we puzzle through the boundary between the\nintentional torts cause of action and other potential causes of action, one important question is\nwhat is at stake in guarding this boundary. As we will see in later chapters in this book, plaintiffs\nin cases such as Tomeo and Laidlow, described in Note 2, supra, would ordinarily have claims for\nunintentional torts available to them. Why then did their lawyers seek to advance an intentional\ntort theory instead? Most likely, the plaintiffs\xe2\x80\x99 attorneys in Tomeo and Laidlow were trying to\ncircumvent the workers\xe2\x80\x99 compensation statutes that provide modest compensation for workplace\ninjuries but also prohibit employees from suing their employers in tort for most unintentional\ninjuries arising in the course of their work. See, e.g., N.J. STAT. ANN. \xc2\xa7 34:15-8 (West 2013).\nThe lawyers for Ruth Garratt were probably also trying to get around a legal obstacle when they\ncharacterized Brian Dailey\xe2\x80\x99s act as an intentional tort rather than as the kind of unintentional but\nnegligent act for which, as we shall see in later chapters, plaintiffs may also obtain damages. For\nMs. Garratt, the problem was very likely that in an unintentional torts case, Dailey would have\nbeen held to a lenient standard of conduct measured by reference to children of like age and\nexperience.\nIn other domains, by contrast, plaintiffs have powerful incentives not to characterize their\ninjuries as intentional torts. One force that creates such an incentive is liability insurance: it\nusually does not cover intentional torts; as a result, a plaintiff who alleges an intentional tort rather\nthan a tortious accident may ultimately never be able to collect on the resulting judgment. See\nCatherine M. Sharkey, Revisiting the Noninsurable Costs of Accidents, 64 MD. L. REV. 409\n(2005). In suits against employers for the torts of their employees, plaintiffs face similar\nincentives to avoid intentional torts claims, since the intentionally caused injuries are often less\nlikely to be ruled within the scope of an employer\xe2\x80\x99s responsibility than unintentional but\nnegligently caused harms. Finally, state law often applies a shorter statute of limitations period to\nintentional torts, making it less likely that plaintiffs will bring intentional tort claims in a timely\nmanner and more likely that plaintiffs will have to find a different way of framing their claims.\nCompare N.Y. C.P.L.R. \xc2\xa7 215 (McKinney 2006) (providing a one-year statute of limitations for\nassault, battery, false imprisonment, libel, and slander), with N.Y. C.P.L.R. \xc2\xa7 214 (McKinney\n1986) (providing a three-year statute of limitations for unintentional personal injury and property\ndamage cases).\nThe boundary between intentional and unintentional torts is important for the law to police\nfor another, more theoretical, reason as well. For unintentionally inflicted injuries, the law\nsometimes allows defendants to draw on utilitarian arguments to escape responsibility for the\n28\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\ndamage they have caused\xe2\x80\x94to say, in essence, \xe2\x80\x9cYes, I created a risk of harm, and, in fact, I\nharmed you, but I should not have to pay for your injuries because my conduct improved the\nwelfare of society.\xe2\x80\x9d In the law of intentional torts, by contrast, utilitarian defenses to\nunconsented-to intentional acts are very narrowly cabined. If the law aims to preserve the\ndistinctiveness of these two domains at the case-by-case level\xe2\x80\x94utilitarian balancing for\nunintentional torts, on one hand, and its absence for intentional torts, on the other\xe2\x80\x94then the law\nhas to maintain the boundary between intentional and unintentional torts.\n\n7. Battery for the Era of #MeToo: possibilities and pitfalls. The #MeToo movement has\nmade clear that unwelcome sexual contact is common; that people of all gender identities and\nsexual orientations experience it; and that for many people, the criminal justice system appears to\nbe, or has proven to be, an unreliable ally. Might tort law, and specifically, the tort of battery,\noffer an alternative or complementary path toward justice? Why are tort actions not as salient a\npart of the public debate over sex assault, and especially campus sex assault, as one might expect?\nThere are a number of possible reasons. First, the time it takes to litigate is a powerful\ndisincentive. Even if the aggrieved party files right away, at a time when all the evidence is fresh,\na tort action can take years to complete, extending and perhaps exacerbating the trauma that many\nsurvivors experience in the wake of assault. Second, the broad discovery available in civil actions\nmeans that private and personal information about the plaintiff\xe2\x80\x99s life, including possibly\ninformation about past sexual conduct, can become public. (Cross examination during a trial is\noften crafted to discredit the plaintiff.) Third, common misconceptions about sexual violence\nhave led many people to believe that sexual assault cases somehow belong, uniquely, to the\ncriminal law; where a plaintiff pursues a tort action against an alleged perpetrator before the state\nprosecutes, the plaintiff may fear\xe2\x80\x94rightfully\xe2\x80\x94that the fact of the civil suit will hurt the chances\nof success in the criminal case, by imputing to the plaintiff a financial motive. Fourth, a tort suit\nmay not make financial sense. A person who has experienced sexual assault and is grappling with\nits aftermath might not want to spend valuable resources on a lawyer, and lawyers may be\nunwilling to take a case where the defendant would not be able to pay damages sufficient to\nprovide a worthwhile contingent fee. Note that expensive criminal cases can exhaust a putative\nassailant\xe2\x80\x99s financial resources before a plaintiff has the chance to collect, and in campus sexual\nassault cases, putative defendants will typically be young and therefore less likely to have\nsubstantial assets. In theory, a damages judgment could be used to collect against future assets.\nIn practice, judgment debtors will likely discharge personal injury debt in bankruptcy. See\ngenerally Ellen Bublick, Torts Suits Filed by Rape and Sexual Assault Victims in Civil Courts:\nLessons for Courts, Classrooms, and Constituencies, 59 SMU L. REV. 55 (2006); Ellen Bublick,\nCivil Tort Actions Filed by Victims of Sexual Assault: Promise and Perils, NATIONAL ONLINE\nRESOURCE CENTER ON VIOLENCE AGAINST WOMEN (2009), available at https://perma.cc/468P3X9J; see also Sarah Swan, Between Title IX and the Criminal Law: Bringing Tort Law to the\nCampus Sexual Assault Debate, 64 U. KAN. L. REV. 963 (2016) (documenting and explaining the\nabsence of tort law from public conversations about campus sexual assault). Last but not least,\nand as discussed in greater depth in the following pages, almost any plaintiff who files an\nintentional tort suit for sexual assault will run into arguments about consent, and with them a body\nof case law that includes controversial assumptions about the circumstances under which consent\nto sexual contact may be presumed or inferred.\nNevertheless, pursuing justice via tort law has advantages, especially as compared to a\ncriminal case. In a civil tort case, as we shall see later in this book, the plaintiff\xe2\x80\x99s burden of proof\n29\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nis a \xe2\x80\x9cpreponderance of the evidence\xe2\x80\x9d; proof in a criminal trial requires that the jury be convinced\nunder the higher standard of \xe2\x80\x9cbeyond a reasonable doubt,\xe2\x80\x9d a standard that is often impossible to\nmeet in sexual assault cases. Moreover, in a civil case the plaintiff controls the course of the\nlitigation and pursues private satisfaction (perhaps in the form of money damages, but also\nperhaps in the form of an apology or an agreement to stay away from previously shared spaces).\nThis is distinct from a criminal case, in which a public prosecutor controls the litigation in pursuit\nof a public punishment. See generally Ellen Bublick, Torts Suits Filed by Rape and Sexual\nAssault Victims in Civil Courts, 59 S.M.U. L. REV. 55 (2006).\nResearch suggests that tort suits against alleged assailants have been rising over the past\nseveral decades. One headline-grabbing example was pop star Taylor Swift\xe2\x80\x99s battery suit against\na radio talk show host. Swift claimed he lifted her dress and groped her during a pre-concert\nmeet-and-greet. A jury believed Swift and awarded her the symbolic $1 she sought. Emily Yahr,\nJury Says Taylor Swift Was Groped by Radio DJ, Awards Her a Symbolic $1 Verdict, WASH.\nPOST, Aug. 14, 2007. Recovery of more substantial damages in such suits appears infrequent,\nthough settlement practices obscure much from view. Tort actions for sexual assault and battery\nagainst third parties are more visibly successful, at least when such third parties bear some\nresponsibility for the assailant\xe2\x80\x99s actions. Survivors of sexual abuse by Michigan State University\nsports physician Lawrence Nassar sued the university on the theory that it was vicariously liable\nas employer for its employee Nassar\xe2\x80\x99s battery. Later in the book we will take up the subject of\nemployers\xe2\x80\x99 liability for the torts of their employees. For now, the important point is that the\nplaintiffs\xe2\x80\x99 complaint raised a classic battery cause of action, alleging that Nassar \xe2\x80\x9cintended to\ncause harmful or offensive contact with Plaintiff\xe2\x80\x99s person, or intended to put Plaintiff in imminent\napprehension of such contact.\xe2\x80\x9d Complaint at 20, Jane JD Doe v. Doe 1 (Cal. Super. Ct.\nSacramento 2016) (No. 34-2016-00200075), available at https://perma.cc/97RS-SS69. In the\nspring of 2018, Michigan State agreed to a $500 million dollar settlement with 332 plaintiffs.\nLater the same spring, a civil jury in Georgia awarded a rape victim an astounding $1 billion in\ndamages against the security firm that employed a guard who assaulted the plaintiff in her friend\xe2\x80\x99s\napartment complex. For more on tort suits against third parties for sexual violence and\nmisconduct, see Ellen Bublick, Torts Suits Filed by Rape and Sexual Assault Victims, supra;\nMartha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39 (2018).\nDespite, or perhaps because of such large awards, it is worth asking whether money\ndamages are the right way to address the harms of sexual assault. (Are such awards collectible?\nWho pays? We will return to such questions in a subsequent chapter of this book.) Are people\nwho experience the harm of sexual assault well-served by having to characterize their claims as\n\xe2\x80\x9cbatteries\xe2\x80\x9d\xe2\x80\x94a generic term for all types of harmful and offensive contact\xe2\x80\x94rather than as\nsomething more specific, something that better expresses the nature of the injury? Should there\nbe a tort called rape? See Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument\nfor Tort Law, 10 J. TORT LAW 1, 61-62 (2017). If you were able to craft such a tort from scratch,\nwhat would be its elements?\n\n8. The Knobe Effect. The philosopher Joshua Knobe has studied people\xe2\x80\x99s intuitions about\nthe distinction between intentional and unintentional effects. He makes an important finding,\nknown in the literature as the Knobe Effect: people label certain foreseen outcomes intentional\nand others unintentional on the basis of value judgments about the outcome. In particular, people\nare much more likely to attribute intentional responsibility to actors who foresaw (but did not care\nabout) bad outcomes than to those who foresaw (but did not care about) good ones. So, for\n30\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nexample, people attribute intentionality to the harms caused by a chief executive officer (CEO)\nwho approves a moneymaking plan that he knows will harm the environment, but do not attribute\nintentionality to the benefits caused by a CEO who approves a moneymaking plan that he knows\nwill help the environment. See Joshua Knobe, Intentional Action and Side Effects in Ordinary\nLanguage, 63 ANALYSIS 190-93 (2003).\nThe Knobe Effect is interesting in its own right. But it also suggests that our ostensibly\nfactual descriptions of the world are often, if not always, shot through with value-laden intuitions\nand influences. We speak of intent as if doing so will help us reach a reasoned outcome in\nanalyzing a case before us. But it turns out that the very tool with which we reason (\xe2\x80\x9cintent\xe2\x80\x9d) is\nalready saturated by the value judgments we hope such tools will help us make! We have already\nseen how awkwardly circular it was in Vosburg to try to use the idea of \xe2\x80\x9cunlawful contact\xe2\x80\x9d as a\ndoctrinal tool. The Knobe Effect suggests that the circularity problem may be much deeper: the\ndescriptions of the world on which our prescriptive analyses purport to be based may already be\nshaped by normative intuitions.\n\n9. The dispute pyramid. Before we move on, it is worth noting an important feature of the\ncases we have read so far, and, indeed, of every case we will read in this book. Not every\nschoolroom injury becomes a dispute. Not every dispute produces a claim. Not every claim is\nfiled. And, as Note 3 above observes, virtually every claim that is filed settles before trial.\nGalanter posits the dispute pyramid as an effective way to conceptualize our system:\nWe can imagine a bottom layer consisting of all the events in which . . . [i]n a small\nfraction . . . someone gets hurt. Let us call this layer injuries. Some of these injuries\ngo unperceived; in other instances someone thinks he is injured, even though he is\nnot. Thus we have a layer of perceived injuries . . . . In many cases, those who\nperceive injuries blame themselves or ascribe the injury to fate or chance. But some\nblame some human agency, a person, a corporation, or the government. To dispute\nanalysts, these are grievances. Among those with grievances, many do nothing\nfurther. . . . But some go on to complain, typically to the person or agency thought\nto be responsible. This is the level of claims. Some of these claims are granted in\nwhole or in part . . . . When claims are denied, they are denominated disputes. Some\nof these are abandoned without further action, but some disputes are pursued\nfurther. . . . [T]ypically this would be accomplished by taking the dispute to a\nlawyer. In analyzing such disputes, therefore, we call the next layer lawyers. Of\nthe disputes that get to lawyers, some are abandoned, some are resolved, and some\nend up as filings in court. Let us call this the filings layer. Most cases that are filed\neventually result in settlement. Typically only a small fraction reach the next layer\nof trials, and a small portion of these go on to become appeals.\nMarc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093, 1099-1101\n(1996).\nThe dispute pyramid conveys the fact that very few events and perceived injuries are\nresolved inside a courtroom. Galanter presents some real-world dispute pyramids:\n\n31\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nCommon Dispute Pyramids\n\nSource: Galanter, supra, at 1101.\n\nWhat this means is that the cases in this casebook\xe2\x80\x94cases that have reached an appellate\ncourt at the very top of the torts dispute pyramid\xe2\x80\x94are virtually all atypical, and even bizarre.\nIndeed, as in Vosburg, these are cases in which the disputants are jointly almost always\neconomically worse off than they would have been had they found some other way to resolve\ntheir dispute. Professor Samuel Issacharoff elaborates:\n[A]s soon as disputants enter the litigation process, they are clear losers. Whatever\nthe stakes in a dispute between two parties, there is only one way in which they can\npreserve their joint welfare. Any division of the stake between them, whether it be\none side taking all, or half-and-half or anything in between, leaves the parties jointly\n32\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nin the same position as when they begin their dispute: however they slice it, they\nwill still have the entire pie to share. It is only by bringing lawyers into the mix and\nby subjecting themselves to the inevitable costs of litigation that the parties consign\nthemselves to being worse off. Once lawyers and courts and filing fees and\nwitnesses and depositions and all the rest are brought into the picture, the pie starts\ngetting smaller and smaller. Because this is perfectly obvious, and perfectly\nobvious to all rational disputants right from the get go, the penchant of our casebook\nwarriors to litigate requires some explanation.\nSamuel Issacharoff, The Content of Our Casebooks: Why do Cases Get Litigated?, 29 FLA. ST. U.\nL. REV. 1265, 1265-66 (2001).\nAre parties who choose litigation over settlement irrational actors, as the passage by\nProfessor Issacharoff suggests? Are these disputants short-sighted fools? Or are they principled\nzealots? What about their lawyers? How about the Vosburgs and Putneys or Ms. Garratt and\nyoung Brian Dailey?\n\n10. Empathy and the case method. What is the effect of learning tort law through the case\nmethod? How does approaching torts through the lens of individual stories alter our thinking\nabout overarching principles?\nMany students\xe2\x80\x94and presumably many jurors\xe2\x80\x94cannot help but feel moved when they\nread cases about heinous injuries and destroyed livelihoods. Yet the psychologist Paul Bloom\nargues that empathy is a poor guide for making law or setting policy. Empathy can lead us to\nneglect the systemic perspective in favor of attending to a particular suffering person. PAUL\nBLOOM, AGAINST EMPATHY 9 (2016). Approaching tort law through individual cases may\nmarginalize the interests of diffuse, non-present stakeholders who are unrepresented\xe2\x80\x94the\nunnamed masses who will be affected by the liability rule going forward.\nPsychologists have identified several features of empathy that make it vulnerable to\nmanipulation. First, our affective reactions are roused by vivid, concrete examples, not by\nabstract, hypothetical, or distant concepts. As the Nobel laureate Thomas Schelling observed in\n1968: \xe2\x80\x9cLet a six-year-old girl with brown hair need thousands of dollars for an operation that will\nprolong her life until Christmas, and the post office will be swamped with nickels and dimes to\nsave her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will\ndeteriorate and cause a barely perceptible increase in preventable deaths\xe2\x80\x94not many will drop a\ntear or reach for their checkbook.\xe2\x80\x9d Thomas C. Schelling, The Life You Save May Be Your Own, in\nPROBLEMS IN PUBLIC EXPENDITURE ANALYSIS: STUDIES OF GOVERNMENT FINANCE (Samuel B.\nChase ed., 1968). The same dynamic may arise when there is a six-year-old brown-haired girl\nwho has been injured and to whom the tort system can give resources, on the one hand, and a\nsystemic social policy question about the optimal liability rule, on the other hand.\nA second feature of empathy is that it does not scale. We feel impelled to come to the aid\nof a single needy person, but we experience diminished motivation in response to large numbers\nof victims, a phenomenon known as \xe2\x80\x9cpsychic numbing.\xe2\x80\x9d Paul Slovic, \xe2\x80\x9cIf I Look at the Mass I\nWill Never Act\xe2\x80\x9d: Psychic Numbing and Genocide, 2 JUDGMENT & DECISION-MAKING 79 (2007).\n\n33\n\n\x0cWitt & Tani, TCPI 1. Introduction\n\nSometimes tort law doesn\xe2\x80\x99t scale either. This is often because (as we shall see) courts cut\noff liability when damages seem uncontrolled. Even if judges do not cut off liability, the\nresources of defendants to pay is limited.\nRationalists like Bloom would like to see laws and policy set based on system-level logic\nrather than case-level logic. Does the case method disable Bloom\xe2\x80\x99s system-level view?\n\n34\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nCHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS\nThe first chapter offered an introduction to tort law through the law of battery, the\nparadigmatic intentional tort with respect to people\xe2\x80\x99s bodies. Now we pursue the law of\nintentional torts against property, including real property (which is to say, land and any fixtures\nthereupon) and personal property (which is to say, everything else). The chapter then takes up\nfour causes of action that respond to less tangible but no less significant personal injuries: to one\xe2\x80\x99s\ndignity (offensive battery), to one\xe2\x80\x99s sense of physical safety and bodily integrity (assault), to one\xe2\x80\x99s\nfreedom of movement (false imprisonment), and to one\xe2\x80\x99s psychological and emotional well-being\n(intentional infliction of emotional distress). Finally, we end the chapter with a discussion of\ndefenses to liability for intentional torts.\n\nA. Trespass\n1. Trespass to Land\nDougherty v. Stepp, 18 N.C. 371 (1835)\nThe only proof introduced by the plaintiff to establish an act of trespass, was, that the\ndefendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers,\nand actually surveyed a part of it, claiming it as his own, but without marking trees or cutting\nbushes. This, his Honor held not to be a trespass, and the jury under his instructions, found a\nverdict for the defendant, and the plaintiff appealed. . . .\nRUFFIN, C.J.\nIn the opinion of the Court, there is error in the instructions given to the jury. The amount\nof damages may depend on the acts done on the land, and the extent of injury to it therefrom. But\nit is an elementary principle, that every unauthorised, and therefore unlawful entry, into the close\nof another, is a trespass. From every such entry against the will of the possessor, the law infers\nsome damage; if nothing more, the treading down the grass or the herbage, or as here, the\nshrubbery. Had the locus in quo been under cultivation or enclosed, there would have been no\ndoubt of the plaintiff\xe2\x80\x99s right to recover. Now our Courts have for a long time past held that if\nthere be no adverse possession, the title makes the land the owner\xe2\x80\x99s close. Making the survey and\nmarking trees, or making it without marking, differ only in the degree, and not in the nature of the\ninjury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will\nmake a wilful entry into the land of another, upon an unfounded claim of right, innocent, which\none, who sat up no title to the land, could not justify or excuse. On the contrary, the pretended\nownership aggravates the wrong. Let the judgment be reversed, and a new trial granted.\nJudgment Reversed.\n\n35\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nNotes\n1. Special rules for real property? Why is there \xe2\x80\x9cno statute, nor rule of reason\xe2\x80\x9d that will\nexcuse trespass to real property under the common law? Recall that if Putney had kicked Vosburg\non a playground as opposed to in the classroom, he might not have been held liable for the\ndamages to the smaller boy\xe2\x80\x99s leg. The circumstances mattered. Judge Ruffin, by contrast, seems\nto say that in trespass to real property, circumstances are irrelevant. Why would that be?\nMoreover, why does the law of trespass to real property dispense with the requirement that the\ndefendant\xe2\x80\x99s act cause damages? To make out a cause of action in battery, as we saw in Chapter 1,\nthe plaintiff must show that the defendant\xe2\x80\x99s act was harmful or offensive. Not so in trespass to\nreal property.\nOne view is that an important function of the law of trespass to property, at least in some\ncases, is determining who owns what. In early modern England, trespass actions (often trumped\nup by the parties collusively) became a principal vehicle for settling underlying disputes over who\nowned a particular piece of land. In such cases, damages really were irrelevant and would merely\nhave gotten in the way of the determination that both parties desired. See W. PAGE KEETON, DAN\nB. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS\n67-68 (5th ed. 1984). Another view holds that trespass actions developed primarily to protect the\nowners of real property in a medieval feudal regime in which rights in land were the foundation of\nthe social structure; on this view, the absence of a damages requirement reflected the special and\nprivileged place of property in medieval and early modern England. See STUART M. SPEISER,\nCHARLES F. KRAUSE & ALFRED W. GANS, THE AMERICAN LAW OF TORTS \xc2\xa7 23:1, at 840 (2011).\nWhich of these justifications, if either, is compelling in the law today? Are there other possible\nrationales? What is the justification for treating owners of land differently from plaintiffs in\nbattery cases making claims for injuries to their body?\n\n2. Thomas Ruffin. Judge Thomas Ruffin (author of the opinion in Dougherty) served as the\nChief Justice of the North Carolina Supreme Court from 1833 to 1852, and on that court generally\nfrom 1829 to 1852, and again from 1858 to 1859. A century later, in 1936, the legendary Dean\nRoscoe Pound of Harvard Law School named Ruffin one of the ten greatest jurists of American\nhistory. Ruffin was also an especially brutal owner of enslaved people and the silent partner in a\nslave-trading business specializing in selling people away from their birthplaces in the Upper\nSouth to new owners in the newly-opened cotton lands of the Deep South and the old Southwest.\nSee Eric Muller & Sally Greene, His Pro-Slavery Rhetoric Was Extreme, THE NEWS & OBSERVER\n[Raleigh-Durham], Oct. 25, 2018.\nRuffin is best remembered for the terrible case of State v. Mann, in which he held that it\nwas not a crime for a master to kill one of his slaves. His opinion asserted no rule of reason in the\nmaster-slave relationship:\nThe power of the master must be absolute, to render the submission of the slave\nperfect. I most freely confess my sense of the harshness of this proposition, I feel\nit as deeply as any man can. And as a principle of moral right, every person in his\nretirement must repudiate it. But in the actual condition of things, it must be so.\nThere is no remedy. This discipline belongs to the state of slavery. They cannot be\ndisunited, without abrogating at once the rights of the master, and absolving the\n36\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nslave from his subjection. It constitutes the curse of slavery to both the bond and\nfree portions of our population. But it is inherent in the relation of master and slave.\nState v. Mann, 13 N.C. 263, 266-67 (1829). Ruffin\xe2\x80\x99s opinion in State v. Mann became\nsufficiently notorious as to mobilize a generation of abolitionists before the Civil War.\nNonetheless, as of June 2020, Ruffin\xe2\x80\x99s portrait still hung above the bench of the North Carolina\nSupreme Court. A statue of him stands in an alcove outside the State Court of Appeals building.\nThe state Supreme Court has been reviewing the status of the portrait since October 2018. See\nMartha Waggoner, Court Portrait of Writer of Notorious Slave Ruling Reviewed, A.P. NEWS, Jan.\n18, 2020.\nSuffice it to say, American law did not allow tort actions by a person whom the law\ndefined as a slave against a person whom the law defined as the slave\xe2\x80\x99s master. Injuries to\nenslaved persons did form the basis for a substantial body of tort law in the American South, but\nthese cases involved enslaved persons who had been hired out by their owners; the plaintiffs in\nsuch cases were the owners, seeking compensation for something they understood as property\ndamage, not the enslaved persons who had experienced bodily harm. See THOMAS MORRIS,\nSOUTHERN SLAVERY AND THE LAW, 1619-1860 (1996).\n\n3. Intangible trespass. Traditionally, trespass actions were limited to physical intrusions. In\nMichigan, for example, dust, noise, and vibrations crossing from the defendant\xe2\x80\x99s mining activities\nonto a plaintiff\xe2\x80\x99s property do not constitute a trespass. See Adams v. Cleveland-Cliffs Iron Co.,\n602 N.W.2d 215 (Mich. App. 1999). In other jurisdictions, courts have allowed that such\nintangible crossings over a property line may produce liability for trespass. But even in these\njurisdictions, there is a significant difference between intangible trespass and tangible trespass.\nThe former only creates liability in tort if accompanied by actual damages. To put it in Judge\nRuffin\xe2\x80\x99s terms, there is a rule of reason for intangible trespasses, and that rule of reason provides\nthat trespasses without injury are not actionable as trespasses. (Many such cases raise questions in\nthe doctrine of nuisance, which we will turn to in Chapter 9.)\nWhy place this additional requirement on actions for intangible trespass to real property?\nIn Colorado, in a trespass action brought for sound waves, radiation, and electromagnetic fields\nfrom a public utility, the state Supreme Court held that intangible trespass actions may succeed\n\xe2\x80\x9conly if an aggrieved party is able to prove physical damage to the property.\xe2\x80\x9d The Court\nexplained:\nThe requirement that the intangible intrusion be intentional, and that a plaintiff\nprove physical damage caused by the intrusion, safeguards against the concern that\nallowing trespass claims against intangible intrusions would produce too much\nliability. . . . Moreover, a property owner forced to prove damage will be further\nlimited to seeking redress in cases of serious or substantial invasions. The difficulty\nin proving a connection between a minor damage and an intangible intrusion is too\ngreat to support mass litigiousness on the part of pestered property owners.\nPublic Service Co. of Colorado v. Van Wyck, 27 P.3d 377, 390 (Colo. 2001). What about flashes\nof light communicated through buried fiber-optic cables? Should these be treated as trespassing\non the property in which the cables are buried? See In re WorldCom, Inc., 546 F.3d 211, 217-18\n(2d Cir. 2008) (Sotomayor, J.).\n37\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n4. Aerial trespass. English common law traditionally held that property rights extended\nupward to the heavens. In William Blackstone\xe2\x80\x99s words, \xe2\x80\x9cLand hath also, in its legal signification,\nan indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelom, is\nthe maxim of the law, upwards.\xe2\x80\x9d 2 WILLIAM BLACKSTONE, COMMENTARIES *18. The\ndevelopment of the airplane, however, began a decades long struggle to determine the relationship\nbetween airspace rights and trespass to land, a struggle that culminated in the 1946 Supreme Court\ndecision United States v. Causby. Justice William O. Douglas\xe2\x80\x99s opinion for the Court held that\nthe ad coelom doctrine \xe2\x80\x9chas no place in the modern world.\xe2\x80\x9d United States v. Causby, 328 U.S.\n256, 260-61 (1946). The court held a landowner \xe2\x80\x9cowns at least as much of the space above the\nground as he can occupy or use in connection with the land.\xe2\x80\x9d Id. at 264. See generally STUART\nBANNER, WHO OWNS THE SKY?: THE STRUGGLE TO CONTROL AIRSPACE FROM THE WRIGHT\nBROTHERS ON (2008).\nJudicial approaches to airspace property determinations ran alongside legislative and\nregulatory attempts to establish boundaries between private and public airspace. The 1938 Civil\nAeronautics Act provided \xe2\x80\x9ca public right of freedom of transit in air commerce through the\nnavigable air space of the United States.\xe2\x80\x9d Civil Aeronautics Act of 1938, Pub. L. No. 75-706 \xc2\xa7 3,\n52 Stat. 973, 980. The Federal Aviation Agency (FAA), in turn, defines navigable airspace by\nreference to the minimum safe operating altitudes of various aircraft. See 14 C.F.R. \xc2\xa7 91.119\n(2002).\nWhat about unmanned aircraft systems, commonly called drones? In 2012 Congress\ninstructed the FAA to \xe2\x80\x9cdevelop a comprehensive plan to safely accelerate the integration of civil\nunmanned aircraft systems into the national airspace system.\xe2\x80\x9d See FAA Modernization and\nReform Act of 2012, Pub. L. No. 112-95, \xc2\xa7 332(a)(1), 126 Stat. 11, 73. The law included a\nrequirement to \xe2\x80\x9cdefine the acceptable standards for operation.\xe2\x80\x9d Id. at \xc2\xa7 332(a)(2)(A)(i). The\nintegration is mandated \xe2\x80\x9cas soon as practicable, but not later than September 30, 2015.\xe2\x80\x9d Id. at \xc2\xa7\n332(a)(3). At least some pieces of the FAA\xe2\x80\x99s efforts, however, have been wrapped up in\nlitigation. See Taylor v. Huerta, No. 15-1495 (D. C. Cir., May 19, 2017).\nIf the FAA were to allow drones substantial freedom to navigate the air close to ground\nlevel, could such a determination amount to a Fifth Amendment taking of private property? See\nTroy A. Rule, Airspace and the Takings Clause, 90 WASH. U. L. REV. 421 (2013).\n\n2. Trespass to Chattels\nTraditionally, reported cases of trespass to chattels have been few and far between and of\nrelatively little legal significance, at least in the grand scheme of things. Typical cases of trespass\nto chattels in the traditional sense include Jones v. Boswell, 250 S.W.3d 140 (Tex. App. 2008), in\nwhich the court found that an action of trespass to chattels would lie where the defendant who\nrepaired the plaintiffs\xe2\x80\x99 bulldozer refused to return the bulldozer before he received payment for\nhis services, or Kirschbaum v. McLaurin Parking Co., 188 N.C. App. 782, 656 S.E.2d 683 (2008),\nin which a court held that the defendant was not liable for trespass to chattels when it placed a\n\xe2\x80\x9cboot\xe2\x80\x9d (an immobilization device that attaches to, and restricts the movement of, the wheel of a\nvehicle) on the defendant\xe2\x80\x99s car while the defendant was illegally parked in a private lot.\n38\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nCommon law jurisdictions typically hold that a person is liable for trespass to chattels\nonly if her interference with the chattel either causes dispossession or causes injury to the\npossessor. See, e.g., RESTATEMENT (SECOND) OF TORTS \xc2\xa7 218 (1965). In other words, the\ncommon law imposes the same kind of injury or damage requirement that appeared in the law of\nintangible trespasses and in the law of battery, but which is not typically present in the law of\ntrespass to real property. Whether the property interest in question is real or personal can thus\nhave determinative significance for the outcome of a case.\nYet, the difference between the two formal categories of property\xe2\x80\x94and thus the\ndifference between the two trespass causes of action\xe2\x80\x94can be difficult to discern. Consider\nBlondell v. Consolidated Gas Co., where the plaintiff natural gas supplier sued defendants for\nattaching a device known as a \xe2\x80\x9cgovernor\xe2\x80\x9d to the plaintiff\xe2\x80\x99s meters, pipes, and connections inside\nthe buildings of the plaintiffs\xe2\x80\x99 customers for the purpose of reducing gas consumption by the\ncustomers. Defendants replied by denying that their governors caused any damage to the\nplaintiff\xe2\x80\x99s meters, pipes, and connections. The meters, pipes, and connections belonged to the\nplaintiff; they were not fixtures on the real property (the buildings) of the customers.\nNonetheless, the court applied the trespass standard as if the property in question was real rather\nthan personal:\nThe meter is a device for measuring the consumption of gas, which the law requires\nto be used by the plaintiff as a part of its system, while the governor which the\ndefendants claim the right to affix thereto is a device designed for the purpose of\nregulating the pressure of the gas after it passes through the meter. Now, it seems\nto us that the large mass of testimony contained in the record, showing on the one\nhand that the affixing of the governor was, and on the other hand that it was not,\ninjurious to the meter and its connections, is entirely beside the question; for,\nwhether the alleged acts were or were not productive of injury, they were, in the eye\nof the law, trespasses, if, as we have said, the meters are the plaintiff\xe2\x80\x99s property.\n43 A. 817, 819 (Md. 1908). Is the property at issue in Blondell real or personal? In each scenario,\nwhich party would be most likely to prevail?\nLately, this once sleepy area of the law has generated more excitement. Without anyone\nquite anticipating what would take place, the law of trespass to chattels has become central to a\ncrucial question in the brave new world of digital interactions. What about trespass in\ncyberspace?\n\nIntel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003)\nWERDEGAR, J.\n...\nIntel Corporation (Intel) maintains an electronic mail system, connected to the Internet,\nthrough which messages between employees and those outside the company can be sent and\nreceived, and permits its employees to make reasonable nonbusiness use of this system. On six\noccasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent e-mails\ncriticizing Intel\xe2\x80\x99s employment practices to numerous current employees on Intel\xe2\x80\x99s electronic mail\nsystem. Hamidi breached no computer security barriers in order to communicate with Intel\n39\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nemployees. He offered to, and did, remove from his mailing list any recipient who so wished.\n[Intel itself sent Hamidi several cease and desist letters, demanding that he stop sending emails to\naddresses on its servers, but Hamidi asserted a right to communicate with willing Intel employees\nand resumed his electronic mailings.] Hamidi\xe2\x80\x99s communications to individual Intel employees\ncaused neither physical damage nor functional disruption to the company\xe2\x80\x99s computers, nor did\nthey at any time deprive Intel of the use of its computers. The contents of the messages, however,\ncaused discussion among employees and managers.\nOn these facts, Intel brought suit, claiming that by communicating with its employees over\nthe company\xe2\x80\x99s e-mail system Hamidi committed the tort of trespass to chattels. The trial court\ngranted Intel\xe2\x80\x99s motion for summary judgment and enjoined Hamidi from any further mailings. [A\npreliminary injunction had been entered in November 1998; the permanent injunction followed in\nJune 1999.] A divided Court of Appeal affirmed.\n[W]e conclude that under California law the tort does not encompass, and should not be\nextended to encompass, an electronic communication that neither damages the recipient computer\nsystem nor impairs its functioning. Such an electronic communication does not constitute an\nactionable trespass to personal property, i.e., the computer system, because it does not interfere\nwith the possessor\xe2\x80\x99s use or possession of, or any other legally protected interest in, the personal\nproperty itself. . . .\nI. Current California Tort Law\nDubbed by Prosser the \xe2\x80\x9clittle brother of conversion,\xe2\x80\x9d the tort of trespass to chattels allows\nrecovery for interferences with possession of personal property \xe2\x80\x9cnot sufficiently important to be\nclassed as conversion, and so to compel the defendant to pay the full value of the thing with which\nhe has interfered.\xe2\x80\x9d (Prosser & Keeton, Torts (5th ed.1984) \xc2\xa7 14, pp. 85\xe2\x80\x9386.)\nThough not amounting to conversion, the defendant\xe2\x80\x99s interference must, to be actionable,\nhave caused some injury to the chattel or to the plaintiff\xe2\x80\x99s rights in it. Under California law,\ntrespass to chattels \xe2\x80\x9clies where an intentional interference with the possession of personal property\nhas proximately caused injury.\xe2\x80\x9d (Thrifty-Tel, Inc. v. Bezenek (1996) . . . ). . . .\nThe Restatement, too, makes clear that some actual injury must have occurred in order for\na trespass to chattels to be actionable. Under section 218 of the Restatement Second of Torts,\ndispossession alone, without further damages, is actionable, but other forms of interference\nrequire some additional harm to the personal property or the possessor\xe2\x80\x99s interests in it. . . . [A]s\nProsser explains, modern day trespass to chattels differs . . . from the action for trespass to land:\n. . . Where the defendant merely interferes without doing any harm\xe2\x80\x94as where, for\nexample, he merely lays hands upon the plaintiff\xe2\x80\x99s horse, or sits in his car\xe2\x80\x94there\nhas been a division of opinion among the writers, and a surprising dearth of\nauthority. By analogy to trespass to land there might be a technical tort in such a\ncase. . . . Such scanty authority as there is, however, has considered that the\ndignitary interest in the inviolability of chattels, unlike that as to land, is not\nsufficiently important to require any greater defense than the privilege of using\nreasonable force when necessary to protect them. Accordingly it has been held that\nnominal damages will not be awarded, and that in the absence of any actual damage\n40\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nthe action will not lie.\xe2\x80\x9d\nPROSSER & KEETON, TORTS [s. 14, p. 87]. . . .\nIntel suggests that the requirement of actual harm does not apply here because it sought\nonly injunctive relief, as protection from future injuries. But as Justice Kolkey, dissenting below,\nobserved, \xe2\x80\x9c[t]he fact the relief sought is injunctive does not excuse a showing of injury, whether\nactual or threatened.\xe2\x80\x9d Indeed, in order to obtain injunctive relief the plaintiff must ordinarily\nshow that the defendant\xe2\x80\x99s wrongful acts threaten to cause irreparable injuries, ones that cannot be\nadequately compensated in damages. . . . [T]o issue an injunction without a showing of likely\nirreparable injury in an action for trespass to chattels, in which injury to the personal property or\nthe possessor\xe2\x80\x99s interest in it is an element of the action, would make little legal sense.\nThe dispositive issue in this case, therefore, is whether the undisputed facts demonstrate\nHamidi\xe2\x80\x99s actions caused or threatened to cause damage to Intel\xe2\x80\x99s computer system, or injury to its\nrights in that personal property, such as to entitle Intel to judgment as a matter of law. . . . Intel\ncontends that, while its computers were not damaged by receiving Hamidi\xe2\x80\x99s messages, its interest\nin the \xe2\x80\x9cphysical condition, quality or value\xe2\x80\x9d (Rest.2d Torts, s. 218 . . . ) of the computers was\nharmed. We disagree. . . .\nIn Thrifty-Tel, Inc. v. Bezenek, supra . . ., the California Court of Appeal held that\nevidence of automated searching of a telephone carrier\xe2\x80\x99s system for authorization codes supported\na cause of action for trespass to chattels. The defendant\xe2\x80\x99s automated dialing program\n\xe2\x80\x9coverburdened the [plaintiff\xe2\x80\x99s] system, denying some subscribers access to phone lines,\xe2\x80\x9d showing\nthe requisite injury.\nFollowing Thrifty-Tel, a series of federal district court decisions held that sending\n[unsolicited commercial bulk email (\xe2\x80\x9cUCE\xe2\x80\x9d)] through an [internet service provider\xe2\x80\x99s (\xe2\x80\x9cISP\xe2\x80\x99s\xe2\x80\x9d)]\nequipment may constitute trespass to the ISP\xe2\x80\x99s computer system. . . .\nIn each of these spamming cases, the plaintiff showed, or was prepared to show, some\ninterference with the efficient functioning of its computer system. . . . In [CompuServe, Inc. v.\nCyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio, 1997)], the plaintiff ISP\xe2\x80\x99s mail equipment\nmonitor stated that mass UCE mailings, especially from nonexistent addresses such as those used\nby the defendant, placed \xe2\x80\x9ca tremendous burden\xe2\x80\x9d on the ISP\xe2\x80\x99s equipment, using \xe2\x80\x9cdisk space and\ndrain[ing] the processing power,\xe2\x80\x9d making those resources unavailable to serve subscribers.\nBuilding on the spamming cases, in particular CompuServe, . . . recent district court\ndecisions addressed whether unauthorized robotic data collection from a company\xe2\x80\x99s publicly\naccessible Web site is a trespass on the company\xe2\x80\x99s computer system. . . . In the leading case,\n[eBay, Inc. v. Bidder\xe2\x80\x99s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000)], the defendant Bidder\xe2\x80\x99s\nEdge operating an auction aggregation site, accessed the eBay Web site about 100,000 times per\nday, accounting for between 1 and 2 percent of the information requests received by eBay and a\nslightly smaller percentage of the data transferred by eBay. The district court rejected eBay\xe2\x80\x99s\nclaim that it was entitled to injunctive relief because of the defendant\xe2\x80\x99s unauthorized presence\nalone, or because of the incremental cost the defendant had imposed on operation of the eBay site,\nbut found sufficient proof of threatened harm in the potential for others to imitate the defendant\xe2\x80\x99s\nactivity . . . .\n41\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nThat Intel does not claim the type of functional impact that spammers and robots have\nbeen alleged to cause is not surprising in light of the differences between Hamidi\xe2\x80\x99s activities and\nthose of a commercial enterprise that uses sheer quantity of messages as its communications\nstrategy. Though Hamidi sent thousands of copies of the same message on six occasions over 21\nmonths, that number is minuscule compared to the amounts of mail sent by commercial\noperations. . . .\nIn addition to impairment of system functionality, CompuServe and its progeny also refer\nto the ISP\xe2\x80\x99s loss of business reputation and customer goodwill, resulting from the inconvenience\nand cost that spam causes to its members, as harm to the ISP\xe2\x80\x99s legally protected interests in its\npersonal property. Intel argues that its own interest in employee productivity, assertedly disrupted\nby Hamidi\xe2\x80\x99s messages, is a comparable protected interest in its computer system. We disagree. . .\n.\nIntel\xe2\x80\x99s workers . . . were allegedly distracted from their work not because of the frequency\nor quantity of Hamidi\xe2\x80\x99s messages, but because of assertions and opinions the messages conveyed.\nIntel\xe2\x80\x99s complaint is thus about the contents of the messages rather than the functioning of the\ncompany\xe2\x80\x99s e-mail system. . . . Intel\xe2\x80\x99s position represents a further extension of the trespass to\nchattels tort, fictionally recharacterizing the allegedly injurious effect of a communication\xe2\x80\x99s\ncontents on recipients as an impairment to the device which transmitted the message.\nThis theory of \xe2\x80\x9cimpairment by content\xe2\x80\x9d (Burk, The Trouble with Trespass . . . , 4 J. Small\n& Emerging Bus.L. at p. 37) threatens to stretch trespass law to cover injuries far afield from the\nharms to possession the tort evolved to protect. . . .\nNor may Intel appropriately assert a property interest in its employees\xe2\x80\x99 time. \xe2\x80\x9cThe\nRestatement test clearly speaks in the first instance to the impairment of the chattel. . . . But\nemployees are not chattels (at least not in the legal sense of the term).\xe2\x80\x9d (Burk, The Trouble with\nTrespass, supra, 4 J. Small & Emerging Bus.L. at p. 36.)\nII. Proposed Extension of California Tort Law\n...\nWriting on behalf of several industry groups appearing as amici curiae, Professor Richard\nA. Epstein of the University of Chicago urges us to excuse the required showing of injury to\npersonal property in cases of unauthorized electronic contact between computers, \xe2\x80\x9cextending the\nrules of trespass to real property to all interactive Web sites and servers.\xe2\x80\x9d The court is thus urged\nto recognize, for owners of a particular species of personal property, computer servers, the same\ninterest in inviolability as is generally accorded a possessor of land. In effect, Professor Epstein\nsuggests that a company\xe2\x80\x99s server should be its castle, upon which any unauthorized intrusion,\nhowever harmless, is a trespass.\nEpstein\xe2\x80\x99s argument derives, in part, from the familiar metaphor of the Internet as a\nphysical space, reflected in much of the language that has been used to describe it: \xe2\x80\x9ccyberspace,\xe2\x80\x9d\n\xe2\x80\x9cthe information superhighway,\xe2\x80\x9d e-mail \xe2\x80\x9caddresses,\xe2\x80\x9d and the like. Of course, the Internet is also\nfrequently called simply the \xe2\x80\x9cNet,\xe2\x80\x9d a term, Hamidi points out, \xe2\x80\x9cevoking a fisherman\xe2\x80\x99s chattel.\xe2\x80\x9d A\nmajor component of the Internet is the World Wide \xe2\x80\x9cWeb,\xe2\x80\x9d a descriptive term suggesting neither\npersonal nor real property, and \xe2\x80\x9ccyberspace\xe2\x80\x9d itself has come to be known by the oxymoronic\n42\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nphrase \xe2\x80\x9cvirtual reality,\xe2\x80\x9d which would suggest that any real property \xe2\x80\x9clocated\xe2\x80\x9d in \xe2\x80\x9ccyberspace\xe2\x80\x9d\nmust be \xe2\x80\x9cvirtually real\xe2\x80\x9d property. Metaphor is a two-edged sword.\nIndeed, the metaphorical application of real property rules would not, by itself, transform\na physically harmless electronic intrusion on a computer server into a trespass. That is because,\nunder California law, intangible intrusions on land, including electromagnetic transmissions, are\nnot actionable as trespasses (though they may be as nuisances) unless they cause physical damage\nto the real property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,\n936\xe2\x80\x93937, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Since Intel does not claim Hamidi\xe2\x80\x99s electronically\ntransmitted messages physically damaged its servers, it could not prove a trespass to land even\nwere we to treat the computers as a type of real property. Some further extension of the conceit\nwould be required, under which the electronic signals Hamidi sent would be recast as tangible\nintruders, perhaps as tiny messengers rushing through the \xe2\x80\x9challways\xe2\x80\x9d of Intel\xe2\x80\x99s computers and\nbursting out of employees\xe2\x80\x99 computers to read them Hamidi\xe2\x80\x99s missives. But such fictions promise\nmore confusion than clarity in the law. . . .\nThe plain fact is that computers, even those making up the Internet, are\xe2\x80\x94like such older\ncommunications equipment as telephones and fax machines\xe2\x80\x94personal property, not realty.\nProfessor Epstein observes that \xe2\x80\x9c[a]lthough servers may be moved in real space, they cannot be\nmoved in cyberspace,\xe2\x80\x9d because an Internet server must, to be useful, be accessible at a known\naddress. But the same is true of the telephone: to be useful for incoming communication, the\ntelephone must remain constantly linked to the same number (or, when the number is changed, the\nsystem must include some forwarding or notification capability, a qualification that also applies to\ncomputer addresses). Does this suggest that an unwelcome message delivered through a\ntelephone or fax machine should be viewed as a trespass to a type of real property? We think not:\nAs already discussed, the contents of a telephone communication may cause a variety of injuries\nand may be the basis for a variety of tort actions (e.g., defamation, intentional infliction of\nemotional distress, invasion of privacy), but the injuries are not to an interest in property, much\nless real property, and the appropriate tort is not trespass.\nMore substantively, Professor Epstein argues that a rule of computer server inviolability\nwill, through the formation or extension of a market in computer-to-computer access, create \xe2\x80\x9cthe\nright social result.\xe2\x80\x9d In most circumstances, he predicts, companies with computers on the Internet\nwill continue to authorize transmission of information through e-mail, Web site searching, and\npage linking because they benefit by that open access. When a Web site owner does deny access\nto a particular sending, searching, or linking computer, a system of \xe2\x80\x9csimple one-on-one\nnegotiations\xe2\x80\x9d will arise to provide the necessary individual licenses.\nOther scholars are less optimistic about such a complete propertization of the Internet.\nProfessor Mark Lemley . . . writing on behalf of an amici curiae group of professors of intellectual\nproperty and computer law, observes that under a property rule of server inviolability, \xe2\x80\x9ceach of\nthe hundreds of millions of [Internet] users must get permission in advance from anyone with\nwhom they want to communicate and anyone who owns a server through which their message\nmay travel.\xe2\x80\x9d The consequence for e-mail could be a substantial reduction in the freedom of\nelectronic communication, as the owner of each computer through which an electronic message\npasses could impose its own limitations on message content or source. . . .\nA leading scholar of internet law and policy, Professor Lawrence Lessig . . . , has\ncriticized Professor Epstein\xe2\x80\x99s theory of the computer server as quasi-real property . . . on the\n43\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nground that it ignores the costs to society in the loss of network benefits: \xe2\x80\x9ceBay benefits greatly\nfrom a network that is open and where access is free. It is this general feature of the Net that\nmakes the Net so valuable to users and a source of great innovation. And to the extent that\nindividual sites begin to impose their own rules of exclusion, the value of the network as a\nnetwork declines. If machines must negotiate before entering any individual site, then the costs of\nusing the network climb.\xe2\x80\x9d LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A\nCONNECTED WORLD 171 (2001) . . . .\nWe discuss this debate among the amici curiae and academic writers only to note its\nexistence and contours, not to attempt its resolution. Creating an absolute property right to\nexclude undesired communications from one\xe2\x80\x99s e-mail and Web servers might help force\nspammers to internalize the costs they impose on ISP\xe2\x80\x99s and their customers. But such a property\nrule might also create substantial new costs, to e-mail and e-commerce users and to society\ngenerally, in lost ease and openness of communication and in lost network benefits. In light of the\nunresolved controversy, we would be acting rashly to adopt a rule treating computer servers as\nreal property for purposes of trespass law. . . .\n\nIII. Constitutional Considerations\n[The Court\xe2\x80\x99s opinion declined to reach possible First Amendment claims on both sides,\nbut it did observe that injunctions barring communications \xe2\x80\x9cmust comply with First Amendment\nlimits.\xe2\x80\x9d The majority strongly suggested that Hamidi\xe2\x80\x99s emails were the modern-day equivalent of\nprotected speech, asserting that Hamidi \xe2\x80\x9cno more invaded Intel\xe2\x80\x99s property than does a protester\nholding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter\nthrough the mail, or telephoning to complain of a corporate practice.\xe2\x80\x9d And the majority dismissed\nIntel\xe2\x80\x99s own constitutional claims of a \xe2\x80\x9cright not to listen\xe2\x80\x9d on the grounds that the actual recipients\nof the emails was not Intel but its individual employees.]\n\nDissenting Opinion of BROWN, J.\n. . . . Intel has invested millions of dollars to develop and maintain a computer system. It\ndid this not to act as a public forum but to enhance the productivity of its employees. . . . The time\nrequired to review and delete Hamidi\xe2\x80\x99s messages diverted employees from productive tasks and\nundermined the utility of the computer system. . . .\nHamidi concedes Intel\xe2\x80\x99s legal entitlement to block the unwanted messages. The problem\nis that although Intel has resorted to the cyberspace version of reasonable force, it has so far been\nunsuccessful in determining how to resist the unwanted use of its system. Thus, while Intel has\nthe legal right to exclude Hamidi from its system, it does not have the physical ability. It may\nforbid Hamidi\xe2\x80\x99s use, but it cannot prevent it.\nTo the majority, Hamidi\xe2\x80\x99s ability to outwit Intel\xe2\x80\x99s cyber defenses justifies denial of Intel\xe2\x80\x99s\nclaim to exclusive use of its property. Under this reasoning, it is not right but might that\ndetermines the extent of a party\xe2\x80\x99s possessory interest. Although the world often works this way,\nthe legal system should not. . . .\nDissenting Opinion by MOSK, J.\n44\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n. . .The majority fail to distinguish open communication in the public \xe2\x80\x9ccommons\xe2\x80\x9d of the\nInternet from unauthorized intermeddling on a private, proprietary intranet. Hamidi is not\ncommunicating in the equivalent of a town square or of an unsolicited \xe2\x80\x9cjunk\xe2\x80\x9d mailing through the\nUnited States Postal Service. His action, in crossing from the public Internet into a private\nintranet, is more like intruding into a private office mailroom, commandeering the mail cart, and\ndropping off unwanted broadsides on 30,000 desks. Because Intel\xe2\x80\x99s security measures have been\ncircumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help\nefforts, with no recourse unless he causes a malfunction or systems \xe2\x80\x9ccrash.\xe2\x80\x9d . . .\nIntel correctly expects protection from an intruder who misuses its proprietary system, its\nnonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk\nmailing objectives\xe2\x80\x94incidentally, without even having to pay postage.\n\nNotes\n\n1. Thrifty-Tel, Inc. v. Bezenek (1996). Thrifty-Tel was one of the first cases to apply\ntrespass to chattels principles to electronic communication. Thrifty-Tel, a long-distance telephone\ncompany sued the parents of minors who used computers to crack the company\xe2\x80\x99s authorization\ncodes, and to make long-distance calls without paying. In holding that trespass to chattels \xe2\x80\x9clies\nwhere an intentional interference with the possession of personal property has proximately caused\ninjury,\xe2\x80\x9d the Thrifty-Tel court found that the defendants\xe2\x80\x99 hacking substantially interfered with\nThrifty-Tel\xe2\x80\x99s operations, sufficiently to give rise to a common law trespass to chattels cause of\naction. Thrifty-Tel, 54 Cal. Rptr. 2d at 473.\nAround the same time, CompuServe Inc., an early internet service provider, brought an\naction against Cyber Promotions Inc. for sending CompuServe users unsolicited advertisements\nthrough CompuServe\xe2\x80\x99s servers. The court in CompuServe Inc. v. Cyber Promotions, Inc., 962 F.\nSupp. 1015, 1022 (S.D. Ohio 1997) found that defendants were guilty of trespass to chattels\nbecause \xe2\x80\x9cmultitudinous electronic mailings demand the disk space and drain the processing power\nof plaintiff\xe2\x80\x99s computer equipment,\xe2\x80\x9d and because the defendants\xe2\x80\x99 actions caused customers to\ncomplain, resulting in a loss of good will toward CompuServe.\nIn Ticketmaster Corp. v. Tickets.com Inc., 2000 WL 525390 (C.D. Cal. Mar. 27, 2000),\nTicketmaster filed suit against Tickets.com for their practice of providing hyperlinks to\nTicketmaster.com, and for copying event information from Ticketmaster\xe2\x80\x99s webpage and placing it\non the Tickets.com web page. The court found that providing a hyperlink to, and copying purely\nfactual information from, a publicly available website did not (absent more) establish a claim of\ntrespass.\nA few months after the Ticketmaster decision, a federal judge in the Northern District of\nCalifornia held that the gathering of publicly accessible auction information from eBay.com by an\nauction services firm called Bidder\xe2\x80\x99s Edge constituted a trespass to chattels. Bidder\xe2\x80\x99s Edge used\nelectronic \xe2\x80\x9cspiders\xe2\x80\x9d to crawl through bidding information on eBay and other auction sites and\nused the information it collected to allow its customers to compare goods and prices across\nbidding websites. Does it matter that eBay\xe2\x80\x99s database was publicly accessible, or that it posted a\nnotice purporting to forbid the use of information collecting spiders? Part of the threat to eBay\n45\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nwas that Bidder\xe2\x80\x99s Edge allowed users to access the eBay site without encountering eBay\xe2\x80\x99s\nadvertising. Note that eBay said that it was willing to sell Bidder\xe2\x80\x99s Edge a license to collect the\ninformation for a charge. See eBay, Inc. v. Bidder\xe2\x80\x99s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal.\n2000).\n\n2. The property analogy? Did the Hamidi court err in grounding its ruling in trespass to\nchattels principles? For an argument that property analogies (either chattel or real) wrongly\ngovern virtual space, see Shyamkrishna Balganesh, Common Law Property Metaphors on the\nInternet: The Real Problem with the Doctrine of Cyber Trespass, 12 MICH. TELECOMM. TECH. L.\nREV. 265 (2006). Richard Epstein, in contrast, has argued that the Hamidi ruling\xe2\x80\x99s refusal to\nadopt the real property analogy deprives internet users of much needed civil protection when selfhelp remedies for excluding cyber trespassers fail. See Richard A. Epstein, Intel Corp. v. Hamidi:\nThe Role of Self-help in Cyberspace?, 1 J.L. ECON. & POL\xe2\x80\x99Y 147 (2005) for an extended critique\nof Intel Corp. v. Hamidi. For an argument that courts should chart a middle path requiring that\nplaintiffs show sufficient recourse to self-help measures as a condition for awarding civil relief,\nsee Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 TULSA L. REV.\n677 (2008). Why not simply adopt a narrowly-tailored opt-out regime that would allow harmless\ncyber interaction unless and until a party has been asked specifically to cease and desist?\nHow far can trespass principles be applied? Consider the case of United States v. Jones,\n565 U.S. 400 (2012), where police placed a GPS tracking device on the defendant\xe2\x80\x99s vehicle\nwithout a warrant. The Government introduced aggregated GPS data at trial that connected Jones\n(the defendant) with a cocaine stash house. Delivering the opinion of the Court, Justice Antonin\nScalia reasoned that the question of whether placing the device on the plaintiff\xe2\x80\x99s vehicle amounted\nto a constitutionally regulated search and seizure turned on whether the government\xe2\x80\x99s action\nwould have constituted a trespass at common law. Justice Sonia Sotomayor concurred, but\nworried that \xe2\x80\x9c[i]n cases of electronic or other novel modes of surveillance that do not depend upon\na physical invasion on property, the majority opinion\xe2\x80\x99s trespassory test may provide little\nguidance.\xe2\x80\x9d 565 U.S. at 415. Did placing the GPS device on the defendant\xe2\x80\x99s personal property\nconstitute a common law trespass if it caused no damage to the property?\n\n3. Anti-spamming legislation. Although the California Supreme Court declined to censure\nMr. Hamidi\xe2\x80\x99s emailing in Intel Corp. v. Hamidi, Congress and many state legislatures have passed\nanti-spamming laws. In 2003, Congress passed the Controlling the Assault of Non-Solicited\nPornography and Marketing (or CAN-SPAM) Act. Broadly, the act protects against fraud, and\nmisleading commercial emails. CAN-SPAM also requires that commercial senders allow email\nrecipients to opt out of receiving future messages and establishes a national \xe2\x80\x9cDo-Not-Email\xe2\x80\x9d\nregistry on which they can do so. See 15 U.S.C.A \xc2\xa7\xc2\xa7 7701-13. Many states, including California,\nhave passed state anti-spam statutes as well, though CAN-SPAM has preempted much of the\ncontent of the state statutes. Interestingly, in recent years, private email distributers have begun\nadding additional safeguards for consumer privacy beyond those required by CAN-SPAM and its\nstate analogues. The widely-used digital distribution and marketing firm MailChimp, for\nexample, includes in its terms of use a commitment that their users \xe2\x80\x9cwon\xe2\x80\x99t send Spam!\xe2\x80\x9d\nMailChimp reserves the right to enforce this provision by dropping clients who violate it. Terms\nof Use, MAILCHIMP.COM, https://perma.cc/K3D2-9X3Y (last visited Apr. 8, 2014). Does\nMailChimp\xe2\x80\x99s policy suggest that some combination of market reputation on the part of\n46\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\ndistributors and self-help by potential recipients would evolve toward protections against\nspamming regardless of what the law does?\n\nB. Beyond Battery: Causes of Action for Other Personal Injuries\n1. Offensive Battery\nFisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)\nGREENHILL, J.\nThis is a suit for actual and exemplary damages growing out of an alleged assault and\nbattery. The plaintiff Fisher was a mathematician with the Data Processing Division of the\nManned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly\ncalled NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in\nHouston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn [who\nmanaged the Brass Ring, on Carrousel\xe2\x80\x99s behalf, and who died before the trial]. Trial was to a jury\nwhich found for the plaintiff Fisher. The trial court rendered judgment for the defendants\nnotwithstanding the verdict. The Court of Civil Appeals affirmed. The questions before this Court\nare whether there was evidence that an actionable battery was committed, and, if so, whether the\ntwo corporate defendants must respond in exemplary as well as actual damages for the malicious\nconduct of Flynn.\nThe plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a\none day\'s meeting regarding telemetry equipment at the Carrousel. . . . After the morning session,\nthe group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet\nstyle, and Fisher stood in line with others and just ahead of a graduate student of Rice University\nwho testified at the trial. As Fisher was about to be served, he was approached by Flynn, who\nsnatched the plate from Fisher\'s hand and shouted that he, a Negro, could not be served in the\nclub. Fisher testified that he was not actually touched, and did not testify that he suffered fear or\napprehension of physical injury; but he did testify that he was highly embarrassed and hurt by\nFlynn\'s conduct in the presence of his associates.\n[The jury found for Fisher and awarded damages.]\nThe Court of Civil Appeals held that there was no assault because there was no physical\ncontact and no evidence of fear or apprehension of physical contact. However, it has long been\nsettled that there can be a battery without an assault, and that actual physical contact is not\nnecessary to constitute a battery, so long as there is contact with clothing or an object closely\nidentified with the body. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:\n\xe2\x80\x98The interest in freedom from intentional and unpermitted contacts with the\nplaintiff\'s person is protected by an action for the tort commonly called battery. The\nprotection extends to any part of the body, or to anything which is attached to it and\npractically identified with it. Thus contact with the plaintiff\'s clothing, or with a\ncane, a paper, or any other object held in his hand will be sufficient; * * * The\n47\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nplaintiff\'s interest in the integrity of his person includes all those things which are in\ncontact or connected with it.\xe2\x80\x99\nUnder the facts of this case, we have no difficulty in holding that the intentional grabbing of\nplaintiff\'s plate constituted a battery. The intentional snatching of an object from one\'s hand is as\nclearly an offensive invasion of his person as would be an actual contact with the body. \xe2\x80\x98To\nconstitute an assault and battery, it is not necessary to touch the plaintiff\'s body or even his\nclothing; knocking or snatching anything from plaintiff\'s hand or touching anything connected\nwith his person, when, done in an offensive manner, is sufficient.\xe2\x80\x99\nSuch holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v.\nBrashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed\n\xe2\x80\x98an assault or trespass upon the person\xe2\x80\x99 by snatching a book from the plaintiff\'s hand. The jury\nfindings in that case were that the defendant \xe2\x80\x98dispossessed plaintiff of the book\xe2\x80\x99 and caused her to\nsuffer \xe2\x80\x98humiliation and indignity.\xe2\x80\x99\nThe rationale for holding an offensive contact with such an object to be a battery is explained in\n1 Restatement of Torts 2d s 18 (Comment p. 31) as follows:\n\'Since the essence of the plaintiff\'s grievance consists in the offense to the dignity\ninvolved in the unpermitted and intentional invasion of the inviolability of his\nperson and not in any physical harm done to his body, it is not necessary that the\nplaintiff\'s actual body be disturbed. Unpermitted and intentional contacts with\nanything so connected with the body as to be customarily regarded as part of the\nother\'s person and therefore as partaking of its inviolability is actionable as an\noffensive contact with his person. There are some things such as clothing or a cane\nor, indeed, anything directly grasped by the hand which are so intimately connected\nwith one\'s body as to be universally regarded as part of the person.\'\nWe hold, therefore, that the forceful dispossession of plaintiff Fisher\'s plate in an offensive\nmanner was sufficient to constitute a battery, and the trial court erred in granting judgment\nnotwithstanding the verdict on the issue of actual damages.\n...\nPersonal indignity is the essence of an action for battery; and consequently the defendant\nis liable not only for contacts which do actual physical harm, but also for those which are\noffensive and insulting. We hold, therefore, that plaintiff was entitled to actual damages for\nmental suffering due to the willful battery, even in the absence of any physical injury.\n...\n. . . The judgments of the courts below are reversed, and judgment is here rendered for the\nplaintiff for $900 with interest from the date of the trial court\'s judgment, and for costs of this suit.\n\n48\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nNotes\n\n1. Intent required. Though not emphasized in the Fisher case, offensive battery requires that\nthe defendant have acted with intent\xe2\x80\x94in the Restatement formulation, \xe2\x80\x9cinten[t] to cause a harmful\nor offensive contact with the person of the other or a third person, or an imminent apprehension of\nsuch a contact.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 18 (1965). This language is identical to the\nlanguage found in the Restatement provision on conventional (harmful) battery, discussed in the\nprevious section. The key distinction between harmful battery and offensive battery is the nature\nof the contact that results.\n\n2. Why recognize offensive battery? It will become very clear as this book goes on that tort\nlaw does not supply a remedy for all types of wrongful conduct, even conduct that is widely\nreviled. Some types of wrongful conduct have gone untouched because judges have worried\nabout interfering in particular relationships (e.g., husband and wife, parent and child), or about\ncreating incentives for fraud, or simply about opening the door to an unmanageable number of\ncases. Judges have deemed other types of wrongful conduct too trivial, too petty. Why, then, has\nthe law long recognized a cause of action for physical contacts that offend but do not harm? What\nabout the maxim \xe2\x80\x9cno harm, no foul\xe2\x80\x9d? The 1872 case Alcorn v. Mitchell, 63 Ill. 533, involving a\ndefendant who deliberately spit in the face of the plaintiff, offers a classic explanation for the\nlaw\xe2\x80\x99s recognition of offensive battery. The spitting, according to the concise statement of facts,\noccurred in a court room, at the close of a legal proceeding between the two men (adjudicating a\ncharge of trespass), and \xe2\x80\x9cin the presence of a large number of persons.\xe2\x80\x9d Id. at 553. In\nconsequence, a trial court awarded the defendant to pay $1,000, a hefty sum at the time. In\nupholding the award, the Illinois Supreme Court characterized the spitting as an act \xe2\x80\x9cof the\ngreatest indignity, highly provocative of retaliation by force.\xe2\x80\x9d Id. at 554. To \xe2\x80\x9csav[e] the necessity\nof resort to personal violence as the only means of redress\xe2\x80\x9d and thereby preserve \xe2\x80\x9cpublic\ntranquility,\xe2\x80\x9d the court explained, the law \xe2\x80\x9cshould afford substantial protection against such\noutrages, in the way of liberal damages.\xe2\x80\x9d Id.\nHow does this justification hold up in an age of modern policing, when we disapprove, at\nleast formally, of individual citizens taking the law into their own hands? Does it appear\nanachronistic now that the concepts of honor and reputation no longer play such important roles in\neveryday life? Professor Scott Hershovitz defends damage awards in cases like this on the ground\nthat, even if they do not prevent violence, they recognize and rebut a moral injury; judgment by\njudgment, they create and recreate the world we want to live in. \xe2\x80\x9cWe are the agents of morality,\xe2\x80\x9d\nHershovitz argues. \xe2\x80\x9cThere is no one else to do the job. If we think that, as a matter of morality,\nMitchell\xe2\x80\x99s dignity confers on him a right to be free from insults like Alcorn\xe2\x80\x99s spit, then we must\nlive as if he has that right. . . . Tort is a way for us to do that.\xe2\x80\x9d Scott Hershovitz, Treating Wrongs\nas Wrongs: An Expressive Argument for Tort Law, 10 J. TORT L. 1, 15 (2018); see also Leslie\nBender, Tort Law\xe2\x80\x99s Role as a Tool for Social Justice Struggle, 37 WASHBURN L.J. 249 (1998)\n(\xe2\x80\x9cGiving people who are injured compensation from their harm-causers is one way our social\norder can help promote their dignity and their ability to be social equals.\xe2\x80\x9d). Do you buy it? In the\nbig scheme of things, are cases of offensive battery a good use of judicial resources?\n\n49\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n2. Assault\nI. de S. & Wife v. W. de S. Assizes, 1348 or 13491\nTHORPE, C.J.\nI de S and M, his wife, complain of W de S concerning this that the said W, in the year\netc., with force and arms [vi et armis] did make an assault upon the said M at S and beat her. And\nW. pleaded not guilty. And it was found by verdict of the inquest that the said W. came in the\nnight to the house of the said I., and would have bought some wine, but the door of the tavern was\nclosed; and he pounded on the door with a hatchet, which he had in his hand, and the female\nplaintiff put her head out at a window and told him to stop; and he saw her and aimed at her with\nthe hatchet, but did not hit her. Whereupon the inquest said that it seemed to them that there was\nno trespass, since there was no harm done. THORP, C. J. There is harm done, and a trespass for\nwhich they shall recover damages, since he made an assault upon the woman, as it is found,\nalthough he did no other harm. Wherefore tax his damages, &c. And they taxed the damages at\nhalf a mark. THORP, C.J., awarded that they should recover their damages, &c., and that the other\nshould be taken. Et sic nota, that for an assault one shall recover damages, &C.\n\nNotes\n\n1. The action for assault. The case of I. de S. is an early recognition of legally protectable\ninterests in an emotional state\xe2\x80\x94the emotional state of being free of certain kinds of fright.\nProsser described the assault action as recourse for unlawful \xe2\x80\x9ctouching of the mind\xe2\x80\x9d:\nThe interest in freedom from apprehension of a harmful or offensive contact with\nthe person, as distinguished from the contact itself, is protected by an action for the\ntort known as assault. No actual contact is necessary to it, and the plaintiff is\nprotected against a purely mental disturbance of this distinctive kind. This action,\nwhich developed very early as a form of trespass, is the first recognition of a mental,\nas distinct from a physical, injury. There is a \xe2\x80\x9ctouching of the mind, if not of the\nbody.\xe2\x80\x9d\nW. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE\nLAW OF TORTS \xc2\xa7 10, at 43 (5th ed. 1984).\n\n2. Everyday frictions? Even if the action of assault has been recognized at common law for\ncenturies, it has always been hedged in by limits. Not every obnoxious or hurtful touching of the\nmind gives rise to an assault action. Courts normally do not allow assault remedies for the\nordinary insults and frictions that accompany everyday life. In Bollaert v. Witter, 792 P.2d 465\n(Or. App. 1990), for example, an Oregon State appellate court ruled against a party\xe2\x80\x99s claims of\n\n1\n\nY.B. Lib.Ass. folio 99, placitum 60 (Assizes 1348), translated from the Law French in, JAMES BARR AMES,\nSELECT CASES ON TORTS 1 (1874).\n\n50\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nassault in a home boundary dispute where an angry neighbor yelled: \xe2\x80\x9cLet\xe2\x80\x99s duke it out . . . . I\xe2\x80\x99m a\nVietnam vet\xe2\x80\x9d and \xe2\x80\x9cI wouldn\xe2\x80\x99t be surprised if my wife\xe2\x80\x94if, while you\xe2\x80\x99re working on the fence, my\nwife took a gun and shot you.\xe2\x80\x9d Similarly, in Groff v. Sw. Beverage Co., Inc., 997 So. 2d 782 (La.\n2008), a Louisiana court dismissed the assault claims of an employee who sued his employer for\nyelling, \xe2\x80\x9cusing numerous profanities,\xe2\x80\x9d and \xe2\x80\x9chitting the desk with his hand.\xe2\x80\x9d These are the sorts of\nunpleasant encounters that the common law of torts requires people to bear on their own.\n\n3. Threats of future harm? Nor is it generally sufficient to allege threats of future harm.\nConsider the opinion in Kijonka v. Seitzinger, written by Judge Richard Posner of the U.S. Court\nof Appeals for the Seventh Circuit. Appellant Kijonka was a former small-town mayor who\nduring his term had fired the town dog-catcher, one Berle \xe2\x80\x9cPeanut\xe2\x80\x9d Shoulders, Jr., after reports of\ncorruption and narcotics dealing. Shoulders then stalked Kijonka for some time in a threatening\nmanner. Some time later the two men spotted one another while driving. \xe2\x80\x9c[A]ccording to\nShoulders, Kijonka rolled down his car window, gave Shoulders a \xe2\x80\x98dirty look,\xe2\x80\x99 and said: \xe2\x80\x98You\nhave a nice day and your ass is mine you son of a bitch and I will get you.\xe2\x80\x99\xe2\x80\x9d Judge Posner held\nthat the exchange did not constitute an assault:\nEver since the fourteenth century, assault whether civil or criminal has involved (1)\na threatening gesture, or an otherwise innocent gesture made threatening by the\naccompanying words, that (2) creates a reasonable apprehension of an imminent\nbattery. . . . A merely verbal threat of indefinite action in the indefinite future is not\nan assault. . . . It is missing two elements: gesture and imminence. . . . Kijonka\xe2\x80\x99s\nrolling down his car window was not a threatening gesture . . . . There was no\nthreatening gesture, nor even a present threat. It\xe2\x80\x99s not as if Kijonka had said, \xe2\x80\x9cI\nhave a gun in my glove compartment and I\xe2\x80\x99m going to reach in and get it and shoot\nyou, you son of a bitch.\xe2\x80\x9d Even that would have been a threat rather than an assault\nuntil he actually reached toward the glove compartment. . . .\nShoulders, given his history of stalking Kijonka, may have feared that the day of\nretribution had arrived (though this is doubtful, given the presence at the scene of a\npoliceman). But a victim\xe2\x80\x99s fear . . . cannot transform a remote threat into an assault.\n364 F.3d 645 (7th Cir. 2004). Why should the common law not make such behavior actionable?\nIs there anything socially valuable in the kind of behavior at issue here?\n\n4. Threats of distant harm. Distance in space will vitiate an assault action just as surely as\ndistance in time. The canonical case is Smith v. Newsam, 84 E. R. 722 (K.B. 1673), where the\ncourt per Chief Justice Hale rejected a claim of assault in which plaintiff complained that the\ndefendant had shaken \xe2\x80\x9ca sword against the plaintiff in a cutlers shop, being on the other side the\nstreet.\xe2\x80\x9d Mere words or gestures will not constitute an assault absent the imminent apprehension of\ncontact.\n\n5. Conditional threats. The same principle generally renders conditional threats\ninactionable. In the classic English case Tuberville v. Savage, the \xe2\x80\x9cevidence to prove a\nprovocation was, that the plaintiff put his hand upon his sword and said, \xe2\x80\x98If it were not assizetime, I would not take such language from you.\xe2\x80\x99\xe2\x80\x9d (In response to this \xe2\x80\x9cprovocation,\xe2\x80\x9d the\n51\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\ndefendant had apparently wounded the plaintiff in some fashion\xe2\x80\x94thus this suit for damages.)\nAssize-time was when the king\xe2\x80\x99s judges arrived to deliver justice in the English countryside.\nWith the array of royal officials present, it would have been a singularly bad time for one person\nto attack another. And so the court concluded that the evidence was insufficient to make out an\nassault (and by implication, the defendant\xe2\x80\x99s injurious actions were not justified):\n[T]he declaration of the plaintiff was that he would not assault him, the judges being\nin town; and the intention as well as the act makes an assault. Therefore, if one\nstrike another upon the hand or arm or breast in discourse, it is no assault, there\nbeing no intention to assault; but if one, intending to assault, strike at another and\nmiss him, this is an assault: so if he hold up his hand against another in a threatening\nmanner and say nothing, it is an assault.\nTuberville v. Savage, 86 Eng. Rep. 684 (K.B. 1669).\n\n6. The Restatement approach. The Restatement view is that an actor may be liable for\nassault to another if (1) the actor either intended to cause a \xe2\x80\x9charmful or offensive contact\xe2\x80\x9d to the\nother person or to a third party, or to cause \xe2\x80\x9cimminent apprehension of such contact,\xe2\x80\x9d and (2) the\nother person is \xe2\x80\x9cthereby put in such imminent apprehension.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS\n\xc2\xa7 21 (1965). Merely imposing an unreasonable risk of harmful or offensive contacts, without the\nintent to cause such contacts or imminent apprehension thereof, may give rise to liability for\nnegligence, but does not constitute the tort of assault.\n\nSpeicher v. Rajtora, 766 N.W.2d 649 (Iowa App. 2009)\nEISENHAUER, J.\nDaniel Rajtora and Kendra Speicher are the parents of an eight-year-old daughter.\nAlthough they never married, the parties have resided with one another on various occasions.\nDaniel appeals a civil domestic abuse protective order issued in favor of Kendra. He argues the\ndistrict court\xe2\x80\x99s finding he committed domestic abuse assault is not supported by a preponderance\nof the evidence. He specifically maintains there was insufficient evidence he acted in a manner\n\xe2\x80\x9cintended to place another in fear of immediate physical contact which will be painful, injurious,\ninsulting, or offensive, coupled with the apparent ability to execute the act.\xe2\x80\x9d See Iowa Code \xc2\xa7\xc2\xa7\n239.2(2), 708.1(2) (2007). . . .\nOn March 30, 2008, Daniel returned their daughter to Kendra\xe2\x80\x99s residence after a\nvisitation. Daniel did not see Kendra at any time on March 30, and did not speak to her at the\ndrop-off. Kendra testified she called Daniel about five minutes later using a new cell phone\nDaniel had just purchased for their daughter. Kendra asked Daniel to prevent their daughter from\ntaking her new cell phone to church or school. Kendra testified Daniel threatened her by replying:\n\xe2\x80\x9cShut the f* * * up. Don\xe2\x80\x99t worry about it and shut the f* * * up before I come over there and beat\nboth your asses.\xe2\x80\x9d\nKendra stated she placed the call to Daniel\xe2\x80\x99s cell phone and he did not say where he was\nlocated. However, she believed he had returned to a friend\xe2\x80\x99s house one to two miles away. At the\nhearing, Daniel admitted swearing, but denied making a threat. Daniel was at his friend\xe2\x80\x99s house\n52\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nduring the call.\nEven assuming Daniel made the alleged threat, we are compelled to find insufficient\nevidence of assault . . . . Assault requires \xe2\x80\x9cfear of immediate physical contact\xe2\x80\x9d coupled with \xe2\x80\x9cthe\napparent ability to execute\xe2\x80\x9d the assault. The record does not establish Daniel\xe2\x80\x99s apparent ability to\nexecute the threat at the time the threat was made. The testimony only established Kendra\xe2\x80\x99s belief\nDaniel had a future ability to return from a distance and execute the threat.\nWe find insufficient evidence to support the assault element of domestic abuse assault.\nWe reverse and remand for dismissal of the protective order.\n\nNote\n\n1. Torts and domestic abuse. It is one thing to deny a remedy for ordinary everyday\nfrictions, for distant threats, or for medieval bluster. But what about the all-too-ordinary verbal\nattacks that are characteristic of abusive domestic relations? According to a recent government\nreport, one in four women and one in ten men in the U.S. \xe2\x80\x9cexperienced contact sexual violence,\nphysical violence, and/or stalking by an intimate partner during their lifetime and reported some\nform of [Intimate Partner Violence]-related impact.\xe2\x80\x9d SHARON G. SMITH, ET AL., NATIONAL\nINTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2015 DATA BRIEF \xe2\x80\x93 UPDATED RELEASE 8-9\n(2018), available at https://perma.cc/8DGD-NRS3. Data is more limited on transgender and nonbinary people, but a 2015 survey by the National Center for Transgender Equality found that more\nthan half of the 27,715 respondents had experienced some form of intimate partner violence and\nthat for one quarter of respondents that violence was \xe2\x80\x9csevere.\xe2\x80\x9d S. E. JAMES, ET AL., THE REPORT\nOF THE 2015 U.S. TRANSGENDER SURVEY (2016), available at https://perma.cc/76R9-3HFM. Do\nthe limits of the assault cause of action prevent the law from dealing with domestic violence?\nWould a more robust assault action empower otherwise disempowered people to resist threats or\nacts of violence in the context of intimate and familial relationships? What other consequences\nmight you expect to follow were courts to more readily recognize as assault situations like the one\nin Speicher?\nNote that when it comes to using tort law to address domestic violence, the problem may\ngo much deeper than the elements of any particular tort. Professor Martha Chamallas notes that,\nas compared to fifty years ago, tort claims are much more available to people who experience\ndomestic violence. And yet \xe2\x80\x9cpractical and cultural reasons\xe2\x80\x9d have prevented tort law from\nbecoming an effective response to domestic violence: \xe2\x80\x9cPlaintiffs are deterred by short statutes of\nlimitations, joinder rules in some jurisdictions which require filing claims in conjunction with a\ndivorce action, restrictions on legal services organizations prohibiting the filing of such suits and,\nmost importantly, the lack of liability insurance that could operate as a fund for victims to tap into\nto secure compensation. . . .\xe2\x80\x9d Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J.\nTORT L. 39, 46-51 (2018); see also Jennifer Wriggins, Domestic Violence Torts, 75 S. CAL. L.\nREV. 121 (2001); Camille Carey, Domestic Violence Torts: Righting a Civil Wrong, 62 U. KAN. L.\nREV. 695 (2014). What would it take to change this pattern? Why has it proven so sticky?\n\n53\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n3. False Imprisonment\nWhittaker v. Sandford, 110 Me. 77 (1912)\nSAVAGE, J.\nAction for false imprisonment. The plaintiff recovered a verdict for $1,100. The case\ncomes up on defendant\xe2\x80\x99s exceptions and motion for a new trial.\nThe case shows that for several years prior to 1910, at a locality called \xe2\x80\x9cShiloh,\xe2\x80\x9d in Durham, in this\nstate, there had been gathered together a religious sect, of which the defendant was at least the\nreligious leader. They dwelt in a so\xe2\x80\x93called colony. There was a similar colony under the same\nreligious leadership at Jaffa, in Syria. The plaintiff was a member of this sect, and her husband was\none of its ministers. For the promotion of the work of the \xe2\x80\x9cmovement,\xe2\x80\x9d as it is called, a Yacht Club\nwas incorporated, of which the defendant was president. The Yacht Club owned two sailing yachts,\nthe \xe2\x80\x9cKingdom\xe2\x80\x9d and the \xe2\x80\x9cCoronet.\xe2\x80\x9d So far as this case is concerned, these yachts were employed in\ntransporting members of the movement, back and forth, between the coast of Maine and Jaffa.\nThe plaintiff, with her four children, sailed on the Coronet to Jaffa in 1905. Her husband\nwas in Jerusalem, but came to Jaffa, and there remained until he sailed, a year later, apparently to\nAmerica. The plaintiff lived in Jerusalem and Jaffa, as a member of the colony, until March, 1909.\nAt that time she decided to abandon the movement, and from that time on ceased to take part in its\nexercise or to be recognized as a member. She made her preparations to return to America by\nsteamer, but did not obtain the necessary funds therefor until December 24, 1909. At that time the\nKingdom was in the harbor at Jaffa, and the defendant was on board. On Christmas day he sent a\nmessenger to ask the plaintiff to come on board. She went, first being assured by the messenger\nthat she should be returned to shore. The defendant expressed a strong desire that she should come\nback to America on the Kingdom, rather than in a steamer, saying, as she says, that he could not\nbear the sting of having her come home by steamer; he having taken her out. The plaintiff fearing,\nas she says, that if she came on board the defendant\xe2\x80\x99s yacht she would not be let off until she was\n\xe2\x80\x9cwon to the movement\xe2\x80\x9d again, discussed that subject with the defendant, and he assured her\nrepeatedly that under no circumstances would she be detained on board the vessel after they got\ninto port, and that she should be free to do what she wanted to the moment they reached shore.\nRelying upon this promise, she boarded the Kingdom on December 28th and sailed for America.\nShe was treated as a guest, and with all respect. She had her four children with her. The defendant\nwas also on board.\nThe Kingdom arrived in Portland Harbor on the afternoon of Sunday, May 8, 1910. The\nplaintiff\xe2\x80\x99s husband, who was at Shiloh, was telephoned to by some one, and went at once to Portland\nHarbor, reaching the yacht about midnight of the same day. The Coronet was also in Portland\nHarbor at that time. Later both yachts sailed to South Freeport, reaching there Tuesday morning,\nMay 10th. From this time until June 6th following the plaintiff claims that she was prevented from\nleaving the Kingdom, by the defendant, in such manner as to constitute false imprisonment.\nThe Exceptions\n....\n. . . The defendant requested the court to instruct the jury that \xe2\x80\x9cto maintain her action the\nplaintiff must show some actual physical force exercised by the defendant or by some one acting as\nhis agent and by his authority to restrain her of her liberty.\xe2\x80\x9d\n54\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n. . . . The court instructed the jury that the plaintiff to recover must show that the restraint\nwas physical, and not merely a moral influence; that it must have been actual physical restraint, in\nthe sense that one intentionally locked into a room would be physically restrained but not\nnecessarily involving physical force upon the person; that it was not necessary that the defendant,\nor any person by his direction, should lay his hand upon the plaintiff; that if the plaintiff was\nrestrained so that she could not leave the yacht Kingdom by the intentional refusal to furnish\ntransportation as agreed, she not having it in her power to escape otherwise, it would be a physical\nrestraint and unlawful imprisonment. We think the instructions were apt and sufficient. If one\nshould, without right, turn the key in a door, and thereby prevent a person in the room from leaving,\nit would be the simplest form of unlawful imprisonment. The restraint is physical. The four walls\nand the locked door are physical impediments to escape. Now is it different when one who is in\ncontrol of a vessel at anchor, within practical rowing distance from the shore, who has agreed that\na guest on board shall be free to leave, there being no means to leave except by rowboats, wrongfully\nrefuses the guest the use of a boat? The boat is the key. By refusing the boat he turns the key. The\nguest is as effectually locked up as if there were walls along the sides of the vessel. The restraint is\nphysical. The impassable sea is the physical barrier.\n...\nIt is shown that on several occasions the defendant told the plaintiff she could have a boat\nwhen she wished; but it is also shown by testimony which the jury might believe that, each time she\nmade a request for a boat to be used at the time, she was refused. The plaintiff did not ask the\ncaptain or other officers of the yacht for a boat. These officers testified that they had authority to\nlet any one have the use of a boat, and that, without consulting the defendant. We do not think the\ndefendant can justly claim that she should have asked the officers under him, if he had himself\ndenied her a boat. And in the one specific case shown in the evidence, when she did ask the captain\nfor a boat to go on shore, he referred the discussion of the matter to the defendant. . . . She apparently\nbelieved that an appeal to the officers would be useless. It was not an unreasonable belief.\n. . . [I]t is claimed for [the defendant] that after Tuesday, May 10th, he assumed no\nresponsibility whatever for the plaintiff, and left her in the care of her husband, specifically saying\nthat he would leave it to her husband to say whether she could leave the yacht. From that date, he\nstayed on the Coronet, only coming aboard the Kingdom once, though on that occasion she says he\nrefused her the use of a boat. From that date she was in the company of her husband, though they\nwere not living in marital relations. She went ashore with him. She visited neighboring islands\nwith him. She was trying to persuade him to leave the movement and make a home for her and\ntheir children. He was trying to persuade her to become again a member of the movement. When\non shore with him she made no effort to escape. She says she believed it would be useless, and thus\nwent back to the yacht with him. She says that when she did ask her husband to put her ashore to\nleave, he replied, \xe2\x80\x9cWe will see Mr. Sandford about it and see what he says.\xe2\x80\x9d She further says that\nthe defendant had told her that \xe2\x80\x9che\xe2\x80\x9d (her husband) \xe2\x80\x9ccouldn\xe2\x80\x99t do it\xe2\x80\x9d (put her on shore).\nBesides the evidence of express personal refusal on the part of the defendant, we think that\na jury might well find upon the evidence that . . . in view of the relation which the defendant bore\nto the movement and to the husband, in view of the mystical character attributed to him, in view of\nthe manifest power possessed by him over the minds of the members . . . and which the husband\nshared in, the husband, if not acting by express mutual understanding with the defendant, was the\nminister of his known will, with the result that the plaintiff was prevented from leaving the yacht,\nthat the defendant was the superior, the controlling factor, by an influence intentionally used, in\n55\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nkeeping her there, that he possessed the key that would unlock the situation, and that in violation of\nhis duty he refused to use it, and thus restrained her of her liberty. If all this was true, the defendant\nis liable to the plaintiff. The verdict should not be set aside on that ground.\n...\n\nNotes\n1. What is the price of liberty? After sustaining the jury\xe2\x80\x99s finding of false imprisonment,\nJustice Savage ruled that the damage award was \xe2\x80\x9cmanifestly excessive\xe2\x80\x9d and ordered the plaintiff\nto remit all but $500 (about $13,000 in 2019 dollars). In his estimation, Mrs. Whittaker \xe2\x80\x9cwas by\nno means in close confinement\xe2\x80\x9d and in fact enjoyed a number of \xe2\x80\x9cliberties,\xe2\x80\x9d including being\n\xe2\x80\x9ctaken on shore by her husband to do shopping and transact business at a bank\xe2\x80\x9d and \xe2\x80\x9cvisit[ing]\nneighboring islands with her husband and children, on one of which they enjoyed a family\npicnic.\xe2\x80\x9d Whittaker v. Sandford, 110 Me. 77 (1912). \xe2\x80\x9cThe case lacks the elements of humiliation\nand disgrace that frequently attend false imprisonment,\xe2\x80\x9d Judge Savage explained. Id. What is an\nappropriate damage award for a situation like this? How much should the conditions of the\nconfinement matter?\n\n2. What constitutes confinement? The tort of false imprisonment remains alive and well a\ncentury after the Whittaker case. The crux of this tort is confinement. As the Restatement\nexplains, this action captures situations where a defendant \xe2\x80\x9cacts intending to confine the other or a\nthird person within boundaries fixed by the actor\xe2\x80\x9d; where the defendant\xe2\x80\x99s \xe2\x80\x9cact directly or\nindirectly results in such a confinement of the other\xe2\x80\x9d; and where the person who has been\nconfined \xe2\x80\x9cis conscious of the confinement or is harmed by it.\xe2\x80\x9d RESTATEMENT (SECOND) \xc2\xa7 35\n(1965). As for the more precise meaning of confinement, the Restatement offers several\nclarifications:\n(1) To make the actor liable for false imprisonment, the other\'s confinement within\nthe boundaries fixed by the actor must be complete.\n(2) The confinement is complete although there is a reasonable means of escape,\nunless the other knows of it.\n(3) The actor does not become liable for false imprisonment by intentionally\npreventing another from going in a particular direction in which he has a right or\nprivilege to go.\nRESTATEMENT (SECOND) \xc2\xa7 36 (1965). What concrete scenarios do you imagine gave rise to this\nlanguage? Can you imagine a situation in which a person who was confined would not have been\nconscious of the confinement but would have been harmed by it? To the extent that this language\ndenies recovery for some intentional, wrongful restrictions on another person\xe2\x80\x99s movement, how\ndo we make sense of such exclusions? For an example of a situation that this tort was found not\nto cover, consider the facts of Zavala v. Wal Mart Stores, 691 F.32 527 (3d. Cir. 2012): The\nplaintiff employees alleged that during their night-time and weekend shifts (when the defendant\nretail store was closed to customers), the defendant locked them inside; if necessary, they could\n56\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nask a manager to open the doors, but \xe2\x80\x9c[m]anagers were often unavailable and were sometimes not\neven in the store.\xe2\x80\x9d Id. at 532. The court characterized the store\xe2\x80\x99s emergency exits as a reasonable\nmeans of escape, even though, according to the plaintiffs\xe2\x80\x99 attorneys, \xe2\x80\x9cno one ever showed [the\nplaintiffs] the location of emergency exits and their minimal proficiency in English would make it\ndifficult or impossible to find them on their own.\xe2\x80\x9d Id. at 544-45.\n\n3. Does motive matter? False imprisonment requires intent, but it is only intent to confine,\nnot intent to harm. Indeed, false imprisonment cases often arise from scenarios in which the\nactors who caused the confinement thought they were playing a joke, protecting private property,\nor even looking out for the best interests of the person they confined (for example, by removing\nthe actor from the influence of a cult). Such motives may assist the defendant in establishing an\naffirmative defense (as discussed in later pages), but they generally will not prevent the plaintiff\nfrom establishing a prima facie case of false imprisonment.\n\n4. Intentional Infliction of Emotional Distress\nOf all the intentional torts discussed so far, intentional inflection of emotional distress\n(IIED) is of the most recent vintage. Although it has roots in late nineteenth-century English\ncommon law, see Wilkinson v. Downton, [1897] 2 Q.B. 57, only in the 1930s did legal\ncommentators take note of its arrival on the American scene. One way of thinking about IIED is\nwith reference to injuries that other, more established causes of action had left unrecognized and\nuncompensated; when that lack of recognition became noticeable, and then intolerable, the tort of\nIIED emerged to fill the void.\n\nGTE Southwest v. Bruce, 998 S.W.2d 605 (Tex. 1999)\nABBOTT, J.\nIn this case we determine whether three GTE Southwest, Incorporated employees may\nrecover damages for intentional infliction of emotional distress based on the workplace conduct of\ntheir supervisor. The trial court rendered judgment for the employees on the jury verdict, and the\ncourt of appeals affirmed. We affirm the judgment of the court of appeals.\nI. Facts\nThree GTE employees, Rhonda Bruce, Linda Davis, and Joyce Poelstra, sued GTE for\nintentional infliction of emotional distress premised on the constant humiliating and abusive\nbehavior of their supervisor, Morris Shields. . . . Between 1981 and May 1991, Shields worked as\na supervisor in GTE\xe2\x80\x99s supply department in Jacksonville, Arkansas. During his tenure there, four\nof Shields\xe2\x80\x99s subordinate employees (none of the employees involved in this case) filed formal\ngrievances against Shields with GTE, alleging that Shields constantly harassed them. . . . GTE\ninvestigated Shields\xe2\x80\x99s conduct in 1988 and 1989, but took no formal disciplinary action against\nhim.\nIn May 1991, GTE transferred Shields from Jacksonville to Nash, Texas, where he\n57\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nbecame the supply operations supervisor. . . . Bruce, Davis, and Poelstra (\xe2\x80\x9cthe employees\xe2\x80\x9d)\nworked under Shields at the Nash facility. Like the GTE employees in Jacksonville, Bruce,\nDavis, and Poelstra complained to GTE of Shields\xe2\x80\x99s conduct, alleging that Shields constantly\nharassed and intimidated them. The employees complained about Shields\xe2\x80\x99s daily use of profanity,\nshort temper, and his abusive and vulgar dictatorial manner. The employees complained that,\namong other offensive acts, Shields repeatedly yelled, screamed, cursed, and even \xe2\x80\x9ccharged\xe2\x80\x9d at\nthem. In addition, he intentionally humiliated and embarrassed the employees.\nGTE investigated these complaints in April 1992, after which GTE issued Shields a \xe2\x80\x9cletter\nof reprimand.\xe2\x80\x9d After the reprimand, Shields discontinued some of his egregious conduct, but did\nnot end it completely.\nEventually, Bruce, Davis, and Poelstra sought medical treatment for emotional distress\ncaused by Shields\xe2\x80\x99s conduct. In March 1994, the employees filed suit, alleging that GTE\nintentionally inflicted emotional distress on them through Shields. . . . The jury awarded\n$100,000.00 plus prejudgment interest to Bruce, $100,000.00 plus interest to Davis, and\n$75,000.00 plus interest to Poelstra.\n...\nIII. Intentional Infliction of Emotional Distress\n. . . . To recover damages for intentional infliction of emotional distress, a plaintiff must\nprove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and\noutrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the\nresulting emotional distress was severe. In addition, \xe2\x80\x9c[a] claim for intentional infliction of\nemotional distress cannot be maintained when the risk that emotional distress will result is merely\nincidental to the commission of some other tort.\xe2\x80\x9d Accordingly, a claim for intentional infliction\nof emotional distress will not lie if emotional distress is not the intended or primary consequence\nof the defendant\xe2\x80\x99s conduct.\n...\nA. Extreme and Outrageous Conduct\n. . . To be extreme and outrageous, conduct must be \xe2\x80\x9cso outrageous in character, and so\nextreme in degree, as to go beyond all possible bounds of decency, and to be regarded as\natrocious, and utterly intolerable in a civilized community.\xe2\x80\x9d Generally, insensitive or even rude\nbehavior does not constitute extreme and outrageous conduct. Similarly, mere insults, indignities,\nthreats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and\noutrageous conduct.\nIn determining whether certain conduct is extreme and outrageous, courts consider the\ncontext and the relationship between the parties. \xe2\x80\x9cThe extreme and outrageous character of the\nconduct may arise from an abuse by the actor of a position, or a relation with the other, which\ngives him actual or apparent authority over the other, or power to affect his interests.\xe2\x80\x9d\nRestatement (Second) of Torts \xc2\xa7 46 cmt. e (1965).\nIn the employment context, some courts have held that a plaintiff\xe2\x80\x99s status as an employee\n58\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nshould entitle him to a greater degree of protection from insult and outrage by a supervisor with\nauthority over him than if he were a stranger. . . .\nIn contrast, several courts, including Texas courts, have adopted a strict approach to\nintentional infliction of emotional distress claims arising in the workplace. These courts rely on\nthe fact that, to properly manage its business, an employer must be able to supervise, review,\ncriticize, demote, transfer, and discipline employees. Although many of these acts are necessarily\nunpleasant for the employee, an employer must have latitude to exercise these rights in a\npermissible way, even though emotional distress results. We agree with the approach taken by\nthese courts.\n. . . . Thus, to establish a cause of action for intentional infliction of emotional distress in\nthe workplace, an employee must prove the existence of some conduct that brings the dispute\noutside the scope of an ordinary employment dispute and into the realm of extreme and\noutrageous conduct.\nGTE contends that the evidence establishes nothing more than an ordinary employment\ndispute. To the contrary, the employees produced evidence that, over a period of more than two\nyears, Shields engaged in a pattern of grossly abusive, threatening, and degrading conduct.\nShields began regularly using the harshest vulgarity shortly after his arrival at the Nash facility.\nIn response, Bruce and Davis informed Shields that they were uncomfortable with obscene jokes,\nvulgar cursing, and sexual innuendo in the office. Despite these objections, Shields continued to\nuse exceedingly vulgar language on a daily basis. Several witnesses testified that Shields used the\nword \xe2\x80\x9cf\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93\xe2\x80\x9d as part of his normal pattern of conversation, and that he regularly heaped abusive\nprofanity on the employees. Linda Davis testified that Shields used this language to get a\nreaction. Gene Martin, another GTE employee, testified that Shields used the words \xe2\x80\x9cf\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93\xe2\x80\x9d and\n\xe2\x80\x9cmotherf\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93er\xe2\x80\x9d frequently when speaking with the employees. On one occasion when Bruce\nasked Shields to curb his language because it was offensive, Shields positioned himself in front of\nher face, and screamed, \xe2\x80\x9cI will do and say any damn thing I want. And I don\xe2\x80\x99t give a s\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93 who\nlikes it.\xe2\x80\x9d Another typical example is when Gene Martin asked Shields to stop his yelling and\nvulgarity because it upset the female employees, and Shields replied \xe2\x80\x9cI\xe2\x80\x99m tired of walking on f\xe2\x80\x93\xe2\x80\x93\xe2\x80\x93\ning eggshells, trying to make people happy around here.\xe2\x80\x9d There was further evidence that\nShields\xe2\x80\x99s harsh and vulgar language was not merely accidental, but seemed intended to abuse the\nemployees.\nMore importantly, the employees testified that Shields repeatedly physically and verbally\nthreatened and terrorized them. There was evidence that Shields was continuously in a rage, and\nthat Shields would frequently assault each of the employees by physically charging at them.\nWhen doing so, Shields would bend his head down, put his arms straight down by his sides, ball\nhis hands into fists, and walk quickly toward or \xe2\x80\x9clunge\xe2\x80\x9d at the employees, stopping uncomfortably\nclose to their faces while screaming and yelling. The employees were exceedingly frightened by\nthis behavior, afraid that Shields might hit them. Linda Davis testified that Shields charged the\nemployees with the intent to frighten them. At least once, another employee came between\nShields and Poelstra to protect her from Shields\xe2\x80\x99s charge. A number of witnesses testified that\nShields frequently yelled and screamed at the top of his voice, and pounded his fists when\nrequesting the employees to do things. Bruce testified that Shields would \xe2\x80\x9ccome up fast\xe2\x80\x9d and \xe2\x80\x9cget\nup over her\xe2\x80\x9d\xe2\x80\x94causing her to lean back\xe2\x80\x94and yell and scream in her face for her to get things for\nhim. Shields included vulgar language in his yelling and screaming. Bruce stated that such\nconduct was not a part of any disciplinary action against her. Further, the incidents usually\n59\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\noccurred in the open rather than in private. Bruce testified that, on one occasion, Shields began\nbeating a banana on his desk, and when he jumped up and slammed the banana into the trash,\nBruce thought he would hit her. Afterwards, Shields was shaking and said \xe2\x80\x9cI\xe2\x80\x99m sick.\xe2\x80\x9d\nBruce also told of an occasion when Shields entered Bruce\xe2\x80\x99s office and went into a rage\nbecause Davis had left her purse on a chair and Bruce had placed her umbrella on a filing cabinet\nin the office. Shields yelled and screamed for Bruce to clean up her office. Shields yelled, \xe2\x80\x9cIf\nyou don\xe2\x80\x99t get things picked up in this office, you will not be working for me.\xe2\x80\x9d He later said that\nBruce and Davis would be sent to the unemployment line and \xe2\x80\x9ccould be replaced by two Kelly\ngirls\xe2\x80\x9d that were twenty years old. On another occasion, Shields came up behind Bruce and said,\n\xe2\x80\x9cYou\xe2\x80\x99re going to be in the unemployment line.\xe2\x80\x9d Once he told Bruce that he had been sent to Nash\nto fire her. Another time, he typed \xe2\x80\x9cquit\xe2\x80\x9d on his computer and said, \xe2\x80\x9cThat\xe2\x80\x99s what you can do.\xe2\x80\x9d\nDavis testified that Shields threatened to \xe2\x80\x9cget them\xe2\x80\x9d for complaining about his behavior. And\nboth Bruce and Martin testified that Shields had stated that \xe2\x80\x9che was in a position to get even for\nwhat [the employees] had done.\xe2\x80\x9d\nBruce also testified that Shields called her into his office every day and would have her\nstand in front of him, sometimes for as long as thirty minutes, while Shields simply stared at her.\nBruce was not allowed to leave Shields\xe2\x80\x99s office until she was dismissed, even though Shields\nwould periodically talk on the phone or read papers. This often occurred several times a day.\nBruce testified that it made her nauseated and intimidated her. On one occasion, Shields backed\nBruce into a corner, leaned over her, and said, \xe2\x80\x9cRumor has it that you know how to get anything\nyou want out here.\xe2\x80\x9d During an annual review, Shields said to Bruce, \xe2\x80\x9cYou\xe2\x80\x99re mean and you\xe2\x80\x99re\ndeadly, very deadly.\xe2\x80\x9d Davis also testified that Shields would stand over her desk and stare at her.\nShields required Bruce and Davis, both general clerks at GTE, to purchase vacuum\ncleaners with company funds and to vacuum their offices daily, despite the fact that the company\nhad a cleaning service that performed janitorial services such as vacuuming. The purpose of this\nseemed not to clean, but to humiliate. Bruce testified that she was ridiculed by other employees.\nShields also yelled and screamed when he discovered a spot on the carpet; he made Bruce get on\nher hands and knees and clean the spots while he stood over her yelling. Poelstra testified that\nShields required her to clean tobacco stains from a wall in the warehouse. Poelstra testified that,\nafter she forgot her paperwork for a driving test, Shields ordered her to wear a post-it note on her\nshirt that said, \xe2\x80\x9cDon\xe2\x80\x99t forget your paperwork.\xe2\x80\x9d Other witnesses corroborated the employees\xe2\x80\x99\ntestimony about Shields\xe2\x80\x99s conduct.\nIn considering whether the evidence establishes more than an ordinary employment\ndispute, we will also address GTE\xe2\x80\x99s argument that because none of Shields\xe2\x80\x99s acts standing alone\nrises to the level of outrageous conduct, the court of appeals erred in holding that, considered\ncumulatively, the conduct was extreme and outrageous.\n[T]he employees demonstrated at trial that Shields engaged in a course of harassing\nconduct directed at each of them, the totality of which caused severe emotional distress. It is well\nrecognized outside of the employment context that a course of harassing conduct may support\nliability for intentional infliction of emotional distress. In such cases, courts consider the totality\nof the conduct in determining whether it is extreme and outrageous.\nSimilarly, in the employment context, courts and commentators have almost unanimously\nrecognized that liability may arise when one in a position of authority engages in repeated or\n60\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nongoing harassment of an employee, if the cumulative quality and quantity of the harassment is\nextreme and outrageous.\n....\nWe agree with the overwhelming weight of authority in this state and around the country\nthat when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a\nwhole in determining whether it is extreme and outrageous. Accordingly, we hold that the court\nof appeals did not err in doing so.\nWe now consider whether Shields\xe2\x80\x99s conduct, taken as a whole, amounts to extreme and\noutrageous conduct. \xe2\x80\x9cIt is for the court to determine, in the first instance, whether the defendant\xe2\x80\x99s\nconduct may reasonably be regarded as so extreme and outrageous as to permit recovery . . . .\xe2\x80\x9d\nWhen reasonable minds may differ, however, it is for the jury, subject to the court\xe2\x80\x99s control, to\ndetermine whether, in the particular case, the conduct has been sufficiently extreme and\noutrageous to result in liability. Restatement (Second) of Torts \xc2\xa7 46 cmt. h. To support liability\nfor intentional infliction of emotional distress, it is not enough that the defendant has acted with\nan intent that is tortious, malicious, or even criminal, or that he has intended to inflict emotional\ndistress. Id. \xc2\xa7 46 cmt. d. Although the defendant\'s intent is relevant, the conduct itself must be\nextreme and outrageous to support liability.\n...\nWe recognize that, even when an employer or supervisor abuses a position of power over\nan employee, the employer will not be liable for mere insults, indignities, or annoyances that are\nnot extreme and outrageous. But Shields\xe2\x80\x99s ongoing acts of harassment, intimidation, and\nhumiliation and his daily obscene and vulgar behavior, which GTE defends as his \xe2\x80\x9cmanagement\nstyle,\xe2\x80\x9d went beyond the bounds of tolerable workplace conduct. The picture painted by the\nevidence at trial was unmistakable: Shields greatly exceeded the necessary leeway to supervise,\ncriticize, demote, transfer, and discipline, and created a workplace that was a den of terror for the\nemployees. And the evidence showed that all of Shields\xe2\x80\x99s abusive conduct was common, not rare.\nBeing purposefully humiliated and intimidated, and being repeatedly put in fear of one\xe2\x80\x99s physical\nwell-being at the hands of a supervisor is more than a mere triviality or annoyance.\nOccasional malicious and abusive incidents should not be condoned, but must often be\ntolerated in our society. But once conduct such as that shown here becomes a regular pattern of\nbehavior and continues despite the victim\xe2\x80\x99s objection and attempts to remedy the situation, it can\nno longer be tolerated. . . . Conduct such as being regularly assaulted, intimidated, and threatened\nis not typically encountered nor expected in the course of one\xe2\x80\x99s employment, nor should it be\naccepted in a civilized society. . . . Accordingly, the trial court properly submitted the issue to the\njury, and there was some evidence to support the jury\xe2\x80\x99s conclusion that Shields\xe2\x80\x99s conduct was\nextreme and outrageous.\nB. Intent\n[Under the doctrine of vicarious liability, it is not necessary that GTE acted with the requisite intent.\n\xe2\x80\x9cIf the intentional tort is committed in the accomplishment of a duty entrusted to the employee,\nrather than because of personal animosity, the employer may be liable. Shields\xe2\x80\x99s acts, although\ninappropriate, involved conduct within the scope of his position as the employees\xe2\x80\x99 supervisor.\xe2\x80\x9d]\n61\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n...\nC. Severe Emotional Distress\nGTE next contends that any distress the employees suffered was not severe. GTE argues\nthat the employees\xe2\x80\x99 complaints of embarrassment, fear, stomach aches, loss of sleep, and headaches\n\xe2\x80\x9care problems that are normally dealt with by each of us in every day life.\xe2\x80\x9d\nEmotional distress includes all highly unpleasant mental reactions such as embarrassment,\nfright, horror, grief, shame, humiliation, and worry. Severe emotional distress is distress that is so\nsevere that no reasonable person could be expected to endure it. The employees testified that, as a\nresult of being exposed to Shields\xe2\x80\x99s outrageous conduct, they experienced a variety of emotional\nproblems, including crying spells, emotional outbursts, nausea, stomach disorders, headaches,\ndifficulty in sleeping and eating, stress, anxiety, and depression. The employees testified that they\nexperienced anxiety and fear because of Shields\xe2\x80\x99s continuing harassment, especially his charges\nand rages. Each employee sought medical treatment for these problems, and all three plaintiffs\nwere prescribed medication to alleviate the problems. An expert witness testified that each of them\nsuffered from post-traumatic stress disorder. This evidence is legally sufficient to support the jury\xe2\x80\x99s\nfinding that the employees suffered severe emotional distress.\n....\n. . . . We conclude that there is legally sufficient evidence to support the jury\xe2\x80\x99s verdict\nagainst GTE on each of the employees\xe2\x80\x99 claims for intentional infliction of emotional distress. . . .\n[W]e affirm the court of appeals\xe2\x80\x99 judgment.\n\nNotes\n1. What constitutes \xe2\x80\x9cextreme and outrageous conduct.\xe2\x80\x9d Although the plaintiffs in the GTE\ncase succeeded in convincing a jury that the conduct in question was \xe2\x80\x9cextreme and outrageous,\xe2\x80\x9d it\nwas not a sure thing. Indeed, one member of the Texas Supreme Court (Justice Priscilla Owen)\ndeclined to join the majority\xe2\x80\x99s opinion because of concerns about the way the majority\ncharacterized the conduct at issue. Actions such as screaming at employees while telling them to\ndo things or threatening employees with firing may have been experienced as \xe2\x80\x9chumiliating and\ndegrading\xe2\x80\x9d but it was simply \xe2\x80\x9cnot a basis for sustaining a cause of action for intentional infliction\nof emotional distress,\xe2\x80\x9d Justice Owen insisted. 998 S.W.2d 605, 620-21 (Owen, J., concurring).\nMany other plaintiffs have, in fact, struggled to establish the element of \xe2\x80\x9cextreme and\noutrageous\xe2\x80\x9d conduct. A famous example is Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998),\nin which Paula Jones sued then-president Bill Clinton for claims arising from his alleged conduct\ntoward her in 1991, when he was Governor of Arkansas and she was a state employee. According\nto Jones, Clinton invited her to his hotel room, where, after referencing his close friendship with\nJones\xe2\x80\x99s immediate supervisor, he made several unwelcome sexual advances. These allegedly\nincluded putting his hand on her leg and \xe2\x80\x9csliding it toward her pelvic area\xe2\x80\x9d and, after Jones clearly\nsignaled her disinterest, exposing and \xe2\x80\x9cfondling\xe2\x80\x9d his erect penis while talking to her. Id. at 66362\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n64. Jones alleged that in the weeks after the incident, in the course of her job, she had several\ndistressing encounters with Clinton and with the bodyguard who had originally escorted her to\nClinton\xe2\x80\x99s hotel room, including a request for her phone number; she also claimed that her work\nenvironment became hostile. Id. at 665. In dismissing Jones\xe2\x80\x99s IIED claim, the court\ncharacterized the alleged conduct as \xe2\x80\x9ca mere sexual proposition or encounter, albeit an odious\none, that was relatively brief in duration, did not involve any coercion or threats of reprisal, and\nwas abandoned as soon as plaintiff made clear that the advance was not welcome.\xe2\x80\x9d Id. at 677.\nThe court\xe2\x80\x99s language is reminiscent of Professor (later Judge) Calvert Magruder\xe2\x80\x99s statement of the\nlaw in 1936: that when it came to men soliciting sex from women, courts apparently saw \xe2\x80\x9cno\nharm in asking.\xe2\x80\x9d Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49\nHARV. L. REV. 1033, 1055 (1936). Given the current prevalence of conversations about\nunwelcome sexual conduct and imbalances of power, do you think the Jones case would come out\ndifferently today? Or would the #MeToo movement\xe2\x80\x99s many revelations about abuses of power by\nprominent men cause these facts to appear even less \xe2\x80\x9cextreme and outrageous\xe2\x80\x9d? Can a set of facts\nthat is common nonetheless be \xe2\x80\x9cextreme and outrageous\xe2\x80\x9d?\nOn the other side of the ledger are cases such as Morgan v. Anthony, 27 S.W.3d 928 (Tex.\n2000), where the court recounted the following alleged facts, involving a woman driving alone\ndown a highway:\n. . . . As [plaintiff Morgan] continued toward her home . . . the problems with her\nautomobile worsened. She was no longer able to drive more than five miles per\nhour, so she began traveling on the shoulder.\nAs she was making her way, Mack Anthony, whom she had never before seen,\npulled in front of her in his pickup. At that point, Morgan\'s vehicle died. Anthony\ngot out of his truck, approached Morgan\'s car on the passenger side, and opened the\ndoor. He asked if she was having trouble, to which she responded yes, but she told\nAnthony that her husband, who was a mechanic, or her father was on the way to\nhelp her. She thanked Anthony and tried to shut her car door, but he held it open.\nAnthony then made a statement to the effect that Morgan\'s husband might not be\n\xe2\x80\x9ctaking care of [her] in the car department\xe2\x80\x9d and implied that her husband might not\nbe \xe2\x80\x9ctaking care of her\xe2\x80\x9d in other areas of her life. Anthony then said that maybe he\ncould \xe2\x80\x9chelp [her] in another area.\xe2\x80\x9d She replied no, that she was a happily married\nwoman and asked Anthony to please let her shut the car door. Anthony responded\nthat he did not live very far away and suggested that Morgan follow him so that he\ncould fix her car \xe2\x80\x9cand anything extra that [she] needed.\xe2\x80\x9d\nMorgan continued her efforts to pull her car door closed, but Anthony continued to\nhold it open. She repeatedly asked him to let her shut her door, but he refused.\nDuring most of this exchange, Anthony was leaning into the car with one hand on\nthe dashboard, and he stared between Morgan\'s legs and at her breasts. When he\nstepped back, with only one hand on the car door, Morgan was able to shut and lock\nit. Morgan made numerous attempts to restart her car as Anthony stood outside the\npassenger window saying things such as \xe2\x80\x9ccome on baby, open the door.\xe2\x80\x9d Morgan\'s\ncar eventually did restart and she drove off, but she again could not get her car to\ngo faster than five miles per hour.\n\n63\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nAccording to Morgan, Anthony continued to follow her down the highway, variously pulling in\nfront of her, blocking her access to the shoulder of the road, and, when her vehicle was stopped or\ndebilitated, approaching her vehicle to make comments, even after she explicitly conveyed to him\nher fear. Id. at 929. This pattern broke only when Morgan at last saw a diner parking lot to turn\ninto and got help from a family member. Id. at 930. Here, the court had \xe2\x80\x9cno difficulty\xe2\x80\x9d finding\nevidence of conduct that was sufficiently outrageous to survive a motion for summary\njudgment. Id. at 931.\n.\nThere is also a broad swath of territory somewhere in the middle, where courts have\nreached seemingly conflicting conclusions and only context can explain the outcomes. For\nexample, in Hoard v. Shawnee Medical Center, 662 P.2d 1214 (Kan. 1983), and Peddycoat v.\nBirmingham, 392 So.2d 536 (Ala. 1980), erroneous statements to plaintiffs that their children had\ndied, in horrifying ways, did not amount to conduct that was sufficiently extreme and outrageous\nto sustain a claim for IIED. In Dunbar v. Strimas, 632 S.W.2d 558 (Tenn. Ct. App. 1982), by\ncontrast, the court held that the plaintiff parents did state a claim of IIED where they alleged that a\nmedical examiner, on the basis of no valid evidence, informed them that their deceased nineteenmonth-old daughter (found dead in her crib at a relative\xe2\x80\x99s house while her mother was\nhospitalized giving birth to a second child) showed signs of being sexually abused. Various\ncourts have found the use of racial epithets insufficiently extreme and outrageous to support a\nclaim of IIED, see, e.g., Dawson v. Zayre Dept. Stores, 499 A.2d 648 (Pa. Super. Ct. 1985);\nBradshaw v. Swagerty, 563 P.2d 511 (Kan. 1977), but courts have come out the other way where\nthe defendant made racialized derogatory comments in the course of committing discriminatory\nacts (kicking a black customer out of a store, in Ledsinger v. Burmeiter, 318 N.W.2d 558 (Mich.\nCt. App. 1982); sexually harassing an employee, in Lathrope-Olson v. Oregon Department of\nTransportation, 876 P.2d 345 (Or. Ct. App. 1994)).\nOne factor that helps make sense of seemingly conflicting outcomes is the perceived\nfragility of the plaintiff and whether the facts suggest that the defendant knew about the plaintiff\xe2\x80\x99s\nvulnerable state. As the Restatement authors explain, \xe2\x80\x9cthe extreme and outrageous character of\nthe conduct may arise from the actor\'s knowledge that the other is peculiarly susceptible to\nemotional distress, by reason of some physical or mental condition or peculiarity.\xe2\x80\x9d Conduct that\nmight not otherwise be considered \xe2\x80\x9cheartless, flagrant, and outrageous\xe2\x80\x9d may become so \xe2\x80\x9cwhen the\nactor proceeds in the face of such knowledge.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 46 cmt. f\n(1965).\n\n2. What constitutes severe emotional distress? Plaintiffs in IIED cases must not only clear\nthe high bar of outrageousness but must also prove that the distress they experienced was\nsufficiently severe. Proving severe emotional distress can be especially challenging when the\nplaintiff has not responded to the defendant\xe2\x80\x99s conduct in the way a judge or jury finds intuitive.\nFor example, in the Jones v. Clinton case referenced above, the court declined to credit the expert\nreport Jones submitted regarding the psychological and emotional impact of Clinton\xe2\x80\x99s alleged\nbehavior while treating as significant evidence that Jones \xe2\x80\x9cnever missed a day of work following\nthe alleged incident\xe2\x80\x9d; continued to work at her job for another nineteen months, even though it\nrequired her to \xe2\x80\x9cgo on a daily basis to the Governor\xe2\x80\x99s Office to deliver items\xe2\x80\x9d; and never formally\nreported the incident to a supervisor. 990 F. Supp. at 678.\nThe Supreme Court of Alabama was similarly skeptical of the plaintiff\xe2\x80\x99s claim of severe\ndistress in Grantham v. Vanderzyl, 802 So.2d 1077 (Ala. 2001), where the plaintiff nurse alleged\n64\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nthat, during a surgical procedure, the defendant surgeon intentionally threw at her a \xe2\x80\x9csurgical\ndrape[] containing the patient\xe2\x80\x99s blood and surgical refuse,\xe2\x80\x9d after \xe2\x80\x9cma[king] a remark to the effect\nthat [she] lacked the appropriate training\xe2\x80\x9d; the incident left \xe2\x80\x9cblood and fluids on [the plaintiff\xe2\x80\x99s]\nface,\xe2\x80\x9d the defendant conceded, and led to six separate rounds of blood tests (all negative) for\n\xe2\x80\x9cHIV, hepatitis, and other communicable diseases.\xe2\x80\x9d The Alabama Supreme Court agreed with the\ntrial court that even if all the allegations were true, the plaintiff had no viable claim for \xe2\x80\x9coutrage\xe2\x80\x9d\n(as IIED is called in Alabama). Although a hospital supervisor allegedly told the plaintiff to\n\xe2\x80\x9cconsider herself HIV-positive and to adapt her lifestyle accordingly,\xe2\x80\x9d the plaintiff was never\nactually \xe2\x80\x9cin danger of contracting a communicable disease,\xe2\x80\x9d the court noted, and so had no \xe2\x80\x9cbasis\nin fact\xe2\x80\x9d for the fearful response she claimed. Id. at 1079, 1081.\nComplicating these inquiries is the language found in the Restatement, which many\njurisdictions look to as their guide on severity: \xe2\x80\x9c[S]ome degree of transient and trivial emotional\ndistress is a part of the price of living among people. The law intervenes only where the distress\ninflicted is so severe that no reasonable man could be expected to endure it.\xe2\x80\x9d RESTATEMENT\n(SECOND) OF TORTS \xc2\xa7 46 cmt. j (1965) (emphasis added). What are the implications of such\nlanguage in a society with a well-recognized gender gap in the experience and expression of\nparticular emotions and with a cultural tendency to cast women as overly emotional? Changing\n\xe2\x80\x9creasonable man\xe2\x80\x9d to \xe2\x80\x9creasonable person,\xe2\x80\x9d as many jurisdictions have done, facially eliminates\ngender from the standard, but does it address the gender (and other) biases that factfinders might\nbring with them when they evaluate a particular plaintiff\xe2\x80\x99s alleged distress? For a survey of\nsociological research on gender differences in the experience and expression of emotions, see\nRobin W. Simon, Sociological Scholarship on Gender Differences in Emotion and Emotional\nWell-Being in the United States: A Snapshot of the Field, 6 AM. J. SOC. 196 (2014).\nThe Restatement language presents still another puzzle: What work does the word\n\xe2\x80\x9creasonable\xe2\x80\x9d do here? Does it signal the uncompensability of sincerely felt but objectively\nunreasonable distress? Or might it instead create space for uniquely sensitive plaintiffs to recover,\nso long as they offer enough evidence of their subjective experience of distress to make that\nexperience cognizable to the factfinder, who can than test it out on the fictitious \xe2\x80\x9creasonable\nman\xe2\x80\x9d?\n\n3. Intentionality. A successful claim of IIED also requires a showing that the defendant\nacted with a particular mental state. In the words of the Restatement, the extreme and outrageous\nconduct must have been done \xe2\x80\x9cintentionally or recklessly.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7\n46 (1965). We have previously covered the word \xe2\x80\x9cintentionally,\xe2\x80\x9d in our discussion of battery. A\nperson acts \xe2\x80\x9crecklessly,\xe2\x80\x9d according to the Restatement, if \xe2\x80\x9c(a) the person knows of the risk of\nharm created by the conduct or knows facts that make the risk obvious to another in the person\'s\nsituation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are\nso slight relative to the magnitude of the risk as to render the person\'s failure to adopt the\nprecaution a demonstration of the person\'s indifference to the risk.\xe2\x80\x9d RESTATEMENT (THIRD) OF\nTORTS: PHYS. & EMOT. HARM \xc2\xa7 2 (2010). An example of conduct that could fairly be deemed\nreckless, if not intentional, can be found in Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700\n(Mo. Ct. App. 1978), where the defendant funeral director\xe2\x80\x99s carelessness resulted in a woman\xe2\x80\x99s\nremains being buried in a shallow grave, rather than in the contracted-for vault, and where heavy\nequipment then uncovered her body, parts of which the plaintiff relatives of the decedent could\nsee when they visited her grave site.\n65\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nC. Defenses to Intentional Torts\nWhen a plaintiff alleges that a defendant has committed an intentional tort, a defendant\nmay respond in at least two ways. One is by attacking the plaintiff\xe2\x80\x99s prima facie case, such as by\ndenying that the plaintiff can establish a required element. Where the defendant successfully\nundercuts the plaintiff\xe2\x80\x99s showing of intent, for example, any of the intentional torts claims we\ndiscuss will fail. A second response is to raise an \xe2\x80\x9caffirmative defense\xe2\x80\x9d\xe2\x80\x94an argument that the\ndefendant\xe2\x80\x99s apparently tortious conduct was legally justified or privileged.\n\n1. Self-Defense\nCourvoisier v. Raymond, 47 P. 284 (Colo. 1896)\nHAYT, C.J.\nIt is admitted, or proven beyond controversy, that appellee received a gunshot wound at\nthe hands of the appellant . . . , and that, as the result of such wound, the appellee was seriously\ninjured. It is further shown that the shooting occurred under the following circumstances: That\nMr. Courvoisier, on the night in question, was asleep in his bed, in the second story of a brick\nbuilding, situate[d] at the corner of South Broadway and Dakota streets, in South Denver; that he\noccupied a portion of the lower floor of this building as a jewelry store. He was aroused from his\nbed, shortly after midnight, by parties shaking or trying to open the door of the jewelry store.\nThese parties, when asked by him as to what they wanted, insisted upon being admitted, and, upon\nhis refusal to comply with this request, they used profane and abusive epithets towards him.\nBeing unable to gain admission, they broke some signs upon the front of the building, and then\nentered the building by another entrance, and, passing upstairs, commenced knocking upon the\ndoor of a room where defendant\xe2\x80\x99s sister was sleeping. Courvoisier partly dressed himself, and,\ntaking his revolver, went upstairs, and expelled the intruders from the building. In doing this he\npassed downstairs, and out on the sidewalk, as far as the entrance to his store, which was at the\ncorner of the building. The parties expelled from the building, upon reaching the rear of the store,\nwere joined by two or three others. In order to frighten these parties away, the defendant fired a\nshot in the air; but, instead of retreating, they passed around to the street in front, throwing stones\nand brickbats at the defendant, whereupon he fired a second, and perhaps a third, shot. The first\nshot fired attracted the attention of plaintiff, Raymond, and two deputy sheriffs, who were at the\ntramway depot across the street. These officers started towards Mr. Courvoisier, who still\ncontinued to shoot; but two of them stopped, when they reached the men in the street, for the\npurpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to\nhim that he was an officer, and to stop shooting. Although the night was dark, the street was well\nlighted by electricity, and, when the officer approached him, defendant shaded his eyes, and,\ntaking deliberate aim, fired, causing the injury complained of. The plaintiff\xe2\x80\x99s theory of the case is\nthat he was a duly-authorized police officer, and in the discharge of his duties at the time; that the\ndefendant was committing a breach of the peace; and that the defendant, knowing him to be a\npolice officer, recklessly fired the shot in question. The defendant claims that the plaintiff was\napproaching him at the time in a threatening attitude, and that the surrounding circumstances were\nsuch as to cause a reasonable man to believe that his life was in danger, and that it was necessary\nto shoot in self defense, and that defendant did so believe at the time of firing the shot.\n\n66\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n...\nThe next error assigned [the court had considered and rejected four other alleged errors]\nrelates to the instructions given by the court to the jury, and to those requested by the defendant\nand refused by the court. The second instruction given by the court was clearly erroneous. The\ninstruction is as follows: \xe2\x80\x98The court instructs you that if you believe, from the evidence, that, at\nthe time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your\nverdict should be for the plaintiff.\xe2\x80\x99 The vice of this instruction is that it excluded from the jury a\nfull consideration of the justification claimed by the defendant. The evidence for the plaintiff\ntends to show that the shooting, if not malicious, was wanton and reckless; but the evidence for\nthe defendant tends to show that the circumstances surrounding him at the time of the shooting\nwere such as to lead a reasonable man to believe that his life was in danger, or that he was in\ndanger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that\nhe did so believe. He swears that his house was invaded, shortly after midnight, by two men,\nwhom he supposed to be burglars; that, when ejected, they were joined on the outside by three or\nfour others; that the crowd so formed assaulted him with stones and other missiles, when, to\nfrighten them away, he shot into the air; that, instead of going away, some one approached him\nfrom the direction of the crowd; that he supposed this person to be one of the rioters, and did not\nascertain that it was the plaintiff until after the shooting. He says that he had had no previous\nacquaintance with plaintiff; that he did not know that he was a police officer, or that there were\nany police officers in the town of South Denver; that he heard nothing said at the time, by the\nplaintiff or any one else, that caused him to think the plaintiff was an officer; that his eyesight was\ngreatly impaired, so that he was obliged to use glasses; and that he was without glasses at the time\nof the shooting, and for this reason could not see distinctly. He then adds: \xe2\x80\x9cI saw a man come\naway from the bunch of men, and come up towards me, and as I looked around I saw this man put\nhis hand to his hip pocket. I didn\xe2\x80\x99t think I had time to jump aside, and therefore turned around\nand fired at him. I had no doubts but it was somebody that had come to rob me, because, some\nweeks before, Mr. Wilson\xe2\x80\x99s store was robbed. It is next door to mine.\xe2\x80\x9d\nBy this evidence two phases of the transaction are presented for consideration: First. Was\nthe plaintiff assaulting the defendant at the time plaintiff was shot? Second. If not, was there\nsufficient evidence of justification for the consideration of the jury? The first question was\nproperly submitted, but the second was excluded by the instruction under review. The\ndefendant\xe2\x80\x99s justification did not rest entirely upon the proof of assault by the plaintiff. A riot was\nin progress, and the defendant swears that he was attacked with missiles, hit with stones,\nbrickbats, etc.; that he shot plaintiff, supposing him to be one of the rioters. We must assume\nthese facts as established in reviewing the instruction, as we cannot say that the jury might have\nfound had this evidence been submitted to them under a proper charge. By the second instruction,\nthe conduct of those who started the fracas was eliminated from the consideration of the jury. If\nthe jury believed, from the evidence, that the defendant would have been justified in shooting one\nof the rioters, had such person advanced towards him, as did the plaintiff, then it became\nimportant to determine whether the defendant mistook plaintiff for one of the rioters; and, if such\na mistake was in fact made, was it excusable, in the light of all the circumstances leading up to\nand surrounding the commission of the act? If these issues had been resolved by the jury in favor\nof the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patten\nv. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579, 48 N. W. 168; Higgins v. Minaghan, 76\nWis. 298, 45 N. W. 127. The opinion the first of the cases above cited contains an exhaustive\nreview of the authorities, and is very instructive. The action was for damages resulting from a\npistol-shot wound. The defendant justified under the plea of self-defense. The proof for the\n67\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nplaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at\nanother; and the court held that, if the defendant was justified in firing the shot at his antagonist,\nhe was not liable to the plaintiff, for the reason that the act of shooting was lawful under the\ncircumstances. Where a defendant, in a civil action like the one before us, attempts to justify on a\nplea of necessary self-defense, he must satisfy the jury, not only that he acted honestly in using\nforce, but that his fears were reasonable under the circumstances, and also as to the\nreasonableness of the means made use of. In this case, perhaps, the verdict would not have been\ndifferent, had the jury been properly instructed; but it might have been, and therefore the\njudgment must be reversed.\n\nNotes\n\n1. Reasonable errors in self-defense. Why should innocent third parties bear the costs of\nanother person\xe2\x80\x99s mistaken self-defense? Since at least Morris v. Platt, discussed in the\nCourvoisier opinion, American courts have adopted the view that a defendant may not be held\nliable for injuries caused by mistaken self-defense, so long as the mistake was reasonable. Other\nlegal systems, however, have allowed injured persons to hold defendants liable under these\ncircumstances, allocating mistake costs to the mistaken self-defender himself. The Roman law\nrule, for example, provided that:\nThose who do damage because they cannot otherwise defend themselves are\nblameless; for all laws and all legal systems allow one to use force to defend oneself\nagainst violence. But if in order to defend myself I throw a stone at my attacker and\nI hit not him but a passerby I shall be liable under the lex Aquilia; for it is permitted\nonly to use force against an attacker.\n1 THEODOR MOMMSEN & ALAN WATSON EDS., THE DIGEST OF JUSTINIAN 9.2.45.4, at p. 292\n(1985). Today\xe2\x80\x99s German law adopts a similar approach. See RAYMOND YOUNGS, ENGLISH,\nFRENCH & GERMAN COMPARATIVE LAW 472-73 (2d ed. 2007). The French adopt the Courvoisier\napproach. Jean Limpens, Robert M. Kruithof & Anne Meinertzhagen-Limpens, Liability for\nOne\xe2\x80\x99s Own Act, in 11 INT\xe2\x80\x99L ENCYCLOPEDIA OF COMPARATIVE L., 2-1, 2-171 (Andr\xc3\xa9 Tunc ed.,\n1983).\nIn the United Kingdom, the House of Lords recently indicated its inclination to adopt the\nRoman law rule of strict liability for mistaken self-defense, regardless of whether the defendant\xe2\x80\x99s\nbeliefs and actions were reasonable under the circumstances. A majority of the Lords of Appeal\nin the case affirmed their agreement with the opinion of Lord Scott, who asserted that the correct\nprinciple would be that \xe2\x80\x9cin order to establish the relevant necessity the defendant must establish\nthat there was in fact an imminent and real risk of attack.\xe2\x80\x9d Ashley v. Chief Constable of Sussex\nPolice, [2008] UKHL 25, 1 A.C. 962, para. 16-19. Because the issue was not squarely posed, the\nLords of Appeal did not decide the issue definitively.\nOn the other hand, the criminal law\xe2\x80\x94and at least one U.S. jurisdiction\xe2\x80\x99s tort law\xe2\x80\x94adopts\na standard for self-defense that substantially vindicates a defendant whether the defendant\xe2\x80\x99s belief\nin the necessity of self-defense is reasonable or not. Under this approach, so long as the defendant\nhas a subjectively authentic belief in the threat of an attack, the defendant is privileged to respond\n68\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nwith appropriate force without risking prosecution for any crime for which intent is a requirement.\n(The defendant may nonetheless be liable for those crimes for which proof of recklessness is\nsufficient.) See Moor v. Licciardello, 463 A.2d 268, 270-71 (Del. 1983).\nWhich is the better approach? The American one? The Roman law rule, which now\nseems likely to become the British rule as well? Or the criminal law standard? Why does the\ncriminal law approach differ from the usual common law rule for civil liability?\n\n2. Reasonable escalation. Defense of one\xe2\x80\x99s self privileges a person to use reasonable force\nto defend against an unprivileged act, or the threat of an imminent unprivileged act, by another\nthat the person reasonably believes will cause them harm. A key limit here is that the force used\nin self-defense must be \xe2\x80\x9creasonable.\xe2\x80\x9d\nIn Martin v. Yeoham, 419 S.W.2d 937 (Mo. App. 1967), for example, the court held that a\ndefendant\xe2\x80\x99s apprehension of bodily harm alone would not have justified the use of deadly force;\nonly apprehension of \xe2\x80\x9cimminent danger of death or great bodily harm\xe2\x80\x9d would have warranted the\nuse of a firearm in defense against the perceived threat. The basic test is whether the defendant\xe2\x80\x99s\nuse of force was necessary given all the attendant facts and circumstances. As the Connecticut\nSupreme Court put it, \xe2\x80\x9cThe permissible degree of force used in self-defense depends on that\nwhich is necessary, under all the circumstances, to prevent an impending injury.\xe2\x80\x9d Hanauer v.\nCoscia, 244 A.2d 611, 614 (Conn. 1968).\nIn English law, and according to the Restatement authors, the necessity standard, properly\nunderstood, includes an obligation to retreat before using deadly force if retreat is possible. See\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 63 (1965). This is the doctrine known as the \xe2\x80\x9cretreat to the\nwall\xe2\x80\x9d rule. A number of American states, however, follow the so-called \xe2\x80\x9ctrue man\xe2\x80\x9d or \xe2\x80\x9cstand\nyour ground\xe2\x80\x9d rule, which allows the use of deadly force in response to imminent danger of death\nor great bodily harm, even when the alternative of retreat exists. See, e.g., Boykin v. People, 45 P.\n419 (Colo. 1896). Some states have even extended the stand-your-ground approach to allow\ndeadly force in self-defense without an obligation to make an available retreat by a person who is\nhimself a trespasser at the time. See, e.g., People v. Toler, 9 P.3d 341 (Colo. 2000). The\nRestatement authors, by contrast, insist that such a duty to retreat will sometimes require that a\nperson surrender certain privileges to an attacker, or comply with certain demands by an attacker,\nif doing so offers an alternative to the use of deadly force. See RESTATEMENT (SECOND) OF TORTS\n\xc2\xa7 65 (1965). On the other hand, virtually all authorities agree that at one\xe2\x80\x99s own dwelling, a person\nis not obliged to retreat before using deadly force. See Beard v. United States, 158 U.S. 550, 56364 (1895) (when defendant was at his dwelling he was \xe2\x80\x9cnot obliged to retreat . . . but was entitled\nto stand his ground, and meet any attack made upon him with a deadly weapon, in such way . . . as\n. . . he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary\nto . . . protect himself from great bodily injury\xe2\x80\x9d).\nWhat are the considerations in favor of the Restatement\xe2\x80\x99s \xe2\x80\x9cretreat to the wall\xe2\x80\x9d approach as\nopposed to the majority \xe2\x80\x9ctrue man\xe2\x80\x9d approach? (Note that the doctrinal labels themselves seem\nslanted heavily toward the latter, in a clumsily gendered way.) Why does the Restatement view\ncarve out the home as a special no-retreat-required zone? Is defending one\xe2\x80\x99s home somehow\nmore worthy of respect than, say, defending one\xe2\x80\x99s family or one\xe2\x80\x99s business or one\xe2\x80\x99s neighbors?\n\n69\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n3. Race and self-defense. \xe2\x80\x9cStand your ground\xe2\x80\x9d laws faced renewed public scrutiny after the\ndeath of a seventeen-year-old African-American named Trayvon Martin in Florida in 2012.\nMartin was walking back to the house where he was staying (after going out to a local 7-Eleven to\nbuy Skittles and an iced tea) when a neighborhood watch member named George Zimmerman\ndeemed him \xe2\x80\x9csuspicious.\xe2\x80\x9d During a subsequent confrontation, Zimmerman shot the unarmed\nblack teen to death. Zimmerman\xe2\x80\x99s \xe2\x80\x9csuspicions,\xe2\x80\x9d according to Martin\xe2\x80\x99s family and to many critics,\nhad everything to do with Martin\xe2\x80\x99s race. In Zimmerman\xe2\x80\x99s criminal trial, the trial judge instructed\nthe jury that Florida\xe2\x80\x99s 2005 \xe2\x80\x9cstand your ground\xe2\x80\x9d law provided that Zimmerman had no duty to\nretreat before using deadly force in self-defense as long as he was attacked in a place where he\nhad a lawful right to be. The jury found Zimmerman not guilty.\nCritics argue that one problem with the \xe2\x80\x9cstand your ground\xe2\x80\x9d principle is the apparent\nracial disparity of its impact. Psychological research on implicit bias finds that in simulation\nshooting studies, \xe2\x80\x9cparticipants are faster and more accurate when shooting an armed black man\nthan an armed white man, and faster and more accurate when responding \xe2\x80\x98don\xe2\x80\x99t shoot\xe2\x80\x99 to an\nunarmed white man than an unarmed black man.\xe2\x80\x9d Joshua Correll et al., Across the Thin Blue\nLine: Police Officers and Racial Bias in the Decision to Shoot, 92 J. PERSONALITY & SOC.\nPSYCHOL. 1007 (2007). The Urban Institute released a study in 2013 that found \xe2\x80\x9cwith respect to\nrace, controlling for all other case attributes, the odds a white-on-black homicide is found justified\nis 281 percent greater than the odds a white-on-white homicide is found justified. By contrast, a\nblack-on-white homicide has barely half the odds of being ruled justifiable relative to white-onwhite homicides.\xe2\x80\x9d JOHN K. ROMAN, URBAN INST., RACE, JUSTIFIABLE HOMICIDE, AND STAND\nYOUR GROUND LAWS: ANALYSIS OF FBI SUPPLEMENTARY HOMICIDE REPORT DATA (2013). One\nview is that the law of self-defense affords justifications to actors seeking to defend white spaces\nagainst non-white actors. See generally Angela Onwuachi-Willig, Policing the Boundaries of\nWhiteness: The Tragedy of Being \xe2\x80\x9cOut of Place\xe2\x80\x9d from Emmett Till to Trayvon Martin, 102 IOWA\nL. REV. 1113 (2017).\nHow should the \xe2\x80\x9creasonableness\xe2\x80\x9d standard be applied in view of such racial disparities?\n\n4. Defense of third parties. A person is privileged to defend others, too\xe2\x80\x94even strangers.\nUntil the second half of the twentieth century, most courts held that the privilege of a person to\ndefend another was no greater than the other\xe2\x80\x99s right to defend himself. A person using force to\ndefend another thus took the risk that the other was for some reason not privileged to use force in\nhis own defense. If the other person, for example, was subject to lawful arrest and confinement,\nor if the attack on the other person was itself privileged as self-defense by some third party, it\nwould follow that any use of force in his defense would not be privileged.\nSince the 1960s, the rule has shifted. Today, \xe2\x80\x9cone who intervenes in a struggle between\nstrangers under the mistaken but reasonable belief that he is protecting another who he assumes is\nbeing unlawfully beaten is thereby exonerated from criminal liability\xe2\x80\x9d \xe2\x80\x94and from tort liability,\ntoo. People v. Young, 183 N.E.2d 319 (N.Y. 1962).\nWhich of the two approaches is better? Why do you think we have seen a shift from one\napproach to the other?\n\n70\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n2. Defense of Real Property\nBird v. Holbrook, 130 Eng. Rep. 911 (C.P. 1825)\n[Plaintiff was a nineteen-year-old boy who, seeing a young woman giving chase to a stray\npea-hen, climbed the wall of a neighboring garden for the innocent purpose of retrieving the fowl,\nwhich belonged to the young woman\xe2\x80\x99s employer and had flown over the wall and into the garden.\nThe defendant, who leased the garden, used it to grow \xe2\x80\x9cvaluable flower-roots,\xe2\x80\x9d including tulips\n\xe2\x80\x9cof the choicest and most expensive description.\xe2\x80\x9d He lived one mile from the garden but\nsometimes slept with his wife in a summer house on the garden grounds so as to better protect his\ntulips. Shortly before the incident at issue in the case, defendant had been robbed of flowers and\nroots in the value of about \xc2\xa320. To prevent further theft, the defendant placed in the garden a\nspring gun loaded with gunpowder and buckshot and operated by wires stretching across the\ngarden\xe2\x80\x99s paths in three or four locations. Defendant posted no notice of the spring gun, and\nthough the wires were visible from the wall, the defendant conceded that the plaintiff did not see\nthem. When the defendant told one or two people about the spring gun, he asked them not to tell\nothers of its presence in the garden \xe2\x80\x9clest the villain should not be detected.\xe2\x80\x9d One witness testified\nthat he (the witness) had urged the defendant to post a notice of the gun, but the defendant had\nanswered that \xe2\x80\x9che did not conceive that there was any law to oblige him to so.\xe2\x80\x9d \xe2\x80\x9cThe Defendant\nstated to the same person that the garden was very secure, and that he and his wife were going to\nsleep in the summer-house in a few days.\xe2\x80\x9d Plaintiff climbed the garden wall, which was nowhere\nhigher than seven feet, between the hours of six and seven in the afternoon. \xe2\x80\x9cHaving called out\ntwo or three times to ascertain whether any person was in the garden and waiting a short space of\ntime without receiving any answer,\xe2\x80\x9d the plaintiff jumped down into the garden and pursued the\npea-hen into a corner near the summer house, where his foot came into contact with one of the\nwires close to the spot where the gun was set. The wire triggered the gun, which discharged a\nload of swan shot into the plaintiffs\xe2\x80\x99 knee, maiming him. After the case was tried at the Bristol\nassizes, plaintiff and defendant consented to enter a verdict for the plaintiff of \xc2\xa350, to be reserved\npending the judgment of the Court of Common Pleas.]\nMerewether Serjt. for the defendant. . . . Plaintiff cannot recover for an injury occasioned\nto him by his own wrongful act. . . . If a man place broken glass on a wall, or spikes behind a\ncarriage, one who willfully encounters them, and is wounded, even though it were by night, when\nhe could have no notice, has no claim for compensation. Volenti non fit injuria [no legally\ncognizable injury occurs with the consent of the victim]. The Defendant lawfully places a gun on\nhis own property; he leaves the wires visible; he builds a high wall, expressly to keep off\nintruders; and if, under those circumstances, they are permitted to recover for an injury resulting\nfrom their scaling the wall, no man can protect his property at a distance.\nWilde in reply. . . . No illustration can be drawn from the use of spikes and broken glass\non walls, &c. These are mere preventives, obvious to the sight,\xe2\x80\x94unless the trespasser chooses a\ntime of darkness, when no notice could be available,\xe2\x80\x94mere preventives, injurious only to the\npersevering and determined trespasser, who can calculate at the moment of incurring the danger\nthe amount of suffering he is about to endure, and who will, consequently, desist from his\nenterprise whenever the anticipated advantage is outweighed by the pain which he must endure to\nobtain it.\n\n71\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nBEST, C.J. . . . It has been argued that the law does not compel every line of conduct\nwhich humanity or religion may require; but there is no act which Christianity forbids, that the\nlaw will not reach: if it were otherwise, Christianity would not be, as It has always been held to\nbe, part of the law of England. I am, therefore, clearly of opinion that he who sets spring guns,\nwithout giving notice, is guilty of an inhuman act and that, if injurious consequences ensue, he is\nliable to yield redress to the sufferer. But this case stands on grounds distinct from any that have\npreceded it. In general, spring guns have been set for the purpose of deterring; the Defendant\nplaced his for the express purpose of doing injury; for, when called on to give notice, he said, \xe2\x80\x9cIf I\ngive notice, I shall not catch him.\xe2\x80\x9d He intended, therefore, that the gun should be discharged, and\nthat the contents should be lodged in the body of his victim, for he could not be caught in any\nother way. On these principles the action is clearly maintainable, and particularly on the latter\nground. . . . As to the case of Brock v. Copeland, Lord Kenyon proceeded on the ground that the\nDefendant had a right to keep a dog for the preservation of his house, and the Plaintiff, who was\nhis foreman, knew where the dog was stationed. The case of the furious bull is altogether\ndifferent; for if a man places such an animal where there is a public footpath, he interferes with\nthe rights of the public. What would be the determination of the court if the bull were placed in a\nfield where there is no footpath, we need not now decide; but it may be observed, that he must be\nplaced somewhere, and is kept, not for mischief, but to renew his species; while the gun in the\npresent case was placed purely for mischief. . . .\nBut we want no authority in a case like the present; we put it on the principle that it is\ninhuman to catch a man by means which may maim him or endanger his life, and, as far as human\nmeans can go, it is the object of English law to uphold humanity and the sanctions of religion. It\nwould be, indeed, a subject of regret, if a party were not liable in damages, who, instead of giving\nnotice of the employment of a destructive engine, or removing it, at least, during the day,\nexpressed a resolution to withhold notice, lest, by affording it, he should fail to entrap his victim.\n...\nBURROUGH, J. The common understanding of mankind shews, that notice ought to be\ngiven when these means of protection are resorted to; and it was formerly the practice upon such\noccasions to give public notice in market towns. But the present case is of a worse complexion\nthan those which have preceded it; for if the Defendant had proposed merely to protect his\nproperty from thieves, he would have set the spring guns only by night. The Plaintiff was only a\ntrespasser: if the Defendant had been present he would not have been authorized even in taking\nhim into custody, and no man can do indirectly that which he is forbidden to do directly. . . . [N]o\nnotice whatever was given, but the Defendant artfully abstained from giving it, and he must take\nthe consequences.\n\nNotes\n\n1. Pea-fowls versus tulips. Judge Richard Posner analyzes Bird as presenting a conflict\nbetween two economic activities:\nThe issue in the case, as an economist would frame it, was the proper\naccommodation of two legitimate activities, growing tulips and raising peacocks.\nThe defendant had a substantial investment in the tulip garden; he lived at a distance;\n72\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nand the wall had proved ineffective against thieves. In an era of negligible police\nprotection, a spring gun may have been the most cost-effective means of protection\nfor the tulips. But since spring guns do not discriminate between the thief and the\ninnocent trespasser, they deter owners of domestic animals from pursuing their\nanimals onto other people\xe2\x80\x99s property and so increase the costs (enclosure costs or\nstraying losses) of keeping animals. The court in Bird implied an ingenious\naccommodation: One who set a spring gun must post notices that he has done so.\nThen owners of animals will not be reluctant to pursue their animals onto property\nnot so posted. A notice will be of no avail at night, but animals are more likely to\nbe secured then and in any event few owners would chase their straying animals\nafter dark.\nRICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 260-61 (8th ed. 2011). If this is the right way\nto think about Bird v. Holbrook (is it?), what explains the court\xe2\x80\x99s decision to place the obligation\nto avoid the conflict between the two activities on the tulip growers rather than on the pea-fowl\nfarmers? The tulip grower has at least built a wall. Should the plaintiff be able to sue the peafowl farmer for the effects of his failure to keep the pea-fowl contained?\nNote Judge Posner\xe2\x80\x99s reference to the negligible police protection of 1820s Great Britain.\nWe no longer live in such an era\xe2\x80\x94at least not in developed countries. Does this matter for the\nanalysis? What about technological changes? Should spring guns or other dangerous traps be\nallowed even with notice in defense of private property now that inexpensive digital cameras\npromise the possibility of constant surveillance?\n\n2. Malicious traps. The use of spring guns and other traps by property owners looking for an\ninexpensive way to defend their property\xe2\x80\x94or to wreak private vengeance on thieves\xe2\x80\x94has not\ndisappeared in the era of modern policing. Such traps raise questions of both criminal law, which\nasks whether criminal punishment is appropriate, and tort law, which asks whether propertyowners should be required to compensate for the injuries their traps cause, or should instead be\ntreated as having engaged in justified self-defense.\nProbably the most celebrated (and reviled) instance of the use of spring gun traps is Katko\nv. Briney, 183 N.W.2d 657 (Iowa 1971), near the beginning of the late-twentieth-century increase\nin crime rates. The issue before the court in Katko was whether an owner \xe2\x80\x9cmay protect personal\nproperty in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun\ncapable of inflicting death or serious injury.\xe2\x80\x9d After a series of break-ins to their vacant farmhouse\nover a ten year period\xe2\x80\x94break-ins that had resulted in considerable property damage and the theft\nof household items\xe2\x80\x94Mr. and Mrs. Briney decided to put a stop to the crimes once and for all. In\nJune 1967, they supplemented the \xe2\x80\x9cno trespass\xe2\x80\x9d signs on the property with boards on the windows\nand doors and with a spring-loaded shotgun wired to fire when the door to a bedroom was opened.\nIn July 1967, a man named Katko entered the home to steal antique glass bottles and fruit\njars he had found on an earlier visit. After loosening a board on the porch window, Katko entered\nthe house with a companion and began to search it. On opening the north bedroom door, Katko\ntriggered the shotgun trap that the defendants had set. The 20-gauge spring shotgun fired, striking\nKatko in the right leg above the ankle; much of his leg, including part of the tibia, was destroyed.\nKatko later entered a guilty plea to larceny, stating that he knew \xe2\x80\x9che had no right to break and\nenter the house with the intent to steal.\xe2\x80\x9d The value of the jars and bottles was set at less than $20\n73\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nin value; Katko was later fined $50 and paroled during good behavior from his 60-day jail\nsentence. The legal consequences for the Brineys were stiffer. When Katko brought suit for\ndamages, the trial judge instructed the jury:\nYou are hereby instructed that one may use reasonable force in the protection of his\nproperty, but such right is subject to the qualification that one may not use such\nmeans of force as will take human life or inflict great bodily injury. Such is the rule\neven though the human party is a trespasser and is in violation of the law himself.\nThe jury found for Katko and awarded him $20,000 in compensatory damages and an additional\n$10,000 in punitive damages. The Iowa Supreme Court upheld the verdict and approved the\ninstruction, 183 N.W.2d 657, notwithstanding widespread protest, an angry dissent, and a\nnationwide fundraiser that netted some $10,000 for the Brineys. Newspapers later reported that\nthe Brineys sold 80 acres of their 120-acre farm in order to pay the judgment to Katko. When\nasked several years later whether he had any regrets, Mr. Briney replied: \xe2\x80\x9cThere\xe2\x80\x99s one thing I\xe2\x80\x99d do\ndifferent, though. . . . I\xe2\x80\x99d have aimed that gun a few feet higher.\xe2\x80\x9d Booby Trap Case in Iowa\nTakes New Turn, CHI. TRIBUNE, Apr. 25, 1975, at 1.\nWhy was the spring shotgun an unjustifiable protection for the Brineys\xe2\x80\x99 farmhouse? Does\nit matter that the defendants\xe2\x80\x99 home was several miles from the scene? That neither Mr. Briney\nnor Mrs. Briney were present on the property at the time of the break-in? Under what conditions,\nif any, could the Brineys\xe2\x80\x99 shotgun trap be considered a reasonable protection of property?\n\n3. Defense of Chattels\nGortarez v. Smitty\xe2\x80\x99s Super Valu, 680 P.2d 807 (Ariz. 1984)\nFELDMAN, J.\nErnest Gortarez, age 16, and his cousin, Albert Hernandez, age 18, went to Smitty\xe2\x80\x99s store\non January 2, 1979, around 8:00 p.m. [In the automotive department, Hernandez selected and\nbought something known as a \xe2\x80\x9cpower booster\xe2\x80\x9d for $22.00, while Gortarez picked up a 59-cent\nvaporizer used to freshen the air in cars. Before leaving the store, Gortarez changed his mind, left\nthe vaporizer near the check-out stand and left the store through an unattended check-out aisle. A\nclerk, not having seen Gortarez put down the vaporizer,] told the assistant manager and the\nsecurity guard, Daniel Gibson, that \xe2\x80\x9c[t]hose two guys just ripped us off.\xe2\x80\x9d . . .\nGibson and Scott Miller, the assistant manager, along with two other store employees,\nthen ran out of the store to catch the two young men as they were about to get inside their car in\nthe parking lot. Miller went to the passenger side to intercept Gortarez, while Gibson went for\nHernandez, who was about to open the car door on the driver\xe2\x80\x99s side. Gibson said that he\nidentified himself \xe2\x80\x9cas an officer\xe2\x80\x9d by showing his badge as he ran up to Hernandez. (Gibson was\nan off-duty police officer working as a security guard for Smitty\xe2\x80\x99s.) Gibson told Hernandez: \xe2\x80\x9cI\nbelieve you have something you did not pay for.\xe2\x80\x9d He then seized Hernandez, put his arms on the\ncar and began searching him. Hernandez offered no resistance even though Gibson did not ask\nfor the vaporizer, nor say what he was looking for. In cross-examination, Gibson admitted that\n\n74\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nHernandez did nothing to resist him, and, as Gibson searched him, Hernandez kept repeating that\nhe did not have anything that he had not paid for.\nMeanwhile, on the other side of the car, flanked by Miller, Gortarez saw Gibson grab\nHernandez, push him up against the car, and search him. Gortarez was outraged at this behavior\nand used strong language to protest the detention and the search\xe2\x80\x94yelling at Gibson to leave his\ncousin alone. According to Gortarez, he thought the men were looking for the vaporizer because\nhe heard Gibson tell the others to watch out for the bottle, and to look under the car for the bottle.\nGortarez testified that he told the men that Hernandez did not have the vaporizer\xe2\x80\x94it was in the\nstore. No one had stopped to check at the counter through which the two exited, where the\nvaporizer was eventually found in one of the catch-all baskets at the unattended check-out stand.\nSeeing Gibson \xe2\x80\x9crousting\xe2\x80\x9d Hernandez, Gortarez came to the defense of his cousin, ran\naround the front of the car and pushed Gibson away. Gibson then grabbed Gortarez and put a\nchoke hold around Gortarez\xe2\x80\x99 neck until he stopped struggling. Both Hernandez and Gortarez\ntestified that the first time that Gibson identified himself to them was after he had restrained\nGortarez in a choke hold. There was testimony that Gortarez was held in the choke hold for a\nperiod of time even after Gortarez had advised the store employees that he had left the vaporizer\nin the store. When a carry-out boy told the store employees that he had found the vaporizer in a\nbasket at the check-out stand, the two cousins were released.\nGortarez later required medical treatment for injuries suffered from the choke hold.\nPlaintiffs sued Smitty\xe2\x80\x99s and Gibson for false arrest [and] false imprisonment . . . . The case was\ntried before a jury. At the close of all the evidence, the court directed a verdict for the defendants\non the false imprisonment and false arrest count[s]. . . . The court of appeals affirmed, and\nplaintiffs petition this court for review. . . .\nThere is a limited privilege for an owner whose property has been wrongfully taken, while\nin fresh pursuit, to use reasonable force to recapture a chattel. An important caveat to this\nprivilege is that the actor must be correct as to the facts which he believes grant him the privilege,\nand faces liability for damages resulting from any mistake, however reasonable. The force\nprivileged must be reasonable under the circumstances, and not calculated to inflict serious bodily\nharm. Ordinarily, the use of any force at all will not be justified until there has been a demand\nmade for the return of the property.\nThus, privileges for misdemeanor arrest traditionally available at common law recognize\nno privilege to arrest for ordinary \xe2\x80\x9cshoplifting.\xe2\x80\x9d Under this rule a shopkeeper who believed that a\ncustomer was shoplifting was placed in an untenable position. Either the shopkeeper allowed the\nsuspect to leave the premises, risking the loss of merchandise, or took the risk of attempting to\nrecapture the chattel by detaining the customer, facing liability for the wrongful detention if the\nperson had not stolen merchandise.\nAs Prosser noted, shoplifting is a major problem, causing losses that range into millions of\ndollars each year. There have been a number of decisions which permit a business person for\nreasonable cause, to detain a customer for investigation. This privilege, however, is narrow: it is\nconfined to what is reasonably necessary for its limited purpose, of enabling the defendant to do\nwhat is possible on the spot to discover the facts. . . .\n\n75\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nArizona has adopted the shopkeeper\xe2\x80\x99s privilege by statute, which provides in pertinent\npart:\nC. A merchant, or his agent or employee, with reasonable cause, may detain on the\npremises in a reasonable manner and for a reasonable time any person suspected of\nshoplifting . . . for questioning or summoning a law enforcement officer.\nD. Reasonable cause is a defense to a civil or criminal action against a peace officer,\nmerchant or an agent or employee of such merchant for false arrest, false or\nunlawful imprisonment or wrongful detention. A.R.S. \xc2\xa7 13\xe2\x80\x931805 (emphasis\nsupplied).\n. . . Once reasonable cause is established, there are two further questions regarding the\napplication of the privilege. We must ask whether the purpose of the shopkeeper\xe2\x80\x99s action was\nproper (i.e., detention for questioning or summoning a law enforcement officer). The last\nquestion is whether the detention was carried out in a reasonable manner and for a reasonable\nlength of time. If the answer to any of the three questions is negative, then the privilege granted\nby statute is inapplicable and the actions of the shopkeeper are taken at his peril. . . .\n[The court concluded that while it could not say that the shopkeepers lacked reasonable\ncause or acted with an improper purpose, neither could it conclude that the detention was\nnecessarily reasonable under the circumstances:]\nThere was no request that the two young men remain. No inquiry was made with regard\nto whether Hernandez had the vaporizer. Gibson testified that Hernandez gave no indication of\nresistance and made no attempt to escape. The possible theft of a 59-cent item hardly warrants\napprehension that the two were armed or dangerous. There was, arguably, time to make a request\nto remain before Gibson seized Hernandez and began searching him. Also, there is no indication\nthat such a request would obviously have been futile. The evidence adduced probably would have\nsupported a finding that the manner of detention was unreasonable as a matter of law. At best,\nthere was a question of fact; there was no support for the court\xe2\x80\x99s presumptive finding that as a\nmatter of law the detention was performed reasonably.\n[T]he court erred in its findings with respect to both the purpose and manner of detention.\nThis requires reversal and retrial. . . .\n\nNotes\n\n1. The recapture privilege. In Hodegeden v. Hubbard, 18 Vt. 504 (1846), the plaintiff\npurchased a stove from defendants in exchange for a promissory note, making assurances of his\ncreditworthiness. When the defendant-sellers \xe2\x80\x9con the same day, and soon after the sale\xe2\x80\x9d learned\nof credible reports that the buyer-plaintiff\xe2\x80\x99s assurances were false, and that he was irresponsible\nand a poor credit risk, they gave chase and caught up to him on the road to his home. Plaintiff\ndrew a knife to defend himself, but was overcome by the defendants, who held him down and\nrecaptured the stove. The court rejected plaintiff\xe2\x80\x99s suit on the grounds that the defendants were\nprivileged to recapture the stove:\n76\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nTo obtain possession of the property in question no violence to the person of the\nplaintiff was necessary, or required, unless from his resistance. It was not like\nproperty carried about the person, as a watch, or money, nor did it require a number\nof people to effect the object. The plaintiff had no lawful possession, nor any right\nto resist the attempt of the defendants to regain the property, of which he had\nunlawfully and fraudulently obtained the possession.\n18 Vt. at 507-08. Critical to the shopkeeper\xe2\x80\x99s privilege is the requirement that the privilege be\nexercised (as the Gortarez court opinion indicated) \xe2\x80\x9con the spot\xe2\x80\x9d or while in \xe2\x80\x9cfresh pursuit\xe2\x80\x9d of the\npurported shoplifters. What is the function of the \xe2\x80\x9cfresh pursuit\xe2\x80\x9d rule?\n\n2. Claims of right. In Kirby v. Foster, 22 A. 1111 (R.I. 1891), Foster gave his bookkeeper,\nKirby, a sum of money to be used as wages for other employees. The plaintiff, acting under the\nadvice of counsel, took from this money the amount due him at the time, and an additional $50\nthat Kirby believed to have been wrongly deducted from his pay by Foster on a previous occasion.\nKirby put this sum into his pocket, and returned the balance to Foster, saying he had received his\npay and was going to leave, and that he did this under advice of counsel. The defendants\xe2\x80\x94Foster\nand his son\xe2\x80\x94then seized the plaintiff, and attempted to take the money from him. A struggle\nensued, in which the plaintiff claims to have received injury, which led to his suit. In his opinion,\nJudge Stiness rejected the defense that Foster was engaged in a privileged recapture of his money:\nUnquestionably, if one takes another\xe2\x80\x99s property from his possession, without right\nand against his will, the owner or person in charge may protect his possession, or\nretake the property, by the use of necessary force. He is not bound to stand by and\nsubmit to wrongful dispossession or larceny when he can stop it, and he is not guilty\nof assault, in thus defending his right, by using force to prevent his property from\nbeing carried away. But this right of defense and recapture involves two\nthings: First, possession by the owner; and, second, a purely wrongful taking or\nconversion, without a claim of right. If one has intrusted his property to another,\nwho afterwards, honestly, though erroneously, claims it as his own, the owner has\nno right to retake it by personal force. If he has, the actions of replevin and trover\nin many cases are of little use. The law does not permit parties to take the settlement\nof conflicting claims into their own hands. It gives the right of defense, but not of\nredress. The circumstances may be exasperating; the remedy at law may seem to\nbe inadequate; but still the injured party cannot be arbiter of his own claim. Public\norder and the public peace are of greater consequence than a private right or an\noccasional hardship. Inadequacy of remedy is of frequent occurrence, but it cannot\nfind its complement in personal violence.\n22 A. at 1112. Why does Kirby\xe2\x80\x99s claim of right in the money transform the legal situation from\nthat of ordinary recapture of chattels?\n\n77\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n4. Consent\nConsent is a \xe2\x80\x9cdefense\xe2\x80\x9d in the sense that where the plaintiff has consented to the\ndefendant\xe2\x80\x99s conduct, the defendant\xe2\x80\x99s conduct generally (but not always) loses its wrongful\ncharacter and the plaintiff\xe2\x80\x99s intentional torts claim should fail.\n\nMohr v. Williams, 104 N.W. 12, 13-16 (Minn. 1905)\nBROWN, J.\nDefendant is a physician and surgeon of standing and character, making disorders of the\near a specialty, and having an extensive practice in the city of St. Paul. He was consulted by\nplaintiff, who complained to him of trouble with her right ear, and, at her request, made an\nexamination of that organ for the purpose of ascertaining its condition. He also at the same time\nexamined her left ear, but, owing to foreign substances therein, was unable to make a full and\ncomplete diagnosis at that time. The examination of her right ear disclosed a large perforation in\nthe lower portion of the drum membrane, and a large polyp in the middle ear, which indicated that\nsome of the small bones of the middle ear (ossicles) were probably diseased. He informed\nplaintiff of the result of his examination, and advised an operation for the purpose of removing the\npolyp and diseased ossicles. After consultation with her family physician, and one or two further\nconsultations with defendant, plaintiff decided to submit to the proposed operation. She was not\ninformed that her left ear was in any way diseased, and understood that the necessity for an\noperation applied to her right ear only. She repaired to the hospital, and was placed under the\ninfluence of anaesthetics; and, after being made unconscious, defendant made a thorough\nexamination of her left ear, and found it in a more serious condition than her right one. A small\nperforation was discovered high up in the drum membrane, hooded, and with granulated edges,\nand the bone of the inner wall of the middle ear was diseased and dead. He called this discovery\nto the attention of Dr. Davis\xe2\x80\x94plaintiff\xe2\x80\x99s family physician, who attended the operation at her\nrequest\xe2\x80\x94who also examined the ear, and confirmed defendant in his diagnosis. Defendant also\nfurther examined the right ear, and found its condition less serious than expected, and finally\nconcluded that the left, instead of the right, should be operated upon; devoting to the right ear\nother treatment. He then performed the operation of ossiculectomy on plaintiff\xe2\x80\x99s left ear;\nremoving a portion of the drum membrane, and scraping away the diseased portion of the inner\nwall of the ear. The operation was in every way successful and skillfully performed. It is claimed\nby plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not\nhaving been consented to by her, was wrongful and unlawful, constituting an assault and battery;\nand she brought this action to recover damages therefor.\nThe trial in the court below resulted in a verdict for plaintiff for $14,322.50. Defendant\nthereafter moved the court for judgment notwithstanding the verdict, on the ground that, on the\nevidence presented, plaintiff was not entitled to recover . . . . The trial court denied the motion for\njudgment . . . . Defendant appealed . . . .\nThe . . . contention of defendant is that the act complained of did not amount to an assault\nand battery. This is based upon the theory that, as plaintiff\xe2\x80\x99s left ear was in fact diseased, in a\ncondition dangerous and threatening to her health, the operation was necessary, and, having been\nskillfully performed at a time when plaintiff had requested a like operation on the other ear, the\n78\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\ncharge of assault and battery cannot be sustained; that, in view of these conditions, and the claim\nthat there was no negligence on the part of defendant, and an entire absence of any evidence\ntending to show an evil intent, the court should say, as a matter of law, that no assault and battery\nwas committed, even though she did not consent to the operation. In other words, that the absence\nof a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves\nthe act of defendant from the charge of an unlawful assault and battery. We are unable to reach\nthat conclusion, though the contention is not without merit. It would seem to follow from what\nhas been said on the other features of the case that the act of defendant amounted at least to a\ntechnical assault and battery. If the operation was performed without plaintiff\xe2\x80\x99s consent, and the\ncircumstances were not such as to justify its performance without, it was wrongful; and, if it was\nwrongful, it was unlawful. [E]very person has a right to complete immunity of his person from\nphysical interference of others, except in so far as contact may be necessary under the general\ndoctrine of privilege; and any unlawful or unauthorized touching of the person of another, except\nit be in the spirit of pleasantry, constitutes an assault and battery.\nIn the case at bar, as we have already seen, the question whether defendant\xe2\x80\x99s act in\nperforming the operation upon plaintiff was authorized was a question for the jury to determine.\nIf it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault,\nnot a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful.\nThe case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must\nbe shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show\nthat the assault complained of was wrongful and unlawful or the result of negligence. . . .\nThe amount of plaintiff\xe2\x80\x99s recovery, if she is entitled to recover at all, must depend upon\nthe character and extent of the injury inflicted upon her, in determining which the nature of the\nmalady intended to be healed and the beneficial nature of the operation should be taken into\nconsideration, as well as the good faith of the defendant.\nOrder affirmed.\n\nNotes\n1. Consent or utility? The operation was \xe2\x80\x9cin every way successful and skillfully performed.\xe2\x80\x9d\nNo one seems to have doubted that the surgeon adopted the prudent course of action once the\noperation had begun. Moreover, the surgeon even consulted with his patient\xe2\x80\x99s family doctor\nduring the surgery. To have obtained permission from the patient herself would have required\nthat she be brought out of anesthesia and then put back under, no easy feat at the time, and a\nprocedure with considerable risks to the patient herself. Why would the court conclude that the\nundoubtedly correct surgical decision was nonetheless a battery on the plaintiff? Is this a wasteful\ndecision, requiring future doctors and patients to expend unnecessary and foolish resources in\ntime, money, and health?\n\n2. Identifying consent. It is not always easy to identify when consent has taken place.\nConsider O\xe2\x80\x99Brien v. Cunard Steamship Co., 28 N.E. 266 (Mass. 1891), in which a steerage\npassenger on the defendant\xe2\x80\x99s steamship brought an action for intentional tort alleging that\ndefendant administered a contaminated vaccine without her consent. The plaintiff never said to\n79\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nanyone that she desired to be vaccinated. To the contrary, she told the ship\xe2\x80\x99s surgeon that she had\nalready been vaccinated, though it had left no mark. On the other hand, the plaintiff waited in a\nline with 200 other women who were all vaccinated; the plaintiff presented her arm to the surgeon\nas the women before her had done; and the plaintiff used the vaccination card she received to gain\nadmission to the United States at the port of Boston.\nWriting for the court, Judge Knowlton held that the question of consent turned on a broad\nreading of the surrounding facts and circumstances:\nIn determining whether the act was lawful or unlawful, the surgeon\xe2\x80\x99s conduct must\nbe considered in connection with the surrounding circumstances. If the plaintiff\xe2\x80\x99s\nbehavior was such as to indicate consent on her part, he was justified in his act,\nwhatever her unexpressed feelings may have been. In determining whether she\nconsented, he could be guided only by her overt acts and the manifestations of her\nfeelings.\nThe court concluded about the women passengers that \xe2\x80\x9c[t]hey all indicated by their conduct that\nthey desired to avail themselves of the provisions made for their benefit.\xe2\x80\x9d 28 N.E. at 273-74.\nHow does the court\xe2\x80\x99s recognition of consent-by-conduct square with the kinds of concerns that\nmotivate the consent requirement in the first place?\nNote that the influential Restatement (Second) of Torts is consistent with the court\xe2\x80\x99s\napproach to consent in O\xe2\x80\x99Brien (although a jury today might apply the law differently to the\nfacts). The Restatement defines consent as \xe2\x80\x9cwillingness in fact for conduct to occur\xe2\x80\x9d; such\nwillingness \xe2\x80\x9cmay be manifested by action or inaction and need not be communicated to the actor.\xe2\x80\x9d\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 892 (1979). Commentators today refer to this as \xe2\x80\x9cactual\nconsent.\xe2\x80\x9d The same section gives the identical effect to \xe2\x80\x9capparent consent\xe2\x80\x9d: \xe2\x80\x9cIf words or conduct\nare reasonably understood by another to be intended as consent, they constitute apparent consent\nand are as effective as consent in fact.\xe2\x80\x9d Id.\n\n3. Consent to allegedly tortious sexual conduct. As discussed in Note 2, the influential\nRestatement (Second) of Torts employs a general definition of consent. Tort claims involving\nunwelcome sexual contact receive no special treatment. Consider the following illustration, which\nthe Restatement authors include in the commentary following Section 892: \xe2\x80\x9cA, a young man, is\nalone with B, a girl, in the moonlight. A proposes to kiss B. Although inwardly objecting, B says\nnothing and neither resists nor protests by any word or gesture. A kisses B. A is not liable to B.\xe2\x80\x9d\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 892, cmt. c, illustration 3 (1979). B\xe2\x80\x99s conduct, in this\nhypothetical scenario, exemplifies \xe2\x80\x9capparent consent.\xe2\x80\x9d\nThe doctrine of apparent consent has proven controversial, to say the least. Professor\nMartha Chamallas, for example, contends that the \xe2\x80\x9coutdated and inhospitable doctrine of consent\xe2\x80\x9d\nis \xe2\x80\x9ca main obstacle to successful prosecution of a sexual battery or assault tort claim against [an]\noffender.\xe2\x80\x9d Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39, 52\n(2018).\nIt is also worth asking whether some groups of potential plaintiffs are particularly poorly\nserved by the doctrine of apparent consent. Professor Elizabeth Adjin-Tettey contends that \xe2\x80\x9cthe\nobjective ascertainment of reasonable belief in consent\xe2\x80\x9d sounds neutral, but in application is likely\n80\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nto privilege the perspective that, historically, has enjoyed social and cultural dominance: that of\nwhite, heterosexual men. Elizabeth Adjin-Tettey, Protecting the Dignity and Autonomy of\nWomen: Rethinking the Place of Constructive Consent in the Tort of Battery, 39 U.B.C. L. REV. 3\n(2006). For related reasons, this doctrine poses a risk for the very populations that are most\nvulnerable to sexual abuse. For example, what might an objective reasonableness inquiry mean\nfor non-white women, who face well-documented racialized stereotypes about their sexual\navailability and sexual deviance? Id. What might it mean for plaintiffs whose key identity\nmarkers\xe2\x80\x94such as disability, poverty, or gender non-conformity\xe2\x80\x94leave them underrepresented\namong the legal decisionmakers who will apply this \xe2\x80\x9creasonable belief\xe2\x80\x9d standard to their cases?\nWhere is the law headed? One might expect tort law to incorporate, eventually, the\nevolving norms on college campuses, where both school officials and some students have\nembraced the notion of \xe2\x80\x9caffirmative consent.\xe2\x80\x9d Under affirmative consent policies, sexual contact\nis presumed non-consensual unless and until the parties expressly agree to it. Such policies often\ngo hand-in-hand with a skepticism towards expressions of consent given while an actor\xe2\x80\x99s\njudgment is demonstrably impaired by drugs or alcohol. The authors of the Third Restatement\n(Intentional Torts to Persons) have attempted to address this difficult issue in a draft chapter on\nconsent, which includes a specific section on consent to sexual conduct. RESTATEMENT (THIRD)\nOF TORTS: INTEN. TORTS TO PERSONS \xc2\xa7 18 TD No 4 (2019). In the draft comments, the authors\nacknowledge the \xe2\x80\x9csocial importance\xe2\x80\x9d of the issue and the apparent shift in norms toward an\naffirmative consent standard. Id. \xc2\xa7 18 cmts. a & f. Ultimately, however, the authors decline to\ntake a position on whether affirmative consent should be the standard for consent to sexual\nconduct in tort law and instead adopt a less controversial \xe2\x80\x9cno means no\xe2\x80\x9d approach to consent. Id.\n\xc2\xa7 18 cmts. e & f. Under \xe2\x80\x9cno means no\xe2\x80\x9d policies, sexual contact is presumed consensual unless\nand until a party expresses an unwillingness to permit sexual contact. If the Third Restatement\xe2\x80\x99s\nproposed approach to consent is widely adopted, how might this affect litigation over allegedly\ntortious sexual conduct? What are the advantages and disadvantages of this approach as\ncompared to a standard of affirmative consent?\n\n4. Boilerplate consent. Modern consent mechanisms in the medical care context are\nradically different from the informal inferences of O\xe2\x80\x99Brien. Establishing consent in a medical\ncontext is now a matter of detailed medical paperwork. Consider the following excerpt from a\nstandardized consent form at Yale-New Haven Hospital:\n\nSECTION A\n1. After discussing other options, including no treatment, with my\ndoctor, I ask Dr. _____________________________ and/or his/her\npartners to perform the following procedure(s):\n____________________________________________ Name or\ndescription of operation(s), procedure(s) and/or treatment(s). Indicate\napplicable level, side, or site. I understand that this procedure is for\npurposes of _________________________________________________\n2. I give permission to my doctor to do whatever may be necessary if\nthere is a complication or unforeseen condition during my procedure.\n\n81\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n3. My doctor has explained to me that some possible complications of the\nprocedure(s) can include:\na. Bleeding; infection; accidental injury of other body parts; my\ncondition returning or not being improved; or, possibly, death.\nb. My doctor has discussed with me the additional risks listed\nbelow and their chances of happening. I do understand that\nother things can happen as\nwell.__________________________________________________\n4. I agree to have anesthesia as necessary to perform the procedure(s). I\nunderstand that if an anesthesiologist is to be involved he/she will\nspeak to me about the risks of anesthesia in more detail.\n5. I understand that I may need to have a blood transfusion during or\nafter the procedure(s). I understand that some risks of blood\ntransfusions include: fever, allergic reaction, or getting an infectious\ndisease. I agree to receive blood or blood products if my doctor\ndecides it is necessary.\n6. I give permission to the hospital to keep tissue, blood, body parts, or\nfluids removed from my body during the procedure and use them to\nmake a diagnosis, after which they may be used for scientific research\nor teaching by appropriate persons within or outside the hospital.\nThese materials will only be used for scientific research after review\nby an ethics board. I understand that I will no longer own or have any\nrights to these things regardless of how they may be used.\n7. I understand that Yale-New Haven is a teaching hospital. Doctors who\nare in training may help my doctor with the procedure. My doctor will\nsupervise these trainees and will be present at all important times\nduring the procedure. I also understand that my doctor\xe2\x80\x99s associate(s),\nsurgical assistants and/or other non-physicians or trainees may assist\nor perform parts of the procedure under my doctor\xe2\x80\x99s supervision, as\npermitted by law and hospital policy. If others who are not hospital\nstaff will be present in the operating room, my doctor has spoken with\nme about this.\n8. I understand the purpose and potential benefits of the procedure. My\ndoctor has explained to me what results to expect, and the chances of\ngetting those results. I understand that no promises or guarantees\nhave been made or can be made about the results of the procedure(s).\n9. I give permission to the hospital and the above-named doctor to\nphotograph and/or videotape the procedure(s) for medical, scientific,\nor educational purposes.\nConsent signed on _____________, 20__ at _______________AM / PM\n_____________________________________\nSignature of Patient or Guardian (Circle one)\n_____________________________________\n82\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nSignature of Doctor Performing Procedure\n_____________________________________\nSignature of Person Obtaining Consent\n___________________________________\nPrinted Name\n\nDo boilerplate consent forms of modern medical practice undo the decision in Mohr? Or\ndo they vindicate it? What if the consent form said only the following: \xe2\x80\x9cI give permission to my\ndoctor to do whatever the doctor deems advisable for my health and wellbeing during my\nprocedure.\xe2\x80\x9d Would this undo the decision in Mohr?\nFor a troubling example of the type of conduct that such a form might make consensual,\nlegally speaking, consider the once common practice (now increasingly under scrutiny) at\nteaching hospitals of medical trainees performing pelvic exams on unconscious, anesthetized\nwomen patients, often solely for the purpose of educating the trainees. Such hospitals have also\nsometimes allowed medical trainees to practice rectal exams on patients undergoing prostate\nsurgery. Defenders of these practices have advanced utilitarian arguments: such exams allow\nfuture doctors to gain and hone crucial skills, to the benefit of society. Phoebe Friesen,\nEducational Pelvic Exams on Anesthetized Women: Why Consent Matters, 32 BIOETHICS 298\n(2018). Consider also the increasingly acknowledged phenomenon of \xe2\x80\x9cobstetric violence,\xe2\x80\x9d\nincluding unwanted surgical incisions, unnecessary resort to forceps and vacuum extractors, and\nphysical restraint during the processes of labor and delivery. Elizabeth Kukura, Obstetric\nViolence, 106 GEO. L.J. 721 (2018). How should tort law address situations of this nature?\n\n5. Limitations on consent. Not all manifestations of consent will prevent defendants from\nbeing held liable for the injurious consequences of their action. One set of situations where the\neffect of consent is limited is when the person who purportedly consented could not legally give\nthat consent. The Restatement explains it this way: \xe2\x80\x9cTo be effective, consent must be (a) by one\nwho has the capacity to consent or by a person empowered to consent for him, and (b) to the\nparticular conduct, or to substantially the same conduct. \xe2\x80\x9dRESTATEMENT (SECOND) OF TORTS \xc2\xa7\n892A (1979).\nThe Restatement also notes the existence of \xe2\x80\x9cconditional\xe2\x80\x9d or \xe2\x80\x9crestricted\xe2\x80\x9d consent, which\n\xe2\x80\x9cis effective only within the limits of the condition or restriction. And \xe2\x80\x9c[u]pon termination of\nconsent its effectiveness is terminated,\xe2\x80\x9d too, \xe2\x80\x9cexcept as it may have become irrevocable by\ncontract or otherwise, or except as its terms may include, expressly or by implication, a privilege\nto continue to act.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 892A (1979).\nA final set of situations where the law will not honor what the defendant claims to be\nconsent is where the facts suggest a lack of voluntariness. Thus, consent given under duress will\nnot defeat a plaintiff\xe2\x80\x99s claim to recovery for injury from an ostensibly consented-to action. See\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 892B (1979). Courts take a similar approach to consent\nsecured by false pretenses. The Restatement puts it this way: \xe2\x80\x9cIf the person consenting to the\nconduct of another is induced to consent by a substantial mistake concerning the nature of the\ninvasion of his interests or the extent of the harm to be expected from it and the mistake is known\nto the other or is induced by the other\'s misrepresentation, the consent is not effective for the\nunexpected invasion or harm.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 892B (1979).\n83\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\n6. The psychology of consent. Do we know involuntariness when we see it? Recent research\nby Roseanna Sommers and Vanessa Bohns has been invoked by some scholars to suggest that\nsocial pressures may turn requests for voluntary consent into occasions of coerced compliance.\nSommers and Bohns report that when researchers conducting a laboratory study asked one group\nof participants to unlock their password-protected smartphones and give them to an experimenter\nto search through while the participants waited in another room (i.e., a highly intrusive request),\nthe vast majority of participants complied; when researchers asked another group of participants\nwhether a reasonable person would agree to such a request if hypothetically approached by the\nsame researcher, the vast majority predicted that people would refuse and reported that they\nthemselves would refuse the request. Roseanna Sommers & Vanessa K. Bohns, The\nVoluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128\nYALE L.J. 1962 (2019). What explains the gap between predicted performance and actual\nperformance? If it is true that decisionmakers are not good at estimating the freedom, or lack of\nfreedom, that another person feels when asked to permit an intrusion on their own interests, is this\na reason to change the way the doctrine of consent currently operates? What might such a change\nlook like?\n\n5. Necessity\nFor cases of alleged trespass, tort law allows defendants to argue that their actions were\nnecessary and therefore privileged. The following two cases present famous nuances arising from\nclaims of necessity. Pay careful attention in each case to which party has asserted such a claim.\n\nPloof v. Putnam, 71 A. 188 (Vt. 1908)\nMUNSON, J.\nIt is alleged as the ground on recovery that on the 13th day of November 1904, the\ndefendant was the owner of a certain island in Lake Champlain, and of a certain dock attached\nthereto, which island and dock were then in charge of the defendant\xe2\x80\x99s servant; that the plaintiff\nwas then possessed of and sailing upon said lake a certain loaded sloop, on which were the\nplaintiff and his wife and two minor children; that there then arose a sudden and violent tempest,\nwhereby the sloop and the property and persons therein were placed in great danger of\ndestruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did,\nmoor the sloop to defendant\xe2\x80\x99s dock; that the defendant, by his servant, unmoored the sloop,\nwhereupon it was driven upon the shore by the tempest, without the plaintiff\xe2\x80\x99s fault; and that the\nsloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into\nthe lake and upon the shore, receiving injuries. . . .\nThere are many cases in the books which hold that necessity, and an inability to control\nmovements inaugurated in the proper exercise of a strict right, will justify entries upon land and\ninterferences with personal property that would otherwise have been trespasses. A reference to a\nfew of these will be sufficient to illustrate the doctrine. . . . In trespass of cattle taken in A.,\ndefendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased\nthem towards the pound, and they escaped from him and went into A., and he presently retook\nthem; and this was held a good plea. . . . If one have a way over the land of another for his beasts\n84\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nto pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of\nthe way and are promptly pursued and brought back, trespass will not lie. . . . A traveler on a\nhighway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining\nland without becoming a trespasser because of the necessity. . . . An entry upon land to save\ngoods which are in danger of being lost or destroyed by water or fire is not a trespass. . . . In\nProctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff\xe2\x80\x99s beach\nfor the purpose of saving and restoring to the lawful owner a boat which had been driven ashore,\nand was in danger of being carried off by the sea; and it was held no trespass. . . .\nThis doctrine of necessity applies with special force to the preservation of human life.\nOne assaulted and in peril of his life may run through the close of another to escape from his\nassailant. . . . One may sacrifice the personal property of another to save his life or the lives of his\nfellows. In Mouse\xe2\x80\x99s Case, 12 Co. 63, the defendant was sued for taking and carrying away the\nplaintiff\xe2\x80\x99s casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers\ninto his barge to pass to London, among whom were the plaintiff and defendant; and the barge\nbeing upon the water a great tempest happened, and a strong wind, so that the barge and all the\npassengers were in danger of being lost if certain ponderous things were not cast out, and the\ndefendant thereupon cast out the plaintiff\xe2\x80\x99s casket. It was resolved that in case of necessity, to\nsave the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the\nplaintiff\xe2\x80\x99s casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have\nhis remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the\ndanger accrue only by the act of God, as by tempest, without fault of the ferryman, every one\nought to bear his loss to safeguard the life of a man.\nIt is clear that an entry upon the land of another may be justified by necessity . . . . But the\ndefendant questions the sufficiency of the counts because they do not negative the existence of\nnatural objects to which the plaintiff could have moored with equal safety. The allegations are, in\nsubstance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to\ndefendant\xe2\x80\x99s dock to save his sloop and the people in it. The averment of necessity is complete, for\nit covers not only the necessity of mooring to the dock; and the details of the situation which\ncreated this necessity, whatever the legal requirements regarding them, are matters of proof, and\nneed not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of\ncircumstance, and the question must be left for adjudication upon proceedings had with reference\nto the evidence or the charge.\n...\nJudgment affirmed and cause remanded.\n\nVincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910)\nO\xe2\x80\x99BRIEN, J.\nThe steamship Reynolds, owned by the defendant, was for the purpose of discharging her\ncargo on November 27, 1905, moored to plaintiff\xe2\x80\x99s dock in Duluth. While the unloading of the\nboat was taking place a storm from the northeast developed, which at about 10 o\xe2\x80\x99clock p. m.,\nwhen the unloading was completed, had so grown in violence that the wind was then moving at 50\nmiles per hour and continued to increase during the night. There is some evidence that one, and\n85\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nperhaps two, boats were able to enter the harbor that night, but it is plain that navigation was\npractically suspended from the hour mentioned until the morning of the 29th, when the storm\nabated, and during that time no master would have been justified in attempting to navigate his\nvessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a\ntug to tow her from the dock, but none could be obtained because of the severity of the storm. If\nthe lines holding the ship to the dock had been cast off, she would doubtless have drifted away;\nbut, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced,\nsometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the\nwind and waves striking her starboard quarter with such force that she was constantly being lifted\nand thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.\nWe are satisfied that the character of the storm was such that it would have been highly\nimprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted\nhis vessel to drift a way from it. . . . [T]hose in charge of the dock and the vessel at the time of the\nstorm were not required to use the highest human intelligence, nor were they required to resort to\nevery possible experiment which could be suggested for the preservation of their property.\nNothing more was demanded of them than ordinary prudence and care, and the record in this case\nfully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in\ncharge of her exercised good judgment and prudent seamanship.\nIt is claimed by the respondent that it was negligence to moor the boat at an exposed part\nof the wharf, and to continue in that position after it became apparent that the storm was to be\nmore than usually severe. We do not agree with this position. The part of the wharf where the\nvessel was moored appears to have been commonly used for that purpose. It was situated within\nthe harbor at Duluth, and must, we think, be considered a proper and safe place, and would\nundoubtedly have been such during what would be considered a very severe storm. The storm\nwhich made it unsafe was one which surpassed in violence any which might have reasonably been\nanticipated.\nThe appellant contends by ample assignments of error that, because its conduct during the\nstorm was rendered necessary by prudence and good seamanship under conditions over which it\nhad no control, it cannot be held liable for any injury resulting to the property of others, and\nclaims that the jury should have been so instructed. An analysis of the charge given by the trial\ncourt is not necessary, as in our opinion the only question for the jury was the amount of damages\nwhich the plaintiffs were entitled to recover, and no complaint is made upon that score.\nThe situation was one in which the ordinary rules regulating properly rights were\nsuspended by forces beyond human control, and if, without the direct intervention of some act by\nthe one sought to be held liable, the property of another was injured, such injury must be\nattributed to the act of God, and not to the wrongful act of the person sought to be charged. If\nduring the storm the Reynolds had entered the harbor, and while there had become disabled and\nbeen thrown against the plaintiffs\xe2\x80\x99 dock, the plaintiffs could not have recovered. Again, if while\nattempting to hold fast to the dock the lines had parted, without any negligence, and the vessel\ncarried against some other boat or dock in the harbor, there would be no liability upon her owner.\nBut here those in charge of the vessel deliberately and by their direct efforts held her in such a\nposition that the damage to the dock resulted, and, having thus preserved the ship at the expense\nof the dock, it seems to us that her owners are responsible to the dock owners to the extent of the\ninjury inflicted.\n86\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nIn Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held\nthat where the plaintiff, while lawfully in the defendants\xe2\x80\x99 house, became so ill that he was\nincapable of traveling with safety, the defendants were responsible to him in damages for\ncompelling him to leave the premises. If, however, the owner of the premises had furnished the\ntraveler with proper accommodations and medical attendance, would he have been able to defeat\nan action brought against him for their reasonable worth?\nIn Ploof v. Putnam, 71 Atl. 188, 20 L. R. A. (N. S.) 152, the Supreme Court of Vermont\nheld that where, under stress of weather, a vessel was without permission moored to a private\ndock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of\ntrespass, and that the defendant was responsible in damages because his representative upon the\nisland unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in\nthat case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe\nthe shipowner would have been held liable for the injury done.\nTheologians hold that a starving man may, without moral guilt, take what is necessary to\nsustain life; but it could hardly be said that the obligation would not be upon such person to pay\nthe value of the property so taken when he became able to do so. And so public necessity, in\ntimes of war or peace, may require the taking of private property for public purposes; but under\nour system of jurisprudence compensation must be made.\nLet us imagine in this case that for the better mooring of the vessel those in charge of her\nhad appropriated a valuable cable lying upon the dock. No matter how justifiable such\nappropriation might have been, it would not be claimed that, because of the overwhelming\nnecessity of the situation, the owner of the cable could not recover its value.\nThis is not a case where life or property was menaced by any object or thing belonging to\nthe plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is\nit a case where, because of the act of God, or unavoidable accident, the infliction of the injury was\nbeyond the control of the defendant, but is one where the defendant prudently and advisedly\navailed itself of the plaintiffs\xe2\x80\x99 property for the purpose of preserving its own more valuable\nproperty, and the plaintiffs are entitled to compensation for the injury done.\nOrder affirmed.\nLEWIS, J., dissenting.\nI dissent. It was assumed on the trial before the lower court that appellant\xe2\x80\x99s liability\ndepended on whether the master of the ship might, in the exercise of reasonable care, have sought\na place of safety before the storm made it impossible to leave the dock. The majority opinion\nassumes that the evidence is conclusive that appellant moored its boat at respondent\xe2\x80\x99s dock\npursuant to contract, and that the vessel was lawfully in position at the time the additional cables\nwere fastened to the dock, and the reasoning of the opinion is that, because appellant made use of\nthe stronger cables to hold the boat in position, it became liable under the rule that it had\nvoluntarily made use of the property of another for the purpose of saving its own. In my\njudgment, if the boat was lawfully in position at the time the storm broke, and the master could\nnot, in the exercise of due care, have left that position without subjecting his vessel to the hazards\nof the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an\ninevitable accident. If the master was in the exercise of due care, he was not at fault. The\n87\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nreasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not\nparted, or if, in the first instance, the master had used the stronger cables, there would be no\nliability. If the master could not, in the exercise of reasonable care, have anticipated the severity\nof the storm and sought a place of safety before it became impossible, why should he be required\nto anticipate the severity of the storm, and, in the first instance, use the stronger cables?\nI am of the opinion that one who constructs a dock to the navigable line of waters, and\nenters into contractual relations with the owner of a vessel to moor at the same, takes the risk of\ndamage to his dock by a boat caught there by a storm, which event could not have been avoided in\nthe exercise of due care, and further, that the legal status of the parties in such a case is not\nchanged by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.\nJAGGARD, J., concurs herein.\n\nNotes\n\n1. The incomplete privilege of private necessity. Under the privilege of necessity, a\ndefendant is permitted to commit what would otherwise be an intentional tort to another\xe2\x80\x99s rights\nin property or realty to protect a more valuable interest in property or an interest in bodily security\nor life. See RESTATEMENT (SECOND) OF TORTS \xc2\xa7\xc2\xa7 196, 197, 262, 263 (1965). Where the more\nvaluable interest belongs to a large number of persons, as for example, where a city must be saved\nfrom a fire, the privilege may be deemed one of public necessity, and the defendant will owe no\ncompensation for any damage that occurs in reasonable exercise of the privilege. See id. \xc2\xa7\xc2\xa7 196,\n262. However, where the more valuable interest belongs only to the defendant or a small number\nof persons, the privilege is classified as a case of private necessity, and in suits by a party injured\nby the invasion, courts will require that the taker pay compensation for the harm caused by the\ninvasion. See id. \xc2\xa7 197(2); \xc2\xa7 263(2) & cmt. e. The privilege of private necessity is thus an\nincomplete privilege (while the privilege of public necessity, by contrast, is complete). Note,\nhowever, that even where the privilege is incomplete in this sense, the privilege to invade\nanother\xe2\x80\x99s property means that a property owner engaging in self-help to prevent the privileged\ninvasion must pay for any damages resulting from her self-help. See id. \xc2\xa7 263 cmt. b.\n\n2. A philosopher\xe2\x80\x99s view of Vincent. Philosophers of tort law typically argue that the\nnormative structure of tort law is organized around wrongs and obligations of repair. But if that is\nso, what was the wrong in Vincent? Leading philosopher of tort law Jules Coleman offered an\ningenious argument on this score:\nThere are three different ways in which \xe2\x80\x9cwrongs\xe2\x80\x9d and \xe2\x80\x9ccompensation\xe2\x80\x9d can be\nconnected. (1) You wrong me and owe me compensation because of the wrong you\nhave done me. (2) You pay me compensation and thereby make right (or make\npermissible) what would otherwise be a wrong to me. (3) You wrong me and owe\nme compensation, but your conduct is permissible even if you cannot and ultimately\ndo not compensate me.\nJules L. Coleman, Some Reflections on Richard Brooks\xe2\x80\x99s \xe2\x80\x9cEfficient Performance Hypothesis,\xe2\x80\x9d\n116 YALE L.J. POCKET PART 416 (2007). Does the Coleman explanation offer an adequate\n88\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nexplanation of why a law of civil wrongs would require compensation from the shipowner to the\ndockowner?\n\n3. The paradigm of reciprocity. Perhaps the wrong that corrective justice theorists believe is\npresent in Vincent can be cashed out in terms of fairness. This is George Fletcher\xe2\x80\x99s view\xe2\x80\x94\nnamely, that an unexcused nonreciprocity of risk is what makes sense of Vincent.\nThe critical feature of [Vincent] is that the defendant created a risk of harm to the\nplaintiff that was of an order different from the risks that the plaintiff imposed on\nthe defendant. [S]uppose that two sailors secured their ships in rough weather to a\nsingle buoy. [E]ach party would subject the other to a risk of . . . abrasion. [This]\nmanifestation . . . of the paradigm of reciprocity . . . express[es] the same principle\nof fairness: all individuals in society have the right to roughly the same degree of\nsecurity from risk. By analogy to John Rawls\xe2\x80\x99 first principle of justice, the principle\nmight read: we all have the right to the maximum amount of security compatible\nwith a like security for everyone else. This means that we are subject to harm,\nwithout compensation, from background risks, but that no one may suffer harm\nfrom additional risks without recourse for damages against the risk-creator.\nCompensation is a surrogate for the individual\xe2\x80\x99s right to the same security as\nenjoyed by others. But the violation of the right to equal security does not mean\nthat one should be able to enjoin the risk-creating activity or impose criminal\npenalties against the risk-creator. The interests of society may often require a\ndisproportionate distribution of risk. Yet, according to the paradigm of reciprocity,\nthe interests of the individual require us to grant compensation whenever this\ndisproportionate distribution of risk injures someone subject to more than his fair\nshare of risk.\nGeorge P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972). Does\nFletcher\xe2\x80\x99s view of Vincent do a better job than Coleman\xe2\x80\x99s view of explaining the outcome of the\ncase? The question for any view based on reciprocity is how to identify the appropriate baseline\nfrom which reciprocity may be measured. Fletcher\xe2\x80\x99s conception of reciprocal risks in the case of\ntwo sailors and a single buoy presupposes that the law vests each sailor with a protectable\nentitlement in their respective vessels. But whether any such entitlements exist is what we are\ntrying to decide. To take the Vincent example, can we identify the risks as nonreciprocal without\nassuming that the plaintiff has a protectable entitlement in the dock? But isn\xe2\x80\x99t that what we are\ntrying to decide?\n\n4. A civil recourse approach? More recently, Professors John Goldberg and Benjamin\nZipursky have attempted to establish a civil recourse theory of tort as an alternative to both the\neconomic-utilitarian and corrective justice approaches. The basic idea that animates civil recourse\ntheory is that a tort is a wrong that empowers the victim to seek satisfaction from the wrongdoer\nthrough special means of redress provided by the government. Tort (in this view) is therefore not\nabout loss-spreading, risk allocation, or even compensation, but rather about vindicating the right\nof the victim of wrong to recourse from the tortfeasor. Goldberg and Zipursky believe that their\nview of tort generates an explanation of Vincent:\nOur own view of Vincent is that . . . it deserves attention because it vividly\n89\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\ndemonstrates the distinctiveness of the wrong of trespass to land. Vincent, we\nbelieve, is a plain-vanilla trespass case. The ship owner intentionally occupied the\ndefendant\xe2\x80\x99s property (the dock) even after it was no longer permitted to do so. It\ntherefore committed a trespass for which compensation was owed. Of course its\ndecision to trespass was entirely reasonable. However\xe2\x80\x94as we have emphasized all\nalong\xe2\x80\x94the wrong of trespass, at least in the first instance, has nothing to do with\nwhether the defendant behaved reasonably. . . .\nEven though the reasonableness of the trespass in Vincent does not prevent it from\nbeing a trespass, it does have some significance on the outcome of the case. . . .\n[T]he same circumstances that explain why the captain\xe2\x80\x99s decision to stay put was\nentirely reasonable also explain why the dock owner in Vincent, like the dock owner\nin Ploof, would have faced liability if it had forcibly ejected the Reynolds from the\ndock, thereby causing it or its crew to suffer harm. A property owner has a limited\nprivilege to take measures to ward off trespassers [but] as we saw in Katko v. Briney,\na property possessor cannot do just anything in response to trespasses. Ploof tells\nus that if a property owner expels trespassers under circumstances where the\nexpulsion exposes them to a grave risk of death or bodily harm, the property owner\nwill have abused his privilege to defend his property and therefore will be subject\nto liability for battery.\nJOHN C. P. GOLDBERG & BENJAMIN C. ZIPURSKY, THE OXFORD INTRODUCTIONS TO U.S. LAW:\nTORTS (2010). What, in Goldberg\xe2\x80\x99s and Zipursky\xe2\x80\x99s view, explains why the dockowner may not\nforcibly unmoor the shipowner? Do Goldberg and Zipursky have an account of this feature of the\nlegal structure, or does their theory beg the question of whence the privilege comes?\n\n5. The economic view of Vincent. A very different set of accounts of tort law and of cases\nlike Vincent emphasizes the economic logic of the case. In this view, the aim of the law should be\nto allocate liability to the party best positioned and incentivized to minimize the costs of\naccidents. Costs should be allocated, in other words, to the best cost avoider. See GUIDO\nCALABRESI, THE COSTS OF ACCIDENTS (1970).\nNote, however, that cases like Vincent pose two wrinkles. The first is that it can be very\nhard for an adjudicator to accurately gauge which party is better positioned to minimize accident\ncosts. The second is that it is not always clear that adjudicators will in fact always be able to\ndecide that question, at least as a prospective matter. Will shipowners in Minnesota bear the risk\nof Vincent-like damages in future Vincent-like situations? One might think so having just read the\ncase. But if we allow shipowners and dockowners to trade the risks before those risks come to\nfruition, we should expect to see the risk freely traded, even if the common law tort rule allocates\nit to ship owners as an initial matter.\nThis insight has made the Vincent decision a classic case for the discussion of what\neconomists and lawyers call the Coase Theorem. In a famous article, Nobel Prize-winning\neconomist Ronald Coase contended that absent transaction costs, rational parties will transact to\nallocate the entitlements to their highest value user regardless of the initial allocation of legal\nentitlements. Parties will do so in order to maximize the joint value of the entitlement in question.\nCoase gave the analogy of a then-recent British case brought by a physician against a neighboring\nbaker whose noisy machinery interfered with his medical practice. The court had allocated the\n90\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nentitlement to the doctor, who thereafter had the power to stop the confectioner from using the\nloud machines. But Coase observed that a rational doctor would have been willing to\nwaive his right and allow the machinery to continue in operation if the confectioner\nwould have paid him a sum of money which was greater than the loss of income\nwhich he would suffer from having to move to a more costly or less convenient\nlocation or from having to curtail his activities at this location or, as was suggested\nas a possibility, from having to build a separate wall which would deaden the noise\nand vibration.\nRonald N. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 9 (1960). In turn, the baker\n\xe2\x80\x9cwould have been willing to do this,\xe2\x80\x9d if and only if \xe2\x80\x9cthe amount he would have to pay the doctor\nwas less than the fall in income he would suffer if he had to change his mode of operation at this\nlocation, abandon his operation or move his confectionery business to some other location.\xe2\x80\x9d Id.\nThe only real question, in Coase\xe2\x80\x99s account, was whether \xe2\x80\x9ccontinued use of the machinery adds\nmore to the confectioner\xe2\x80\x99s income that it subtracts from the doctor\xe2\x80\x99s.\xe2\x80\x9d If it did, then the baker\nwould buy from the doctor the right to continue with the machinery. Indeed, Coase\xe2\x80\x99s insight was\nthat the same outcome would obtain no matter whether the court found for the doctor or the baker.\nBut now consider the situation if the confectioner had won the case. The\nconfectioner would then have had the right to continue operating his noise and\nvibration-generating machinery without having to pay anything to the doctor. The\nboot would have been on the other foot: the doctor would have had to pay the\nconfectioner to induce him to stop using the machinery.\nJust as in the first scenario in which the doctor won, the parties will trade the entitlement so that\nthe party valuing it most ends up with it. As Coase concludes: \xe2\x80\x9cWith costless market transactions,\nthe decision of the courts concerning liability for damage would be without effect on the\nallocation of resources.\xe2\x80\x9d Coase\xe2\x80\x99s point is that where trading is possible, entitlements will tend to\ngo to their highest value users. Id. at 9-10.\nAt around the same time Coase wrote The Problem of Social Cost, Guido Calabresi made\na similar observation in a classic article, The Decision for Accidents:\n[A]lthough there are situations in which the choice of an original loss bearer is\nrelatively easy because it . . . makes no difference . . . there are other situations in\nwhich the choice of an original loss bearer or, if you wish, the question of what loss\nbelongs to what activity, is not only important, but hard!\nGuido Calabresi, The Decision for Accidents, 78 HARV. L. REV. 713, 732 (1965). Calabresi\nemphasized the pervasiveness of transaction costs, where Coase emphasized the power of\nmarkets. But together their insights have produced elaborate literatures in law and economics in\nthe years since.\nSome of the claims in the law and economics literature are quite contentious because they\nmake strong assertions or assumptions about the efficiency of markets. But the basic point\xe2\x80\x94that\ncommon law adjudications are often not the final word on the allocation of an entitlement\xe2\x80\x94is a\nstraightforward, important, and widely accepted one.\n91\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\nHow does this matter for torts? Typically the Coase theorem is stated in the form of\nentitlements and assets. But as the case of the baker and the confectioner suggests, the point holds\nfor liabilities and risks, too. Rational parties in settings of low transaction costs will trade\nliabilities and risks just as they trade entitlements and assets. Only now they will tend to allocate\nthose liabilities and risks not to a highest value user, but to a lowest cost bearer.\nNow we can begin to see the implications of Coase\xe2\x80\x99s ideas about entitlements and\ntransaction costs for risks like those present in Vincent v. Lake Erie Transportation. Under what\nconditions will dock owners bear those risks, even if Vincent remains the background common\nlaw rule? The Coase Theorem seems to indicate that we should expect mooring contracts to\nallocate the costs of storm damage to the lowest-cost bearer (an inverse to the highest value user\nabove). This only stands to reason, since the real price of any such contract is the price net of the\ncost of the risks. If the cost of the risks can be reduced, the parties to the contract can split the\ngains between them: shipowners can pay reduced net prices while dockowners receive higher net\nprices. It\xe2\x80\x99s a win-win! Mooring contracts should allocate risks to shipowners when they are in a\nbetter position to bear those risks at minimum costs, and to dockowners when the situation is\nreversed. Shipowners and dockowners would be foolish to do otherwise. They would simply be\nleaving money on the table, or in the water, as the case may be.\n\n6. The economic view of Vincent (II): what difference do legal rules make? The Coase\nTheorem does not assert that legal rules make no difference. The Theorem purports to identify\nwhat kinds of difference, under conditions of low or zero transaction costs, legal rules will and\nwill not make. Even if the initial allocation of an entitlement or a risk makes no difference for its\nultimate allocation, the initial allocation does have a distributional or wealth effect. Entitlement\nallocations have a positive wealth effect on the initial holder because such allocations endow the\nholder of the entitlement with either the entitlement or the value received for selling it to some\nother higher value holder. Risk allocations have a negative wealth effect in the same way. By\nhypothesis, the initial allocatee will be willing to pay a cheaper cost bearer to bear the risk. Either\nway, however, the initial allocatee is worse off.\nTo see this in a real life setting, consider the Ploof case as an example. By allocating the\nentitlement, or privilege, to boat owners, the court made the Ploof family that much better off and\nthe defendants that much worse off. The law mattered!\nIn contractual settings, however, there is a wrinkle. The privilege in Ploof settings exists\nfor all boaters moving forward, whether or not dock owners agree. That is the pro-boater wealth\neffect of the initial entitlement. The Vincent case is different. Viewed after the fact, the decision\nof the Minnesota Supreme Court benefitted a particular dockowner at the expense of a particular\nshipowner. But prospectively, the rule allocating the privilege as between shipowners and\ndockowners looking to enter into consensual docking agreements\xe2\x80\x94as they will in Vincent v. Lake\nErie-like settings\xe2\x80\x94is a different kind of animal. The key difference is that there is no entitlement\nfor the law to allocate here unless the parties agree to a docking arrangement. Rather than\nallocating an initial entitlement as in Ploof, the Vincent rule is better thought of as setting a default\nrule or a contract presumption in the event the parties\xe2\x80\x99 agree to have a relationship. Moving\nforward, the allocation of this risk is subject to rearrangement by the parties if they see fit to alter\nthe presumptive or default term of the mooring contract, since either one of them can refuse to\nconsent to the deal in question. In future Vincent v. Lake Erie situations, the privilege to lash and\nre-lash can only come about if both parties agree to bring it into existence by virtue of entering\n92\n\n\x0cWitt & Tani, TCPI 2. Intentional Harms\n\ninto a mooring contract that either tacitly or expressly adopts the contract presumption or default\nrule. The result is that the law has not allocated an entitlement to the initial allocatee at all\xe2\x80\x94at\nleast not in any obvious way. As Stewart Schwab puts it, \xe2\x80\x9cbecause both sides to a contract\nsimultaneously agree to create and distribute wealth, the distributive effect of contract rules is\nmuted.\xe2\x80\x9d Stewart Schwab, A Coasean Experiment on Contract Presumptions, 17 J. LEGAL STUD.\n237, 239 (1988).\n\n7. The economic view of Vincent (III): transaction costs. Real-world bargaining is not\nseamless, of course. The real world involves transaction costs, and when these costs are included\nin the analysis, it turns out that parties may not be able to enter into jointly advantageous\narrangements. In some situations, there simply isn\xe2\x80\x99t an opportunity to bargain. The parties\ncreating risks for one another, for example, may be strangers hurtling down a highway toward one\nanother. Or perhaps they are in a Ploof-like situation, where a sudden oncoming storm makes\nnegotiation impossible. The usual mooring scenario typically does not involve very high\ntransaction costs at all, at least not in this sense. Shipowners and dockowners are already entering\ninto deals with one another, so the transaction costs of adding a term to govern the risks of storm\ndamage are low. But, in many other settings, transaction costs may be prohibitive.\nIan Ayres and Jack Balkin argue that in high-transaction-costs settings the privilege\nregime of Ploof and Vincent creates ersatz auctions in which a sequence of unilateral actions by\nthe parties may reproduce the effect of a market without transaction costs.\nViewing entitlements as auctions implies that after one party exercises its option to\ntake nonconsensually, the other has an option to \xe2\x80\x9ctake back,\xe2\x80\x9d and so on, for some\nnumber of rounds. . . . [R]eciprocal takings regimes, like ordinary auctions, can\nincrease efficiency by inducing participants to reveal information about how much\nthey value an asset. This tends to place the asset in the hands of the person who is\nwilling to pay the most for it.\nThe Ayres and Balkin argument is that the process by which the parties choose to exercise their\noption to take (either by mooring or unmooring) essentially reproduces the dynamic of an internal\nauction in which the parties bid on the entitlement in question. The shipowner moors if he thinks\nthe savings thereby achieved to be greater than the damages to be incurred. That\xe2\x80\x99s his opening\nbid, and it flushes new information into the open: namely, that the shipowner\xe2\x80\x99s willingness to pay\nto save his vessel (his reserve price, in the parlance of auctions) is greater than what he takes the\nvalue of the dock to be. With this new information, the dockowner, in turn, has the opportunity to\nunmoor. That\xe2\x80\x99s a second bid. It too reveals new information about the relative valuations of the\nassets in question. And the auction need not be over. The shipowner may re-lash the vessel to the\ndock, and the dockowner may sever the lines again. With each passing round the chance that we\nwill make the right choice as between saving the dock or the ship in the storm rises, even though\nno market transaction ever takes place. As Ayres and Balkin explain, \xe2\x80\x9c[t]he more rounds we add\nto an internal auction, the more it appears to mimic bargaining between the participants.\xe2\x80\x9d Ian\nAyres & J. M. Balkin, Legal Entitlements as Auctions: Property Rules, Liability Rules, and\nBeyond, 106 YALE L.J. 703 (1997).\n\n93\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nCHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY\nAND INTRODUCTION\nSo far in this book we have been studying torts arising out of intentionally inflicted harms.\nBut the great majority of torts cases in the court system \xe2\x80\x93 and the great majority of the hard cases\n\xe2\x80\x93 arise not out of intentional contacts but out of unintentional contacts. They are unintentionally\ninflicted harms. In other words, they are accidents. If a defendant does not intend an injury,\nought the defendant be obligated to compensate the plaintiff for it? If so, what kinds of\nunintentional injuries produce such obligations to compensate? These are the central questions\nfor the law of unintentional torts, and we turn to them now through the development of the\ncommon law of torts.\n\nA. Common Law Beginnings\nIn the first several centuries after the Norman Conquest, the Norman kings left the\nresolution of many disputes to the local or church courts that were scattered choc-a-bloc across\nthe English landscape. Parties seeking the king\xe2\x80\x99s justice in disputes involving real property or\ninterpersonal violence, however, could seek out the king\xe2\x80\x99s justice. A petition to the king\xe2\x80\x99s\nchancellor could produce powerful royal intervention\xe2\x80\x94but only if the chancellor determined that\nit was the kind of dispute into which the king ought to intervene. Over time, as the number of\npetitions grew, the chancellor came to recognize certain categories of dispute as entitled to royal\njustice. Such disputes were causes for royal action\xe2\x80\x94or causes of action, as we know them today.\nA petition alleging the kinds of facts that constituted one of these stereotyped disputes would\nproduce a letter, or \xe2\x80\x9cwrit,\xe2\x80\x9d from the chancellor to a local official ordering him to take steps toward\nresolving the dispute in question.\nThus was born the so-called \xe2\x80\x9cwrit system,\xe2\x80\x9d which formed the basis for the law common to\nthe king\xe2\x80\x99s courts\xe2\x80\x94the English common law\xe2\x80\x94for nearly a thousand years. The chancellors\xe2\x80\x99\ncategories hardened into particularized forms of action, which offered specific procedures and\nremedies for complaints stated in terms of the stereotyped factual allegations that followed the\npattern of the chancellor\xe2\x80\x99s category. From time to time, under pressure from parties seeking the\nking\xe2\x80\x99s justice, the chancellor slowly recognized new forms of action to address new kinds of\ndisputes. Moreover, parties seeking the advantages of the king\xe2\x80\x99s justice often sought to fit their\ndisputes within the preexisting categories of the forms of action. And as the king\xe2\x80\x99s\nrepresentatives recognized these expansions of the existing forms of action, the writ system grew\nand expanded to meet new kinds of disputes.\nThe evolution of the writ system explains the common law beginnings of the law of\nunintentional torts. The writ of trespass was first recognized in the twelfth century; it offered a\nremedy in the king\xe2\x80\x99s courts for intentional breaches of the king\xe2\x80\x99s peace by force and arms\xe2\x80\x94vi et\narmis in the Latin. (Recall the recitations of \xe2\x80\x9cforce and arms\xe2\x80\x9d in the action for trespass in Ploof v.\nPutnam and the action for assault in I de S v. W de S in Chapter 2.) Over time, the recitation of\nthe key phrase \xe2\x80\x9cforce and arms\xe2\x80\x9d in complaints initiating a cause of action for trespass became a\nmere fiction; the terms were used solely because they were necessary to invoke the procedures of\nroyal justice, even where there was no real allegation that force or arms had been used at all. In\nthe late thirteenth century and fourteenth century, the clerks of the Chancery began to authorize a\nsubsidiary form of action as well, a writ known as the writ of trespass on the case. Trespass on\n94\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nthe case, or simply \xe2\x80\x9ccase\xe2\x80\x9d as it was sometimes known, dropped the recitation of force and arms\nand supplied a cause of action for the kinds of harms that seemed too indirect to be characterized\nas trespasses by force and arms.\nAll this may seem quite mysterious, but it is relatively simple once one drops the\nunfamiliar language. The forms of action were simply the causes for which the king\xe2\x80\x99s justice\nmight be invoked. The king\xe2\x80\x99s writs were simply his orders to lower officials to commence the\nprocess by which the cause in question might be redressed. A typical writ issued by the\nChancellor upon a complaint of trespass would have looked something like this one:\nThe King to the sheriff of S., greeting. If A. shall give you security for pursuing his\nclaim, then put by gage and safe pledges B. that he be before us on the octave of\nMichaelmas, wheresoever we shall then be in England [i.e., in the King\xe2\x80\x99s Bench],\nto show why [ostensurus quare] with force and arms [vi et armis] he made assault\non the selfsame A. at N., and beat, wounded and ill treated him so that his life was\ndespaired of, and offered other outrages against him, to the grave damage of the\nselfsame A. and against our peace. And have there the names of the pledges, and\nthis writ. Witness etc.\nJ.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 545 (4th ed. 2002). To translate:\n\xe2\x80\x9cDear Sheriff, Hello! If A is willing to put up a bond, then please order B to put up a bond of his\nown and to find men who will vouch for him and agree to offer their own assets to guarantee that\nhe will appear at the fall term of the court to answer A\xe2\x80\x99s allegations. Yours as ever, King.\xe2\x80\x9d Thus\nwould a medieval or early modern tort case begin.\nWith the establishment of the writs of trespass and case, the basic building blocks of early\nmodern tort law were in place. But key questions remain unresolved in our account thus far. The\nmost important for our purposes is to determine the kinds of unintentional harm for which the\nwrits of trespass and case would offer remedies. As far as we can tell, this question first arose in\nround-about fashion as part of a fifteenth-century case. The late medieval report of the case\nappears below. As you will quickly see, the dispute was not really about unintentional torts at all.\nYet as the parties argued the case in the royal court, they arranged for part of the case to turn on\nthe answer to the question of whether the defendant had committed an unintentional wrong. The\nlawyers for the parties and the judges then weighed in with a startling variety of possible answers\nto our central question: when is an actor liable for unintentional harms?\n\nHulle v. Orynge (The Case of the Thorns), Y.B. Mich. 6 Edw. IV, fo. 7, pl. 18 (1466)\n[Plaintiff Hulle brought a writ of trespass against defendant Orynge for breaking into his\nclose with force and arms (\xe2\x80\x9cquare vi & armis clausum fregit\xe2\x80\x9d) and consuming and trampling his\ngrass and crops on six acres of land in Devon. Defendant Orynge pleaded that he owned one acre\nadjoining the plaintiff\xe2\x80\x99s land, that while cutting thorns there from a thorn hedge on his property,\nthe thorns fell onto the plaintiff\xe2\x80\x99s land by their own will (\xe2\x80\x9cipso invito\xe2\x80\x9d), that he had gone\nimmediately onto the plaintiff\xe2\x80\x99s land to recover the thorns, and that this was the trespass of which\nthe plaintiff complained. The plaintiff demurred. The report, translated from Law French, is\ntaken from a medieval Year-Book during the reign of King Edward IV.]\n\n95\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nAnd Catesby said, Sir, it has been argued that if a man acts whereby injury and damage\nare done to another person against his will, even though the act is lawful, nonetheless he shall be\npunished if he could by some means have avoided the damage. Sir, to me the truth seems\ncontrary. As I understand, if a man acts in a lawful fashion, and damage occurs to another against\nhis will, he will not be punished. Consider the case that I driving my cattle along the highway,\nand that you have an acre of land along the highway, and my cattle enter into your land and\ndestroy your plantings, and I come immediately and chase the cattle from your land, in this case\nyou will not have an action against me, because the driving of the cattle was lawful, and their\nentry into your land was against my will. No more here, because the cutting was lawful and the\nfalling onto your land was against my will, and therefore the taking back was good and\npermissible. And Sir, I put it that if I cut my trees, and a bough fell on a man, and killed him, in\nthis case I will not be attainted of a felony, because my cutting was permissible, and the falling on\nthe man was against my will. No more here.\nFairfax. To me it seems the contrary. I say that there is a difference between when a man\nacts in a way that entails a felony, and when he acts in a way that entails a trespass, because in the\ncase that Catesby advances there is no felony, because felony requires malice aforethought, but it\nwas against his will, such that there was no animo felonico. But if someone cuts his plantings and\na bough fell on a man and injured him, in this case there will be an action of trespass. Also, sir, if\na man shoots at the butts and his bow turns in his hand and kills a man at its own invitation [i.e.,\nagainst the shooter\xe2\x80\x99s will], it is not a felony, as has been said. But if he injures a man by his\nshooting, he will have a good action of trespass against him, even if the shooting was lawful, and\nthe injury to the other was against his will. Also here.\nPigot. To the same idea, I suggest that if I had a mill and the water that comes to my mill\nflows past your land and you cut your willows such that against your will they fall in the water\nand stop the flow so that I do not have enough water for my mill, in this case I have an action of\ntrespass, even though the cutting was lawful and the falling was against your will. . . .\nYonge. It seems to me the opposite. In this case you have damnum absque injuria\n[damage without legal injury]. In this case you will have no action, because if there is no wrong\n[tort] there will be no reason for him to recover damages. So it was here where he went into the\nplaintiff\xe2\x80\x99s close to retrieve the thorns that had fallen there: this entry was not wrongful [tortious],\nbecause when he cut the thorns and they fell into the close against his will, nonetheless the\nproperty in the thorns remained in him, and therefore it was lawful for him to remove them from\nhis close. Notwithstanding that the plaintiff was injured, he has done no wrong [tort].\nBrian. To me it seems the opposite. My idea is that when a man acts he is bound to do it\nin such a manner that by his act neither prejudice nor damage is done to others. In a case where I\nbuild my house and a timber falls on the house of my neighbor and damages his house, he has a\ngood action, even though building my house was lawful and the timber fell against my will. Also\nif a man assaults me and I cannot avoid him without hitting him, and in my defense I raise my\nstick to strike him, and there is someone behind me, and in raising my stick I strike him, in this\ncase he will have an action against me, even though my raising of my stick was lawful selfdefense and his injury was against my will. The same is true here.\nLITTLETON, J. In my view, if a man is damaged that is reason that he should be\nrecompensed. To my understanding, the case that Catesby has put is not the law, because if your\ncattle comes onto my land and consumes my plantings, then even if you immediately come and\n96\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nchase your cows, it is obligatory of you to make amends for what they have done, be the damage\ngreat or small. . . . And sir if it were the law that he was able to come and take the thorns, then by\nthe same reasoning if he cut a large tree he would be able to come in with carts and horses to carry\nthe trees out; that would be unreasonable, because the plaintiff might have corn or other plantings\nthere. Nor here, because the law is the same for big things and small, and he will make amends\naccording to the size of the trespass.\nCHOKE, J. This resembles my view, because where the principal thing was not lawful,\nthen the thing that depends on it will not be lawful. When the defendant cut the thorns and they\nfell, this falling was unlawful and therefore his coming to take them was unlawful. As to what has\nbeen said about their falling against his will, that is no plea, but it obliges him to say that he could\nnot have acted in any other way, or that he did all that he could to keep them out, otherwise he\nwill render the damages. And Sir, if the thorns or a large tree had fallen onto the plaintiff\xe2\x80\x99s land\nby wind, in this case he would have been able to go to take them, because the falling would not\nhave been his act, but that of the wind.\n\nNotes\n\n1. The liability standard for unintentional torts. How many different positions on the\nliability threshold in unintentional torts are articulated by the lawyers and the judges in The Case\nof the Thorns? Are there arguments to be made on behalf of some or all of these views? Are\nthere still further possible positions the law might adopt?\n\n2. Why so few cases? One striking feature of the Thorns case is that it poses the question of\nwhat the liability standard ought to be for unintentional torts\xe2\x80\x94but it does so in the context of an\nintentional tort dispute. We rely on the case as a way of identifying the liability standard for\nunintentional torts in the early modern period because torts cases were few and far between prior\nto the nineteenth century. Why so few torts cases until then? Professor Norma Landau suggests\none explanation: seventeenth- and eighteenth-century plaintiffs often took advantage of the nowlong-abandoned system of private prosecution to initiate criminal processes against those who\ninjured them. See Norma Landau, Indictment for Fun and Profit: A Prosecutor\xe2\x80\x99s Reward at\nEighteenth-Century Quarter Sessions, 17 LAW & HIST. REV. 507 (1999). Professor Landau notes\nthat plaintiffs \xe2\x80\x9cwere not really interested in bringing defendants before [a] court\xe2\x80\x9d for punishment.\nInstead, plaintiffs \xe2\x80\x9cwere interested . . . in obtaining compensation for the offense.\xe2\x80\x9d Id. at 529.\nThe threat of criminal punishments must surely have been a very powerful club with which to\ninduce settlement from the accused. The rise of the modern system of public prosecution in the\nearly nineteenth century, however, eliminated this criminal process option and helped bring about\nthe rise of tort law.\n\n3. Over a hundred years later, the English Court of Common Pleas weighed in with another\nruling on the question of what sorts of unintentional injuries created a legal obligation of\ncompensation, this time when an injury arose out of a soldiers\xe2\x80\x99 skirmish in London.\n\n97\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nWeaver v. Ward, 80 Eng. Rep. 284 (C.P. 1616)\nWeaver brought an action of trespass of assault and battery against Ward. The defendant\npleaded, that he was amongst others by the commandment of the Lords of the Council a trained\nsoldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they\nwere skirmishing with their musquets charged with powder for their exercise in re militari,\nagainst another captain and his band; and as they were so skirmishing, the defendant casualiter &\nper infortunium & contra voluntatem suam [accidentally and by misfortune and against his will],\nin discharging of his piece did hurt and wound the plaintiff . . . .\nAnd upon demurrer by the plaintiff, judgment was given for him; for though it were\nagreed, that if men tilt or tourney in the presence of the King, or if two masters of defence [i.e.,\nprize-fighters] playing [for] their prizes kill one another, that this shall be no felony\xe2\x80\x94or if a\nlunatick kill a man, or the like\xe2\x80\x94because felony must be done animo felonico; yet in trespass,\nwhich tends only to give damages according to hurt or loss, it is not so. And therefore if a\nlunatick hurt a man, he shall be answerable in trespass. And therefore no man shall be excused of\na trespass (for this is the nature of an excuse, and not of a justification . . .) except it may be\njudged utterly without his fault.\nAs if a man by force take my hand and strike you, or if here the defendant had said, that\nthe plaintiff ran cross his piece when it was discharging, or had set forth the case with the\ncircumstances, so as it had appeared to the Court that it had been inevitable, and that the\ndefendant had committed no negligence to give occasion to the hurt.\n\nNotes\n\n1. Ward\xe2\x80\x99s defense. What is Ward\xe2\x80\x99s story, and why is it insufficient as a plea in defense\nagainst Weaver\xe2\x80\x99s trespass action?\n\n2. Stories that worked, stories that didn\xe2\x80\x99t. The court gives examples of stories the defendant\ncould have offered that would have satisfied its \xe2\x80\x9cutterly without fault\xe2\x80\x9d standard. It also offers the\nstory of the \xe2\x80\x9clunatick\xe2\x80\x9d to illustrate an injury for which a defendant will be held answerable in\ntrespass. And it offers at least a couple of ways of articulating the principle explaining which\nstories \xe2\x80\x9clie,\xe2\x80\x9d meaning which stories make up a case for the plaintiff at the pleading stage, and\nwhich stories do not. Can we develop a sense of the landscape of early modern common law\nliability for unintentional harms, at least in trespass cases, from the report of Weaver v. Ward?\n\n3. Attenuated causation? One question that the Weaver case does not explicitly address is\nwhat might have happened had the causal connection between plaintiff Weaver and defendant\nWard been considerably more attenuated? In the actual event, as the court at the time understood,\nthe plaintiff had been the man nearest in the ranks to the defendant. But what if Weaver had been\non the far side of the soldiers\xe2\x80\x99 infantry square as they skirmished? Or what if Weaver was injured\nby a panic and stampede among the skirmishers after Ward\xe2\x80\x99s musket went off unexpectedly?\nRecall from the introduction to this section that the writ of trespass was associated with relatively\n98\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\ndirect injuries, whereas the writ of trespass on the case was associated with indirect injuries like\nthe trampling incident we have hypothesized here.\nJudge Fortescue of the King\xe2\x80\x99s Bench gave the classic statement of the distinction between\ntrespass and case in 1726:\n[I]f a man throws a log into the highway, and in that act it hits me, I may maintain\ntrespass, because it is an immediate wrong; but if as it lies there I tumble over it and\nreceive an injury, I must bring an action upon the case; because it is only prejudicial\nin consequence for which originally [i.e., in trespass vi et armis] I could have no\naction at all.\nReynolds v. Clarke, 92 Eng. Rep. 410 (K.B. 1726). The neat distinction offered by Fortescue,\nhowever, soon gave way to great difficulty. The next case gives us a sense of how the early\nmodern common law tried to resolve the problem of indirect injuries. The underlying problem of\nindirect injuries is especially important because it raises general considerations that are with us\nstill today.\n\nScott v. Shepherd, 96 Eng. Rep. 525 (K.B. 1773)\nTrespass and assault for throwing, casting, and tossing a lighted squib at and against the\nplaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the\nsight of it . . . .\n[T]he cause came on to be tried before Nares, J., last Summer Assizes, at Bridgwater,\nwhen the jury found a verdict for the plaintiff with \xc2\xa3100 damages, subject to the opinion of the\nCourt on this case: On the evening of the fair-day at Milborne Port, 28th October, 1770, the\ndefendant threw a lighted squib, made of gun-powder . . . from the street into the markethouse, which is a covered building, supported by arches, and enclosed at one end, but open at\nthe other and both the sides, where a large concourse of people were assembled; which lighted\nsquib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread[.]\nThat one Willis instantly, and to prevent injury to himself and the said wares of the said Yates,\ntook up the said lighted squib from off the said standing, and then threw it across the said markethouse, when it fell upon another standing there of one Ryal, who sold the same sort of wares, who\ninstantly, and to save his own goods from being injured, took up the said lighted squib from off\nthe said standing, and then threw it to another part of the said market-house, and, in so throwing\nit, struck the plaintiff then in the said market-house in the face therewith, and the combustible\nmatter then bursting, put out one of the plaintiff\xe2\x80\x99s eyes. . . .\nNARES, J., was of opinion, that trespass would well lie in the present case. That the\nnatural and probable consequence of the act done by the defendant was injury to somebody, and\ntherefore the act was illegal at common law. And the throwing of squibs has by statute . . . been\nsince made a nuisance. Being therefore unlawful, the defendant was liable to answer for the\nconsequences, be the injury mediate or immediate. . . . The principle I go upon is . . . that if the\nact in the first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at\nfirst, trespass will lie for the consequences of it. So, in . . . . [The Case of the Thorns,] for going\nupon the plaintiff\xe2\x80\x99s land to take the boughs off which had fallen thereon in lopping. . . . I do not\nthink it necessary, to maintain trespass, that the defendant should personally touch the plaintiff. . .\n99\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\n. He is the person, who, in the present case, gave the mischievous faculty to the squib. That\nmischievous faculty remained in it till the explosion. . . . The intermediate acts of Willis and Ryal\nwill not purge the original tort in the defendant. But he who does the first wrong is answerable for\nall the consequential damages. . . .\nBLACKSTONE, J., was of opinion that an action of trespass did not lie for Scott against\nShepherd upon this case. He took the settled distinction to be, that where the injury is immediate,\nan action of trespass will lie; where it is only consequential, it must be an action on the case . . . .\nThe lawfulness or unlawfulness of the original act is not the criterion. . . . [T]his cannot be the\ngeneral rule; for it is held by the Court . . . that if I throw a log of timber into the highway, (which\nis an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies,\nit being a consequential damage; but if in throwing it I hit another man, he may bring trespass,\nbecause it is an immediate wrong. Trespass may sometimes lie for the consequences of a lawful\nact. If in lopping my own trees a bough accidentally falls on my neighbour\xe2\x80\x99s ground, and I go\nthereon to fetch it, trespass lies. This is the case cited from 6 Edw. IV, 7 [The Case of the\nThorns]. But then the entry is of itself an immediate wrong. And case will sometimes lie for the\nconsequence of an unlawful act. If by false imprisonment I have a special damage, as if I forfeit\nmy recognizance thereby, I shall have an action on the case . . . . yet here the original act was\nunlawful, and in the nature of trespass. So that lawful or unlawful is quite out of the case.\nThe solid distinction is between direct or immediate injuries, on the one hand, and\nmediate or consequential, on the other. And trespass never lay for the latter. If this be so, the\nonly question will be, whether the injury which the plaintiff suffered was immediate, or\nconsequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass;\nnot as against Ryal, or Scott. The tortious act was complete when the squib lay at rest upon\nYates\xe2\x80\x99s stall. He, or any bystander, had, I allow, a right to protect themselves by removing the\nsquib, but should have taken care to do it in such a manner as not to endamage others. But\nShepherd, I think, is not answerable in an action of trespass and assault for the mischief done by\nthe squib in the new motion impressed upon it, and the new direction given it, by either Willis or\nRyal; who both were free agents, and acted upon their own judgment. This differs it from the\ncases put of turning loose a wild beast or a madman. They are only instruments in the band of the\nfirst agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow\nglancing against a tree; because there the original motion . . . is continued, though diverted. Here\nthe instrument of mischief was at rest, till a new impetus and a new direction are given it, not once\nonly, but by two successive rational agents. But it is said that the act is not complete, nor the\nsquib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and\nso has a stone that has been thrown against my windows, and now lies still. Yet if any person\ngives that stone a new motion, and does farther mischief with it, trespass will not lie for that\nagainst the original thrower.\nNo doubt but Yates may maintain trespass against Shepherd. And, according to the\ndoctrine contended for, so may Ryal and Scott. Three actions for one single act! Nay, it may be\nextended in infinitum. If a man tosses a football into the street, and, after being kicked about by\none hundred people, it at last breaks a tradesman\xe2\x80\x99s windows; shall he have trespass against the\nman who first produced it? Surely only against the man who gave it that mischievous direction.\nBut it is said, if Scott has no action against Shepherd, against whom must he seek his remedy? I\ngive no opinion whether case would lie against Shepherd for the consequential damage, though, as\nat present advised, I think . . . it would. But I think, in strictness of law, trespass would lie\nagainst Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the\n100\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nbounds of self-defence, and not used sufficient circumspection in removing the danger from\nthemselves. The throwing it across the market-house, instead of brushing it down, or throwing [it]\nout of the open sides into the street, (if it was not meant to continue the sport, as it is called), was\nat least an unnecessary and incautious act. Not even menaces from others are sufficient to justify\na trespass against a third person; much less a fear of danger to either his goods or his person\xe2\x80\x94\nnothing but inevitable necessity. Weaver and Ward.\nI admit that the defendant is answerable in trespass for all the direct and inevitable effects\ncaused by his own immediate act. But what is his own immediate act? The throwing [of] the\nsquib to Yates\xe2\x80\x99s stall. Had Yates\xe2\x80\x99s goods been burnt, or his person injured, Shepherd must have\nbeen responsible in trespass. But he is not responsible for the acts of other men. . . . [I]f I bring\ntrespass for an immediate injury, and prove at most only a consequential damage, judgment must\nbe for the defendant . . . . It is said by Lord Raymond, and very justly, . . . \xe2\x80\x9cwe must keep up the\nboundaries of actions, otherwise we shall introduce the utmost confusion.\xe2\x80\x9d As I therefore think\nno immediate injury passed from the defendant to the plaintiff . . . I am of opinion, that in this\naction judgment ought to be for the defendant.\nGOULD, J., was of the same opinion with Nares, J., that this action was well maintainable.\nThe whole difficulty lies in the form of the action, and not in the substance of the remedy. The\nline is very nice between case and trespass upon these occasions:\nI am persuaded there are many instances wherein both or either will lie. I agree with brother\nNares, that wherever a man does an unlawful act, he is answerable for all the consequences; and\ntrespass will lie against him . . . . But, exclusive of this, I think the defendant may be considered\nin the same view as if he himself had personally thrown the squib in the plaintiff\xe2\x80\x99s face. The\nterror impressed upon Willis and Ryal excited self-defence, and deprived them of the power of\nrecollection. What they did was therefore the inevitable consequence of the defendant\xe2\x80\x99s unlawful\nact. Had the squib been thrown into a coach full of company, the person throwing it out again\nwould not have been answerable for the consequences. What Willis and Ryal did was by\nnecessity, and the defendant imposed that necessity upon them. . . .\nDE GREY, C.J. This case is one of those wherein the line drawn by the law between\nactions on the case and actions of trespass is very nice and delicate. Trespass is an injury\naccompanied with force, for which an action of trespass vi et armis lies against the person from\nwhom it is received. The question here is, whether the injury received by the plaintiff arises from\nthe force of the original act of the defendant, or from a new force by a third person. I agree with\nmy brother Blackstone as to the principles he has laid down, but not in his application of those\nprinciples to the present case. The real question certainly does not turn upon the lawfulness or\nunlawfulness of the original act; for actions of trespass will lie for legal acts when they become\ntrespasses by accident; as in the cases cited for cutting thorns, lopping of a tree, shooting at a\nmark, defending oneself by a stick which strikes another behind, etc. They may also not lie for\nthe consequences even of illegal acts, as that of casting a log in the highway. But the true\nquestion is, whether the injury is the direct and immediate act of the defendant, and I am of\nopinion, that in this case it is. The throwing [of] the squib was an act unlawful and tending to\naffright the bystanders. So far, mischief was originally intended; not any particular mischief, but\nmischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it. .\n. . I look upon all that was done subsequent to the original throwing as a continuation of the first\nforce and first act, which will continue till the squib was spent by bursting. And I think that any\ninnocent person removing the danger from himself to another is justifiable; the blame lights upon\nthe first thrower. The new direction and new force flow out of the first force, and are not a new\n101\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\ntrespass. . . . On these reasons I concur with Brothers Gould and Nares, that the present action is\nmaintainable.\n\nNotes\n\n1. Direct and indirect. Given the liability standard set out in The Case of the Thorns and in\nWeaver v. Ward, it seems vital to Blackstone that the writ of trespass be restricted to direct rather\nthan indirect consequences. The football (soccer!) example he offers illustrates his concern. Do\nNares or Gould have a good answer? On the other hand, is Blackstone\xe2\x80\x99s distinction between\ndirect and indirect distinction sustainable? What about De Grey\xe2\x80\x99s idea that directness follows\nfrom the relevant agent\xe2\x80\x99s intentions rather than from the path of the object in question? What\nabout Gould\xe2\x80\x99s idea that Willis and Ryal were not agents in the right way?\n\n2. The great William Blackstone. Blackstone, whose opinion failed to carry the day in Scott\nv. Shepherd, was one of the most important jurists in the history of the common law. As the first\nholder of the Vinerian Chair of English Law at Oxford University, Blackstone was responsible for\nturning the common law into a subject worthy of university study. His Commentaries on the\nLaws of England, published in four volumes between 1765 and 1769, aimed to take the\naccumulated forms of action in the common law and make sense of them as a body of law\nfounded on rational principles with coherence and integrity. Given that the common law had\naccumulated in ad hoc fashion for over seven hundred years by the time he began to write, this\nwas no small feat. Blackstone\xe2\x80\x99s effort was so successful that virtually every American law\nstudent for the next century learned the law by reading American editions of the Vinerian\nProfessor\xe2\x80\x99s great text. And unlike contemporary common law works such as digests and practice\nmanuals, which functioned even in their time as reference books, the four volumes of Blackstone\nremain readable as a classic text to this day.\nDoes Blackstone\xe2\x80\x99s commitment to reason and the rule of law as a body of principles help\nus understand his view in Scott v. Shepherd? To be sure, the great jurist\xe2\x80\x99s distinction between\ndirect and indirect injuries will be very difficult to maintain in practice. But what mechanisms are\nhis fellow judges likely to try to invoke in order hold off the problem that Blackstone\xe2\x80\x99s soccer\nexample identifies? At the heart of Scott v. Shepherd, then, is a deep problem in legal theory.\nLaw aims to articulate principles of general application that can resolve future disputes. But the\nmultifariousness of human behavior and social life and the limits of reason make it exceedingly\nhard to exclude human discretion from the operation of the law.\n\n3. Whose act? The action on the case was more appealing to Blackstone in Scott v. Shepherd\nbecause of its association with a heightened liability standard of negligence. Plaintiffs in actions\non the case typically only recovered damages if they could show that a defendant\xe2\x80\x99s negligent or\notherwise wrongful act caused the injury in question. This meant that the innocent kicker of a\nsoccer ball would not be stuck with liability for the damage done by the same soccer ball at some\nlater time, where the later damage would not have occurred but for the initial innocent kick. Only\na negligent or otherwise wrongful initial act would raise the possibility of the actor being held\nliable for such downstream damages.\n102\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nAnd yet a puzzle persists about the liability standard for trespass actions in the\nseventeenth and eighteenth centuries. If the court in Weaver v. Ward really meant to say that a\ndefendant may be held liable without regard to fault, how were courts to know which of the two\nactors before them\xe2\x80\x94plaintiff and defendant\xe2\x80\x94was responsible for the injury in question in the\nrelevant way? To put this a different way, when the Weaver court said that a defendant might\nplead that the injury was the result of the plaintiff\xe2\x80\x99s act instead of the defendant\xe2\x80\x99s act, how was a\ncourt to decide which act was the responsible act? Both parties will inevitably have acted. What\nseems to be needed is some further basis for distinguishing the conduct of the two parties. But the\nearly modern common law does not seem to have offered much by way of such a basis\xe2\x80\x94not at the\npleading stage, at least.\nBut if the pleadings offered no basis for distinguishing injuries attributable to plaintiff\xe2\x80\x99s\nactions from those attributable to the defendant\xe2\x80\x99s acts, a basis for allocating the liability between\nplaintiff and defendant may have emerged at the trial stage. If the parties joined issue on some\nallegation of fact, the king\xe2\x80\x99s judges sent causes of action out into the countryside for a trial by\njury. The next case suggests that despite the suggestion of The Case of the Thorns, Weaver v.\nWard, and Scott v. Shepherd, negligence questions may have been raised in trespass actions in\nthose jury trials precisely as a way of identifying which of the two parties had acted in such a way\nas to make him the one who should bear the costs of the injury.\n\nGibbons v. Pepper, 91 Eng. Rep. 922 (K.B. 1695)\nTrespass, assault and battery. The defendant pleads, that he rode upon a horse in the\nKing\xe2\x80\x99s highway, and that his horse being affrighted ran away with him . . . so that he could not\nstop the horse; that there were several persons standing in the way, among whom the plaintiff\nstood; and that he called to them to take care, but that notwithstanding, the plaintiff did not go out\nof the way, but continued there; so that the defendant\xe2\x80\x99s horse ran over the plaintiff against the will\nof the defendant . . . . The plaintiff demurred. And Serjeant Darnall for the defendant argued, that\nif the defendant in his justification shows that the accident was inevitable, and that the negligence\nof the defendant did not cause it, judgment shall be given for him. To prove which he cited\n[cases].\nNorthey for the plaintiff said, that in all these cases the defendant confessed a battery,\nwhich he afterwards justified; but in this case he justified a battery, which is no battery. Of which\nopinion was the whole Court; for if I ride upon a horse, and J. S. whips the horse, so that he runs\naway with me and runs over any other person, he who whipped the horse is guilty of the battery,\nand not me. But if I by spurring was the cause of such accident, then I am guilty. In the same\nmanner, if A. takes the hand of B. and with it strikes C., A. is the trespasser, and not B. And, per\ncuriam, the defendant might have given [his] justification in evidence, upon the general issue\npleaded. And therefore judgment was given for the plaintiff.\n\nNotes\n\n1. Early modern common law pleading and procedural imperatives. To understand Gibbons\nv. Pepper, one has to know a little bit about the pleading system of the early modern common law\ncourts. Once the plaintiff had selected his writ, the defendant was put to a choice before the\n103\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nking\xe2\x80\x99s judges at Westminster. He could issue a general denial (plead \xe2\x80\x9cthe general issue\xe2\x80\x9d). Or he\ncould enter a special plea (plead \xe2\x80\x9cthe special issue\xe2\x80\x9d) confessing the validity of the plaintiff\xe2\x80\x99s\nallegation but asserting some justification. The former plea sent the cause of action to a trial by\njury on the truth of the plaintiff\xe2\x80\x99s story, a trial that was usually held in the vicinity of the acts\ncomplained of. The latter plea put the plaintiff to a choice. Now the plaintiff could either issue a\ngeneral denial of the facts alleged in the defendant\xe2\x80\x99s special plea in justification, which would\nproduce a jury trial on the limited question of whether the defendant\xe2\x80\x99s story was true, or issue a\nspecial plea of his own. Typically, the special plea at this stage would be a demurrer, asserting\nthat the defendant\xe2\x80\x99s justification, even if true, was not sufficient as a matter of law.\nThe plaintiff\xe2\x80\x99s lawyer in Gibbons adopted this latter strategy and demurred to the\ndefendant\xe2\x80\x99s plea. Northey says\xe2\x80\x94and the judges of the King\xe2\x80\x99s Bench seem to agree\xe2\x80\x94that it\nwould be a good special plea for a defendant in a trespass action to confess the trespass but justify\nit some way. The defendant might, for example, say that the injury was inevitable in the sense\nsuggested in Weaver v. Ward. It would also have been permissible for the defendant to enter a\ngeneral denial and assert that there was no tort at all because the defendant\xe2\x80\x99s acts were not the\nrelevant cause of the plaintiff\xe2\x80\x99s injury. But this defendant, Northey claims, wants to have it both\nways: to say that the relevant cause was the fright given to the horse, not the defendant\xe2\x80\x99s act, and\nthat the injury was inevitable. Northey\xe2\x80\x99s response is to say that this is a bad plea\xe2\x80\x94that the\ndefendant may not plead both ways but must instead choose one plea or another. And the court\nagrees.\nOne might wonder at the fairness of this: why put the defendant to the burden of\nspecifying so precisely the kind of plea he means to enter? Over time, the demanding and highly\nparticular procedures of the common law became objects of derision and scorn. It would seem the\ndomain of pettifogging lawyers drawing obscure distinctions and laying traps for the unwary and\nuntrained. Our modern procedural system, since at least the middle of the nineteenth century, has\ndropped the elaborate pleading requirements from the front end of civil actions.\nBut the early modern system was not merely a device for generating fine distinctions and\nprocedural niceties. People rarely create arbitrary and capricious systems; we create institutions\nfor reasons, and here the reason was that it served an important function. The common law trial\nhad no discovery stage: there was no sharing of information between the parties in advance of the\ntrial. The result was that the factual issues on which the jury would decide had to be narrowed by\nthe pleadings lest one or both of the litigants risk being completely taken by surprise by his\nadversary\xe2\x80\x99s trial strategy and not have prepared witnesses or other evidence on the relevant story.\n(Consider Serjeant Darnall\xe2\x80\x99s plea for the defendant in Gibbons: it impermissibly presented not\none but two different factual defenses to the plaintiff\xe2\x80\x99s complaint, first that the horse had been\nfrightened by some third party or some other agency, and second that the injury was inevitable in\nthe sense suggested by the court in Weaver v. Ward.) The common law courts\xe2\x80\x99 insistence on\nextremely specific pleading was an effort to focus the proceedings on as narrow an issue as\npossible.\nNote that although to our eyes the common law\xe2\x80\x99s early pleading system may seem\nunappealing, our own procedural alternative is hardly free of dysfunction. Recall first how\nincredibly expensive our system is. The pretrial process by which parties share information with\none another\xe2\x80\x94discovery and depositions\xe2\x80\x94is so overwhelmingly costly that many kinds of cases\nsimply cannot be brought at all, at least not in an economical matter. Recall also that our system\nhas essentially brought an end to the civil trial altogether, since virtually all cases that do get\n104\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nbrought settle in advance of trial. Both of these characteristics of our system of trials may be\ntraced directly to the reform of the common law pleading system. The advent of elaborate pretrial\nprocesses like discovery became necessary once the common law pleading had been abolished. In\nturn, discovery has turned out to be so expensive and to produce so much information at the\npretrial stage that it has in most cases led the parties to settle rather than litigate to trial. For more\non this point, see John H. Langbein, The Disappearance of Civil Trial in the United States, 122\nYALE L.J. 522 (2012).\n\n2. Common law juries and the fault standard. Gibbons is important to us not only because\nthe case illustrates the choices to be made in designing a procedural system, but also because it\nreveals more about the liability standard at common law for unintentional injuries. The judges of\nKing\xe2\x80\x99s Bench emphasize the centrality for the law of trespass of identifying the relevant actor. To\nact and cause injury is to have committed a trespass.\nBut the penultimate line of Gibbons suggests something more\xe2\x80\x94it indicates that at least\nsome of the kinds of justifications and excuses that the defendant sought to offer could have been\nraised and litigated at the jury trial stage of the proceedings. We have much less information\nabout the jury trials in the early common law than we do about the pleadings that took place at\nWestminster. Trial transcripts do not exist. But the suggestion of Gibbons is that juries may have\nbeen making distinctions between the parties that were subtler than the relatively crude pleading\ncategories.\n\n3. Gibbons foreshadowed a crisis for the rigid forms of the common law writ system. The\ncrisis was especially apparent in highway cases, particularly in carriage accidents. The difficulty\nappeared in the following case:\n\nLeame v. Bray, 102 Eng. Rep. 724 (K.B. 1803)\n[In a trespass action, plaintiff declared that the defendant \xe2\x80\x9cwith force and arms\xe2\x80\x9d drove\n\xe2\x80\x9calong the King\xe2\x80\x99s highway with such great force and violence upon and against the plaintiff\xe2\x80\x99s\ncurricle drawn by two horses,\xe2\x80\x9d that the plaintiff\xe2\x80\x99s servant was thrown to the ground and plaintiff\nhimself leapt to the ground and was injured as his horses fled in fright, fracturing his collar bone.\nDefendant pleaded not guilty, and the case went to trial where it appeared in evidence at trial\nbefore Lord Ellenborough, C.J. that the accident occurred because the defendant drove his\ncarriage on the wrong side of the road on a dark night. The defendant objected that \xe2\x80\x9cthe injury\nhaving happened from negligence, and not wilfully, the proper remedy was by an action on the\ncase and not of trespass vi et armis. The trial judge dismissed the plaintiff\xe2\x80\x99s case as having been\nbrought under the wrong writ.]\nGibbs and Park [for the defendant-respondent] now shewed cause against a rule for setting\naside the nonsuit, and admitted that there were many precedents of trespass vi et armis for an\ninjury immediately proceeding from the party, although his will did not go along with his act; but\nhere they contended that the injury was consequential and not immediately flowing from the\nforcible act of the defendant, and in such a case trespass will not lie unless such act be done\nwillfully. . . .\n105\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nErskine and Hovell [for the plaintiff-appellant] in support of the rule. The distinction\nwhich was taken in Reynolds v. Clarke has been adopted in all the subsequent cases that where\nthe immediate act itself occasions a prejudice or is an injury to the plaintiff\xe2\x80\x99s person &c. there\ntrespass vi et armis will lie: but where the act itself is not an injury, but a consequence from that\nact is prejudicial to the plaintiff\xe2\x80\x99s person, &c., there trespass vi et armis will not lie, but the proper\nremedy is by an action on the case. . . . In none of the cases is it laid down as a branch of the\ndistinction that the act done must be either wilful, or illegal, or violent, in order to maintain\ntrespass: the only question is, whether the injury from it be immediate.\nLORD ELLENBOROUGH, C.J. The true criterion seems to be according to what Lord C.J. de\nGrey says in Scott v. Shepherd, whether the plaintiff received an injury by force from the\ndefendant. If the injurious act be the immediate result of the force originally applied by the\ndefendant, and the plaintiff by injured by it, it is the subject of an action of trespass vi et armis by\nall the cases both ancient and modern. It is immaterial whether the injury be wilful or not. As is\nin the case alluded to by my brother Grose, where on shooting at butts for a trial of skill with the\nbow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view;\nyet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury\nfrom an act of force by another. Such also was the case of Weaver v. Ward, in Hob. 134, where a\nlike unfortunate accident happened whilst persons were lawfully exercising themselves in arms.\nSo in none of the cases mentioned in Scott v. Shepherd did willfulness make any difference. . . .\nLE BLANC, J. In many of the cases the question has come before the Court upon a motion\nin arrest of judgment, where the Court in determining whether trespass or case were the proper\nremedy, have observed on the particular language of the declaration. But in all the books the\ninvariable principle to be collected is, that where the injury is immediate on the act done, there\ntrespass lies; but where it is not immediate on the act done, but consequential, there the remedy is\nin case. And the distinction is well instanced by the example put out of a man\xe2\x80\x99s throwing a log\ninto the highway: if at the time of its being thrown it hit any person, it is trespass, but if after it be\nthrown, any person going along the road receive an injury by falling over it as it lies there, it is\ncase. Neither does the degree of violence with which the act is done make any difference: for if\nthe log were put down in the most quiet way upon a man\xe2\x80\x99s foot, it would be trespass; but if\nthrown into the road with whatever violence, and one afterwards fall over it, it is case and not\ntrespass. So here, if the defendant had simply placed his chaise in the road, and the plaintiff had\nrun against it in the dark, the injury would not have been direct, but in consequence only of the\ndefendant\xe2\x80\x99s previous improper act. Here however the defendant was driving the carriage at the\ntime with the force necessary to move it along, and the injury to the plaintiff happened from that\nimmediate act: therefore the remedy must be trespass: and all the cases will support that\nprinciple.\n\nNote\n\n1. The problem of surprise. In Leame, the trial judge saw the writ of trespass as\ninappropriate for non-willful carriage accidents arising out of mere negligence, because there was\nno willful injury. The defendant here, after all, did not intend to be on the wrong side of the road.\nBut the trial court was reversed on appeal. Why the reversal? One consideration might have been\nthat requiring plaintiffs to use the writ of trespass on the case in highway cases would put them at\nrisk of being surprised at trial by testimony that the defendant actually intended to strike them. In\n106\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nan intentional or willful highway collision, only trespass would be appropriate. And so the\njustices of King\xe2\x80\x99s Bench concluded that a plaintiff such as the plaintiff in Leame had to be\nallowed to move forward in trespass, even in actions for mere negligence.\nThe difficulty that soon became apparent is that plaintiffs moving forward in case face the\nsame risk of surprise: if facts emerged at trial to suggest that the proper writ was trespass, the\nsame difficulty of surprise would arise once more, which is precisely what happened in Williams\nv. Holland:\n\nWilliams v. Holland, 131 Eng. Rep. 848 (C.P. 1833)\n[John Williams, the son and servant of the plaintiff and Mary Ann Williams, the infant\ndaughter of the Plaintiff, were riding in horse-drawn cart along a public highway when the\ndefendant \xe2\x80\x9cso carelessly, unskillfully, and improperly drove, governed, and directed\xe2\x80\x9d his horsedrawn gig that \xe2\x80\x9cby and through the carelessness, negligence, unskillfulness, and improper conduct\nof the Defendant, the said gig and horse of the Defendant then and there ran and struck with great\nviolence upon and against the cart and horse of the Plaintiff, and thereby then and there crushed,\nbroke to pieces, and damaged the same,\xe2\x80\x9d injuring John and Mary Ann and depriving the plaintiff\nof the service of his son and putting him to the expense of doctor\xe2\x80\x99s bills. The defendant pled not\nguilty.]\nAt the trial before Tindal, C. J., it appeared that the Plaintiff\xe2\x80\x99s cart was standing at the side\nof a road twenty-four feet wide, with the near wheel on the footway, when the Defendant in a gig,\nand, in the act of racing with another gig, drove against the cart, upset and broke it to pieces . . . .\nThe defence was that the defendant\xe2\x80\x99s horse had run away with him. And the Chief Justice left it\nto the jury to say whether the collision was the result of accident, or of negligence and\ncarelessness in the defendant. The jury found the latter, and gave a verdict with damages for the\nPlaintiff. It was also contended, on the part of the Defendant, that the action was misconceived,\nand ought to have been trespass instead of case. The Chief Justice having reserved that point for\nthe consideration of the Court, Bompas Serjt. obtained thereupon, a rule nisi to set aside the\nverdict and enter a nonsuit.\nJones Serjt. [for the plaintiff], who shewed cause, contended, that the result of all the cases\non this subject was, that where the act complained of is immediate and wilful, the remedy is only\nby action of trespass; where the act is immediate, but occasioned by negligence or carelessness,\nthe remedy is either by trespass or case; where the act is unimmediate, the remedy is by case only.\n[Citing Weaver v. Ward, Reynolds v. Clarke, Scott v. Shepherd, and Leame v. Bray]\nBompas [for the defendant], in support of his rule, insisted, that the effect of all the authorities is,\nthat when the act complained of is immediate, whether it be willful or the result of negligence, the\nremedy is by trespass only.\nTINDAL, C.J. . . . [T]he present rule was obtained for setting aside the verdict and\nentering a nonsuit, under leave given for that purpose, upon the ground that the injury having\nbeen occasioned by the immediate act of the Defendant himself, the action ought to\nhave been trespass, and that the case was not maintainable; and amongst other cases cited by\nthe Defendant\xe2\x80\x99s counsel in support of this objection, that of Leame v. Bray (3 East, 593) was\nprincipally relied upon as an authority in point.\n107\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\n[T]he present objection ought not to prevail, unless some positive and inflexible rule of\nlaw, or some authority too strong to be overcome, is brought forward in its support. If such are to\nbe found, they must, undoubtedly, be adhered to; for settled forms of action, adapted to different\ngrievances, contribute much to the certain administration of justice.\nBut upon examining the cases cited in argument, both in support of, and in answer to, the\nobjection, we cannot find one in which it is distinctly held, that the present form of action is not\nmaintainable under the circumstances of this case.\nFor as to Leame v. Bray, on which the principal reliance is placed by the Defendant, in\nwhich the form of action was trespass, and the circumstances very nearly the same as those in the\ncase now under consideration, the only rule established is, that an action of trespass might be\nmaintained, not that an action on the case could not. The case of Savignac v. Roome, in which the\nCourt held that case would not lie where the defendant\xe2\x80\x99s servant willfully drove against the\nplaintiff\xe2\x80\x99s carriage, was founded on the principle, that no action would lie against the master for\nthe wilful act of his servant . . . .\nWe hold it, however, to be unnecessary, to examine very minutely the grounds of the\nvarious decisions; for the late case of Moreton v. Hardern and Others [decided] . . . that where the\ninjury is occasioned by the carelessness and negligence of the Defendant, although it be\noccasioned by his immediate act, the Plaintiff may, if he thinks proper, make the negligence of the\nDefendant the ground of his action, and declare in case. It has been urged, indeed, in answer to\n[Moreton v. Hardern], that it was decided on the ground, that the action was brought against one\nof the proprietors who was driving, and against his co-proprietors who were absent, but whose\nservant was on the box at the time; and that as trespass would not have been maintainable against\nthe co-proprietors who were absent, so case was held maintainable in order that all the proprietors\nmight be included. But it is manifest that the Court did not rest their opinion upon so narrow a\nground; nor indeed would it have been a solid foundation for the judgment, that the master, who\nwas present, should be made liable to a different form of action than he otherwise would have\nbeen if the servant of the other proprietors had not been there.\nWe think the case last above referred to has laid down a plain and intelligible rule, that\nwhere the injury is occasioned by the carelessness and negligence of the defendant, the plaintiff is\nat liberty to bring an action on the case, notwithstanding the act is immediate, so long as it is not a\nwillful act; and, upon the authority of that case, we think the present form of action maintainable\nto recover damages for the injury.\n\nNotes\n\n1. Highway cases. Williams v. Holland addressed a problem that was emerging in highway\ncases and in cases involving enterprises with more than one owner such as that in Moreton v.\nHardern and Others, discussed by Chief Justice Tindal. The problem was that requiring a\nplaintiff to choose between trespass and case in advance of the trial forced the plaintiff to gamble\non what the underlying facts might turn out to be. If the defendant himself was driving, Leame v.\nBray permitted the plaintiff to move ahead in trespass. But if it turned out that the defendant\xe2\x80\x99s\nservant was driving, then the injury would be indirect as between plaintiff and defendant such that\n108\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\ncase might seem to be the only appropriate cause of action. Williams resolved this problem by\nmaking clear that either way, a writ of trespass on the case would be an appropriate cause of\naction in highway collisions, so long as the defendant\xe2\x80\x99s act was not willful.\n\n2. Trespass on the case. After Williams, trespass on the case became the standard form of\naction in highway cases. Williams thus increased the association between showings of negligence\nand highway cases. This made sense because the highway cases brought out an underlying\nproblem with the trespass cases reaching back all the way to the Case of the Thorns and Weaver v.\nWard. It was one thing to attribute great significance to the act that caused the plaintiff\xe2\x80\x99s injury.\nBut on what principle did the common law courts conclude that the relevant cause of that injury\nwas the defendant\xe2\x80\x99s act rather than the plaintiff\xe2\x80\x99s own? In the middle of the nineteenth-century,\ncommon law jurists would identify an answer to this problem. We now turn to the answer to\nwhich they arrived.\n\nB. Negligence Versus Strict Liability\nDespite a smattering of older cases such as those in Section A above, the modern law of\nunintentional torts is quite new. Scholars trace it back to the middle of the nineteenth century,\nwhen a confluence of developments gave rise to something recognizable as modern tort law.\nIndustrialization produced a sharp increase in the sheer number of accidental injuries and deaths.\nThe demise of the writ system and the abolition of the old common law forms of action gave rise\nto substantive conceptual categories for the law, such that for the first time law book publishers\nissued treatises on tort law. Equally important, the rise of a market economy characterized by\nmale wage earners supporting families of dependent women and children gave rise to new\npressure for wage replacement when wage earners were injured or killed. See generally JOHN\nFABIAN WITT, THE ACCIDENTAL REPUBLIC (2004).\nJust as modern tort law was beginning to emerge, an influential judge in Massachusetts\nweighed in on the question that had animated the smattering of English cases since The Case of\nthe Thorns: when is a defendant obligated to compensate a plaintiff for unintentionally inflicted\nharm? Strangely enough, the question would arise in a case that had nothing to do with the\nindustrial revolution or the kinds of wage work that seemed to have occasioned the new law of\ntorts. To the contrary, the case involved the kind of simple problem that torts jurists had posed as\nhypotheticals for centuries.\n\nBrown v. Kendall, 60 Mass. 292 (1850)\nIt appeared in evidence, on the trial . . . that two dogs, belonging to the plaintiff and the\ndefendant, respectively, were fighting in the presence of their masters; that the defendant took a\nstick about four feet long, and commenced beating the dogs in order to separate them; that the\nplaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards\nthe dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The\ndefendant retreated backwards from before the dogs, striking them as he retreated; and as he\napproached the plaintiff, with his back towards him, in raising his stick over his shoulder, in order\nto strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.\n109\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nSHAW, C.J. This is an action of trespass, vi et armis, brought by George Brown against\nGeorge K. Kendall, for an assault and battery . . . . [The trial court entered judgment for the\nplaintiff, instructing \xe2\x80\x9cthe jury, that if it was not a necessary act, and the defendant was not in duty\nbound to part the dogs, but might with propriety interfere or not as he chose, the defendant was\nresponsible for the consequences of the blow, unless it appeared that he was in the exercise of\nextraordinary care, so that the accident was inevitable, using the word not in a strict but a popular\nsense.\xe2\x80\x9d]\nThe facts set forth in the bill of exceptions preclude the supposition, that the blow,\ninflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole\ncase proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by\nthe defendant, was inadvertent and unintentional; and the case involves the question how far, and\nunder what qualifications, the party by whose unconscious act the damage was done is responsible\nfor it. We use the term \xe2\x80\x9cunintentional\xe2\x80\x9d rather than involuntary, because in some of the cases, it is\nstated, that the act of holding and using a weapon or instrument, the movement of which is the\nimmediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and\nhurting another is not within the purpose or intention of the party doing the act.\nIt appears to us, that some of the confusion in the cases on this subject has grown out of\nthe long-vexed question, under the rule of the common law, whether a party\xe2\x80\x99s remedy, where he\nhas one, should be sought in an action of the case, or of trespass. This is very distinguishable\nfrom the question, whether in a given case, any action will lie. The result of these cases is that if\nthe damage complained of is the immediate effect of the act of the defendant, trespass vi et armis\nlies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East,\n593. . . .\nIn these discussions, it is frequently stated by judges, that when one receives injury from\nthe direct act of another, trespass will lie. But we think this is said in reference to the question,\nwhether trespass and not case will lie, assuming that the facts are such, that some action will lie.\nThese dicta are no authority, we think, for holding, that damage received by a direct act of force\nfrom another will be sufficient to maintain an action of trespass, whether the act was lawful or\nunlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame v. Bray,\nthe damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark\nnight, which was clearly negligent if not unlawful. . . .\nWe think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf,\nthat the plaintiff must come prepared with evidence to show either that the intention was unlawful,\nor that the defendant was in fault; for if the injury was unavoidable, and the conduct of the\ndefendant was free from blame, he will not be liable. 2 Greenl. Ev. \xc2\xa7\xc2\xa7 85-92. If, in the\nprosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an\ninjury arising therefrom. . . . In applying these rules to the present case, we can perceive no\nreason why the instructions asked for by the defendant ought not to have been given; to this effect,\nthat if both plaintiff and defendant at the time of the blow were using ordinary care, or if at that\ntime the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the\nplaintiff and defendant were not using ordinary care, then the plaintiff could not recover.\nIn using this term, ordinary care, it may be proper to state, that what constitutes ordinary\ncare will vary with the circumstances of cases. In general, it means that kind and degree of care,\n110\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nwhich prudent and cautious men would use, such as is required by the exigency of the case, and\nsuch as is necessary to guard against probable danger. A man, who should have occasion to\ndischarge a gun, on an open and extensive marsh, or in a forest, would be required to use less\ncircumspection and care, than if he were to do the same thing in an inhabited town, village, or\ncity. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it\nmust be such an accident as the defendant could not have avoided by the use of the kind and\ndegree of care necessary to the exigency, and in the circumstances in which he was placed.\nWe are not aware of any circumstances in this case, requiring a distinction between acts\nwhich it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in\nwhich officers are bound to act under process, for the legality of which they are not responsible,\nand perhaps some others in which this distinction would be important. We can have no doubt that\nthe act of the defendant in attempting to part the fighting dogs, one of which was his own, and for\nthe injurious acts of which he might be responsible, was a lawful and proper act, which he might\ndo by proper and safe means. If, then, in doing this act, using due care and all proper precautions\nnecessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose,\nhe accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident,\nor was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant\nwas chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we\nthink the plaintiff cannot recover without showing that the damage was caused wholly by the act\nof the defendant, and that the plaintiff\xe2\x80\x99s own negligence did not contribute as an efficient cause to\nproduce it.\nThe [trial] court instruct[ion] . . . is to be taken in connection with the charge afterwards\ngiven, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as\nbefore explained, not a duty incumbent on the defendant,) then the burden of proving\nextraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff,\nwas on the defendant.\nThe court are of opinion that these directions were not conformable to law. If the act of\nhitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a\nlawful act, then the defendant was not liable, unless it was done in the want of exercise of due\ncare, adapted to the exigency of the case, and therefore such want of due care became part of the\nplaintiff\xe2\x80\x99s case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. \xc2\xa7 85.\nPerhaps the learned judge, by the use of the term extraordinary care, in the above charge,\nexplained as it is by the context, may have intended nothing more than that increased degree of\ncare and diligence, which the exigency of particular circumstances might require, and which men\nof ordinary care and prudence would use under like circumstances, to guard against danger. If\nsuch was the meaning of this part of the charge, then it does not differ from our views, as above\nexplained. But we are of opinion, that the other part of the charge, that the burden of proof was\non the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover,\nhe takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant;\nthe question of due care, or want of care, may be essentially connected with the main facts, and\narise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when\nthe proof is all in, and before the jury, from whatever side it comes, and whether directly proved,\nor inferred from circumstances, if it appears that the defendant was doing a lawful act, and\nunintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury,\n111\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nthat the defendant is chargeable with some fault, negligence, carelessness, or want of prudence,\nthe plaintiff fails to sustain the burden of proof, and is not entitled to recover.\nNew trial ordered.\n\nNotes\n\n1. What is a holding? What is the holding of Brown v. Kendall? For that matter, what is a\nholding? Judges do not make law simply by speaking and writing. A judge\xe2\x80\x99s opinion, or at least\npart of that opinion, becomes law for subsequent cases by virtue of the court\xe2\x80\x99s resolution of the\ndispute that is before the court. That is why a case that settles before it is decided by a court does\nnot produce any law at all. In the formulation of Judge Pierre Leval of the U.S. Court of Appeals\nfor the Second Circuit, a holding is a \xe2\x80\x9cproposition of law\xe2\x80\x9d that \xe2\x80\x9cexplain[s] why the court\xe2\x80\x99s\njudgment goes in favor of the winner.\xe2\x80\x9d Pierre N. Leval, Judging Under the Constitution: Dicta\nAbout Dicta, 81 N.Y.U. L. REV. 1249, 1256 (2006). Professors Michael Abramowicz and\nMaxwell Stearns observe further that it cannot be that holdings are merely those parts of an\nopinion necessary (or, as in one influential formulation, \xe2\x80\x9cpivotal\xe2\x80\x9d) in reaching the decision, since\nthere is often more than one possible route to a particular resolution. Abramowicz and Stearns\nargue therefore that a holding consists of \xe2\x80\x9cthose propositions along the chosen decisional path or\npaths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3)\nlead to the judgment.\xe2\x80\x9d Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L.\nREV. 953, 961 (2004).\nUsing the Leval or Abramowicz/Stearns theories of a holding, we might take the question\nabout the holding of Brown v. Kendall a step further. The first question is what Justice Shaw held\nin Brown v. Kendall as to the relevant liability standard. But the second and underlying question\nis whether there was a holding at all!\n\n2. Tort law as industrial subsidy? Setting aside the problem of characterizing the holding of\nBrown v. Kendall, it seems clear that Shaw meant to articulate a principle for distinguishing\nbetween the plaintiff and the defendant in accident cases. The principle Shaw identified was the\nnegligence principle. He moved the liability standard as administered by judges toward\nsomething like a negligence test, holding defendants liable only when they fail to exercise\nordinary or reasonable care\xe2\x80\x94that is, when they act negligently. This negligence standard\ngenerally offers a more favorable approach for defendants than a test that holds them liable even if\nthey exercise reasonable care, but fail to take the extraordinary care on which earlier cases\nsometimes seemed to insist. Why would Shaw have wanted to do this?\nGiven the historical influence of Shaw\xe2\x80\x99s opinion, a substantial literature has tried to\nexplain Shaw\xe2\x80\x99s motivations. Harvard professor Morton Horwitz controversially claimed that\nShaw adopted the negligence standard to subsidize industrialization and economic growth at the\nexpense of poor constituencies. In contrast to the stricter liability standard that preceded it,\nHorwitz argues, negligence immunized emerging industries from legal liability absent fault,\nplacing more of the burden of economic growth on the weakest groups in American society:\ngroups like farmers and workers. MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW,\n1780-1860 97, 99-101 (1977).\n112\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nSubsequent scholars have criticized Horwitz\xe2\x80\x99s thesis. Some dispute Horwitz\xe2\x80\x99s\ncharacterization of mid- and late-nineteenth-century tort law as having been especially friendly to\ndefendants. For example, Peter Karsten has argued that nineteenth-century negligence plaintiffs\nfaced no \xe2\x80\x9cnew \xe2\x80\x98roadblocks and hurdles\xe2\x80\x99\xe2\x80\x9d in collecting damages. See PETER KARSTEN, HEART\nVERSUS HEAD: JUDGE-MADE LAW IN NINETEENTH-CENTURY AMERICA 80 (1997). Gary Schwartz\nsimilarly rejected Horwitz\xe2\x80\x99s claim that nineteenth-century courts favored major industries. See\nGary T. Schwartz, The Character of Early American Tort Law, 36 U.C.L.A. L. REV. 641, 717\n(1988); Gary T. Schwartz, Tort Law and the Economy in Nineteenth Century America: A\nReinterpretation, 90 YALE L.J. 1717, 1720 (1981).\nThe more perceptive critique of the Horwitz view begins with the observation that before\nthe era of Brown v. Kendall, there were remarkably few tort actions for personal injuries of any\nkind. For them, Brown v. Kendall is thus not a decision narrowing an earlier era of relatively\nliberal liability, but precisely the opposite. It is the beginning of the modern liability regime,\nrepresenting the end of an era of pervasive status-based immunities from suit, and also the halting\nbeginning of a new era of tort-based responsibility for harms. For this account, see especially\nRobert Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA. L.\nREV. 925, 961 (1981), and also Richard A. Epstein, The Historical Origins and Economic\nStructure of Workers\xe2\x80\x99 Compensation Law, 16 GA. L. REV. 75 (1982), and John Fabian Witt, From\nLoss of Services to Loss of Support, 25 L. & SOCIAL INQUIRY 717 (2000).\nScholars have also objected to one of Horwitz\xe2\x80\x99s underlying premises: that private law\ndoctrine can redistribute wealth among social groups. For example, Richard Epstein has claimed\nthat courts and common law doctrines typically lack the institutional capacity to redistribute\nwealth, since (after all) all parties\xe2\x80\x94including industrialists\xe2\x80\x94are simultaneously prospective\ndefendants and prospective plaintiffs. In theory, they may stand to lose as much as they gain from\nnew common law rules favoring one side or the other. See Richard A. Epstein, The Social\nConsequences of Common Law Rules, 95 HARV. L. REV. 1717, 1718 (1982). Today\xe2\x80\x99s lawyereconomists thus usually argue that common law rules are highly inferior to the tax system as\nmechanisms for redistributing wealth. See Louis Kaplow & Steven Shavell, Why the Legal\nSystem is Less Efficient Than the Income Tax in Redistributing Income, 23 J. L. STUD. 667 (1994).\nIs there any reason to think that in the real world firms or industries with deep pockets are\nmore likely to be defendants than plaintiffs in tort litigation? It is a sociological fact that some\nactors are essentially not worth suing in tort: they are \xe2\x80\x9cjudgment proof,\xe2\x80\x9d as the saying goes,\nbecause they lack the assets against which any tort judgment against them could be collected.\nFirms or industries with assets, by contrast, are judgment-worthy. They are worth suing. Note\nthat assisting industries through the targeted manipulation of tort rules is something that policymakers continue to do to this day. To take one recent example, several state legislatures have\nrecently passed legislation to immunize the private space flight industry from liability. See, e.g.,\nCOLO. REV. STAT. \xc2\xa7\xc2\xa7 41-6-101(1) to (2)(a) (2014). These state immunity statutes protect and\nsubsidize the \xe2\x80\x9csmall but growing\xe2\x80\x9d private space flight industry. See Justin Silver, Note, Houston,\nWe Have a (Liability) Problem, 112 MICH. L. REV. 833, 838 (2014). At the federal level, to take\ntwo further examples, Congress has immunized firearm manufacturers from suits by the victims\nof criminal shootings, see Protection of Lawful Commerce in Arms Act, 15 U.S.C. \xc2\xa7 7901 (2012),\nand vaccine manufacturers from tort actions for bad reactions to childhood vaccines, see National\nChildhood Vaccine Injury Act, 42 U.S.C. \xc2\xa7 300aa-11 (2012). These targeted, scalpel-like\nimmunizations are considerably more precise than the blunderbuss of the general negligence\n113\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nstandard. But they suggest that tort rules can accomplish some kinds of distributive goals, worthy\nor otherwise\xe2\x80\x94or, at least, that lobbyists and legislatures think so. For a recent argument that the\nchoice between private law rules or the tax system as the best vehicle for redistribution is a\ncontextual and empirical question, see Zachary Liscow, Note, Reducing Inequality on the Cheap:\nWhen Legal Rule Design Should Include Equity as Well as Efficiency, 123 YALE L.J. 2134 (2014).\n\n3. Negligence and wrongfulness. Are there other grounds that might have made the\nnegligence principle appealing to Shaw? One view argues that the ordinary care standard\nadvances the social interest, not merely the private interests of particular industries. This\nargument, to which we will return in Chapter 4, contends that the standard of ordinary care\ndemands of actors only that they not engage in conduct that is, on balance, socially harmful and\ntherefore wrongful. Another view comes from jurists who defend tort law as an institution\nprimarily for correcting injustice or for expressing moral judgments about wrongfulness. For\ncorrective justice theorists, tort law embodies the obligation to repair wrongful losses. For\ntheorists who emphasize tort law\xe2\x80\x99s expressive function, tort law is a crucial mechanism for\nsignaling whose interests the community deems worthy of respect and when those interests have\nbeen wrongfully impinged upon. The negligence standard might be said to be consistent with this\nemphasis on wrongfulness because to act negligently is to behave wrongfully, even if not\nintentionally so. See JULES L. COLEMAN, RISKS AND WRONGS (1992).\nThe leading turn-of-the-twentieth-century jurist, and later Supreme Court justice, Oliver\nWendell Holmes, Jr., organized much of the book with which he made his name around\nidentifying a moral ground for the test that Shaw articulated in Brown v. Kendall:\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 77, 81-96 (1881)\nThe object of the next two Lectures is to discover whether there is any common ground at\nthe bottom of all liability in tort, and if so, what that ground is. . . .\n[T]here are two theories of the common-law liability for unintentional harm. Both of\nthem seem to receive the implied assent of popular textbooks, and neither of them is wanting in\nplausibility and the semblance of authority.\nThe first is that of Austin, which is essentially the theory of a criminalist. According to\nhim, the characteristic feature of law, properly so called, is a sanction or detriment threatened and\nimposed by the sovereign for disobedience to the sovereign\xe2\x80\x99s commands. As the greater part of\nthe law only makes a man civilly answerable for breaking it, Austin is compelled to regard the\nliability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows\nfrom this, according to the prevailing views of penal law, that such liability ought only to be based\nupon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that\nnegligence means a state of the party\xe2\x80\x99s mind. These doctrines will be referred to later, so far as\nnecessary.\nThe other theory is directly opposed to the foregoing. It seems to be adopted by some of\nthe greatest common law authorities, and requires serious discussion before it can be set aside in\nfavor of any third opinion which may be maintained. According to this view, broadly stated,\nunder the common law a man acts at his peril. It may be held as a sort of set-off, that he is never\n114\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nliable for omissions except in consequence of some duty voluntarily undertaken. But the whole\nand sufficient ground for such liabilities as he does incur outside the last class is supposed to be\nthat he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally\nimmaterial that the detriment which followed from it was neither intended nor due to the\nnegligence of the actor.\nIn order to do justice to this way of looking at the subject, we must remember that the\nabolition of the common-law forms of pleading has not changed the rules of substantive law.\nHence, although pleaders now generally allege intent or negligence, anything which would\nformerly have been sufficient to charge a defendant in trespass is still sufficient, notwithstanding\nthe fact that the ancient form of action and declaration has disappeared.\nIn the first place, it is said, consider generally the protection given by the law to property,\nboth within and outside the limits of the last-named action. If a man crosses his neighbor\xe2\x80\x99s\nboundary by however innocent a mistake, or if his cattle escape into his neighbor\xe2\x80\x99s field, he is\nsaid to be liable in trespass quare clausum fregit. If an auctioneer in the most perfect good faith,\nand in the regular course of his business, sells goods sent to his rooms for the purpose of being\nsold, he may be compelled to pay their full value if a third person turns out to be the owner,\nalthough he has paid over the proceeds, and has no means of obtaining indemnity.\nNow suppose that, instead of a dealing with the plaintiff\xe2\x80\x99s property, the case is that force\nhas proceeded directly from the defendant\xe2\x80\x99s body to the plaintiff\xe2\x80\x99s body, it is urged that, as the\nlaw cannot be less careful of the persons than of the property of its subjects, the only defences\npossible are similar to those which would have been open to an alleged trespass on land. You\nmay show that there was no trespass by showing that the defendant did no act; as where he was\nthrown from his horse upon the plaintiff, or where a third person took his hand and struck the\nplaintiff with it. In such cases the defendant\xe2\x80\x99s body is the passive instrument of an external force,\nand the bodily motion relied on by the plaintiff is not his act at all. So you may show a\njustification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and\nthe defendant has voluntarily acted, he must answer for the consequences, however little intended\nand however unforeseen. If, for instance, being assaulted by a third person, the defendant lifted\nhis stick and accidentally hit the plaintiff, who was standing behind him, according to this view he\nis liable, irrespective of any negligence toward the party injured.\nThe arguments for the doctrine under consideration are, for the most part, drawn from\nprecedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is\nsaid, has an absolute right to his person, and so forth, free from detriment at the hands of his\nneighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has\nchosen to act. As between the two, the party whose voluntary conduct has caused the damage\nshould suffer, rather than one who has had no share in producing it. . . .\nIn spite, however, of all the arguments which may be urged for the rule that a man acts at\nhis peril, it has been rejected by very eminent courts, even under the old forms of action. In view\nof this fact, and of the further circumstance that, since the old forms have been abolished, the\nallegation of negligence has spread from the action on the case to all ordinary declarations in tort\nwhich do not allege intent, probably many lawyers would be surprised that any one should think it\nworthwhile to go into the present discussion. Such is the natural impression to be derived from\ndaily practice. But even if the doctrine under consideration had no longer any followers, which is\nnot the case, it would be well to have something more than daily practice to sustain our views\n115\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nupon so fundamental a question; as it seems to me at least, the true principle is far from being\narticulately grasped by all who are interested in it, and can only be arrived at after a careful\nanalysis of what has been thought hitherto. It might be thought enough to cite the decisions\nopposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with\nadmitted doctrines and sound policy. But we may go further with profit, and inquire whether\nthere are not strong grounds for thinking that the common law has never known such a rule,\nunless in that period of dry precedent which is so often to be found midway between a creative\nepoch and a period of solvent philosophical reaction. Conciliating the attention of those who,\ncontrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once\nmore that there are weighty decisions to be cited adverse to it, and that, if they have involved an\ninnovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to\nprove that the change was politic, I think I may assert that a little reflection will show that it was\nrequired not only by policy, but by consistency. I will begin with the latter.\nThe same reasoning which would make a man answerable in trespass for all damage to\nanother by force directly resulting from his own act, irrespective of negligence or intent, would\nmake him answerable in case for the like damage similarly resulting from the act of his servant, in\nthe course of the latter\xe2\x80\x99s employment. The discussions of the company\xe2\x80\x99s negligence in many\nrailway cases would therefore be wholly out of place, for although, to be sure, there is a contract\nwhich would make the company liable for negligence, that contract cannot be taken to diminish\nany liability which would otherwise exist for a trespass on the part of its employees.\nMore than this, the same reasoning would make a defendant responsible for all damage,\nhowever remote, of which his act could be called the cause. So long, at least, as only physical or\nirresponsible agencies, however unforeseen, co-operated with the act complained of to produce\nthe result, the argument which would resolve the case of accidentally striking the plaintiff, when\nlifting a stick in necessary self-defence, adversely to the defendant, would require a decision\nagainst him in every case where his act was a factor in the result complained of. The distinction\nbetween a direct application of force, and causing damage indirectly, or as a more remote\nconsequence of one\xe2\x80\x99s act, although it may determine whether the form of action should be\ntrespass or case, does not touch the theory of responsibility, if that theory be that a man acts at his\nperil.\nAs was said at the outset, if the strict liability is to be maintained at all, it must be\nmaintained throughout. A principle cannot be stated which would retain the strict liability in\ntrespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for\nconsequences of those acts. All actions of trespass are for consequences of acts, not for the acts\nthemselves. And some actions of trespass are for consequences more remote from the defendant\xe2\x80\x99s\nact than in other instances where the remedy would be case.\nAn act is always a voluntary muscular contraction, and nothing else. The chain of\nphysical sequences which it sets in motion or directs to the plaintiff\xe2\x80\x99s harm is no part of it, and\nvery generally a long train of such sequences intervenes. An example or two will make this\nextremely clear.\nWhen a man commits an assault and battery with a pistol, his only act is to contract the\nmuscles of his arm and forefinger in a certain way, but it is the delight of elementary writers to\npoint out what a vast series of physical changes must take place before the harm is done. Suppose\nthat, instead of firing a pistol, he takes up a hose which is discharging water on the sidewalk, and\n116\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\ndirects it at the plaintiff, he does not even set in motion the physical causes which must co-operate\nwith his act to make a battery. Not only natural causes, but a living being, may intervene between\nthe act and its effect. . . . In Scott v. Shepherd . . . trespass was maintained against one who had\nthrown a squib into a crowd, where it was tossed from hand to hand in self-defence until it burst\nand injured the plaintiff. Here even human agencies were a part of the chain between the\ndefendant\xe2\x80\x99s act and the result, although they were treated as more or less nearly automatic, in\norder to arrive at the decision.\nNow I repeat, that, if principle requires us to charge a man in trespass when his act has\nbrought force to bear on another through a comparatively short train of intervening causes, in spite\nof his having used all possible care, it requires the same liability, however numerous and\nunexpected the events between the act and the result. If running a man down is a trespass when\nthe accident can be referred to the rider\xe2\x80\x99s act of spurring, why is it not a tort in every case . . .\nseeing that it can always be referred more remotely to his act of mounting and taking the horse\nout?\nWhy is a man not responsible for the consequences of an act innocent in its direct and\nobvious effects, when those consequences would not have followed but for the intervention of a\nseries of extraordinary, although natural, events? The reason is, that, if the intervening events are\nof such a kind that no foresight could have been expected to look out for them, the defendant is\nnot to blame for having failed to do so. It seems to be admitted by the English judges that, even\non the question whether the acts of leaving dry trimmings in hot weather by the side of a railroad,\nand then sending an engine over the track, are negligent,\xe2\x80\x94that is, are a ground of liability,\xe2\x80\x94the\nconsequences which might reasonably be anticipated are material. Yet these are acts which, under\nthe circumstances, can hardly be called innocent in their natural and obvious effects. The same\ndoctrine has been applied to acts in violation of statute which could not reasonably have been\nexpected to lead to the result complained of.\nBut there is no difference in principle between the case where a natural cause or physical\nfactor intervenes after the act in some way not to be foreseen, and turns what seemed innocent to\nharm, and the case where such a cause or factor intervenes, unknown, at the time . . . .\nTo return to the example of the accidental blow with a stick lifted in self-defence, there is\nno difference between hitting a person standing in one\xe2\x80\x99s rear and hitting one who was pushed by a\nhorse within range of the stick just as it was lifted, provided that it was not possible, under the\ncircumstances, in the one case to have known, in the other to have anticipated, the proximity. In\neither case there is wanting the only element which distinguishes voluntary acts from spasmodic\nmuscular contractions as a ground of liability. In neither of them, that is to say, has there been an\nopportunity of choice with reference to the consequence complained of,\xe2\x80\x94a chance to guard\nagainst the result which has come to pass. A choice which entails a concealed consequence is as\nto that consequence no choice.\nThe general principle of our law is that loss from accident must lie where it falls, and this\nprinciple is not affected by the fact that a human being is the instrument of misfortune. But\nrelatively to a given human being anything is accident which he could not fairly have been\nexpected to contemplate as possible, and therefore to avoid. In the language of the late Chief\nJustice Nelson of New York: \xe2\x80\x9cNo case or principle can be found, or if found can be maintained,\nsubjecting an individual to liability for an act done without fault on his part. . . . All the cases\nconcede that an injury arising from inevitable accident, or, which in law or reason is the same\n117\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nthing, from an act that ordinary human care and foresight are unable to guard against, is but the\nmisfortune of the sufferer, and lays no foundation for legal responsibility.\xe2\x80\x9d If this were not so,\nany act would be sufficient, however remote, which set in motion or opened the door for a series\nof physical sequences ending in damage; such as riding the horse, in the case of the runaway, or\neven coming to a place where one is seized with a fit and strikes the plaintiff in an unconscious\nspasm. Nay, why need the defendant have acted at all, and why is it not enough that his existence\nhas been at the expense of the plaintiff? The requirement of an act is the requirement that the\ndefendant should have made a choice. But the only possible purpose of introducing this moral\nelement is to make the power of avoiding the evil complained of a condition of liability. . . .\nA man need not, it is true, do this or that act, the term act implies a choice,\xe2\x80\x94but he must\nact somehow. Furthermore, the public generally profits by individual activity. As action cannot\nbe avoided, and tends to the public good, there is obviously no policy in throwing the hazard of\nwhat is at once desirable and inevitable upon the actor. The state might conceivably make itself a\nmutual insurance company against accidents, and distribute the burden of its citizens\xe2\x80\x99 mishaps\namong all its members. There might be a pension for paralytics, and state aid for those who\nsuffered in person or estate from tempest or wild beasts. As between individuals it might adopt\nthe mutual insurance principle pro tanto, and divide damages when both were in fault, as in the\nrusticum judicium of the admiralty, or it might throw all loss upon the actor irrespective of fault.\nThe state does none of these things, however, and the prevailing view is that its cumbrous and\nexpensive machinery ought not to be set in motion unless some clear benefit is to be derived from\ndisturbing the status quo. State interference is an evil, where it cannot be shown to be a good.\nUniversal insurance, if desired, can be better and more cheaply accomplished by private\nenterprise. The undertaking to redistribute losses simply on the ground that they resulted from the\ndefendant\xe2\x80\x99s act would not only be open to these objections, but, as it is hoped the preceding\ndiscussion has shown, to the still graver one of offending the sense of justice. Unless my act is of\na nature to threaten others, unless under the circumstances a prudent man would have foreseen the\npossibility of harm, it is no more justifiable to make me indemnify my neighbor against the\nconsequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel\nme to insure him against lightning.\n\nNote\n\n1. Holmes\xe2\x80\x99s gloss on Brown v. Kendall has provided a theoretical defense for the reasonable\ncare regime for more than a century now. Yet even as Shaw and then Holmes articulated the\nbasic principles of the negligence regime, an alternative approach that turned neither on\nnegligence nor on any failure of reasonable care sprang up. No-fault liability arose almost\nsimultaneously with the negligence regime and remains alongside it in tort law today, a century\nand a half later.\n\nFletcher v. Rylands, 159 Eng. Rep. 737 (1865)\n[This was an action by a tenant coal-mine operator against the builder of a new reservoir\nfor damages that occurred when the filling of the reservoir flooded the coal mining operation. In\nthe 1850s, a tenant to the Earl of Wilton leased beds of coal from Lord Wilton for the purpose of\nextracting the coal. In the process of working the coal seam, the tenant came into contact with old\n118\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nabandoned coal workings from prior mining efforts. Soon thereafter, defendants\xe2\x80\x94who did not\nknow about the old coal workings, or about the plaintiff\xe2\x80\x99s having found any such coal workings in\nthe course of plaintiff\xe2\x80\x99s mining\xe2\x80\x94began to build a dam on an adjoining part of Lord Wilton\xe2\x80\x99s land\nfor purposes of building a reservoir that would power their mill. The defendant, everyone agreed,\nexercised due care in selecting competent engineers to build the reservoir. In the course of their\nwork, the engineers discovered that the bed was in part built on top of \xe2\x80\x9cfive old shafts, running\nvertically downwards\xe2\x80\x9d and \xe2\x80\x9cconstructed of timber\xe2\x80\x9d but \xe2\x80\x9cfilled up with marl or soil of the same\nkind as the marl or soil which immediately surrounded them.\xe2\x80\x9d The condition of the ancient shafts\nwas such that the engineers did not know or suspect they were old coal mining shafts. When the\nreservoir was filled with water in December 1860, one of the shafts under the reservoir bed gave\nway, flooding the old workings underneath. The water flowed through into the plaintiff\xe2\x80\x99s coal\nworkings and forced the plaintiff to suspend its operations.]\nThe question for the opinion of the Court was, whether the plaintiff was entitled to recover\ndamages from the defendants by reason of the matter stated in the case.\nBRAMWELL, B. . . . [W]hat is the plaintiff\xe2\x80\x99s right? He had the right to work his mines to\ntheir extent, leaving no boundary between himself and the next owner. By so doing he subjected\nhimself to all consequences resulting from natural causes, among others, to the influx of all water\nnaturally flowing in. But he had a right to be free from what has been called \xe2\x80\x9cforeign\xe2\x80\x9d water, that\nis, water artificially brought or sent to him directly, or indirectly by its being sent to where it\nwould flow to him. The defendants had no right to pour or send water on to the plaintiff\xe2\x80\x99s works.\nHad they done so knowingly it is admitted an action would lie; and that it would if they did it\nagain. . . . The plaintiff\xe2\x80\x99s right then has been infringed; the defendants in causing water to flow to\nthe plaintiff have done that which they had no right to do. [C]onsequently th[e] the action is\nmaintainable. The plaintiff\xe2\x80\x99s case is, you have violated my right, you have done what you had no\nright to do, and have done me damage. If the plaintiff has the right I mention, the action is\nmaintainable. If he has it not, it is because his right is only to have his mines free from foreign\nwater by the act of those who know what they are doing. I think this is not so. I know no case of\na right so limited. As a rule the knowledge or ignorance of the damage done is immaterial. The\nburthen of proof of this proposition is not on the plaintiff. . . .\nI think, therefore, on the plain ground that the defendants have caused water to flow into\nthe plaintiff\xe2\x80\x99s mines, which but for their, the defendants\xe2\x80\x99, act would not have gone, this action is\nmaintainable. I think that the defendants\xe2\x80\x99 innocence, whatever may be its moral bearing on the\ncase, is immaterial in point of law.\nMARTIN, B. . . . I think there was no trespass. In the judgment of my brother Bramwell . .\n. the act of the defendants was a trespass, but I cannot concur, and I own it seems to me that the\ncases cited by him, Leame v. Bray (3 East, 593) . . . prove the contrary. . . . [T]o constitute\ntrespass the act doing the damage must be immediate, and that if the damage be mediate or\nconsequential (which I think the present was), it is not a trespass. . . . The digging a reservoir in a\nman\xe2\x80\x99s own land is a lawful act. It does not appear that there was any embankment, or that the\nwater in the reservoir was ever above the level of the natural surface of the land, and the water\nescaped from the bottom of the reservoir, and in ordinary course would descend by gravitation\ninto the defendants\xe2\x80\x99 own land, and they did not know of the existence of the old workings. To\nhold the defendants liable would therefore make them insurers against the consequence of a\nlawful act upon their own land when they had no reason to believe or suspect that any damage\nwas likely to ensue.\n119\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\n[T]here is no better established rule of law than that when damage is done to personal\nproperty, and even to the person, by collision either upon the road or at sea, there must be\nnegligence in the party doing the damage to render him legally responsible, and if there be no\nnegligence the party sustaining the damage must bear with it. The existence of this rule is proved\nby the exceptions to it, the cases of the innkeeper and common carrier of goods for hire, who are\nquasi insurers. These cases are said to be by the custom of the realm, treating them as exceptions\nfrom the ordinary rule of law. In the absence of authority to the contrary, I can see no reason why\ndamage to real property should be governed by a different rule or principle than damage to\npersonal property. There is an instance also of damage to real property, when the party causing it\nwas at common law liable upon the custom of the realm as a quasi insurer, viz, the master of a\nhouse if a fire had kindled there and consumed the house of another. In such case, the master of\nthe house was liable at common law without proof negligence on his part. This seems to be an\nexception from the ordinary rule of law, and in my opinion, affords an argument that in other\ncases such as the present, there must be negligence to create a liability. . . .\nPOLLOCK, C. B. . . . I agree with my brother Martin that no action will lie. It appears to\nme that my brother Bramwell assumes too strongly that the complainant \xe2\x80\x9chad a right to be free\nfrom what is called \xe2\x80\x98foreign water.\xe2\x80\x99\xe2\x80\x9d That may be so with reference to surface-rights; but I am not\nprepared to hold that this applies to every possible way in which water may happen to come.\nThere being, therefore, no authority for bringing such an action, I think the safer course is to\ndecide in favour of the defendants. . . .\n\nFletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866)\nBLACKBURN, J. We have come to the conclusion that the opinion of Bramwell, B., was\nright, and that . . . the plaintiff was entitled to recover damages from the defendants . . . .\nThe plaintiff, though free from all blame on his part, must bear the loss, unless he can\nestablish that it was the consequence of some default for which the defendants are responsible.\nThe question of law therefore arises, what is the obligation which the law casts on a person who,\nlike the defendants, lawfully brings on his land something which, though harmless whilst it\nremains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that\nhe must take care to keep in that which he has brought on the land and keeps there, in order that it\nmay not escape and damage his neighbours, but the question arises whether the duty which the\nlaw casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is,\nas the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and\nprudent precautions, in order to keep it in, but no more. If the first be the law, the person who has\nbrought on his land and kept there something dangerous, and failed to keep it in, is responsible for\nall the natural consequences of its escape. If the second be the limit of his duty, he would not be\nanswerable except on proof of negligence, and consequently would not be answerable for escape\narising from any latent defect which ordinary prudence and skill could not detect. . . .\nWe think that the true rule of law is, that the person who for his own purposes brings on\nhis lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in\nat his peril, and, if he does not do so, is prima facie answerable for all the damage which is the\nnatural consequence of its escape. He can excuse himself by shewing that the escape was owing to\nthe plaintiff\xe2\x80\x99s default; or perhaps that the escape was the consequence of vis major, or the act of\n120\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nGod; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be\nsufficient. The general rule, as above stated, seems on principle just. The person whose grass or\ncorn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water\nfrom his neighbour\xe2\x80\x99s reservoir, or whose cellar is invaded by the filth of his neighbour\xe2\x80\x99s privy, or\nwhose habitation is made unhealthy by the fumes and noisome vapours of his neighbour\xe2\x80\x99s alkali\nworks, is damnified without any fault of his own; and it seems but reasonable and just that the\nneighbour, who has brought something on his own property which was not naturally there,\nharmless to others so long as it is confined to his own property, but which he knows to be\nmischievous if it gets on his neighbour\xe2\x80\x99s, should be obliged to make good the damage which\nensues if he does not succeed in confining it to his own property. . . .\nThe case that has most commonly occurred, and which is most frequently to be found in\nthe books, is as to the obligation of the owner of cattle which he has brought on his land, to\nprevent their escaping and doing mischief. The law as to them seems to be perfectly settled from\nearly times; the owner must keep them in at his peril, or he will be answerable for the natural\nconsequences of their escape; that is with regard to tame beasts, for the grass they eat and trample\nupon, though not for any injury to the person of others, for our ancestors have settled that it is not\nthe general nature of horses to kick, or bulls to gore; but if the owner knows that the beast has a\nvicious propensity to attack man, he will be answerable for that too. . . .\n[T]here does not appear to be any difference in principle, between the extent of the duty\ncast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on\nhim who brings on his land, water, filth, or stenches, or any other thing which will, if it escape,\nnaturally do damage, to prevent their escaping and injuring his neighbor. . . .\n. . . [I]t was . . . said by Martin, B. that when damage is done to personal property, or even\nto the person by collision, either upon land or at sea, there must be negligence in the party doing\nthe damage to render him legally responsible, and this is no doubt true . . . . But we think these\ncases distinguishable from the present. Traffic on the highways . . . cannot be conducted without\nexposing those whose persons or property are near it to some inevitable risk; . . . those who go on\nthe highway, or have their property adjacent to it, may well be held to do so subject to their taking\nupon themselves the risk of injury from that inevitable danger . . . . But there is no ground for\nsaying that the plaintiff here took upon himself any risk arising from the uses to which the\ndefendants should choose to apply their land. He neither knew what these might be, nor could he\nin any way control the defendants, or hinder their building what reservoirs they liked, and storing\nup in them what water they pleased, so long as the defendants succeeded in preventing the water\nwhich they there brought from interfering with the plaintiff\xe2\x80\x99s property. . . .\nWe are of [the] opinion that the plaintiff is entitled to recover.\n\nRylands v. Fletcher, L.R. 3 H.L. 330 (House of Lords 1868)\nTHE LORD CHANCELLOR (LORD CAIRNS) My Lords, the principles on which this case must\nbe determined appear to me to be extremely simple. The Defendants, treating them as the owners\nor occupiers of the close on which the reservoir was constructed, might lawfully have used that\nclose for any purpose for which it might in the ordinary course of the enjoyment of land be used;\nand if, in what I may term the natural user of that land, there had been any accumulation of water,\neither on the surface or underground, and if, by the operation of the laws of nature, that\n121\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\naccumulation of water had passed off into the close occupied by the Plaintiff, the Plaintiff could\nnot have complained that that result had taken place. If he had desired to guard himself against it,\nit would have lain upon him to have done so, by leaving, or by interposing, some barrier between\nhis close and the close of the Defendants in order to have prevented that operation of the laws of\nnature.\nOn the other hand if the Defendants, not stopping at the natural use of their close, had\ndesired to use it for any purpose which I may term a non-natural use, for the purpose of\nintroducing into the close that which in its natural condition was not in or upon it, for the purpose\nof introducing water either above or below ground in quantities and in a manner not the result of\nany work or operation on or under the land,\xe2\x80\x94and if in consequence of their doing so, or in\nconsequence of any imperfection in the mode of their doing so, the water came to escape and to\npass off into the close of the Plaintiff, then it appears to me that that which the Defendants were\ndoing they were doing at their own peril; and, if in the course of their doing it, the evil arose to\nwhich I have referred, the evil, namely, of the escape of the water and its passing away to the\nclose of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the\nDefendants would be liable. . . .\nMy Lords, these simple principles, if they are well founded, as it appears to me they are,\nreally dispose of this case.\nThe same result is arrived at on the principles referred to by Mr. Justice Blackburn in his\njudgment, in the Court of Exchequer Chamber . . . .\nMy Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your\nLordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present\nappeal be dismissed with costs.\nLORD CRANWORTH Lords, I concur with my noble and learned friend in thinking that the\nrule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the\nExchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should\nescape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause\ndamage, he is responsible, however careful he may have been, and whatever precautions he may\nhave taken to prevent the damage. . . .\n. . . I come without hesitation to the conclusion that the judgment of the Exchequer\nChamber was right. . . . If water naturally rising in the Defendants\xe2\x80\x99 land . . . had by percolation\nfound its way down to the Plaintiff\xe2\x80\x99s mine through the old workings, and so had impeded his\noperations, that would not have afforded him any ground of complaint. . . . But that is not the real\nstate of the case. The Defendants, in order to effect an object of their own, brought on to their\nland, or on to land which for this purpose may be treated as being theirs, a large accumulated mass\nof water, and stored it up in a reservoir. The consequence of this was damage to the Plaintiff, and\nfor that damage, however skillfully and carefully the accumulation was made, the Defendants,\naccording to the principles and authorities to which I have adverted, were certainly responsible.\nI concur, therefore, with my noble and learned friend in thinking that the judgment below\nmust be affirmed, and that there must be judgment for the Defendant in Error.\n\n122\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nNotes\n\n1. Is strict liability possible? In Rylands, the Court of Exchequer and the House of Lords\npurported to identify a basis for liability other than negligence. Many have characterized the\nRylands case as a form of \xe2\x80\x9cstrict liability.\xe2\x80\x9d But what does that mean? Strict liability, as Professor\nStephen Perry points out, may not be conceptually available, at least not if it simply means causebased liability. After all, both the plaintiff and the defendant in Rylands were causes of the injury\nat issue; no injury would have taken place had the plaintiff not been mining coal, just as no injury\nwould have taken place had the defendant not built a reservoir. See Stephen R. Perry, The\nImpossibility of Strict Liability, 1 CAN J. L. & JURISPRUDENCE 147, 169-70 (1988). To put it a\ndifferent way: causation alone does not distinguish between the two parties to the case. So what\nthen is the ground for liability offered by the judges in Rylands who differ with Judge Martin\xe2\x80\x99s\nnegligence standard?\n\n2. The reciprocity view. In discussing the defense of necessity in Vincent v. Lake Erie\nTransportation Co., above, we noted the argument advanced by torts jurists like George Fletcher\nthat the real basis for the liability in torts is the imposition of a non-reciprocal risk. Fletcher\ncontends that Rylands is precisely such a case: \xe2\x80\x9cThe critical feature of [Rylands] is that the\ndefendant created a risk of harm to the plaintiff that was of an order different from the risks that\nthe plaintiff imposed on the defendant.\xe2\x80\x9d George Fletcher, Fairness and Utility in Tort Theory, 85\nHARV. L. REV. 537, 546 (1971). Does the reciprocity argument offer a sound basis for allocating\nthe cost of the harm to the reservoir-building defendant in Rylands? Critics insist that the\nreciprocity argument is just as circular here in Rylands as it was in Vincent. It is circular because\nthe relative risks of the activities turn on tort law\xe2\x80\x99s underlying allocation of those risks. If the\nplaintiff coal miner has the right to compensation for the costs imposed by the defendant reservoir\nbuilder\xe2\x80\x99s conduct, then the defendant has created a risk of harm for itself, not for the plaintiff.\nThe risk to the coal mining plaintiff is only asymmetrical if we imagine a baseline of what\nbelongs to whom in the situation. But that of course is precisely what the torts judge is supposed\nto do to resolve the dispute in the first place!\n\n3. First in time? What about a first-in-time principle? The coal mine operator was removing\ncoal from the land before the construction of the defendant\xe2\x80\x99s large new reservoir and mill. Should\nthis timing factor be enough to decide the case, or should temporal priority be disregarded? Does\nit matter that the defendant already operated a much smaller reservoir and mill nearby? Note, too,\nthat the plaintiff and the defendant were linked in a web of contracts with a common landlord. If\nthe parties had contemplated risks like the one that came to fruition, what kind of a term would\nthey have adopted in their respective leases to deal with it?\n\n4. Unusual behavior. Another possible justification for the Rylands outcome focuses on the\nkinds of conduct that are ordinary in the neighborhood. When actors engage in new or otherwise\nunusual activities, others may not be in a position to anticipate the risks that such conduct poses.\nDoes this distinction offer a ground for explaining the Rylands case?\n\n123\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\n5. Rylands was met with strong opposition in some American courts, as the next two cases\nmake clear:\n\nBrown v. Collins, 53 N.H. 442 (1873)\nDOE, J.\nIt is agreed that the defendant was in the use of ordinary care and skill in managing his\nhorses, until they were frightened; and that they then became unmanageable, and ran against and\nbroke a post on the plaintiff\xe2\x80\x99s land. . . .\n[I]f there is a legal principle that makes a man liable for the natural consequences of the\nescape of things which he brings on his land, the application of such a principle cannot be limited\nto those things: it must be applied to all his acts that disturb the original order of creation; or, at\nleast, to all things which he undertakes to possess or control anywhere, and which were not used\nand enjoyed in what is called the natural or primitive condition of mankind, whatever that may\nhave been. This is going back a long way for a standard of legal rights, and adopting an arbitrary\ntest of responsibility that confounds all degrees of danger, pays no heed to the essential elements\nof actual fault, puts a clog upon natural and reasonably necessary uses of matter, and tends to\nembarrass and obstruct much of the work which it seems to be man\xe2\x80\x99s duty carefully to do. . . .\nEven if the arbitrary test were applied only to things which a man brings on his land, it would still\nrecognize the peculiar rights of savage life in a wilderness, ignore the rights growing out of a\ncivilized state of society, and make a distinction not warranted by the enlightened spirit of the\ncommon law: it would impose a penalty upon efforts, made in a reasonable, skilful, and careful\nmanner, to rise above a condition of barbarism. It is impossible that legal principle can throw so\nserious an obstacle in the way of progress and improvement. . . .\nIn Fletcher v. Rylands . . . Mr. Justice Blackburn, commenting upon the remark of Mr.\nBaron Martin, \xe2\x80\x9cthat Traffic on the highways, whether by land or sea, cannot be conducted without\nexposing those whose persons or property are near it to some inevitable risk; and that being so,\nthose who go on the highway, or have their property adjacent to it, may well be held to do so\nsubject to their taking upon themselves the risk of injury from that inevitable danger; and persons\nwho, by the license of the owner, pass near to warehouses where goods are being raised or\nlowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can\nthey recover without proof of want of care or skill occasioning the accident; and it is believed that\nall the cases in which inevitable accident has been held an excuse for what, prima facie, was a\ntrespass, can be explained on the same principle, viz., that the circumstances were such as to show\nthat the plaintiff had taken that risk upon himself.\xe2\x80\x9d This would be authority for holding, in the\npresent case, that the plaintiff, by having his post near the street, took upon himself the risk of its\nbeing broken by an inevitable accident carrying a traveller off the street. . . .\nThe defendant, being without fault, was as innocent as if the pole of his wagon had been\nhurled on the plaintiff\xe2\x80\x99s land by a whirlwind, or he himself, by a stronger man, had been thrown\nthrough the plaintiff\xe2\x80\x99s window. Upon the facts stated, taken in the sense in which we understand\nthem, the defendant is entitled to judgment.\nCase discharged.\n124\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nNote\n\n1. Does civilization really rest on the rejection of the Rylands rule? Was nineteenth-century\nNew Hampshire really more \xe2\x80\x9ccivilized\xe2\x80\x9d and less prone to a condition of \xe2\x80\x9cbarbarism\xe2\x80\x9d than\nnineteenth-century Great Britain? The overheated rhetoric of Brown v. Collins tells us as much\nabout the cultural attitudes of late nineteenth-century jurists as it does about the law of torts. And\nJudge Doe was not alone in thinking that important values were at stake. In New York, Judge\nEarl added an additional dimension to the critique of Rylands:\n\nLosee v. Buchanan, 51 N.Y. 476 (1872)\nEARL, J.\n. . . The claim on the part of the plaintiff is, that the casting of the [steam] boiler upon his\npremises by [an] explosion [of the steam boiler in question] was a direct trespass upon his right to\nthe undisturbed possession and occupation of his premises, and that the defendants are liable just\nas they would have been for any other wrongful entry and trespass upon his premises.\nI do not believe this claim to be well founded . . . .\nBy becoming a member of civilized society, I am compelled to give up many of my\nnatural rights, but I receive more than a compensation from the surrender by every other man of\nthe same rights, and the security, advantage and protection which the laws give me. So, too, the\ngeneral rules that I may have the exclusive and undisturbed use and possession of my real estate,\nand that I must so use my real estate as not to injure my neighbor, are much modified by the\nexigencies of the social state. We must have factories, machinery, dams, canals and railroads.\nThey are demanded by the manifold wants of mankind, and lay at the basis of all our civilization.\nIf I have any of these upon my lands, and they are not a nuisance and are not so managed as to\nbecome such, I am not responsible for any damage they accidentally and unavoidably do my\nneighbor. . . . Most of the rights of property, as well as of person, in the social state, are not\nabsolute but relative, and they must be so arranged and modified, not unnecessarily infringing\nupon natural rights, as upon the whole to promote the general welfare.\nI have so far found no authorities and no principles which fairly sustain the broad claim\nmade by the plaintiff, that the defendants are liable in this action without fault or negligence on\ntheir part to which the explosion of the boiler could be attributed.\nBut our attention is called to a recent English case, [Fletcher v. Rylands,] decided in the\nExchequer Chamber, which seems to uphold the claim made. . . .\nIt is sufficient, however, to say that the law, as laid down in those cases, is in direct\nconflict with the law as settled in this country. Here, if one builds a dam upon his own premises\nand thus holds back and accumulates the water for his benefit, or if he brings water upon his own\npremises into a reservoir, in case the dam or the banks of the reservoir give away and the lands of\na neighbor are thus flooded, he is not liable for the damage without proof of some fault or\nnegligence on his part. . . .\n125\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nAll concur.\n\nNotes\n\n1. Torts and the social contract. Judge Earl\xe2\x80\x99s account seems to suggest that people in\ncivilized societies enter into a social contract under which they trade away their natural rights to\ncompensation for injuries caused without fault. Why would they do so in Judge Earl\xe2\x80\x99s account?\nIs a negligence rule necessarily one of the terms of the social contract? Taking up the social\ncontractarianism of John Rawls, Professor Gregory Keating argues that distributive fairness in tort\nlaw would require the adoption not of a negligence standard but of a no-fault approach that\nallocates injury costs to the enterprises that benefit from the activity creating the risk\xe2\x80\x94an\napproach that Keating calls \xe2\x80\x9cstrict enterprise liability.\xe2\x80\x9d See Gregory C. Keating, Rawlsian\nFairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857 (2004). How\ndoes Keating know that it is the enterprise and not the injured party\xe2\x80\x94or both\xe2\x80\x94who created the\nrisk in the relevant sense? The plaintiff in Losee v. Buchanan engaged in and benefited from an\nactivity creating a risk: he built a structure that was at risk of collapse. This is not to say that the\nplaintiff ought to be thought of as responsible for the structure\xe2\x80\x99s collapse when the steam boiler\nflew from the defendant\xe2\x80\x99s property and smashed into it. That would be an unlikely way to\ncharacterize the situation. But it does suggest that the reason for holding the defendant liable\xe2\x80\x94or,\nas in the actual case, holding the defendant not liable\xe2\x80\x94cannot be that one party was engaged in a\nbeneficial activity and the other was not. They both were!\nNote that in cases between parties with ongoing consensual relationships, an analysis of\nwhich party was benefitting from the action will be even more difficult. In such situations, both\nparties are (by hypothesis) beneficiaries of the activity in question. For example, when an\nenterprise sells a product to a consumer, they both benefit from the activity of producing and\nselling the product.\n\n2. The floodgates of strict liability. Although Brown and Losee rejected Rylands, recent\nresearch in the caselaw concludes that other American jurisdictions were far more open to the\nRylands doctrine than either Brown or Losee suggest. In his student note, Professor Jed\nShugerman found:\n[A] significant majority of the states actually accepted Rylands in the late nineteenth\nand early twentieth centuries, at the height of the \xe2\x80\x9cera of fault.\xe2\x80\x9d . . . A few states\nsplit on the validity of Rylands in the 1870s, but a wave of states from the mid1880s to the early 1910s adopted Rylands, with fifteen states and the District of\nColumbia solidly accepting Rylands, nine more leaning toward Rylands or its rule,\nfive states wavering, and only three states consistently rejecting it. Just after the\nturn of the century, the California Supreme Court declared, more correctly than not,\nthat \xe2\x80\x9c[t]he American authorities, with hardly an exception, follow the doctrine laid\ndown in the courts of England [in Rylands].\xe2\x80\x9d In the following years, some states\nshifted against Rylands, but an equivalent number of new states also adopted\nRylands. Accordingly, a strong majority of states has consistently recognized this\nprecedent for strict liability from about 1890 to the present.\n126\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nJed Shugerman, Note, \xe2\x80\x9cThe Floodgates of Strict Liability\xe2\x80\x9d: Bursting Reservoirs and the Adoption\nof Fletcher v. Rylands in The Gilded Age, 110 YALE L.J. 333 (2000). Shugerman contends that\nthe embrace of the Rylands doctrine was prompted by a series of high-profile dam-breaks in late\nnineteenth-century America. Most famously, the Johnstown Flood in Pennsylvania in 1889 killed\n2000 people when a poorly built dam collapsed, flooding an entire valley and destroying the town\nof Johnstown. The dam was on the property of a hunting and recreation club owned by some of\nAmerica\xe2\x80\x99s wealthiest Gilded Age men. Shugerman notes that \xe2\x80\x9cthree of the states most widely\nrecognized for their rejection of Rylands\xe2\x80\x94New York, New Jersey, and Pennsylvania\xe2\x80\x94reversed\ntheir stance on Rylands in the 1890s, soon after the Johnstown Flood.\xe2\x80\x9d\nFlood cases notwithstanding, the high-point of American judges\xe2\x80\x99 resistance to no-fault\nliability arguably came still later, in another New York case, this time a constitutional challenge to\nthe country\xe2\x80\x99s first workers\xe2\x80\x99 compensation law:\n\nIves v. South Buffalo Ry., 94 N.E. 431 (N.Y. 1911)\nWERNER, J. . . .\n[Earl Ives, a railway brakeman, was injured while working and brought an action under\nNew York\xe2\x80\x99s new workmen\xe2\x80\x99s compensation statute. Defendant railway answered that the statute\nwas unconstitutional because, among other things, it imposed liability on them in the absence of\nnegligence. Ives demurred, and the trial court awarded judgment to Ives.]\nThe statute, judged by our common-law standards, is plainly revolutionary. Its central and\ncontrolling feature is that every employer who is engaged in any of the classified industries shall\nbe liable for any injury to a workman arising out of and in the course of the employment by \xe2\x80\x98a\nnecessary risk or danger of the employment or one inherent in the nature thereof; . . . provided\nthat the employer shall not be liable in respect of any injury to the workman which is caused in\nwhole or in part by the serious and willful misconduct of the workman.\xe2\x80\x99 This rule of liability,\nstated in another form, is that the employer is responsible to the employe for every accident in the\ncourse of the employment, whether the employer is at fault or not, and whether the employe is at\nfault or not, except when the fault of the employe is so grave as to constitute serious and willful\nmisconduct on his part. The radical character of this legislation is at once revealed by contrasting\nit with the rule of the common law, under which the employer is liable for injuries to his employe\nonly when the employer is guilty of some act or acts of negligence which caused the occurrence\nout of which the injuries arise . . . .\n[The Commission that drafted the statute advocated for it on the ground that the\nnegligence rule was \xe2\x80\x9ceconomically unwise and unfair\xe2\x80\x9d; \xe2\x80\x9cthat in operation it is wasteful, uncertain,\nand productive of antagonism between workmen and employers\xe2\x80\x9d; and \xe2\x80\x9cthat, as matter of fact,\nworkmen in the dangerous trades do not, and practically cannot, provide for themselves adequate\naccident insurance, and therefore the burden of serious accidents falls on the workmen least able\nto bear it, and brings many of them and their families to want.\xe2\x80\x9d]\nUnder our form of government, however, courts must regard all economic, philosophical,\nand moral theories, attractive and desirable though they may be, as subordinate to the primary\nquestion whether they can be molded into statutes without infringing upon the letter or spirit of\n127\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nour written Constitutions. In that respect we are unlike any of the countries whose industrial laws\nare referred to as models for our guidance. . . .\nWith these considerations in mind we turn to the purely legal phases of the controversy for\nthe purpose of disposing of some things which are incidental to the main question. . . .\nThis legislation is challenged as void under the fourteenth amendment to the federal\nConstitution and under section 6, art. 1 of our state Constitution, which guarantee all persons\nagainst deprivation of life, liberty, or property without due process of law. . . . One of the\ninalienable rights of every citizen is to hold and enjoy his property until it is taken from him by\ndue process of law. When our Constitutions were adopted, it was the law of the land that no man\nwho was without fault or negligence could be held liable in damages for injuries sustained by\nanother. That is still the law, except as to the employers enumerated in the new statute, and as to\nthem it provides that they shall be liable to their employes for personal injury by accident to any\nworkman arising out of and in the course of the employment which is caused in whole or in part,\nor is contributed to, by a necessary risk or danger of the employment or one inherent in the nature\nthereof, except that there shall be no liability in any case where the injury is caused in whole or in\npart by the serious and willful misconduct of the injured workman.\nIt is conceded that this is a liability unknown to the common law, and we think it plainly\nconstitutes a deprivation of liberty and property under the federal and state Constitutions, unless\nits imposition can be justified under the police power which will be discussed under a separate\nhead. In arriving at this conclusion we do not overlook the cogent economic and sociological\narguments which are urged in support of the statute. There can be no doubt as to the theory of this\nlaw. It is based upon the proposition that the inherent risks of an employment should in justice be\nplaced upon the shoulders of the employer, who can protect himself against loss by insurance and\nby such an addition to the price of his wares as to cast the burden ultimately upon the consumer;\nthat indemnity to an injured employe should be as much a charge upon the business as the cost of\nreplacing or repairing disabled or defective machinery, appliances, or tools; that, under our\npresent system, the loss falls immediately upon the employe who is almost invariably unable to\nbear it, and ultimately upon the community which is taxed for the support of the indigent; and that\nour present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism\nbetween employer and employe which it is to the interests of the state to remove. We have already\nadmitted the strength of this appeal to a recognized and widely prevalent sentiment; but we think\nit is an appeal which must be made to the people, and not to the courts. The right of property\nrests, not upon philosophical or scientific speculations, nor upon the commendable impulses of\nbenevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in\nthe fundamental law. That can be changed by the people, but not by Legislatures. In a\ngovernment like ours, theories of public good or necessity are often so plausible or sound as to\ncommand popular approval; but courts are not permitted to forget that the law is the only chart by\nwhich the ship of state is to be guided.\n...\nThe argument that the risk to an employe should be borne by the employer, because it is\ninherent in the employment, may be economically sound; but it is at war with the legal principle\nthat no employer can be compelled to assume a risk which is inseparable from the work of the\nemploye, and which may exist in spite of a degree of care by the employer far greater than may be\nexacted by the most drastic law. If it is competent to impose upon an employer, who has omitted\n128\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nno legal duty and has committed no wrong, a liability based solely upon a legislative fiat that his\nbusiness is inherently dangerous, it is equally competent to visit upon him a special tax for the\nsupport of hospitals and other charitable institutions, upon the theory that they are devoted largely\nto the alleviation of ills primarily due to his business. In its final and simple analysis that is taking\nthe property of A. and giving it to B., and that cannot be done under our Constitutions. Practical\nand simple illustrations of the extent to which this theory of liability might be carried could be\nmultiplied ad infinitum, and many will readily occur to the thoughtful reader. . . .\n[W]e therefore take up the discussion of the police power under which this law is sought\nto be justified. The police power is, of course, one of the necessary attributes of civilized\ngovernment. . . . But it is a power which is always subject to the Constitution . . . . In order to\nsustain legislation under the police power, the courts must be able to see that its operation tends in\nsome degree to prevent some offense or evil, or to preserve public health, morals, safety, and\nwelfare. . . . [T]he new addition to the labor law . . . does nothing to conserve the health, safety, or\nmorals of the employes, and it imposes upon the employer no new or affirmative duties or\nresponsibilities in the conduct of his business. Its sole purpose is to make him liable for injuries\nwhich may be sustained wholly without his fault, and solely through the fault of the employe,\nexcept where the latter fault is such as to constitute serious and willful misconduct. Under this\nlaw, the most thoughtful and careful employer, who has neglected no duty, and whose workshop\nis equipped with every possible appliance that may make for the safety, health, and morals of his\nemployes, is liable in damages to any employe who happens to sustain injury through an accident\nwhich no human being can foresee or prevent, or which, if preventable at all, can only be\nprevented by the reasonable care of the employe himself.\n...\nCULLEN, C. . [concurring]\nI concur in the opinion of Judge WERNER for reversal of the judgment appealed from. . . .\nIt is the physical law of nature, not of government, that imposes upon one meeting with an injury,\nthe suffering occasioned thereby. Human law cannot change that. All it can do is to require\npecuniary indemnity to the party injured, and I know of no principle on which one can be\ncompelled to indemnify another for loss unless it is based upon contractual obligation or fault. It\nmight as well be argued in support of a law requiring a man to pay his neighbor\xe2\x80\x99s debts that the\ncommon law requires each man to pay his own debts, and the statute in question was a mere\nmodification of the common law so as to require each to pay his neighbor\xe2\x80\x99s debts. . . .\n\nNotes\n\n1. Explaining Ives. Was Judge Werner correct in saying that when the federal and state\nconstitutions were adopted, \xe2\x80\x9cit was the law of the land that no man who was without fault or\nnegligence could be held liable in damages\xe2\x80\x9d? If he was not correct in saying this, then what is the\nbasis for his decision?\n\n2. Workers\xe2\x80\x99 compensation statutes. The New York statute underlying the Ives case was the\nfirst workers\xe2\x80\x99 compensation law in the country, but it was hardly the only such law. Starting in\n129\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\n1910, every state in the U.S. adopted comprehensive no-fault workers\xe2\x80\x99 compensation schemes.\nSee JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004). Under workers\xe2\x80\x99 compensation,\ninjured employees whose injuries arise out of and in the course of the work are typically entitled\nto medical care and services and a fraction of their wage loss replacement\xe2\x80\x94typically two-thirds of\nthe injured employee\xe2\x80\x99s weekly wages, or two-thirds of the jurisdiction\xe2\x80\x99s median weekly wage,\nwhichever is lower. Claimants may also receive payments for disabling injuries and for\n\xe2\x80\x9cdisfigurement.\xe2\x80\x9d N.Y. WORK COMP. LAW. \xc2\xa7 13, 15. If the employee is killed, his or her\ndependents may be eligible for death benefits. Id. \xc2\xa7 16. In exchange for these obligations,\nmodern workers\xe2\x80\x99 compensation statutes immunize employers from overlapping tort liability. Id. \xc2\xa7\n11. Note that the original New York statute from 1910 did not provide employers with the quid\npro quo of immunization from tort liability. It left injured employees with the choice to sue in tort\nfor negligence or to file a compensation claim\xe2\x80\x94a choice to be exercised after suffering the injury.\n\n3. The triumph of workers\xe2\x80\x99 compensation\xe2\x80\x94and the tragedy of William Werner. Coming as it\ndid in the face of such a widespread movement to enact workers\xe2\x80\x99 compensation, the Ives decision\nwas hotly controversial. Moreover, just days after Judge Werner announced the decision, the\ninfamous Triangle Shirt-Waist Fire on the eastern edge of Washington Square Park in New York\nCity killed more than a hundred young women workers, many of whom leapt to their deaths from\nthe factory windows when they found the exits locked and impassable. An amendment to the\nstate constitution quickly passed, providing that workers\xe2\x80\x99 compensation statutes were\nconstitutional as a matter of state law. Judge Werner, a self-made man from western New York\nwho had been an ambitious and promising candidate for nomination to the U.S. Supreme Court,\nlost his campaign to become the chief judge of the state. His former political sponsor, Theodore\nRoosevelt, condemned him as the worst kind of reactionary judge. Werner died soon thereafter a\nbroken and defeated man. In 1917, the U.S. Supreme Court put the last nail in his coffin by ruling\ndecisively that the Federal Constitution permitted workers\xe2\x80\x99 compensation liability. For Werner\xe2\x80\x99s\nstory, see WITT, THE ACCIDENTAL REPUBLIC, Chapter 6.\n\n4. State constitutions and tort reform. Even though Ives seems like a cautionary tale for state\ncourts striking down legislation dealing with tort law, state courts regularly invalidate tort reform\nstatutes today. See John Fabian Witt, The Long History of State Constitutions and American Tort\nLaw, 36 RUTGERS L.J. 1159, 1163 (2005). In the past two decades, courts have struck down tort\nreform statutes limiting awards for noneconomic damages, see, e.g., Atlanta Oculoplastic\nSurgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) and Lebron v. Gottlieb Mem\xe2\x80\x99l Hosp., 930\nN.E.2d 895 (Ill. 2010); tort reform statutes that cap punitive damages, see, e.g., Bayer\nCropScience LP v. Schafer, 385 S.W.3d 822 (Ark. 2011); tort reform statutes that cap total\ndamages, see, e.g., State ex rel. Ohio Acad. of Trial Lawyers v. Sherwood, 715 N.E.2d 1062 (Ohio\n1999); tort reform statutes creating additional procedural hurdles for plaintiffs, see, e.g., Wall v.\nMarouk, 302 P.3d 775 (Okla. 2013); tort reform statutes barring plaintiffs from suing individual\ntortfeasors, see, e.g., Clarke v. Or. Health Sci. Univ., 175 P.3d 418 (Or. 2007); tort reform statutes\nabolishing joint and several liability, see, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill.\n1997); and discovery statutes mandating unlimited disclosure of plaintiffs\xe2\x80\x99 medical records, see,\ne.g., id. Should state courts override legislative action in the torts area?\n\n5. Tort persists\xe2\x80\x94third-party claims. Workers\xe2\x80\x99 compensation was designed in significant\npart to remove lawyers and expensive litigation from workplace injury disputes. The statutes\n130\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nremove many of the contested issues from a claimant\xe2\x80\x99s case and replace common law courts and\njuries with an administrative claims process. Moreover, workers\xe2\x80\x99 compensation statutes typically\nplace low caps on lawyers\xe2\x80\x99 fees, in part to prevent compensation claims from being heavily\nlitigated.\nEven so, workers\xe2\x80\x99 compensation has become the foundation for many plaintiffs\xe2\x80\x99 lawyers\xe2\x80\x99\npractices. Plaintiffs\xe2\x80\x99 lawyers often organize their offices by arranging for a steady intake of\nworkers\xe2\x80\x99 compensation claims, which pay very little, but pay more quickly than tort claims and\nbring in a steady stream of revenue. One function of the compensation cases for the plaintiffs\xe2\x80\x99\nlawyer is to find so-called \xe2\x80\x9cthird-party cases\xe2\x80\x9d: cases where the involvement of a product in the\nevents leading to the injury allow for a tort suit against the product\xe2\x80\x99s manufacturer. The product\nmanufacturer is a third party and thus not immunized from suit by the workers\xe2\x80\x99 compensation\nlegislation. See Stephen Daniels & Joanne Martin, Texas Plaintiffs\xe2\x80\x99 Practice in the Age of Tort\nReform: Survival of the Fittest\xe2\x80\x94It\xe2\x80\x99s Even More True Now, 51 N.Y.L. SCH. L. REV. 286 (2006).\nWorkers\xe2\x80\x99 compensation statutes were designed to remove tort litigation from the\nworkplace. But the third-party cases reintroduce tort precisely where workers\xe2\x80\x99 compensation\naimed to displace it. In some jurisdictions, third-party defendants in such suits are able to bring\nclaims for contribution or indemnity against employers if they can show that the employers\xe2\x80\x99\nnegligence was a cause of the injury in question. The result is that employees and employers are\ninvolved in tort litigation over work injuries, the aim of the compensation programs to the\ncontrary notwithstanding. In other jurisdictions, product manufacturer defendants are barred from\nbringing contribution claims against employers. But even here, employers still pay for tort\nliability over and above the workers\xe2\x80\x99 compensation benefits to the extent that third parties, such as\nproduct manufacturers or other vendors or service providers, price their products and services to\nreflect the risk of third-party suits.\n\n6. Settlement as a compensation system. The idea of workers\xe2\x80\x99 compensation was to replace\nthe uncertainty and the expense of common law jury trials with a certain (though limited)\ncompensation regime. The two systems are typically described as polar opposites. But how\ndifferent they are in practice is unclear, since few common law tort cases ever get to a courtroom\nand a jury. Indeed, some observers argue that a vast private settlement system has emerged in the\nshadow of tort law that has come to resemble the administrative apparatus of workers\xe2\x80\x99\ncompensation systems. As early as the 1930s, plaintiffs\xe2\x80\x99 lawyers were converting many types of\ninjuries into settlement values. Since then, settlement practices in many areas of tort law and\nworkers\xe2\x80\x99 compensation have converged on administrative schemes that adopt liability matrixes\nand damages grids to manage settlements. See Samuel Issacharoff & John Fabian Witt, The\nInevitability of Aggregate Settlement: An Institutional Account of American Tort Law, 57 VAND.\nL. REV. 1571, 1615, 1625-26 (2004); JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS 274-75\n(2007). The common law tort litigant thus does not often find herself in a system providing each\nindividual with a \xe2\x80\x9cday in court\xe2\x80\x9d before a jury of her peers. To the contrary, tort litigants (like\nworkers\xe2\x80\x99 compensation claimants) often find themselves in vast bureaucracies with easilyadministered, one-size-fits-all rules for claims resolution. The difference\xe2\x80\x94and it is a significant\none\xe2\x80\x94is that the tort litigant encounters a private bureaucracy, where the compensation claimant is\nin a public one. See Issacharoff & Witt, supra, at 1625-26; see also John Fabian Witt,\nBureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of\nthe Tort System, 56 DEPAUL L. REV. 261, 268-69 (2007).\n131\n\n\x0cWitt & Tani, TCPI 3. Strict Liability and Negligence\n\nThe general phenomenon is especially striking in the area of automobile accident claims.\nA half-century ago, public no-fault systems modeled on workers\xe2\x80\x99 compensation were under\ndiscussion in state legislatures across the nation. Some states enacted such no-fault statutes. But\ntheir momentum soon ebbed. Professor Nora Engstrom argues that the progress of no-fault\nstatutes in auto cases slowed in part because fault and no-fault liability schemes had begun to\nconverge. Tort practice in auto cases became less adversarial and more administrative, with\nplaintiffs\xe2\x80\x99 lawyers and insurance company claims adjusters negotiating private settlement\narrangements using grids that resembled in practice the kind of administrative systems that nofault insurance schemes aimed to adopt. At the same time, those no-fault insurance schemes have\noften become more adversarial than their rationalizing administrative founders had anticipated,\ninvolving more lawsuits and more lawyers. See Nora Freeman Engstrom, An Alternative\nExplanation for No-Fault\xe2\x80\x99s \xe2\x80\x9cDemise\xe2\x80\x9d, 61 DEPAUL L. REV. 303, 374 (2012).\nIf torts practice and workers\xe2\x80\x99 compensation converge, what is at stake in the choice\nbetween them?\n\n132\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nCHAPTER 4. THE NEGLIGENCE STANDARD\nSo far our treatment of the law of unintentional torts has focused on the development of\nfault-based and non-fault-based (or strict liability) approaches. Beginning here in Chapter 4, we\nwill spend the next five chapters pursuing the principal fault-based approach to tort law: the\nnegligence standard and the duty of reasonable care that Judge Shaw announced in Brown v.\nKendall.\nBut what is reasonable care? What does it mean to demand that a person act reasonably?\nWe will pursue the characteristics of the reasonable person. We will take up the influential (but\nalways controversial) idea that to behave reasonably is to make those choices that cost-benefit\nanalysis requires. We will ask who decides what reasonableness requires in any given situation.\nShould a generalist judge or an untrained jury decide? Or perhaps the decision about\nreasonableness should be made by particular industries, or by experts, or by democraticallyaccountable legislatures? We will end this chapter with two brief excursions. The first pursues\nthe question of what litigants need to do to establish that they or their adversaries acted reasonably\nor unreasonably, as the case may be. The second steps back and asks a set of deep questions\nabout the theoretical basis of tort law and about its internal logic and structure.\nFirst, though, we begin with what is in some sense the most basic of all questions: who is\nthe reasonable person?\n\nA. The Reasonable Person\n1. Introduction\nVaughan v. Menlove, 3 Bingham\xe2\x80\x99s New Cases 468 (Court of Common Pleas, 1837)\nThe declaration alleged, in substance, that plaintiff was the owner of two cottages; that\ndefendant owned land near to the said cottages; that defendant had a rick or stack of hay near the\nboundary of his land which was liable and likely to ignite, and thereby was dangerous to the\nplaintiff\xe2\x80\x99s cottages; that the defendant, well knowing the premises, wrongfully and negligently\nkept and continued the rick in the aforesaid dangerous condition; that the rick did ignite, and that\nplaintiff\xe2\x80\x99s cottages were burned by fire communicated from the rick . . . .\nAt the trial it appeared that the rick in question had been made by the defendant near the\nboundary of his own premises; that the hay was in such a state when put together, as to give rise\nto discussions on the probability of fire; that though there were conflicting opinions on the\nsubject, yet during a period of five weeks the defendant was repeatedly warned of his peril; that\nhis stock was insured; and that upon one occasion, being advised to take the rick down to avoid all\ndanger, he said \xe2\x80\x9che would chance it.\xe2\x80\x9d He made an aperture or chimney through the rick; but in\nspite, or perhaps in consequence of this precaution, the rick at length burst into flames from the\nspontaneous heating of its materials; the flames communicated to the defendant\xe2\x80\x99s barn and\nstables, and thence to the plaintiff\xe2\x80\x99s cottages, which were entirely destroyed.\nPATTESON, J., before whom the cause was tried, told the jury that the question for them to\n133\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nconsider was, whether the fire had been occasioned by gross negligence on the part of the\ndefendant; adding, that he was bound to proceed with such reasonable caution as a prudent man\nwould have exercised under such circumstances.\nA verdict having been found for the plaintiff, a rule nisi for a new trial was obtained,* on\nthe ground that the jury should have been directed to consider, not whether the defendant had\nbeen guilty of a gross negligence with reference to the standard of ordinary prudence, a standard\ntoo uncertain to afford any criterion, but whether he had acted bond fide to the best of his\njudgment; if he had, he ought not to be responsible for the misfortune of not possessing the\nhighest order of intelligence. The action under such circumstances was of the first impression.\nTalfourd, Serjt., and Whately, showed cause [for the plaintiff]. . . . [T]here were no means\nof estimating the defendant\xe2\x80\x99s negligence, except by taking as a standard the conduct of a man of\nordinary prudence: that has been the rule always laid down, and there is no other that would not\nbe open to much greater uncertainties.\nR. V. RICHARDS, in support of the rule [for the defendant]. First, there was no duty\nimposed on the defendant, as there is on carriers or other bailees, under an implied contract, to be\nresponsible for the exercise of any given degree of prudence: the defendant had a right to place his\nstack as near to the extremity of his own land as he pleased . . . . [U]nder that right, and subject to\nno contract, he can only be called on to act bona fide to the best of his judgment; if he has done\nthat, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence.\nAt all events what would have been gross negligence ought to be estimated by the faculties of the\nindividual, and not by those of other men. The measure of prudence varies so with the varying\nfaculties of men, that it is impossible to say what is gross negligence with reference to the\nstandard of what is called ordinary prudence.\nTINDAL, C. J. I agree that this is a case prime impressionis; but I feel no difficulty in\napplying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this\nis not a case of contract, such as a bailment or the like, where the bailee is responsible in\nconsequence of the remuneration he is to receive: but there is a rule of law which says you must\nso enjoy your own property as not to injure that of another; and according to that rule the\ndefendant is liable for the consequence of his own neglect: and though the defendant did not\nhimself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle\nto the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. . .\n.\nIt is contended, however, that . . . the question of negligence was so mixed up with\nreference to what would be the conduct of a man of ordinary prudence that the jury might have\nthought the latter the rule by which they were to decide; that such a rule would be too uncertain to\nact upon; and that the question ought to have been whether the defendant had acted honestly and\nbona fide to the best of his own judgment. That, however, would leave so vague a line as to afford\nno rule at all, the degree of judgment belonging to each individual being infinitely various: and\nthough it has been urged that the care which a prudent man would take, is not an intelligible\nproposition as a rule of law, yet such has always been the rule adopted in cases of bailment . . . .\n\n*\n\n[Recall from Chapter 3 that a \xe2\x80\x9crule nisi\xe2\x80\x9d was essentially a device for obtaining appellate review; it was an order\nrequiring a new trial unless the other side could show cause why the original decision should be upheld\xe2\x80\x94Ed.]\n134\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThe care taken by a prudent man has always been the rule laid down; and as to the supposed\ndifficulty of applying it, a jury has always been able to say, whether, taking that rule as their\nguide, there has been negligence on the occasion in question.\nInstead, therefore, of saying that the liability for negligence should be coextensive with\nthe judgment of each individual, which would be as variable as the length of the foot of each\nindividual, we ought rather to adhere to the rule, which requires in all cases a regard to caution\nsuch as a man of ordinary prudence would observe. . . .\nRule discharged.\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 107-09 (1881)\nSupposing it now to be conceded that the general notion upon which liability to an action\nis founded is fault or blameworthiness in some sense, the question arises, whether it is so in the\nsense of personal moral shortcoming . . . . Suppose that a defendant were allowed to testify that,\nbefore acting, he considered carefully what would be the conduct of a prudent man under the\ncircumstances, and, having formed the best judgment he could, acted accordingly. If the story\nwas believed, it would be conclusive against the defendant\xe2\x80\x99s negligence judged by a moral\nstandard which would take his personal characteristics into account. But supposing any such\nevidence to have got before the jury, it is very clear that the court would say, Gentlemen, the\nquestion is not whether the defendant thought his conduct was that of a prudent man, but whether\nyou think it was. . . .\nThe standards of the law are standards of general application. The law takes no account of\nthe infinite varieties of temperament, intellect, and education which make the internal character of\na given act so different in different men. It does not attempt to see men as God sees them, for\nmore than one sufficient reason. In the first place, the impossibility of nicely measuring a man\xe2\x80\x99s\npowers and limitations is far clearer than that of ascertaining his knowledge of law, which has\nbeen thought to account for what is called the presumption that every man knows the law. But a\nmore satisfactory explanation is, that, when men live in society, a certain average of conduct, a\nsacrifice of individual peculiarities going beyond a certain point, is necessary to the general\nwelfare. If, for instance, a man is born hasty and awkward, is always having accidents and\nhurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts\nof Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty\nneglect. His neighbors accordingly require him, at his proper peril, to come up to their standard,\nand the courts which they establish decline to take his personal equation into account.\nThe rule that the law does, in general, determine liability by blameworthiness, is subject to\nthe limitation that minute differences of character are not allowed for. The law considers, in other\nwords, what would be blameworthy in the average man, the man of ordinary intelligence and\nprudence, and determines liability by that. If we fall below the level in those gifts, it is our\nmisfortune; so much as that we must have at our peril, for the reasons just given. But he who is\nintelligent and prudent does not act at his peril, in theory of law. On the contrary, it is only when\nhe fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is\nanswerable for the consequences.\n\n135\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThere are exceptions to the principle that every man is presumed to possess ordinary\ncapacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of\nliability in general. When a man has a distinct defect of such a nature that all can recognize it as\nmaking certain precautions impossible, he will not be held answerable for not taking them. A\nblind man is not required to see at his peril; and although he is, no doubt, bound to consider his\ninfirmity in regulating his actions, yet if he properly finds himself in a certain situation, the\nneglect of precautions requiring eyesight would not prevent his recovering for an injury to\nhimself, and, it may be presumed, would not make him liable for injuring another. So it is held\nthat, in cases where he is the plaintiff, an infant of very tender years is only bound to take the\nprecautions of which an infant is capable; the same principle may be cautiously applied where he\nis defendant. Insanity is a more difficult matter to deal with, and no general rule can be laid down\nabout it. There is no doubt that in many cases a man may be insane, and yet perfectly capable of\ntaking the precautions, and of being influenced by the motives, which the circumstances demand.\nBut if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying\nwith the rule which he has broken, good sense would require it to be admitted as an excuse.\n\nNotes\n1. The \xe2\x80\x9creasonable man\xe2\x80\x9d is born. Together, Vaughan v. Menlove and the Holmes excerpt\nabove sketch the contours of the \xe2\x80\x9creasonable man,\xe2\x80\x9d the standard at the heart of modern negligence\nlaw. They do so by taking up the question of which features, if any, particular to the party ought\nto be relevant to the evaluation of that person\xe2\x80\x99s conduct. Vaughan concludes that lack of ordinary\nintelligence is not an excuse for failing to live up to the standard of ordinary care. It adopts what\nwe call an objective approach to the reasonableness inquiry: rather than asking whether the\ndefendant acted reasonably in light of the defendant\xe2\x80\x99s personal characteristics and capabilities\n(which would privilege the defendant\xe2\x80\x99s subjectivity), the chosen approach abstracts away from the\nparticular features of the defendant and asks whether the defendant\xe2\x80\x99s conduct was reasonable on\nthe basis of an external social standard. The Restatement puts it this way: \xe2\x80\x9cUnless the actor is a\nchild\xe2\x80\x9d (more on this in the pages that follow), \xe2\x80\x9cthe standard of conduct to which he must conform\nto avoid being negligent is that of a reasonable man under like circumstances.\xe2\x80\x9d RESTATEMENT\n(SECOND) OF TORTS \xc2\xa7 283 (1965); see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.\nHARM \xc2\xa7 3 & cmt. a (2010) (defining negligence as failure to \xe2\x80\x9cexercise reasonable care under all\nthe circumstances,\xe2\x80\x9d where \xe2\x80\x9cthe \xe2\x80\x98reasonable care standard . . . is basically the same as a standard\nexpressed in terms of the \xe2\x80\x98reasonably careful person\xe2\x80\x99\xe2\x80\x9d). If a person does their best within the\nlimits of their own intellectual or cognitive capacities to act reasonably carefully\xe2\x80\x94acting \xe2\x80\x9cbona\nfide to the best of their judgment,\xe2\x80\x9d as the defendant\xe2\x80\x99s lawyer put it in Vaughan\xe2\x80\x94have they acted\nwrongfully when they nonetheless fall short of society\xe2\x80\x99s expectations? If not, why does tort law\nembrace a standard that allows liability in this situation?\n\n2. Is the reasonable person a rational actor? One view of the facts in Vaughan is that the\ndefendant acted in accordance with what a rational person in his circumstances might do. \xe2\x80\x9c[H]is\nstock,\xe2\x80\x9d after all, \xe2\x80\x9cwas insured.\xe2\x80\x9d Why not \xe2\x80\x9cchance it\xe2\x80\x9d? Does tort law\xe2\x80\x99s \xe2\x80\x9creasonable person\xe2\x80\x9d\nbehave in the same way as a \xe2\x80\x9crational person\xe2\x80\x9d? If not, when might their actions diverge?\n\n136\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n3. Holmes\xe2\x80\x99s account of the reasonableness inquiry is more or less congruent with Vaughan v.\nMenlove, at least insofar as lack of ordinary intelligence goes. But Holmes begins to introduce\nsubjective considerations for certain characteristics such as blindness, \xe2\x80\x9ctender years,\xe2\x80\x9d and certain\nforms (though not all forms) of insanity. What explains Holmes\xe2\x80\x99s arguments in favor of taking\ncertain characteristics into account but not others? In what follows, we will review the major\ncontroversies in this area of the law, beginning with the basic physical trait of blindness that\nHolmes introduced.\n\n2. Physical Traits\nSmith v. Sneller, 26 A.2d 452 (Pa. 1942)\nDREW, J.\nPlaintiff recovered a verdict and judgment. On appeal, the Superior Court reversed the\njudgment on the ground that plaintiff was guilty of contributory negligence, and entered judgment\nn.o.v. for defendant Sneller, he alone having appealed. This appeal was then specially allowed. . .\n.\nPlaintiff, while engaged in a house to house canvass as a salesman of small articles, was\ninjured in falling into an open trench in the west sidewalk of North Fifth Street in the City of\nPhiladelphia. . . . The trench then extended from the curb across the sidewalk, three or four feet\nwide, and had been dug to a depth of seven or eight feet. The earth from the excavation had been\nthrown upon the sidewalk along both sides of the trench. . . . On the far side of the trench as\n[plaintiff] approached it, there was a barricade but along the side nearest him there was only the\npile of excavated material between him and the trench, about two feet high according to the only\ntestimony on the subject. Plaintiff, because of defective eyesight, did not see the pile of earth and\nhad no notice that it was there until he felt it under his feet as he walked upon it. The loose\nmaterial slipped from under him causing him to lose his footing and he fell into the trench. . . .\nHe did not carry a cane and, because he was unable to see, did not have notice of the break\nin the pavement, the pile of earth on the sidewalk, nor the open trench in front of him.\nThe Superior Court said further: \xe2\x80\x9cUnder somewhat similar circumstances, recovery was\ndenied a blind plaintiff, who fell into an open cellarway extending into the sidewalk, in Fraser v.\nFreeman, 87 Pa. Superior Ct. 454, in which Judge Porter said: \xe2\x80\x98The law requires a degree of care\nupon the part of one whose eye-sight is impaired proportioned to the degree of his impairment of\nvision. . . . In the exercise of common prudence one of defective eye-sight must usually, as a\nmatter of general knowledge, take more care and employ keener watchfulness in walking upon the\nstreets and avoiding obstructions; in order to reach the standard established by law for all persons\nalike, whether they be sound or deficient. The statement that a blind or deaf man is bound to a\nhigher degree of caution than a normal person does not mean that there is imposed upon him a\nhigher standard of duty, but rather that in order to measure up to the ordinary standard he must the\nmore vigilantly exercise caution through other senses and other means, in order to compensate for\nthe loss or impairment of those senses in which he is defective. . . .\xe2\x80\x99\xe2\x80\x9d\n\n137\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nWe cannot escape the conclusion of the Superior Court that the instant case is ruled by the\nFraser case. . . . The fact that plaintiff did not anticipate the existence of the ditch across the\nsidewalk, in itself, does not charge him with negligence. But, it is common knowledge,\nchargeable to plaintiff, that obstructions and defects are not uncommon in the sidewalks of a city,\nany one of which may be a source of injury to the blind. . . . In such circumstances he was bound\nto take precautions which one not so afflicted need not take. In the exercise of due care for his\nown safety it was his duty to use one of the common, well-known compensatory devices for the\nblind, such as a cane, a \xe2\x80\x9cseeing-eye\xe2\x80\x9d dog, or a companion. These are a poor substitute for sight,\nbut any one of them would probably have been sufficient to prevent this accident. . . . We are in\naccord with that learned court, that plaintiff was guilty of contributory negligence as a matter of\nlaw, and we must, therefore, affirm the judgment.\n\nDavis v. Feinstein, 88 A.2d 695 (Pa. 1952)\nSTEARNE, J.\nThis is an appeal from judgment entered on a jury\xe2\x80\x99s verdict for plaintiff in an action of\ntrespass. Defendants . . . rest their motion for judgment non obstante veredicto on the sole ground\nthat plaintiff was guilty of contributory negligence as matter of law. . . .\nPlaintiff is a blind man. While walking south on 60th Street between Market and Arch\nStreets in Philadelphia, he fell into an open cellarway in front of the furniture store maintained by\ndefendants. The opening was equipped with a cellar door, flush with the pavement when closed,\nand consisting of two sections each about two and one-half feet wide. When the door was open,\nan iron bar about five feet in length usually connected the two sections at the front, holding them\nerect and thus presenting a barrier which would ordinarily prevent a pedestrian from stepping into\nthe opening. At the time of the accident, the north section was closed and even with the sidewalk;\nthe connecting bar was not in place; and the south section of the door was standing erect. It was\ninto the aperture thus left uncovered that the plaintiff fell and suffered the injuries which were the\nbasis of this suit. . . .\nBoth sides agree with the statement of the learned court below that the controlling\nauthority is Smith v. Sneller, 345 Pa. 68, 26 A. 2d 452. In that case the blind plaintiff employed\nno cane or other compensatory aid. . . .\nIn the instant case plaintiff testified that he was employing his cane as a guide, moving it\nlaterally in order to touch the walls of abutting buildings and keep on a straight course, and also\ntapping the ground before him to search out obstacles in his path. Defense counsel argues: \xe2\x80\x9cEven\nas a man with sight cannot say he did not observe that which was open and obvious, neither can a\nblind man say that he made proper use of the cane and was unable to learn of the existence of the\ndefect. It necessarily follows that he did not have a proper instrument, that is to say, the cane was\nnot adequate or he did not use it properly.\xe2\x80\x9d\nWe did not so decide in Smith v. Sneller, supra. A blind person is not bound to discover\neverything which a person of normal vision would. He is bound to use due care under the\ncircumstances. Due care for a blind man includes a reasonable effort to compensate for his\nunfortunate affliction by the use of artificial aids for discerning obstacles in his path. When an\neffort in this direction is made, it will ordinarily be a jury question whether or not such effort was\n138\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\na reasonable one. The general rule applies that \xe2\x80\x9cContributory negligence may be declared as a\nmatter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree\nas to its existence . . . .\xe2\x80\x9d Guca v. Pittsburgh Railways Company, 80 A. 2d 779.\nIt was not unreasonable for the jury to have concluded that plaintiff exercised due care for\nhis safety when he used his cane in the manner which he described. . . .\nJudgment affirmed.\n\nNotes\n\n1. Why take physical traits into account? Vaughan v. Menlove stands for an objective\napproach and the irrelevance of what Holmes called the \xe2\x80\x9cinfinite varieties\xe2\x80\x9d of human\ncharacteristics. Why do we see courts adopting a different approach here\xe2\x80\x94subjectivizing, in a\nway, a standard that is supposed to be objective? What makes vision impairment different from\nintellectual impairment?\n\n2. The Restatement view. The Restatement aligns with the holdings in Smith v. Sneller, 26\nA.2d 452 (Pa. 1942), and Davis v. Feinstein, 88 A.2d 695 (Pa. 1952): \xe2\x80\x9cIf the actor is ill or\notherwise physically disabled, the standard of conduct to which he must conform to avoid being\nnegligent is that of a reasonable man under like disability.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7\n283C (1965). Note that sometimes this standard might require a person with a physical\nimpairment to take greater precautions than the person not so impaired. Simultaneously, it might\nexcuse the person from taking precautions that reasonable care would demand of others. Id. at\ncmt. c. Such adjustments, according to prominent torts theorist William Lloyd Prosser, are the\ncommon law\xe2\x80\x99s way of declaring that \xe2\x80\x9c[t]he man who is blind, or deaf, or lame, or is otherwise\nphysically disabled, is entitled to live in the world.\xe2\x80\x9d WILLIAM LLOYD PROSSER, THE LAW OF\nTORTS \xc2\xa7 32, at 155 (3d ed. 1964).\n3. The negligence standard and \xe2\x80\x9cthe right to live in the world.\xe2\x80\x9d Perhaps the most famous\ncritique of tort law\xe2\x80\x99s approach to physical traits is Professor Jacobus tenBroek\xe2\x80\x99s The Right to Live\nin the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841 (1966). Like Prosser,\ntenBroek argues that tort law plays a crucial role in whether people with physical limitations feel\nfree \xe2\x80\x9cto move about and be in public places\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9cto go about in the streets, sidewalks, roads and\nhighways, to ride upon trains, buses, airplanes, and taxi cabs, and to enter and to receive goods\nand services in hotels, restaurants, and other places of public accommodation.\xe2\x80\x9d Id. at 842. But\ntenBroek\xe2\x80\x94drawing in part on his own experiences as a blind man\xe2\x80\x94offers a much darker\nassessment than Prosser of tort law\xe2\x80\x99s accomplishments:\nDean Prosser\'s grand pronouncement . . . while purporting to be drawn from the\ncase law, and while seeming to express for the law of torts the legislatively\nestablished policy of the integration of the disabled, is in no sense an accurate\nsummary of the law of torts as that law stands today. The judges either qualify or\nignore Dean Prosser\'s pronouncement and the integrationist policy. In some areas,\nthe pronouncement and the policy are completely rejected; in others, they are given\n139\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nonly halting and partial credence; and in none are they fully and positively\nimplemented by the courts. Dean Prosser himself immediately emasculates his\nproposition. He applies it only to a narrow realm of street accidents. And even\nthere, while freeing the disabled of negligence per se for being where they are, he\nhobbles them with the views of the able-bodied as to what their reasonable conduct\nshould be. In these areas, the sum total of the law\'s beneficence to the disabled\nseeking a full-fledged right to live in the world can be easily and briefly\nsummarized: The courts, prodding the tardy genius of the common law, have\nextended a variant of the reasonable man concept to those who injure the disabled\non the streets, in traffic, and on common carriers. This constitutes a meager and\ninadequate accomplishment in the light of the integrationist purpose and the\nlegislative declaration of policy. . . .\nId. at 852. Summarizing how courts have applied the negligence standard in cases involving\ndisabled people, tenBroek continues:\nThe majority of courts say that it is not negligence per se for a blind man to walk\nthe streets without a companion or attendant; others that he may do so only in certain\ncircumstances. Some say that it is contributory negligence as a matter of law to\ntravel without dog, cane, or companion; others, that the failure to use one or more\nof these travel aids presents a question for the jury as to whether due care was\nemployed. No courts say that a blind man may not, when taking the proper\nprecautions, enter unfamiliar territory; most courts, however, emphasize the\nplaintiff\'s knowledge of the surroundings and the frequency of his presence. Some\nsay that the plaintiff\'s knowledge that the streets are or may be defective or\ndangerous creates a kind of assumption of risk; others, that in the circumstances, the\ndisabled person may proceed but must do so with due care in the light of his\nknowledge. The latter rule is also applied by some courts to blind persons in railway\ndepots, at railway street crossings, and like places of similar danger, while others\nsay that it is gross negligence for blind persons to be in such places alone. Some\ncourts say that the disabled may proceed upon the assumption that the streets and\nhighways are kept in a reasonably safe condition, and that cities and abutting\nproperty owners must expect the disabled to be abroad in the land and accordingly\nmust take precautions necessary to warn or otherwise protect them. Others say that\nthose who create, maintain, or tamper with the streets and public passageways are\nonly under a duty to safeguard the able-bodied pedestrian.\nNo courts have held or even darkly hinted that a blind man may rise in the morning,\nhelp get the children off to school, bid his wife goodby, and proceed along the streets\nand bus lines to his daily work, without dog, cane, or guide, if such is his habit or\npreference, now and then brushing a tree or kicking a curb, but, notwithstanding,\nproceeding with firm step and sure air, knowing that he is part of the public for\nwhom the streets are built and maintained in reasonable safety, by the help of his\ntaxes, and that he shares with others this part of the world in which he, too, has a\nright to live. He would then be doing what any reasonable, or prudent, or reasonably\nprudent blind man would do, and also what social policy must positively foster and\njudges in their developing common law must be alert to sustain.\n\n140\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nId. at 866-68. If tort law were really concerned with vindicating a \xe2\x80\x9cright to live in the world,\xe2\x80\x9d\ntenBroek argues, it would ask \xe2\x80\x9cnot whether the defendant created an unreasonable risk of harm [to\na disabled plaintiff], but whether he interfered with the effectuation of the policy of the social\nintegration of the disabled; not whether the [disabled] plaintiff conducted himself as a reasonable\nman of ordinary prudence acting in the light of all the circumstances, but whether he acted\npursuant to his right to be a part of his community.\xe2\x80\x9d Id. at 914.\nHow radical is tenBroek\xe2\x80\x99s proposal? How sound? The answer may depend on how you\nunderstand disability. One conventional understanding of disability is that it is an individual\ncharacteristic\xe2\x80\x94a biologically or medically based trait, akin to sex or age. By contrast, the \xe2\x80\x9csocial\nmodel\xe2\x80\x9d of disability, which emerged in the 1960s, emphasizes the role of society, culture, and\nother external forces in limiting what people with particular bodies and minds can do, thereby\ncreating disability where none necessarily had to exist. Today, many scholars of disability and\nmany people who identify as disabled have embraced the core insight of this social model (while\npulling back from any implication that individuals\xe2\x80\x99 bodily experiences are entirely socially\nconstructed). See generally Sagit Mor, The Meaning of Injury: A Disability Perspective, in\nINJURY AND INJUSTICE: THE CULTURAL POLITICS OF HARM AND REDRESS 27, 29 (Anne Bloom,\nDavid M. Engel, & Michael McCann, eds., 2018). How might tort law\xe2\x80\x99s approach to physical\ndifference \xe2\x80\x9cmediate\xe2\x80\x9d the experience of disablement? Could tort law alleviate the conditions that\ncause particular individuals to feel disabled as they navigate the world? Should it? Note that\nsince tenBroek\xe2\x80\x99s time, a bevy of state and federal statutes have emerged to protect the access\nrights of people with disabilities, including Section 504 of the Rehabilitation Act of 1973, Pub. L.\nNo. 93-112, \xc2\xa7 504, 87 Stat. 355, 394 (codified as amended at 29 U.S.C. \xc2\xa7 794(a) (2012)), and the\nAmericans with Disabilities Act of 1990, Pub. L. No. 101-336, \xc2\xa7 2, 104 Stat. 327, 328 (codified as\namended at 42 U.S.C. \xc2\xa7 12101 (2012)). But much of what tenBroek critiqued in 1966 still holds\nfor tort law. See Adam A. Milani, Living in the World: A New Look at the Disabled in the Law of\nTorts, 49 CATH. U. L. REV. 323 (1999).\nIf we do want to take seriously a \xe2\x80\x9cright to live in the world\xe2\x80\x9d as a concern of tort law, what\nis the content of that right? Here it is worth saying more about tenBroek: in addition to being\nblind, he was white, tall, and handsome; he was highly educated, with advanced degrees in\npolitical science and law; at the time he wrote this article, he was a professor at one of the world\xe2\x80\x99s\ngreatest universities (the University of California, Berkeley) and had served in a prominent\nposition in California state government; his wife, Hazel tenBroek, was extremely devoted to his\ncare and his work. Does tenBroek\xe2\x80\x99s \xe2\x80\x9cright to live in the world\xe2\x80\x9d extend to disabled people whose\ncircumstances might require the actors around them to make much more significant adjustments\nthan would be required to vindicate his own \xe2\x80\x9cright to live in the world\xe2\x80\x9d? And what does it mean\nto \xe2\x80\x9clive in the world\xe2\x80\x9d in a full and dignified way? Does tenBroek idealize too much the way that\nable-bodied, adult, white, educated, male breadwinners navigate public space? Or should\neveryone, with the aid perhaps of tort law, be entitled to experience the world in that way?\n\n4. What about physical impairments that arise suddenly? See, for example, Lehman v.\nHaynam, 133 N.E.2d 97 (Ohio 1956), where the court ruled that a defendant\xe2\x80\x99s sudden and\nunforeseeable unconsciousness would be relevant to the determination of whether he drove\nnegligently when his car veered across the center line of a highway and struck the plaintiff. (That\nis, the court did not employ the metric of a reasonable person who was not so afflicted.) The Ohio\nSupreme Court recently reaffirmed the Lehman rule and noted that it is supported by \xe2\x80\x9cthe great\n141\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nweight of authority\xe2\x80\x9d in common law jurisdictions. Roman v. Estate of Gobbo, 791 N.E.2d 422,\n427 (Ohio 2003). What logic supports this rule?\n5. Disaggregating disability. Recall Holmes\xe2\x80\x99s justification for not requiring \xe2\x80\x9cordinary care\xe2\x80\x9d\nfrom certain individuals: \xe2\x80\x9cWhen a man has a distinct defect of such a nature that all can recognize\nit as making certain precautions impossible, he will not be held answerable for not taking them.\xe2\x80\x9d\nHOLMES, supra. How should the law apply to actors whose physical impairments are less\napparent to the world than those of the paradigmatic blind man with a cane? This is not a\nhypothetical. The majority of people who meet the conventional definition of disability have an\ninvisible disability. Common examples include chronic fatigue syndrome, chronic pain, epilepsy,\nirritable bowel syndrome, food allergies, and chemical sensitivity. Does reasonableness require\nthat actors with invisible disabilities take extra precautions? What about actors who have multiple\ndisabilities? What about actors whose multiple disabilities include both an intellectual or\ncognitive disability and a physical disability?\n\n3. Children\nDellwo v. Pearson, 107 N.W.2d 859 (Minn. 1961)\nLOEVINGER, J.\nThis case arises out of a personal injury to Jeanette E. Dellwo, one of the plaintiffs. She\nand her husband, the other plaintiff, were fishing on one of Minnesota\xe2\x80\x99s numerous and beautiful\nlakes by trolling at a low speed with about 40 to 50 feet of line trailing behind the boat.\nDefendant, a 12-year-old boy, operating a boat with an outboard motor, crossed behind plaintiffs\xe2\x80\x99\nboat. Just at this time Mrs. Dellwo felt a jerk on her line which suddenly was pulled out very\nrapidly. The line was knotted to the spool of the reel so that when it had run out the fishing rod\nwas pulled downward, the reel hit the side of the boat, the reel came apart, and part of it flew\nthrough the lens of Mrs. Dellwo\xe2\x80\x99s glasses and injured her eye. Both parties then proceeded to a\ndock where inspection of defendant\xe2\x80\x99s motor disclosed 2 to 3 feet of fishing line wound about the\npropeller.\nThe case was fully tried to the court and jury and submitted to the jury upon instructions\nwhich, in so far as relevant here, instructed the jury that: (1) In considering the matter of\nnegligence the duty to which defendant is held is modified because he is a child, a child not being\nheld to the same standard of conduct as an adult and being required to exercise only that degree\nof care which ordinarily is exercised by children of like age, mental capacity, and experience\nunder the same or similar circumstances . . . .\nThe jury returned a general verdict for defendant, and plaintiffs appeal. . . .\nThere is no doubt that the instruction given substantially reflects the language of\nnumerous decisions in this and other courts. . . . However, the great majority of these cases\ninvolve the issue of contributory negligence and the standard of care that may properly be\n\n142\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nrequired of a child in protecting himself against some hazard.11 The standard of care stated is\nproper and appropriate for such situations.\nHowever, this court has previously recognized that there may be a difference between the\nstandard of care that is required of a child in protecting himself against hazards and the standard\nthat may be applicable when his activities expose others to hazards. . . . Certainly in the\ncircumstances of modern life, where vehicles moved by powerful motors are readily available and\nfrequently operated by immature individuals, we should be skeptical of a rule that would allow\nmotor vehicles to be operated to the hazard of the public with less than the normal minimum\ndegree of care and competence.13\nTo give legal sanction to the operation of automobiles by teen-agers with less than\nordinary care for the safety of others is impractical today, to say the least. We may take judicial\nnotice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic\nresults of accidents, and the fact that immature individuals are no less prone to accidents than\nadults. While minors are entitled to be judged by standards commensurate with age, experience,\nand wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would\nbe unfair to the public to permit a minor in the operation of a motor vehicle to observe any other\nstandards of care and conduct than those expected of all others. A person observing children at\nplay with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood\nactivities may anticipate conduct that does not reach an adult standard of care or prudence. . . .\nHowever, one cannot know whether the operator of an approaching automobile, airplane, or\npowerboat is a minor or an adult, and usually cannot protect himself against youthful imprudence\neven if warned. Accordingly, we hold that in the operation of an automobile, airplane, or\npowerboat, a minor is to be held to the same standard of care as an adult.\nUndoubtedly there are problems attendant upon such a view. However, there are problems\nin any rule that may be adopted applicable to this matter. They will have to be solved as they may\npresent themselves in the setting of future cases. The latest tentative revision of the Restatement\nof Torts proposes an even broader rule that would hold a child to adult standards whenever he\nengages \xe2\x80\x9cin an activity which is normally undertaken only by adults, and for which adult\nqualifications are required.\xe2\x80\x9d15 However, it is unnecessary to this case to adopt a rule in such broad\nform, and, therefore, we expressly leave open the question whether or not that rule should be\nadopted in this state. For the present it is sufficient to say that no reasonable grounds for\ndifferentiating between automobiles, airplanes, and powerboats appears, and that a rule requiring a\nsingle standard of care in the operation of such vehicles, regardless of the age of the operator,\nappears to us to be required by the circumstances of contemporary life.\nReversed and remanded for a new trial.\n\n11\n\nAs relevant to the issue of the instant case, it should be noted that this court has also said that a lower standard\nof care for their own safety may be required of very old, as well as very young, people. Johnson v. St. Paul City\nRy. Co., 67 Minn. 260, 69 N.W. 900, 36 L.R.A. 586. It would follow that if minors are permitted to operate\nmotor vehicles with less than ordinary care, then so should the elderly and infirm.\n13\nApparently sanctioning such a rule is: Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266. It\nshould be noted this case was decided in 1931. . . .\n15\nRESTATEMENT, TORTS, TENTATIVE DRAFT NO. 4, \xc2\xa7 238A, Comment c. This is quoted with apparent approval\nin Wittmeier v. Post, S.D., 105 N.W.2d 65.\n\n143\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNotes\n\n1. Headnotes: a cautionary tale. If you read this case in a West reporter, you will see the\nfollowing information preceding the text of the opinion:\nWest Headnotes\n...\n[6] Infants k61\n211k61\nIn operation of automobile, airplane or powerboat, minor is to be held to same standard of\ncare as adult.\nSyllabus by the Court\n...\n2. In the operation of an automobile, airplane, or powerboat, a minor is to be held to the\nsame standard of care as an adult.\nWhat are \xe2\x80\x9cWest Headnotes\xe2\x80\x9d? For that matter, what is the \xe2\x80\x9cSyllabus of the Court\xe2\x80\x9d? Are these\nstatements of law? Recall our discussion of holdings in the notes after Brown v. Kendall in\nChapter 3. What is the holding of Dellwo? Does the headnote excerpted above accurately capture\nit?\n\n2. What is a dangerous adult activity? The Dellwo court declined to adopt the Second\nRestatement approach of creating a general category of dangerous adult activities. But the Second\nRestatement has been widely influential and has been repeated in the Restatement (Third) of\nTorts, which advises that children engaging in dangerous adult activities may be held to the same\nstandard of care required of an adult and that, in such instances, \xe2\x80\x9cno account is taken of their\nchildhood.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 10 cmt. f (2010).\nThe question remains, however: what counts as a dangerous adult activity? Courts have\nheld that dangerous adult activities include operating a motor vehicle, Harrelson v. Whitehead,\n365 S.W.2d 868 (Ark. 1963); operating farm equipment, Jackson v. McCuiston, 448 S.W.2d 33\n(Ark. 1969); operating a snowmobile, Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979); and\noperating a minibike, Frayer by Edenhofer v. Lovell, 529 N.W.2d 236 (Wis. Ct. App. 1995).\nFiring a high-powered hunting rifle, however, is not a dangerous adult activity, at least not\nin Arkansas. Purtle v. Shelton, 474 S.W.2d 123 (Ark. 1971). Nor is skiing in New Jersey, Goss v.\nAllen, 360 A.2d 388 (N.J. 1976); starting a campfire in Michigan, Farm Bureau Ins. Group v.\nPhillips, 323 N.W.2d 477 (Mich. App. 1982); operating a golf cart in Oregon, Hudson-Connor v.\nPutney, 86 P.3d 106 (Or. App. 2004); or riding a bicycle in Illinois, Conway v. Tamborini, 215\nN.E.2d 303 (Ill. App. 3d Dist. 1966); though Arizona courts disagree, see Barnes v. Tucson, 760\nP.2d 566 (Ariz. App. 1988). Firing an air rifle, Swix v. Daisy Mfg. Co., 373 F.3d 678 (6th Cir.\n144\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n2004), is not a dangerous adult activity. Nor is driving on private roads or property, Ricketts v.\nNorfolk S. Ry., 686 So. 2d 1100 (Ala. 1996); firing a BB gun, Huebner by Lane v. Koelfgren, 519\nN.W.2d 488 (Minn. App. 1994); failing to yield the right of way, Ruby v. Easton, 207 N.W.2d 10\n(Iowa 1973); firing a revolver, LaBarge v. Stewart, 501 P.2d 666 (N.M. App. 1972); or playing\nsoftball, Jones v. Cobb, 834 So. 2d 13 (La. App. 2d Cir. 2002). Golfing is not a dangerous adult\nactivity in North Dakota, Kirchoffner v. Quam, 264 N.W.2d 203 (N.D. 1978), but it is in New\nYork, Neumann v. Shlansky, 312 N.Y.S.2d 951 (Sup. Ct. 1970).\n\n3. Beginners. The traditional common law rule for children, in which tender years are taken\ninto account, seems to have reflected at least in part an intuition that it might be valuable to\nencourage youth to develop new skills. This intuition could be generalized: what about\nencouraging beginners more generally, regardless of age? Interestingly, courts have\noverwhelmingly rejected any such approach that would take into account a party\xe2\x80\x99s lack of\nexpertise in determining whether the party exercised reasonable care. See, for example, Stevens v.\nVeenstra, 573 N.W.2d 341 (Mich. App. 1997), in which the Michigan Court of Appeals held that\nan unlicensed driver in a drivers\xe2\x80\x99 education course had to conform to the same standard of care\nrequired of licensed drivers.\nA beginner\xe2\x80\x99s inexperience may be relevant to the standard of care owed to people with\nwhom the beginner is in a preexisting relationship that gives notice of the relevant inexperience.\nThe classic example is the case of the driving instructor injured while a student is at the wheel.\nSee RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 12 cmt. b (2010) (concluding that a\ndefendant driving student\xe2\x80\x99s inexperience should be taken into account in considering the\ndefendant\xe2\x80\x99s negligence in a case brought by the instructor). The same approach applies in the\ninstance of flight instruction. See Vee Bar Airport v. De Vries, 43 N.W.2d 369 (S.D. 1950).\n\n4. Experts. What about parties with unusually developed expertise or skills? Here, too, the\nquestion of encouraging or discouraging investment in expertise is raised. The Restatement\n(Third) of Torts poses the following hypothetical: \xe2\x80\x9cConsider two cars that collide on the highway,\nor two skiers who collide on a ski trail; if it turns out that one of the motorists is a professional\ndriver or one of the skiers a professional ski instructor, this is a fortuity as far as the other motorist\nor the other skier is concerned.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 12\ncmt. a (2010). Because increased liability for experts will reduce incentives to invest in expertise,\nthe Restatement reports that the best approach excludes expertise from consideration. See, e.g.,\nSouthard v. Belanger, 966 F. Supp. 2d 727, 740-41 (W.D. Ky. 2013) (holding that a plaintiff\ncould not hold the defendant, a professional tractor-trailer driver who was turning left while using\nhis cell phone, to a higher standard of care).\nSome courts, however, have been uncomfortable allowing defendants to disclaim their\nexpertise. Experts who hold themselves out as expert professionals, for example, are held to the\nstandard of similarly situated professionals. See, e.g., Louisville & Nashville R.R. v. Perry\xe2\x80\x99s\nAdm\xe2\x80\x99r, 190 S.W. 1064, 1066 (Ky. Ct. App 1917) (\xe2\x80\x9cWhen a Kentucky court says that an engineer\nmust use ordinary care . . . , this implies such care as a competent engineer would exercise and the\ndoing of such things as a capable engineer would do.\xe2\x80\x9d); Donathan v. McConnell, 193 P.2d 819,\n825 (Mont. 1948) (holding that dentists are required to exercise \xe2\x80\x9creasonable care and skill as is\nusually exercised by a dentist in good standing\xe2\x80\x9d); Vigneault v. Dr. Hewson Dental Co., 15 N.E.2d\n185 (Mass. 1938) (holding the same as Donathan v. McConnell). Cf. Alfonso v. Robinson, 514\n145\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nS.E.2d 615 (Va. 1999) (holding that defendant truck driver\xe2\x80\x99s professional expertise was relevant\nin determining whether his conduct amounted to willful and wanton negligence).\nThe Restatement (Third) of Torts supports taking expertise into account in determining\nwhether a defendant exercised reasonable care when (1) the defendant engages in an activity that\nposes \xe2\x80\x9cdistinctive and significant dangers\xe2\x80\x9d or (2) a plaintiff with a preexisting relationship with\nthe defendant has reasonably relied on the defendant\xe2\x80\x99s expertise. See RESTATEMENT (THIRD) OF\nTORTS: PHYS. & EMOT. HARM \xc2\xa7 12 cmt. a (2010). Certain courts have applied the Restatement\xe2\x80\x99s\nview. See Levi v. Sw. La. Elec. Membership Coop., 542 So. 2d 1081, 1084 (La. 1989) (holding\nthe employees of defendant power company to the standard of \xe2\x80\x9ca reasonable person\xe2\x80\x9d with the\n\xe2\x80\x9csuperior attributes\xe2\x80\x9d of experts in view of the \xe2\x80\x9cdistinctive and significant dangers\xe2\x80\x9d of high power\nlines); Everett v. Bucky Warren, Inc., 380 N.E.2d 653, 659 (Mass. 1978) (holding that the\ndefendant, a high school hockey coach who had substantial experience in the game of hockey,\ncould be held to a higher standard of care than an average person in the selection of the helmets he\nsupplied his players when one of those helmets failed to protect the plaintiff from injuries).\nWhy are these cases not treated like those of the expert skiers and drivers who collide with\nstrangers?\n\n5. Asymmetry in the application of the reasonableness standard. The Dellwo opinion flags\nan interesting phenomenon: \xe2\x80\x9ca difference between the standard of care that is required of a child\nin protecting himself against hazards and the standard that may be applicable when his activities\nexpose others to hazards.\xe2\x80\x9d As it turns out, this phenomenon is not limited to children. Professor\nAvihay Dorfmann offers the following hypothetical:\n(1) Roger, aged 85, drove his automobile across the city. Although not exceeding\nthe relevant speed limit, Roger failed to stop his automobile on time, striking down\na person innocently walking on a designated crosswalk. Roger\xe2\x80\x99s failure is attributed\nto his poor reflexes, probably the upshot of his old age. (2) Now consider the\nopposite case where the same Roger is struck at the same place by an automobile.\nThe driver is negligent for driving unreasonably fast (whatever unreasonably fast\nmeans). On his part, Roger\xe2\x80\x99s slow reflexes have amplified the gravity of his\ninjury\xe2\x80\x94had he responded quicker to the approaching automobile, the harm he\nsuffered could have been either reduced or even avoided altogether. For the sake\nof clarity, suppose that the only risk produced by Roger [as] the pedestrian is risk\nto himself . . . . In both cases, the conduct of Roger is assessed against the baseline\nof reasonableness. Whereas in the first case the question is whether Roger the tortfeasor breached the duty of reasonable care he owed the injured pedestrian, the\nsecond one gives rise to the question of whether, and to what extent, his response to\nthe injurer\xe2\x80\x99s negligence was itself unreasonable, which is to say contributory or\ncomparatively negligent.\nAvihay Dorfmann, Negligence and Accommodation, 22 LEGAL THEORY 77, 82-83_(2016). How\nshould courts treat Roger\xe2\x80\x99s age? Should his age work in his favor, potentially excusing his\nbehavior in Scenario #1 and posing no obstacle to his recovery of full damages in Scenario #2,\ndespite the fact that has age likely resulted in more costly injuries? Or, should his age work\nagainst him, obliging him to expend additional effort or resources in order to meet a standard of\nreasonable care? Dorfmann suggests that in the caselaw, the answer turns on whether Roger is the\n146\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nplaintiff or the defendant, although courts offer no justification for this asymmetry. Id. at 109.\nWhat underlying rationales might explain this pattern? We will revisit this question in our\nsubsequent discussion of contributory negligence.\n\n4. Mental Illness\nBreunig v. American Family Ins. Co., 173 N.W.2d 619 (Wis. 1970)\n[Plaintiff Phillip A. Breunig\xe2\x80\x99s truck was struck by an automobile driven by Erma Veith\nand insured by the defendant American Family Insurance Company. Breunig suffered serious\npersonal injuries. At the time of the accident, Veith\xe2\x80\x99s car was proceeding west in an eastbound\nlane. The jury returned a verdict for the plaintiff, and defendant insurance company appealed.]\nHALLOWS, C.J.\nThe evidence established that Mrs. Veith, while returning home after taking her husband\nto work, saw a white light on the back of a car ahead of her. She followed this light for three or\nfour blocks. Mrs. Veith did not remember anything else except landing in a field, lying on the\nside of the road and people talking. She recalled awaking in the hospital.\nThe psychiatrist testified Mrs. Veith told him she was driving on a road when she believed\nthat God was taking ahold of the steering wheel and was directing her car. She saw the truck\ncoming and stepped on the gas in order to become airborne because she knew she could fly\nbecause Batman does it. To her surprise she was not airborne before striking the truck but after\nthe impact she was flying. Actually, Mrs. Veith\xe2\x80\x99s car continued west on Highway 19 for about a\nmile. . . . When a traffic officer came to the car to investigate the accident, he found Mrs. Veith\nsitting behind the wheel looking off into space. . . .\nThe psychiatrist testified Erma Veith was suffering from \xe2\x80\x9cschizophrenic reaction,\nparanoid type, acute.\xe2\x80\x9d He stated that from the time Mrs. Veith commenced following the car with\nthe white light and ending with the stopping of her vehicle in the cornfield, she was not able to\noperate the vehicle with her conscious mind and that she had no knowledge or forewarning that\nsuch illness or disability would likely occur.\nThe insurance company argues Erma Veith was not negligent as a matter of law because\nthere is no evidence upon which the jury could find that she had knowledge or warning or should\nhave reasonably foreseen that she might be subject to a mental delusion which would suddenly\ncause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and\nalso suggests Erma Veith should be liable because insanity should not be a defense in negligence\ncases.\nThe case was tried on the theory that some forms of insanity are a defense to and preclude\nliability for negligence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins.\nCo. (1962), 18 Wis. 2d 91 . . . .\nIn Theisen we recognized one was not negligent if he was unable to conform his conduct\nthrough no fault of his own but held a sleeping driver negligent as a matter of law because one is\n147\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nalways given conscious warnings of drowsiness and if a person does not heed such warnings and\ncontinues to drive his car, he is negligent for continuing to drive under such conditions. But we\ndistinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an\noutside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly\nincapacitates the driver of an automobile when the occurrence of such disability is not attended\nwith sufficient warning or should not have been reasonably foreseen. . . .\nThe policy basis of holding a permanently insane person liable for his tort is: (1) Where\none of two innocent persons must suffer a loss it should be borne by the one who occasioned it;\n(2) to induce those interested in the estate of the insane person (if he has one) to restrain and\ncontrol him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid\nliability. . . .\nThe cases holding an insane person liable for his torts have generally dealt with preexisting insanity of a permanent nature. . . .\n[But] we think the statement that insanity is no defense is too broad when it is applied to a\nnegligence case where the driver is suddenly overcome without forewarning by a mental disability\nor disorder which incapacitates him from conforming his conduct to the standards of a reasonable\nman under like circumstances. These are rare cases indeed, but their rarity is no reason for\noverlooking their existence and the justification which is the basis of the whole doctrine of\nliability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is\nincapable of avoiding and which incapability was unknown to him prior to the accident.\nWe need not reach the question of contributory negligence of an insane person or the\nquestion of comparative negligence as those problems are not now presented. All we hold is that\na sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart\nattack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule\nof insanity. . . .\nThe insurance company argues that since the psychiatrist was the only expert witness who\ntestified concerning the mental disability of Mrs. Veith and the lack of forewarning that as a\nmatter of law there was no forewarning and she could not be held negligent; and [that] the trial\ncourt should have so held. While there was testimony of friends indicating she was normal for\nsome months prior to the accident, the psychiatrist testified the origin of her mental illness\nappeared in August, 1965, prior to the accident. . . .\nThe question is whether she had warning or knowledge which would reasonably lead her\nto believe that hallucinations would occur and be such as to affect her driving an automobile.\nEven though the doctor\xe2\x80\x99s testimony is uncontradicted, it need not be accepted by the jury. It is an\nexpert\xe2\x80\x99s opinion but it is not conclusive. It is for the jury to decide whether the facts underpinning\nan expert opinion are true. . . . The jury could find that a woman, who believed she had a special\nrelationship to God and was the chosen one to survive the end of the world, could believe that\nGod would take over the direction of her life to the extent of driving her car. Since these mental\naberrations were not constant, the jury could infer she had knowledge of her condition and the\nlikelihood of a hallucination just as one who has knowledge of a heart condition knows the\npossibility of an attack. While the evidence may not be strong upon which to base an inference,\nespecially in view of the fact that two jurors dissented on this verdict and expressly stated they\n148\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ncould find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury\nneed not constitute the great weight and clear preponderance.\nJudgment affirmed.\n\nNotes\n\n1. Mental illness as an immunity or an adjustment to the reasonable person standard? Is the\nBreunig court suggesting that, absent foreknowledge, a suddenly ill defendant is immune from\ntort liability? Or is mental illness something to be taken into account in determining what counts\nas reasonable, just as the standard accounts for physical impairment? Would this amount to the\nstandard of a reasonable mentally ill person? What would that mean? Why not apply the rule of\nVaughan v. Menlove and exclude the mental impairment as irrelevant to the reasonableness of the\nparty\xe2\x80\x99s conduct? Is taking mental illness into account more defensible\xe2\x80\x94or less\xe2\x80\x94when the\ncondition is temporary rather than permanent?\n\n2. Confusion in the caselaw? Not all courts have held that sudden mental illness may shield\nan actor from liability for negligence. See Bashi v. Wodarz, 53 Cal. Rptr. 2d 635 (Cal. App. 1996)\n(holding that sudden and unanticipated mental illness does not preclude liability for negligence);\nTurner v. Caldwell, 421 A.2d 876 (Conn. Super. Ct. 1980) (refusing to accept a temporary\ninsanity defense in automobile accidents); Kuhn v. Zabotsky, 224 N.E.2d 137 (Ohio 1967)\n(holding that a defendant who struck a plaintiff\xe2\x80\x99s car could not use sudden mental illness as a\ndefense). But do these divergent approaches in fact lead to different results? Note that in\nBreunig-type scenarios, in jurisdictions that accept the Breunig approach, cases are in fact often\nresolved in the plaintiff\xe2\x80\x99s favor because of the defendant\xe2\x80\x99s foreknowledge of the possibility of\nsudden disability or illness. See Ramey v. Knorr, 124 P.3d 314, 316 (Wash. App. 2005)\n(tortfeasor who wishes to plead sudden mental incapacity must establish \xe2\x80\x9cno prior notice or\nforewarning of [his or her] potential for becoming disabled\xe2\x80\x9d). Note that the foreknowledge\nsolution is not limited exclusively to mental illness or delusion cases. Certain cases relating to the\nstandard of care for beginners might also be characterized as foreknowledge cases. See Navailles\nv. Dielman, 50 So. 449, 450 (La. 1909) (holding that the defendant, an inexperienced driver, could\nbe held liable for his negligence because he \xe2\x80\x9cventured upon the streets in an automobile without\nknowing how to make an emergency stop\xe2\x80\x9d).\n\n3. The narrow scope of the Breunig rule. The Wisconsin Supreme Court has applied\nBreunig narrowly in subsequent decisions. See Burch v. American Family Mut. Ins. Co., 543\nN.W.2d 277, 281 (Wis. 1996) (holding that a developmentally disabled defendant driver\xe2\x80\x99s mental\ncapacity was not relevant to determining her liability for negligence). The Wisconsin Supreme\nCourt has also stressed that the rule of special treatment for sudden mental illness in Breunig is\nlimited and that the objective standard of care generally applies in mental illness cases. See\nJankee v. Clark County, 612 N.W.2d 297, 314 (Wis. 2000). Explaining why this approach\ncontinues to make sense in the 21st century, the Court has supplemented the rationales in Breunig\nwith two others: (1) \xe2\x80\x9cin an era in which society is less inclined to institutionalize the mentally\ndisabled, the reasonable person standard of care obligates the mentally disabled to conform their\nbehavior to the expectations of the communities in which they live\xe2\x80\x9d; and (2) the reasonable person\n149\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nstandard of care allows courts and juries to bypass the imprecise task of distinguishing among\nvariations in character, emotional equilibrium, and intellect.\xe2\x80\x9d Id. at 312. How persuasive do you\nfind these rationales? Are there other explanations for the state of the doctrine? After reviewing\ncourts\xe2\x80\x99 approach to mental illness, professor of psychiatry Paul S. Applebaum concluded that the\ncaselaw is \xe2\x80\x9cdifficult to understand other than as a reflection of deep-seated prejudices against\npersons with mental illness and profound misunderstandings of the nature of mental disorders.\xe2\x80\x9d\nPaul S. Appelbaum, Responsibility for Torts: Should the Courts Continue to Ignore Mental\nIllness? 63 PSYCHIATRIC SERVICES 308, 310 (2012). What do you think?\n\n4. Is there a basis for distinguishing cases like Breunig from cases like Lehman v. Haynam,\n133 N.E.2d 97 (Ohio 1956), discussed in the notes above, in which defendants suffer from sudden\nphysical ailments or illnesses like epilepsy, heart attacks, or unconsciousness? Or do they stand\nfor the same principle? What are the relevant considerations for sorting out an actor\xe2\x80\x99s\nresponsibility for injuries arising out of sudden and unanticipated conditions?\nWhat if the party alleging negligence had notice of the allegedly negligent party\xe2\x80\x99s\ncondition? Would that change the general treatment of mental illness? Consider the next case:\n\nGould v. American Family Mut. Ins. Co., 543 N.W.2d 282 (Wis. 2000)\nBRADLEY, J.\n. . . The judgment imposed liability against American Family for personal injuries caused\nby its insured, Roland Monicken, who was institutionalized suffering from Alzheimer\xe2\x80\x99s disease. . .\n.\nMonicken was diagnosed with Alzheimer\xe2\x80\x99s disease after displaying bizarre and irrational\nbehavior. As a result of his deteriorating condition, his family was later forced to admit him to the\nSt. Croix Health Care Center. Sheri Gould [the plaintiff] was the head nurse of the center\xe2\x80\x99s\ndementia unit and took care of him on several occasions.\nMonicken\xe2\x80\x99s records from St. Croix indicate that he was often disoriented, resistant to care,\nand occasionally combative. When not physically restrained, he often went into other patients\xe2\x80\x99\nrooms and sometimes resisted being removed by staff. On one such occasion, Gould attempted to\nredirect Monicken to his own room by touching him on the elbow. She sustained personal\ninjuries when Monicken responded by knocking her to the floor. . . .\nIt is a widely accepted rule in most American jurisdictions that mentally disabled adults\nare held responsible for the torts they commit regardless of their capacity to comprehend their\nactions; they are held to an objective reasonable person standard. . . .\nIn Breunig, [supra] . . . [t]his court created a limited exception to the common law rule,\nholding that insanity could be a defense in the rare case \xe2\x80\x9cwhere the [person] is suddenly overcome\nwithout forewarning by a mental disability or disorder which incapacitates him from conforming\nhis conduct to the standards of a reasonable man under like circumstances.\xe2\x80\x9d . . .\n[T]he actual holding was very limited:\n150\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nAll we hold is that a sudden mental incapacity equivalent in its effect to such\nphysical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should\nbe treated alike and not under the general rule of insanity.\nBreunig, 45 Wis. 2d at 544. . . .\nThe record reveals that Gould was not an innocent member of the public unable to\nanticipate or safeguard against the harm when encountered. Rather, she was employed as a\ncaretaker specifically for dementia patients and knowingly encountered the dangers associated\nwith such employment. It is undisputed that Gould, as head nurse of the dementia unit, knew\nMonicken was diagnosed with Alzheimer\xe2\x80\x99s disease and was aware of his disorientation and his\npotential for violent outbursts. Her own notes indicate that Monicken was angry and resisted\nbeing removed from another patient\xe2\x80\x99s room on the day of her injury.\n...\n[O]rdinarily a mentally disabled person is responsible for his or her torts. However, we\nconclude that this rule does not apply in this case . . . . When a mentally disabled person injures an\nemployed caretaker, the injured party can reasonably foresee the danger and is not \xe2\x80\x9cinnocent\xe2\x80\x9d of\nthe risk involved. . . . Therefore, we hold that a person institutionalized, as here, with a mental\ndisability, and who does not have the capacity to control or appreciate his or her conduct cannot\nbe liable for injuries caused to caretakers who are employed for financial compensation.\n\nNotes\n\n1. Mental illness and caretakers. Why immunize mentally disabled defendants from liability\nunder such circumstances? Would it be an alternative to make the defendant\xe2\x80\x99s condition a\nrelevant consideration in the inquiry into whether the defendant\xe2\x80\x99s conduct was negligent? Or, if it\nis nonsensical or unworkable to describe such defendants as behaving reasonably or unreasonably,\nwhat about an approach that hinges the allocation of losses from caretaker injuries on whether the\nplaintiff caretaker had notice of the specific kind of conduct that caused the plaintiff\xe2\x80\x99s injury?\n2. The \xe2\x80\x9cnotice principle.\xe2\x80\x9d The result in the Gould case fits with a larger historical pattern,\none that may help us make sense of the way courts appear to toggle between objective and more\nsubjective standards depending on the actors in front of them. Professor Sarah Seo and one of\nyour authors argue that common law judges have typically tried to allocate the obligation to take\ncare to the party with the best information about the risks in question. Call this the \xe2\x80\x9cnotice\nprinciple\xe2\x80\x9d: in choosing how to evaluate an allegedly careless actor\xe2\x80\x99s conduct (leading ultimately\nto the question of who should bear the cost of the injury), the nineteenth-century judges that Seo\nand Witt examine tended to ask which party had good information about the relevant disability\nand its likely risks in the relevant setting; this, in turn, dictated whether the judges applied a\npurely objective standard (\xe2\x80\x9creasonable person\xe2\x80\x9d) or something more subjective:\nFor instance, if a train conductor noticed that a pedestrian suffered from a mental\nillness that prevented exercise of requisite care when crossing the tracks, then it\n151\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nbecame the conductor\xe2\x80\x99s duty to take more care than the objective standard required\nto avoid a collision; and in the case of an accident, the pedestrian [accused of\ncontributory negligence] would be held to a subjective standard. Otherwise, if the\nconductor was not aware of the mental condition, then the prevailing objective\nstandard still applied to both parties, regardless of whether it was impossible for the\nmentally ill pedestrian to meet that standard.\nAttaching liability to information furthered a number of practical goals. To begin\nwith, such an approach encouraged parties to account for observable disabilities in\nothers and thus promoted a kind of informal private ordering, guiding parties toward\nan efficient allocation of the costs of taking extra precaution to avoid accidents. The\nnotice principle, moreover, had a mitigating effect on the strict-liability-like effects\nof the objective standard for mentally unsound people. At the same time, by\ntriggering a heightened duty only with notice, railroads, cities, and other\n[prospective] defendants were not required to adopt safety measures for their\ngeneral operations at an inefficiently high level solely to accommodate those who\ncould not meet the reasonable person standard. . . .\nSarah A. Seo & John Fabian Witt, The Metaphysics of the Mind and the Practical Science of the\nLaw, 26 L. & HIST. REV. 161, 165-66 (2006). Recall that Holmes stated a version of the notice\nprinciple in a passage above: \xe2\x80\x9cWhen a man has a distinct defect of such a nature that all can\nrecognize it as making certain precautions impossible, he will not be held answerable for not\ntaking them.\xe2\x80\x9d The notice principle might also make sense of the Restatement and Dellwo\napproach to cases involving youth. (Recall that the Dellwo court specifically observed that the\nage of children engaged in driving, boating, or flying would not be observable by third parties.)\n\n3. The reasonable person in the era of big data. One concern that courses beneath decisions\ninvolving mentally ill and mentally disabled actors is the impossibility of knowing these actors\xe2\x80\x99\nindividual capacities. Individually tailored standards of care might be the most fair, in the sense\nof truly tethering liability to wrongfulness, but to this point, such standards have not seemed\npragmatic. Professors Omri Ben-Shahar and Ariel Porat argue that with the advent of \xe2\x80\x9cBig Data,\xe2\x80\x9d\nwe in fact have the ability to develop standards of care tailored to each person in society and their\nparticular ability to reduce risk, which he calls the \xe2\x80\x9creasonable you standard.\xe2\x80\x9d Omri Ben-Shahar\n& Ariel Porat, Personalizing Negligence Law, 91 N.Y.U. L. REV. 627 (2016). For example, if a\n65-year-old man hit a small child with his car while driving 35 miles per hour, rather than asking\nwhether that was a reasonable speed for any driver, the \xe2\x80\x9creasonable you\xe2\x80\x9d standard looks to Big\nData to determine what speed is slow enough to enable a 65-year-old man to react in time to stop\nbefore hitting the child. Id. at 630-32. But not all 65-year-olds have the same reflexes, so the\nstandard could also incorporate the stop time for various vehicles\xe2\x80\x94the driver of a nimble sports\ncar that can stop on a dime would therefore be treated differently than the driver of a clunky old\ntruck\xe2\x80\x94and so on. If one important rationale for a universal \xe2\x80\x9creasonable person\xe2\x80\x9d standard was the\nunknowability of the capacities of each individual, is it now out of date in the era of Big Data? Or\ndoes some other justification, such as setting society-wide norms, underlie the \xe2\x80\x9creasonable\nperson\xe2\x80\x9d standard?\n\n152\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n5. Unreasonable Faiths?\nAre a person\xe2\x80\x99s religious convictions relevant in determinations of reasonableness?\nConsider Friedman v. New York, 282 N.Y.S.2d 858 (N.Y. Ct. Cl. 1967). Stranded on a broken\nchair lift with her male co-worker as darkness was approaching and after screaming in vain for\nhelp, a sixteen-year-old Orthodox Jew named Ruth Friedman jumped off the ski lift, fell twenty to\ntwenty-five feet, and injured herself. Friedman sued the state of New York, which operated the\nski lift, claiming damages. The state argued that Friedman had been contributorily negligent for\njumping. Friedman countered that her belief in \xe2\x80\x9cthe Jichud, which absolutely forbids a woman to\nstay with a man in a place which is not available to a third person\xe2\x80\x9d compelled her to act as she did.\nId. at 862. The court took into account her religious beliefs and found that she was not\ncontributorily negligent. More recent cases have not been as accommodating of plaintiffs\xe2\x80\x99\nreligious beliefs. See Munn v. Algee, 924 F.2d 568 (5th Cir. 1991) (holding as a matter of\nMississippi law that plaintiff\xe2\x80\x99s Jehovah\xe2\x80\x99s Witness faith was irrelevant in determining the\nreasonableness of her decision to refuse blood transfusions); Braverman v. Granger, 844 N.W.2d\n485, 496 (Mich. App. 2014) (holding that \xe2\x80\x9cthe proper inquiry is not [into] a person\xe2\x80\x99s subjective\nreasons [but rather] whether the blood transfusion was an objectively reasonable means to avoid\nor minimize damages\xe2\x80\x9d). Would taking a party\xe2\x80\x99s religious beliefs into account require courts to\nengage in constitutionally problematic evaluations of the reasonableness of particular religious\nviews? See, for example, Williams v. Bright, 658 N.Y.S.2d 910 (N.Y. App. Div. 1997), where the\ncourt ruled that instructing the jury to consider the reasonableness of the plaintiff\xe2\x80\x99s conduct by\nreference to the tenets of her own religion would constitute a \xe2\x80\x9cgovernment endorsement\xe2\x80\x9d of her\nreligious beliefs.\nIn all of the cases above, injured plaintiffs asked that the reasonableness inquiry take into\naccount the fact of their religious convictions. Should the inquiry be any different when\ndefendants contend that faith led them to adopt what objectively would be a less than reasonable\nlevel of care? Some have argued that while subjective religious beliefs may sometimes be\nrelevant to the inquiry into the reasonableness of a plaintiff-victim\xe2\x80\x99s conduct, such subjective\nbeliefs ought not be taken into account in evaluating the reasonableness of a defendant-injurer\xe2\x80\x99s\nconduct. See GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW\nPERSPECTIVES ON A PUBLIC LAW PROBLEM 66 (1985); see also Lange v. Hoyt, 159 A. 575 (Conn.\n1932) (assuming for purposes of argument that a Christian Scientist mother might be found\nnegligent for failing to seek medical attention for her injured daughter). Does this distinction\nmake sense? If accommodating plaintiff-victim A\xe2\x80\x99s subjective religious beliefs effectively shifts\nthe costs of injuries caused by those beliefs to defendant-injurer B, isn\xe2\x80\x99t that essentially identical\nto allowing the subjective religious tenets of defendant-injurer A to impose harms on plaintiffvictim B? Would the case be different if both parties held the same religious beliefs?\nThe Religious Freedom Restoration Act, or RFRA, might be understood to require that\ntort law accommodate plaintiffs\xe2\x80\x99 and defendants\xe2\x80\x99 religious exercise equally. RFRA, enacted in\n1993, provides that \xe2\x80\x9c[g]overnment shall not substantially burden a person\xe2\x80\x99s exercise of religion\neven if the burden results from a rule of general applicability\xe2\x80\x9d unless the government\xe2\x80\x99s actions are\n\xe2\x80\x9cin furtherance of a compelling governmental interest and [are] the least restrictive means of\nfurthering that . . . interest.\xe2\x80\x9d Religious Freedom Restoration Act, 42 U.S.C. \xc2\xa7 2000bb-1 (2012).\nA 1993 Supreme Court case diluted the power of this law somewhat, by finding it unconstitutional\nas applied to state governments (on the grounds that such application was beyond Congress\xe2\x80\x99s\npower to enforce the rights guaranteed by the 14th Amendment). City of Boerne v. Flores, 521\n153\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nU.S. 507, 508 (1997). As of 2015, however, thirty-one states have applied RFRA-like restrictions\nto themselves, either through legislation or court rulings.\nCan common law standards of reasonableness \xe2\x80\x9csubstantially burden\xe2\x80\x9d a party\xe2\x80\x99s exercise of\nreligious freedom under the mini RFRAs? Some courts have said no. See Osborne v. Power, 890\nS.W.2d 574 (Ark. 1994) (holding that common law nuisance prohibitions against obnoxious\nChristmas lights displays do not substantially burden a homeowner\xe2\x80\x99s free exercise rights). Other\ncourts seem to have held that state religious freedom legislation may prohibit a reasonableness\ninquiry into the exercise of a party\xe2\x80\x99s religion freedom. In Connecticut, a plaintiff who fell and hit\nher head during a prayer healing session sued for negligence. The court held that a\nreasonableness inquiry would have substantially burdened the defendant\xe2\x80\x99s rights of free exercise\nand that there was no \xe2\x80\x9ccompelling State interest in permitting the court to evaluate the plaintiff\xe2\x80\x99s\nclaims in this case.\xe2\x80\x9d Kubala v. Hartford Roman Catholic Diocese, 41 A.3d 351, 365 (Conn.\nSuper. Ct. 2011). In contrast, a different Connecticut court found the state\xe2\x80\x99s RFRA did not\n\xe2\x80\x9cpreclude a plaintiff from holding a religious institution responsible for its torts in the context of\nsexual abuse of a child by a clergyman.\xe2\x80\x9d Noll v. Hartford Roman Catholic Diocesan Corp., 46\nConn. L. Rptr. 527, 532 (Conn. Super. Ct. 2008).\n\n6. Sex and Gender: The Reasonable Woman?\nThe notion of a reasonable person is a concept, not a representation of an actual\nperson. There are no actually existing reasonable people, as the law understands that term, though\nthe co-authors of this book come close. Instead, human beings (even your co-authors) come\nembodied in what often seems like an infinite variety of particularities. They are constituted by\nactual characteristics, not average features. One of those characteristics is biological sex. Should\nsex be taken into account, similarly to a child\xe2\x80\x99s age or a physical impairment, in making\nreasonableness determinations? What about gender\xe2\x80\x94that is, the roles, behaviors, and\ncharacteristics that societies ascribe to particular sexes?\nA century ago, courts often took gender into account, albeit unsystematically, in cases\nwhere women sought damages for personal injury:\n[A] range of doctrinal options existed for a court confronting an accident involving\na female driver and a claim that gender difference was relevant: women might be\nbound to take more care to compensate for their lack of skill; women might be held\nto commit contributory negligence simply by driving; women might be held to a\nstandard of care that referenced only other women drivers (in practice, then, their\nperceived lesser skill could excuse what otherwise might be contributory\nnegligence), or to a male standard of care, or to a bi-gender standard of care;\ndefendants might be required to take more care to accommodate women\xe2\x80\x99s needs as\ndrivers. There are cases weighing each of these options, but no one approach\nappears to have prevailed.\nMargo Schlanger, Injured Women Before Common Law Courts, 1860-1930, 21 HARV. WOMEN\xe2\x80\x99S\nL.J. 79 (1998). Professor Schlanger finds that \xe2\x80\x9c[t]he largest constellation of early personal injury\ncases in which gender appears, in text and subtext, arose when women passengers of trains and\nstreetcars were injured, usually boarding or disembarking.\xe2\x80\x9d The \xe2\x80\x9c[f]irst and foremost\xe2\x80\x9d problem\nfor courts was how to deal with the fact that \xe2\x80\x9cwomen\xe2\x80\x99s physical agility was impaired by long\n154\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nskirts, corsets, and, often, high heels.\xe2\x80\x9d Id.; see also Barbara Y. Welke, Unreasonable Women:\nGender and the Law of Accidental Injury, 1870-1920, 19 LAW & SOC. INQ. 369 (1994).\nTort law today generally does not make reasonableness determinations turn on the sex or\ngender of the actor, at least not explicitly. Should it? One body of caselaw where this debate has\nsurfaced is in judicial interpretations of Title VII of the Civil Rights Act of 1964 (prohibiting\nemployment discrimination on the basis of sex, among other characteristics). In the early 1990s,\nsome courts, notably the United States Court of Appeals for the Ninth Circuit, adopted a\n\xe2\x80\x9creasonable woman\xe2\x80\x9d standard for determining whether a female plaintiff had been subjected to a\nsexually harassing hostile work environment in violation of Title VII:\n[W]e believe that in evaluating the severity and pervasiveness of sexual harassment,\nwe should focus on the perspective of the victim. . . . If we only examined whether\na reasonable person would engage in allegedly harassing conduct, we would run the\nrisk of reinforcing the prevailing level of discrimination. Harassers could continue\nto harass merely because a particular discriminatory practice was common, and\nvictims of harassment would have no remedy.\nWe therefore prefer to analyze harassment from the victim\xe2\x80\x99s perspective. A\ncomplete understanding of the victim\xe2\x80\x99s view requires, among other things, an\nanalysis of the different perspectives of men and women. Conduct that many men\nconsider unobjectionable may offend many women. See, e.g., Lipsett v. University\nof Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988) (\xe2\x80\x9cA male supervisor might believe,\nfor example, that it is legitimate for him to tell a female subordinate that she has a\n\xe2\x80\x98great figure\xe2\x80\x99 or \xe2\x80\x98nice legs.\xe2\x80\x99 The female subordinate, however, may find such\ncomments offensive\xe2\x80\x9d) . . . . See also Nancy S. Ehrenreich, Pluralist Myths and\nPowerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99\nYALE L.J. 1177, 1207-08 (1990) (finding men tend to view some forms of sexual\nharassment as \xe2\x80\x9charmless social interactions to which only overly-sensitive women\nwould object\xe2\x80\x9d) . . . .\nWe realize that there is a broad range of viewpoints among women as a group, but\nwe believe that many women share common concerns which men do not necessarily\nshare.9 For example, because women are disproportionately victims of rape and\nsexual assault, women have a stronger incentive to be concerned with sexual\nbehavior. Women who are victims of mild forms of sexual harassment may\nunderstandably worry whether a harasser\xe2\x80\x99s conduct is merely a prelude to violent\nsexual assault. Men, who are rarely victims of sexual assault, may view sexual\n\nOne writer explains: \xe2\x80\x9cWhile many women hold positive attitudes about uncoerced sex, their greater physical\nand social vulnerability to sexual coercion can make women wary of sexual encounters. Moreover, American\nwomen have been raised in a society where rape and sex-related violence have reached unprecedented levels,\nand a vast pornography industry creates continuous images of sexual coercion, objectification and violence.\nFinally, women as a group tend to hold more restrictive views of both the situation and type of relationship in\nwhich sexual conduct is appropriate. Because of the inequality and coercion with which it is so frequently\nassociated in the minds of women, the appearance of sexuality in an unexpected context or a setting of\nostensible equality can be an anguishing experience.\xe2\x80\x9d Kathryn Abrams, Gender Discrimination and the\nTransformation of Workplace Norms, 42 VAND. L. REV. 1183, 1205 (1989).\n9\n\n155\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nconduct in a vacuum without a full appreciation of the social setting or the\nunderlying threat of violence that a woman may perceive.\nIn order to shield employers from having to accommodate the idiosyncratic\nconcerns of the rare hyper-sensitive employee, we hold that a female plaintiff states\na prima facie case of hostile environment sexual harassment when she alleges\nconduct which a reasonable woman11 would consider sufficiently severe or\npervasive to alter the conditions of employment and create an abusive working\nenvironment.\nWe adopt the perspective of a reasonable woman primarily because we believe that\na sex-blind reasonable person standard tends to be male-biased and tends to\nsystematically ignore the experiences of women. The reasonable woman standard\ndoes not establish a higher level of protection for women than men. Cf. Rosenfeld\nv. Southern Pacific Co., 444 F.2d 1219, 1225-1227 (9th Cir.1971) (invalidating\nunder Title VII paternalistic state labor laws restricting employment opportunities\nfor women). Instead, a gender-conscious examination of sexual harassment enables\nwomen to participate in the workplace on an equal footing with men. By\nacknowledging and not trivializing the effects of sexual harassment on reasonable\nwomen, courts can work towards ensuring that neither men nor women will have to\n\xe2\x80\x9crun a gauntlet of sexual abuse in return for the privilege of being allowed to work\nand make a living.\xe2\x80\x9d\nEllison v. Brady, 924 F.2d 872 (9th Cir. 1991) (Beezer, C.J.).\nIn 1993, however, the U.S. Supreme Court decided Harris v. Forklift Systems, Inc., 510\nU.S. 17 (1993), which adopted a \xe2\x80\x9creasonable person\xe2\x80\x9d standard rather than the \xe2\x80\x9creasonable\nwoman\xe2\x80\x9d standard of Ellison:\nThis standard, which we reaffirm today, takes a middle path between making\nactionable any conduct that is merely offensive and requiring the conduct to cause\na tangible psychological injury. As we pointed out in Meritor, \xe2\x80\x9cmere utterance of\nan . . . epithet which engenders offensive feelings in a employee,\xe2\x80\x9d . . . does not\nsufficiently affect the conditions of employment to implicate Title VII. Conduct\nthat is not severe or pervasive enough to create an objectively hostile or abusive\nwork environment\xe2\x80\x94an environment that a reasonable person would find hostile or\nabusive\xe2\x80\x94is beyond Title VII\xe2\x80\x99s purview. Likewise, if the victim does not\nsubjectively perceive the environment to be abusive, the conduct has not actually\naltered the conditions of the victim\xe2\x80\x99s employment, and there is no Title VII violation.\n510 U.S. at 21 (emphasis added).\nMany interpreted Harris as rejecting the Ninth Circuit\xe2\x80\x99s \xe2\x80\x9creasonable woman\xe2\x80\x9d standard,\nbut the matter is not quite so clear. After the Harris decision, the Ninth Circuit held that\n\n11\n\nOf course, where male employees allege that co-workers engage in conduct which creates a hostile\nenvironment, the appropriate victim\xe2\x80\x99s perspective would be that of a reasonable man.\n\n156\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n\xe2\x80\x9c[w]hether the workplace is objectively hostile must be determined from the perspective of a\nreasonable person with the same fundamental characteristics,\xe2\x80\x9d citing to its pre-Harris decision in\nEllison. See Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Is gender one of the\nFuller decision\xe2\x80\x99s \xe2\x80\x9cfundamental characteristics\xe2\x80\x9d? If so, did the Ninth Circuit smuggle gender back\nin, despite the apparent rejection of gender by the Supreme Court in Harris? More recently, the\nNinth Circuit has been explicit about its view that the sexual harassment question requires an\ninquiry into the view of the \xe2\x80\x9creasonable woman.\xe2\x80\x9d Brooks v. City of San Mateo, 229 F.3d 917, 922\n(9th Cir. 2000); see also Hamilton v. RDI/Caesars Riverboat Casino, LLC, 179 F. Supp. 2d 929\n(S.D. Ind. 2002).\nThe Second Circuit, by contrast, has rejected the inclusion of gender in the analysis of\nreasonableness. In the 1999 decision Richardson v. New York State Department of Correctional\nServices, the court adopted a \xe2\x80\x9creasonable person\xe2\x80\x9d standard for Title VII sexual harassment cases\nand explained:\n[W]e reject the view of those courts that look to the perspective of the particular\nethnic or gender group, e.g., a \xe2\x80\x9creasonable African-American\xe2\x80\x9d or a \xe2\x80\x9creasonable Jew.\xe2\x80\x9d\nWhile we recognize that there is dicta in this circuit supporting such an approach,\nwe believe that examining hostile environment claims from the perspective of a\n\xe2\x80\x9creasonable person who is the target of racially or ethnically oriented remarks\xe2\x80\x9d is\nthe proper approach. First, Title VII seeks to protect those that are the targets of\nsuch conduct, and it is their perspective, not that of bystanders or the speaker, that\nis pertinent. Second, this standard makes clear that triers of fact are not to determine\nwhether some ethnic or gender groups are more thin-skinned than others. Such an\ninquiry would at best concern largely indeterminate and fluid matters varying\naccording to location, time, and current events. It might also lead to evidence,\nargument, and deliberations regarding supposed group characteristics and to\nundesirable, even ugly, jury and courtroom scenes.\n180 F.3d 426, 436 n.3 (2d Cir. 1999), abrogated on other grounds by Burlington Northern & Santa\nFe Ry. Co. v. White, 548 U.S. 53 (2006).\nWhich federal circuit do you think has the better of the argument, the Second or the\nNinth? Does either circuit court\xe2\x80\x99s argument capture the correct perspective? As critical legal\ntheorist Kimberl\xc3\xa9 Crenshaw famously observed in her landmark 1991 article introducing the\nconcept of \xe2\x80\x9cintersectionality,\xe2\x80\x9d individuals are not just reasonable people with a gender identity;\nthey also have racial identities and class identities. Kimberl\xc3\xa9 Crenshaw, Mapping the Margins:\nIntersectionality, Identity Politics, and Violence against Women of Color, 43 STAN. L. REV. 1241\n(1991). People also have temperaments and personalities, likes and dislikes, and more. Is there\nany hope of subcategorizing the reasonable person in light of the kaleidoscope of identity-making\ncharacteristics with which people are endowed? Perhaps the law should pay attention to some\nsuch characteristics but not others? Consider Susan Cain\xe2\x80\x99s best-selling book Quiet, which argues\nthat society wrongly prefers extroverts to introverts. Is there a reason to be more concerned with\ngendered injustice than introversion injustice?\nAs you consider the merits of a \xe2\x80\x9creasonable woman\xe2\x80\x9d standard for tort law, note that\nallegedly harassing conduct in the workplace is not the only context in which group characteristics\nmay correspond with significant differences in perception. A well-known phenomenon among\nscholars of risk cognition is the so-called white male effect: researchers have found that when\n157\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nasked about the riskiness of a variety of hazards, ranging from firearms, to ozone depletion, to\ncommercial air travel, white men consistently perceived less risk than white women, nonwhite\nmen, and nonwhite women. Melissa L. Finucane, et al., Gender, Race, and Perceived Risk: The\n\xe2\x80\x98White Male\xe2\x80\x99 Effect, 2 HEALTH, RISK & SOC. 159 (2000). Law and psychology scholar Dan\nKahan and his collaborators have added nuance to this finding by considering race and gender\nalongside \xe2\x80\x9cworldviews.\xe2\x80\x9d Building from anthropologist Mary Douglas\xe2\x80\x99s typology of\nworldviews\xe2\x80\x94under which some views of the world are more hierarchical and others more\negalitarian, some more individualist and others more communitarian\xe2\x80\x94they find that \xe2\x80\x9cgender\naffects risk perception only in conjunction with particular worldviews.\xe2\x80\x9d Kahan and his co-authors\ntheorize that particular hazards (for example, gun possession) confer cultural status on\nhierarchical and individualist men; for such men to characterize these hazards as risky would be to\ninvite regulation and place their own status under threat. Dan M. Kahan, Culture and IdentityProtective Cognition: Explaining the White Male Effect on Risk Perception, 4 J. EMPIRICAL\nLEGAL STUDIES 465 (2007).\nWith all this in mind, do you think the explicit incorporation of sex or gender into the\nreasonable person standard is a reform worth pursuing? Would it reify inaccurate assumptions\nand status-based stereotypes? Or would it be a valuable recognition of the real differences in the\nway that actually existing men and women tend to experience the world? What about people who\nidentify as transgender or genderqueer? Is it even useful to think about this issue in terms of\nactually existing people of one or another sex or gender identity, or is it preferable to start with\nideal types? Is it possible to operationalize an ideal type that is un-gendered? Un-raced?\n\nB. Cost / Benefit Calculations and the Learned Hand Formula\nHow does the reasonable person behave? What kinds of precautions does the reasonable\nperson take? What level of safety does the reasonable person aim to achieve? These sorts of\nquestions have proven to be just as vexing as questions about how to deal with the idiosyncratic\nfeatures of particular litigants, perhaps even more so.\nIn this section, we will study several different efforts at articulating the obligations of\nreasonableness. One especially influential (but equally controversial) account of reasonableness\nasserts that to behave reasonably is to behave in such a way as to maximize net benefits. This is\nthe so-called cost-benefit approach to identifying negligent conduct. It asks whether the costs and\nbenefits of a given precaution make it the kind of precaution that should have been taken.\nAs we shall see, however, the cost-benefit approach is not the only approach to evaluating\nreasonableness. In the actual practice of torts judges, it is rarely invoked, though many believe\nthat it plays a large (even if tacit) role. Our first pair of cases does not seem to involve costbenefit reasoning at all.\n\n158\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n1. Negligence Basics\nStone v. Bolton, [1950] 1 K.B. 201 (C.A.)\nOn August 9, 1947, the plaintiff, Miss Bessie Stone, of 10, Beckenham Road, Cheetham,\nnear Manchester, had just stepped from her garden gateway on to the pavement of the highway\nwhen she was struck on the head by a cricket ball and suffered injury. The ball had been driven\nby a player of a visiting team over the fence or hoarding surrounding the Cheetham Cricket Club\nground, which at its northern boundary abuts on to the Beckenham Road. The said ground had\nbeen in use as a cricket club for some 80 to 90 years [considerably longer than Beckenham Road\nhad existed]. The fence or hoarding surrounding it was 12 feet high and at the northern boundary,\nowing to a rise in the ground, was 17 feet above the level of the wicket. . . . The distance from the\nsouthern wicket to the northern boundary fence was estimated to be 78 yards. The \xe2\x80\x9chit\xe2\x80\x9d in\nquestion was described by a member of the club with long experience as \xe2\x80\x9cquite the biggest seen\non that ground,\xe2\x80\x9d but evidence was adduced at the trial that on some six to ten occasions cricket\nballs had been hit over the fence into the road in the past 30 years.\nThe plaintiff sued the defendants, as representing all the members of the club, for damages\nfor personal injuries, alleging that the defendants were negligent. . . . The case came on for\nhearing before Oliver J. at Manchester Assizes on December 20, 1948, and the learned judge\ndismissed the claim. [The plaintiff appealed.]\nJENKINS L.J. . . . [L]egitimate as the playing of cricket may be, a cricket ball hit out of the\nground into a public highway is obviously capable of doing serious harm to anyone using the\nhighway who may happen to be in its course, and I see no justification for holding the defendants\nentitled to subject people in Beckenham Road to any reasonably foreseeable risk of injury in this\nway. Accordingly, I am of opinion that the defendants were under a duty to prevent balls being hit\ninto Beckenham Road so far as there was any reasonably foreseeable risk of this happening. The\ncase as regards to negligence, therefore, seems to me to resolve itself into the question whether,\nwith the wickets sited as they were, and the fence at the Beckenham Road end as it was, on\nAugust 9, 1947, the hitting into Beckenham Road of the ball which struck and injured the plaintiff\nwas the realization of a reasonably foreseeable risk, or was in the nature of an unprecedented\noccurrence which the defendants could not reasonably have foreseen.\nOn the evidence this question seems to me to admit of only one answer. Balls had been\nhit into Beckenham Road before. It is true this had happened only at rare intervals, perhaps no\nmore than six times in thirty seasons. But it was known from practical experience to be an actual\npossibility in the conditions in which matches were customarily played on the ground from about\n1910 onwards, that is to say, with the wickets sited substantially as they were, and the fence at the\nBeckenham Road end, I gather, exactly as it was as regards height and position on August 9,\n1947. What had happened several times before could, as it seems to me, reasonably be expected\nto happen again sooner or later. It was not likely to happen often, but it was certainly likely to\nhappen again in time. When or how often it would happen again no one could tell, as this would\ndepend on the strength of the batsmen playing on the ground (including visitors about whose\ncapacity the defendants might know nothing) and the efficiency or otherwise of the bowlers. In\nmy opinion, therefore, the hitting out of the ground of the ball which struck and injured the\nplaintiff was a realization of a reasonably foreseeable risk, which because it could reasonably be\nforeseen, the defendants were under a duty to prevent.\n159\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThe defendants had, in fact, done nothing since the rearrangement of the ground on the\nmaking of Beckenham Road in or about 1910, whether by heightening the fence (e.g., by means\nof a screen of wire netting on poles) or by altering the position of the pitch, to guard against the\nknown possibility of balls being hit into Beckenham Road. It follows that, if I have rightly\ndefined the extent of the defendants\xe2\x80\x99 duty in this matter, the hitting out of the ground of the ball\nwhich injured the plaintiff did involve a breach of that duty for the consequences of which the\ndefendants must be held liable to the plaintiff in damages. . . .\nThe hitting of a ball into the road was a reasonably foreseeable event, and no steps at all\nhad been taken to prevent it beyond the erection and subsequent maintenance in its original form\nof the fence put up in or about 1910, which had been shown by experience to be inadequate. We\nwere, in effect, invited to hold that in as much as the hitting of a ball into Beckenham Road was a\nrarity, and the odds were against anyone in Beckenham Road being struck on one of the rare\noccasions when this did happen, the risk of anyone being injured in this way was so remote that\nthe defendants were under no obligation to take any further precautions at all, but were entitled to\nsubject people in Beckenham Road (whether cricket enthusiasts or not) to this remote risk, so to\nspeak in the interests of the national pastime. I see no justification for placing cricketers in this\nprivileged position. . . .\nIt was also, I think, suggested that no possible precaution would have arrested the flight of\nthis particular ball, so high did it pass over the fence. This seems to me an irrelevant\nconsideration. If cricket cannot be played on a given ground without foreseeable risk of injury to\npersons outside it, then it is always possible in the last resort to stop using that ground for cricket.\nThe plaintiff in this case might, I apprehend, quite possibly have been killed. I ask myself\nwhether in that event the defendants would have claimed the right to go on as before, because\nsuch a thing was unlikely to happen again for several years, though it might happen again on any\nday on which one of the teams in the match included a strong hitter. No doubt as a practical\nmatter the defendants might decide that the double chance of a ball being hit into the road and\nfinding a human target there was so remote that rather than go to expense in the way of a wire\nscreen or the like, or worse still abandon the ground, they would run the risk of such an\noccurrence and meet any ensuing claim for damages if and when it arose. But I fail to see on what\nprinciple they can be entitled to require people in Beckenham Road to accept the risk, and, if hit\nby a ball, put up with the possibly very serious harm done to them as damnum sine injuria, unless\nable to identify, trace, and successfully sue the particular batsman who made the hit.\nFor these reasons I am of opinion that the plaintiff is entitled to succeed on her claim in\nnegligence.\n\nBolton v. Stone, [1951] A.C. 850\n[The defendant cricket club members appealed to the House of Lords.]\nLORD REID. My Lords, it was readily foreseeable that an accident such as befell the\nrespondent might possibly occur during one of the appellants\xe2\x80\x99 cricket matches. Balls had been\ndriven into the public road from time to time and it was obvious that, if a person happened to be\nwhere a ball fell, that person would receive injuries which might or might not be serious. On the\nother hand it was plain that the chance of that happening was small. The exact number of times a\n160\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nball has been driven into the road is not known, but it is not proved that this has happened more\nthan about six times in about thirty years. If I assume that it has happened on the average once in\nthree seasons I shall be doing no injustice to the respondent\xe2\x80\x99s ease. Then there has to be considered\nthe chance of a person being hit by a ball falling in the road. The road appears to be an ordinary\nside road giving access to a number of private houses, and there is no evidence to suggest that the\ntraffic on this road is other than what one might expect on such a road. On the whole of that part\nof the road where a ball could fall there would often be nobody and seldom any great number of\npeople. It follows that the chance of a person ever being struck even in a long period of years was\nvery small.\nThis case, therefore raises sharply the question what is the nature and extent of the duty of\na person who promotes on his land operations which may cause damage to persons on an\nadjoining highway. Is it that he must not carry out or permit an operation which he knows or\nought to know clearly can cause such damage, however improbable that result may be, or is it that\nhe is only bound to take into account the possibility of such damage if such damage is a likely or\nprobable consequence of what he does or permits, or if the risk of damage is such that a\nreasonable man, careful of the safety of his neighbour, would regard that risk as material? . . . .\nCounsel for the respondent in this case had to put his case so high as to say that, at least as\nsoon as one ball had been driven into the road in the ordinary course of a match, the appellants\ncould and should have realized that that might happen again and that, if it did, someone might be\ninjured; and that that was enough to put on the appellants a duty to take steps to prevent such an\noccurrence. . . .\nIt would take a good deal to make me believe that the law has departed so far from the\nstandards which guide ordinary careful people in ordinary life. In the crowded conditions of modern\nlife even the most careful person cannot avoid creating some risks and accepting others. What a\nman must not do, and what I think a careful man tries not to do, is to create a risk which is\nsubstantial. Of course there are numerous cases where special circumstances require that a higher\nstandard shall be observed and where that is recognized by the law. But I do not think that this case\ncomes within any such special category. It was argued that this case comes within the principle in\nRylands v. Fletcher, but I agree with your Lordships that there is no substance in this argument. In\nmy judgment the test to be applied here is whether the risk of damage to a person on the road was\nso small that a reasonable man in the position of the appellants, considering the matter from the\npoint of view of safety, would have thought it right to refrain from taking steps to prevent the danger.\nIn considering that matter I think that it would be right to take into account not only how\nremote is the chance that a person might be struck but also how serious the consequences are\nlikely to be if a person is struck; but I do not think that it would be right to take into account the\ndifficulty of remedial measures. If cricket cannot be played on a ground without creating a\nsubstantial risk, then it should not be played there at all. . . . [H]aving given the whole matter\nrepeated and anxious consideration I find myself unable to decide this question in favour of the\nrespondent. I would have reached a different conclusion if I had thought that the risk here had\nbeen other than extremely small, because I do not think that a reasonable man considering the\nmatter from the point of view of safety would or should disregard any risk unless it is extremely\nsmall. . . .\nLORD RADCLIFFE. My Lords, I agree that this appeal must be allowed. I agree with regret,\nbecause I have much sympathy with the decision that commended itself to the majority of the\n161\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nmembers of the Court of Appeal. I can see nothing unfair in the appellants being required to\ncompensate the respondent for the serious injury that she has received as a result of the sport that\nthey have organized on their cricket ground at Cheetham Hill. But the law of negligence is\nconcerned less with what is fair than with what is culpable, and I cannot persuade myself that the\nappellants have been guilty of any culpable act or omission in this case. . . .\n[A] breach of duty has taken place if they show the appellants guilty of a failure to take\nreasonable care to prevent the accident. One may phrase it as \xe2\x80\x9creasonable care\xe2\x80\x9d or \xe2\x80\x9cordinary care\xe2\x80\x9d\nor \xe2\x80\x9cproper care\xe2\x80\x9d\xe2\x80\x94all these phrases are to be found in decisions of authority\xe2\x80\x94but the fact remains\nthat, unless there has been something which a reasonable man would blame as falling beneath the\nstandard of conduct that he would set for himself and require of his neighbour, there has been no\nbreach of legal duty. And here, I think, the respondent\xe2\x80\x99s case breaks down. It seems to me that a\nreasonable man, taking account of the chances against an accident happening, would not have felt\nhimself called upon either to abandon the use of the ground for cricket or to increase the height of\nhis surrounding fences. He would have done what the appellants did: in other words, he would have\ndone nothing. . . .\n[The House of Lords ruled unanimously in favor of the appellant cricket club members.]\n\nNotes\n\n1. Judge Jenkins views the relevant consideration as the foreseeability of an injury. Lords\nReid and Radcliffe add an additional element, namely the gravity of the foreseeable injury. Are\nthese two factors sufficient in evaluating the reasonableness of a party\xe2\x80\x99s behavior?\n\n2. Does it matter that the homes on Beckenham Road were built after the cricket pitch was in\nplace?\n\n3. Why does the case proceed on the assumption that the relevant precaution is one that the\ncricket club might have taken, rather than one that Bessie Stone might have taken? Are there, for\nexample, helmets that could have protected her head from long hits?\n\n4. In the next case below, Judge Learned Hand adds a further consideration to the analysis of\nnegligence, one that did not appear in any of the Stone v. Bolton opinions. Hand asks not merely\nwhether an injury was foreseeable, nor what the severity of any such injury would have been, but\nalso what the costs of avoiding that injury would have been.\n\nUnited States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)\nHAND, J.\nThese appeals concern the sinking of the barge, \xe2\x80\x98Anna C,\xe2\x80\x99 on January 4, 1944, off Pier 51,\nNorth River. [The barge accident occurred when the tug Carroll (owned by the Carroll Towing\n162\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nCompany) attempted to move a barge tied up just to the north of the Anna C, which was owned by\nthe Conners Company. The maneuver dislodged the Anna C. from its pier, and through a series of\nunfortunate events, a six-barge pile-up including the Anna C slowly careened down the Hudson.\nWhen the Anna C collided with a tanker, the tanker\xe2\x80\x99s underwater propeller pierced the hull of the\nAnna C, which began to take water. The Anna C dumped its cargo\xe2\x80\x94flour owned by the United\nStates government\xe2\x80\x94and sank. The United States, as owner of the flour, sued the Carroll Towing\nCompany, which raised a defense of contributory negligence. The Conners Company employee\nwho was supposed to mind the Anna C (the so-called \xe2\x80\x9cbargee\xe2\x80\x9d) had not been on board the barge\nand indeed had been nowhere to be found when the barge broke loose of its moorings. Carroll\nTowing argued that had the bargee been on board, he would have noticed the leak and been able\nto call for help in time to save the barge and its cargo. The case thus turned on whether the\nConners Company (the Anna C\xe2\x80\x99s owner) had been contributorily negligent because of the absence\nof its bargee.]\nIt appears from the foregoing review that there is no general rule to determine when the\nabsence of a bargee or other attendant will make the owner of the barge liable for injuries to other\nvessels if she breaks away from her moorings. However, in any cases where he would be so liable\nfor injuries to others obviously he must reduce his damages proportionately, if the injury is to his\nown barge. It becomes apparent why there can be no such general rule, when we consider the\ngrounds for such a liability. Since there are occasions when every vessel will break from her\nmoorings, and since, if she does, she becomes a menace to those about her, the owner\xe2\x80\x99s duty, as in\nother similar situations, to provide against resulting injuries is a function of three variables: (1)\nThe probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the\nburden of adequate precautions. Possibly it serves to bring this notion into relief to state it in\nalgebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends\nupon whether B is less than L multiplied by P: i.e., whether B less than PL. Applied to the\nsituation at bar, the likelihood that a barge will break from her fasts and the damage she will do,\nvary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she\nis in a crowded harbor where moored barges are constantly being shifted about. On the other\nhand, the barge must not be the bargee\xe2\x80\x99s prison, even though he lives aboard; he must go ashore at\ntimes. We need not say whether, even in such crowded waters as New York Harbor a bargee\nmust be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in\n\xe2\x80\x9cThe Kathryn B. Guinan,\xe2\x80\x9d and that, if so, the situation is one where custom should control. We\nleave that question open; but we hold that it is not in all cases a sufficient answer to a bargee\xe2\x80\x99s\nabsence without excuse, during working hours, that he has properly made fast his barge to a pier,\nwhen he leaves her. In the case at bar the bargee left at five o\xe2\x80\x99clock in the afternoon of January\n3rd, and the flotilla broke away at about two o\xe2\x80\x99clock in the afternoon of the following day,\ntwenty-one hours afterwards. The bargee had been away all the time, and we hold that his\nfabricated story was affirmative evidence that he had no excuse for his absence. At the locus in\nquo\xe2\x80\x94especially during the short January days and in the full tide of war activity\xe2\x80\x94barges were\nbeing constantly \xe2\x80\x9cdrilled\xe2\x80\x9d in and out. Certainly it was not beyond reasonable expectation that,\nwith the inevitable haste and bustle, the work might not be done with adequate care. In such\ncircumstances we hold\xe2\x80\x94and it is all that we do hold\xe2\x80\x94that it was a fair requirement that the\nConners Company should have a bargee aboard (unless he had some excuse for his absence),\nduring the working hours of daylight.\n\n163\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNotes\n\n1. Learned Hand\xe2\x80\x99s formula. The so-called Hand Formula for determining negligence rounds\nout the considerations cited in the opinions from Stone v. Bolton, and it adds an additional factor:\nthe burden of adequate precautions. But the algebra doesn\xe2\x80\x99t by itself supply all the elements\nneeded to make the negligence inquiry. For example, to estimate the probability of the injury\xe2\x80\x99s\noccurrence, we need to know something about the temporality of the Hand Formula. Is it the\nprobability ex ante or ex post\xe2\x80\x94before or after the fact? The typical Learned Hand test adopts an\nex ante perspective, comparing the cost of a precaution with the risk of loss at the time the\ndecision about whether to take the precaution in question ought to have been made. Ex post, the\nprobability of injury is typically 100%, since we only have a torts question if there has been some\ninjury. (Though note that we will see an ex post version of the Hand Formula when we get to\nproducts liability in Chapter 9.)\nAnother element needed to operationalize the Hand Formula is to identify the kind of\nperson making this ex ante analysis. An expert with perfect information will often come to a\ndifferent conclusion than a layperson about the reasonableness of a particular course of conduct.\nTypically, however, the Hand Formula imposes no such obligation of perfect information.\nInstead, it asks what a reasonable person in the position of the party whose conduct is under\nevaluation would have thought about the likely costs and benefits in question; in other words, it\nasks what values the reasonable person would have inserted into the equation.\nTwo additional points round out our first pass at the Learned Hand approach. The first is\nto observe that in the common law\xe2\x80\x99s adversary system it is the party charging negligence\xe2\x80\x94often\nbut not always the plaintiff\xe2\x80\x94who sets the agenda by identifying the precaution that the defendant\nallegedly ought to have taken. Judge and jury need not comb the world for precautions that might\nhave been taken in any given situation. They need only consider precautions that the party\ncharging negligence contends ought to have been taken. The second is that the cost-benefit\ncalculations required by the Hand formula are social cost benefit calculations, not private ones.\nThe question is whether the social costs of the precaution at issue seemed at the time to a\nreasonable person in the position of the relevant party greater or less than its social benefits. We\nare interested in the costs and benefits to society of taking any given precaution, not merely the\ncosts and benefits borne or captured by the decision-maker.\nSo there we have it! Taking a deep breath we can say that the Learned Hand test is an ex\nante, reasonable person formula for evaluating by reference to precautions identified by the parties\nthe social advisability of risky conduct. Whew!\nThe test has been influential in part because, as Judge Richard Posner observed in one of\nhis early articles, it can be read to embody an economic approach to tort law:\nHand was adumbrating, perhaps unwittingly, an economic meaning of negligence.\nDiscounting (multiplying) the cost of an accident if it occurs by the probability of\noccurrence yields a measure of the economic benefit to be anticipated from\nincurring the costs necessary to prevent the accident. The cost of prevention is what\nHand meant by the burden of taking precautions against the accident. It may be the\ncost of installing safety equipment or otherwise making the activity safer. . . . If the\ncost of safety measures . . . exceeds the benefit in accident avoidance to be gained\n164\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nby incurring that cost, society would be better off, in economic terms, to forgo\naccident prevention. A rule making the enterprise liable for the accidents that occur\nin such cases cannot be justified on the ground that it will induce the enterprise to\nincrease the safety of its operations. When the cost of accidents is less than the cost\nof prevention, a rational profit-maximizing enterprise will pay tort judgments to the\naccident victims rather than incur the larger cost of avoiding liability. Furthermore,\noverall economic value or welfare would be diminished rather than increased by\nincurring a higher accident-prevention cost in order to avoid a lower accident cost.\nIf, on the other hand, the benefits in accident avoidance exceed the costs of\nprevention, society is better off if those costs are incurred and the accident averted,\nand so in this case the enterprise is made liable, in the expectation that self-interest\nwill lead it to adopt the precautions in order to avoid a greater cost in tort judgments.\n...\nPerhaps, then, the dominant function of the fault system is to generate rules of\nliability that if followed will bring about, at least approximately, the efficient\xe2\x80\x94the\ncost-justified\xe2\x80\x94level of accidents and safety.\nRichard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32-34 (1972).\nNegligence, in the Hand-Posner formulation, is a cost-benefit scheme designed to encourage\nbehavior that is rational from a cost-benefit perspective. It should induce rational decision-makers\nto take into account the costs their behavior poses to others and to take all precautions that are\nsocially worthwhile in the sense that their social benefits exceed their social costs.\n2. A cost-benefit analysis of cricket. What result if Learned Hand\xe2\x80\x99s \xe2\x80\x9cBPL formula\xe2\x80\x9d (Burden\n< Probability * Loss) had been used in Stone v. Bolton and Bolton v. Stone? Would the outcome\nof the case have changed if the Lords had explicitly adopted the Hand approach?\nImagine, for example, two scenarios in which the probability of a ball causing damage on\nBeckenham Road in any given season is 1 in 10. The expected harm from such damage is \xc2\xa3100.\n(Pounds rather than dollars, given that this is cricket after all.) Imagine further that the precaution\nidentified by plaintiff Bessie Stone is the building of a higher wall to prevent balls from flying\ninto the road. In scenario 1, the cost of such a wall is \xc2\xa315. In scenario 2, the cost of the wall is\n\xc2\xa35. Under the Learned Hand test, the defendant cricket club would not be negligent for having\nfailed to build the wall in scenario 1, because the cost of building the wall (B = \xc2\xa315) is greater\nthan the expected cost of not building the wall (10% * \xc2\xa3100 = \xc2\xa310). By contrast, the defendant\ncricket club would be negligent not to have built a wall in scenario 2, because the cost of building\nthe wall (B = \xc2\xa35) is less than the expected cost of not building the wall (10% * \xc2\xa3100 = \xc2\xa310).\nTable 1 below presents the analysis:\n\n165\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nTable 1: The Negligence Analysis\nBurden of the\nprecaution (B)\n\nScenario 1:\nExpensive\nPrecaution\nScenario 2:\nInexpensive\nPrecaution\n\nProbability of\nharm absent the\nprecaution (P)\n\nExpected\ndamages in the\nevent harm\noccurs (L)\n\n15\n\n10%\n\n100\n\nNot negligent\n\n5\n\n10%\n\n100\n\nNegligent\n\n3. The ex ante view. So far we\xe2\x80\x99ve given consideration to what we might think of as the ex\npost application of the Hand test. We have asked how someone in the position of a judge or jury\nwould operationalize it with respect to precautions not taken. But the deeper significance of the\nLearned Hand test may be its ex ante implications. Parties knowing that in the event of an injury\nthey will be held liable for having failed to take certain precautions that were cost justified should\nbegin to take those precautions. Consider the cricket club: under a negligence regime, will they\nbuild a higher wall at the beginning of the year? In scenario 2, assuming that they have a lawyer\nwho is worth her socks, they sure will. In scenario 1, on the other hand, they will not. Note that it\nis very likely that in the actual world the cricket team will get decent advice on such a question.\nThey almost certainly will have a liability insurance policy. And if they do, the liability insurer\nwill have every incentive to inspect the field and require the team (on pain of a higher liability\ninsurance premium) to raise the fence.\nWe can see this in Table 2, which is a variation on the two scenario set-up in Table 1.\nHere we include a fourth column that adds the ex ante decision that the negligence regime\nincentivizes. You can see that where the precaution costs more than it is worth, the rational actor\nwill not build. But where the precaution is less costly than the expected cost of the injuries that\nwill take place absent the precaution, the rational actor will build.\n\nTable 2: To Build or Not to Build (under a Negligence Regime)\n(B)\n(P)\n(L)\nCourt\nEx ante view:\nDetermination in\nBuild the\nevent of injury\nHigher Fence?\nScenario 1\n\n15\n\n10%\n\n100\n\nNot negligent\xe2\x80\x94D\ndoesn\xe2\x80\x99t pay\n\nNot build\n\nScenario 2\n\n5\n\n10%\n\n100\n\nNegligent\xe2\x80\x94D\npays\n\nYes build\n\n4. Strict liability in the ex ante view. At this point in the analysis something striking\nemerges. Let\xe2\x80\x99s take the same scenarios as above but compare the incentives to take precautions\nunder a Learned Hand-style negligence regime with the incentives to take precautions under a\n166\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nstrict liability approach that allocates the cost of cricket injuries on Beckenham Road to the\ncricket club regardless of whether it was at fault in not taking the precaution. Table 3 illustrates\nthe basic set-up of the analysis. Where building the higher fence costs more than the expected\ndamages to others, the cricket club will choose not to build. Where building the higher fence\ncosts less than the expected damages to others, the cricket club will choose to build. At least as\nbetween negligence and strict cricket club liability, the liability regime has no effect on the\nbehavior of the rational actor.\n\nTable 3: To Build or Not to Build (under Negligence and Strict Liability)\n(B)\n(P)\n(L)\nCourt\nDetermination in\nevent of injury\n\nNEGLIGEN\nCE\n\nSTRICT\nLIABILITY\n\nEx ante view:\nBuild the\nHigher Fence?\n\nScenario 1\n\n15\n\n10%\n\n100\n\nNot negligent\xe2\x80\x94D\ndoesn\xe2\x80\x99t pay\n\nNot build\n\nScenario 2\n\n5\n\n10%\n\n100\n\nNegligent\xe2\x80\x94D\npays\n\nYes build\n\nScenario 1\n\n15\n\n10%\n\n100\n\nD pays\n\nNot build\n\nScenario 2\n\n5\n\n10%\n\n100\n\nD pays\n\nYes build\n\nThe startling revelation here is that the two liability regimes we have been analyzing for\nunintentional injuries\xe2\x80\x94negligence and non-fault liability\xe2\x80\x94seem to induce precisely the same\nbehavior in rational actors.\n\n2. Critiques of Cost-Benefit Reasoning\nCritiques from First Principles\nPosner\xe2\x80\x99s influential articulation of the negligence test helped give rise to the economic\nanalysis of the law, which is now pervasive in the academy and influential in some areas outside\nof it. The law and economics approach has also been the subject of controversy, however. Critics\nobject that Learned Hand\xe2\x80\x99s formula imbues the tort system with a utilitarian philosophy that fails\nto square either with the law as it is or with our moral intuitions about what it should be. We can\nget a flavor of this from the so-called \xe2\x80\x9ctrolley problem,\xe2\x80\x9d which is often invoked to establish that\nutilitarian considerations of costs and benefits do not capture the nuances of our moral reasoning.\nConsider Judith Jarvis Thomson\xe2\x80\x99s widely discussed formulation:\nSuppose you are the driver of a trolley. The trolley rounds a bend, and there come\ninto view ahead five track workmen, who have been repairing the track. The track\n167\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ngoes through a bit of a valley at that point, and the sides are steep, so you must stop\nthe trolley if you are to avoid running the five men down. You step on the brakes,\nbut alas they don\xe2\x80\x99t work. Now you suddenly see a spur of track leading off to the\nright. You can turn the trolley onto it, and thus save the five men on the straight\ntrack ahead. Unfortunately, . . . there is one track workman on that spur of track.\nHe can no more get off the track in time than the five can, so you will kill him if\nyou turn the trolley onto him. Is it morally permissible for you to turn the trolley?\nEverybody to whom I have put this hypothetical case says, Yes, it is. Some people\nsay something stronger than that it is morally permissible for you to turn the trolley:\nThey say that morally speaking, you must turn it\xe2\x80\x94that morality requires you to do\nso. . . .\n[Now c]onsider a case . . . in which you are standing on a footbridge over the trolley\ntrack. You can see a trolley hurtling down the track, out of control. You turn around\nto see where the trolley is headed, and there are five workmen on the track where it\nexits from under the footbridge. What to do? Being an expert on trolleys, you know\nof one certain way to stop an out-of-control trolley: Drop a really heavy weight in\nits path. But where to find one? It just so happens that standing next to you on the\nfootbridge is a fat man, a really fat man. He is leaning over the railing, watching\nthe trolley; all you have to do is to give him a little shove, and over the railing he\nwill go, onto the track in the path of the trolley. Would it be permissible for you to\ndo this? Everybody to whom I have put this case says it would not be. But why?\nJudith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395, 1409 (1985).\nWe might put the question slightly differently. We might ask whether the estates and\nfamilies of the workman or the man in the footbridge example have causes of action against the\ndriver or passerby. Or we might ask whether the estates and families of the five killed by a failure\neither to switch the track or to push the man off the footbridge might have a cause of action\nagainst the actor who failed to take the step that would have saved the five. Either way, however,\nthe puzzle of the trolley problem, which was first introduced by the twentieth-century British\nphilosopher Philippa Foot, is that measured in terms of costs and benefits; the spur scenario and\nthe footbridge scenario seem identical. One death for five lives. And yet, as Thomson says, the\ntwo scenarios seem to most people to require quite different moral analyses. It seems to follow, at\nleast on one account, that non-utilitarian considerations are necessary to make sense of our\nevaluations of right and wrong.\nEven if the trolley problem illustrates the limits of utilitarian considerations, however,\ndoes Thomson\xe2\x80\x99s example rule out cost-benefit analysis altogether? Probably not. Observe that\nthe decision to switch the tracks in the spur scenario would be senseless absent the apparently\ngreater cost of the five deaths as compared to the one. Costs and benefits seem necessary for\nrational moral decision-making even if they are not entirely sufficient.\nThe claim of critics of cost-benefit reasoning is thus not that this form of reasoning has no\nplace in law and morality. The claim, as the late legal philosopher Ronald Dworkin put it, is that\nin some circumstances, rights \xe2\x80\x9ctrump\xe2\x80\x9d utilities. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY ix\n(1977). The trick, then, is to identify the circumstances in which rights take precedence over\nutility, and the circumstances in which utilitarian goals might indeed be sufficient.\n168\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nCritiques from Distributive Justice\nIs there a distributional impact to using cost-benefit analysis as the measure of\nreasonableness? Professor Zachary Liscow describes how cost-benefit analysis interacts with the\ncommon law of torts by focusing on the cost of injury (or the \xe2\x80\x9cL,\xe2\x80\x9d in the Learned Hand formula):\n[W]orkers are typically eligible for compensation for lost wages resulting from\ntortious behavior. Higher-income workers have higher wages and, thus, de facto\nhave a larger legal entitlement. For example, consider a dangerous driver driving\nin a rich neighborhood versus a poor neighborhood. Drivers responding to\nincentives would expect to pay more if they cause an injury in the rich neighborhood\nthan in the poor neighborhood. They may thus drive more dangerously in the poor\nneighborhood, increasing the likelihood of an accident there, thereby reducing the\nlegal entitlement of poor groups to safe traffic conditions.\nZachary Liscow, Is Efficiency Biased?, 85 U. CHI. L. REV. 1649, 1692 (2018). Does cost-benefit\nanalysis legitimize this choice, deeming \xe2\x80\x9creasonable\xe2\x80\x9d conduct that would burden poor people with\ngreater risks and ultimately more injuries?\nThis insight becomes all the more troubling when we bring the demographics of wealth\ninto view. Consider the long-standing wealth gap between black Americans and white\nAmericans. Do cost-benefit analyses lead American companies to target poor and minority\ncommunities when making ex ante judgments about where to site risky behavior? Professors\nKimberly Yuracko and Ronen Avraham argue that the idea is hardly far-fetched:\nA 2004 study, for example, found that the risk of accidents for chemical facilities\nin heavily African-American counties is twice as high as the risk in other counties,\nand a Harvard study conducted for the City of New York in 1990 documented higher\nnumbers of adverse actions caused by negligence in hospitals serving minority\ncommunities. There is also a history of legislative bodies disproportionately siting\nhazardous waste dumps in minority communities.\nKimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the\nUse of Race-Based Tables in Calculating Tort Damages, 106 CAL. L. REV. 325, 334-35 (2018).\nThe distributional critique can be bypassed if you believe, as some scholars do, that\ndistributional questions really are not the concern of private law fields like tort, because such\nfields are ill-equipped to address them. According to this view, tort ought to maximize welfare\nthrough cost-benefit reasoning and the like, and leave distributive questions to tax policy and\nsocial provision policy. How has that strategy fared in practice? Liscow contends that the\ndistributive effects of private law allocations are \xe2\x80\x9csticky\xe2\x80\x9d: tax policy doesn\xe2\x80\x99t adjust to do the\ndistributive work we might desire, even if in theory the world would be better off if it did.\nLiscow, Is Efficiency Biased?, supra, at 1662-66. Are there political institutions that would more\neffectively translate distributional effects into redistributive tax or social policy?\n\n169\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nCritiques from Administrability\nEven setting aside objections to the moral structure of utilitarianism, methodological\ndifficulties abound for cost-benefit analysis. Professors Frank Ackerman and Lisa Heinzerling\nargue that the valuations commonly used by analysts are typically \xe2\x80\x9cinaccurate and implausible,\xe2\x80\x9d\nand that analysts \xe2\x80\x9ctrivialize . . . future harms and the irreversibility of some environmental\nproblems\xe2\x80\x9d by valuing present economic gains over future economic losses (through a process\neconomists call discounting). They also suggest that adding up all of society\xe2\x80\x99s gains and losses\nmuddles opportunities for a full conversation about distributional and moral consequences,\nmaking a supposedly transparent and objective process anything but. Frank Ackerman & Lisa\nHeinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 U. PA.\nL. REV. 1553, 1563 (2002).\nOther critics observe that the informational demands of Posner\xe2\x80\x99s approach to cost-benefit\nanalysis are superhuman. In decentralized markets, well-informed market participants compound\nvast quantities of information. The market\xe2\x80\x99s capacity to crowd-source cost-benefit calculations is,\nas Nobel laureate Amartya Sen puts it, \xe2\x80\x9c[t]he spectacular merit of the informational economy of\nthe market system for private goods.\xe2\x80\x9d But judicial cost-benefit analysis can claim no such market\nadvantage. \xe2\x80\x9cWhen all the requirements of ubiquitous market-centered evaluation have been\nincorporated into the procedures of cost-benefit analysis,\xe2\x80\x9d Sen has remarked, \xe2\x80\x9cit is not so much a\ndiscipline as a daydream.\xe2\x80\x9d Amartya Sen, The Discipline of Cost-Benefit Analysis, 29 J. LEGAL\nSTUD. 931, 951 (2000). See also David M. Driesen, Is Cost-Benefit Analysis Neutral?, 77 U.\nCOLO. L. REV. 335 (2006); Ulrich Hampicke & Konrad Ott (eds.), Reflections on Discounting, 6\nINT. J. OF SUSTAINABLE DEVELOPMENT 7 (2003).\n\nA Precautionary Alternative?\nCritics further argue that there are better alternatives to cost-benefit analysis. Some\nadvocate a \xe2\x80\x9cprecautionary principle\xe2\x80\x9d for making policy decisions about risk. For example, the\nDeclaration of the 1992 United Nations Conference on Environment and Development (also\nknown as the \xe2\x80\x9cRio Declaration\xe2\x80\x9d) states that \xe2\x80\x9cwhere there are threats of serious and irreversible\ndamage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective\nmeasures to prevent environmental degradation.\xe2\x80\x9d How might a precautionary principle approach\nbe adopted in tort law? Should we all have a duty to take special precautions to avoid irreversible\ndamage to life and limb, even when not cost-justified? Or are injuries to life and limb themselves\ncosts to be brought into the balance?\nCan the precautionary principle handle decisions about risk that feature risks to human\nhealth and life on both sides of the equation? It is an important question, since most decisions\nabout risk can be said to include risks to life on both sides of the equation. Consider safety\nregulations that increase the cost of some consumer good. Safer cars will save lives. But more\nexpensive cars will cost lives, too, since they may reduce the number of cars sold, reduce wealth,\nand cost some people their jobs. Such \xe2\x80\x9clife-life\xe2\x80\x9d or \xe2\x80\x9crisk-risk\xe2\x80\x9d situations, contend the defenders\nof cost-benefit reasoning, preclude resort to any \xe2\x80\x9cprecautionary\xe2\x80\x9d approach, since there are risks on\nall sides. Even setting aside the risk-risk problem, opponents of the precautionary principle\ncontend that its advocates are simply trying to put an illicit thumb on the scale for difficult policy\nbalancing decisions. See Cass Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV.\n1003 (2003).\n170\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nKysar\xe2\x80\x99s Constructivist Critique\nProfessor Douglas Kysar has advanced a different defense of the precautionary principle.\nAccording to Kysar, the regulatory approaches we use are not just tools we manipulate to advance\nour social values. Our approaches to risk policy constitute our values, even as they implement\nthem.\nThe precautionary principle encourages . . . conscientiousness by reminding the\npolitical community, poised on the verge of a policy choice with potentially serious\nor irreversible environmental consequences, that its actions matter, that they belong\nuniquely to the community and will form a part of its narrative history and identity,\nhelping to underwrite its standing in the community of communities, which includes\nother states, other generations, and other forms of life. Like the Hippocratic adage\nfor physicians, the precautionary principle reminds the cautioned agent that life is\nprecious, that actions are irreversible, and that responsibility is unavoidable. Such\nconsiderations, in contrast, hold no clear or secure place within the logic of welfare\nmaximization, tending, as it does, to deny the political community a view from\nwithin itself and to ask the community, in essence, to regulate from nowhere.\nDouglas A. Kysar, REGULATING FROM NOWHERE, ENVIRONMENTAL LAW AND THE SEARCH FOR\nOBJECTIVITY 16 (2010). Kysar\xe2\x80\x99s point is that we construct ourselves in the policies we adopt. His\nprecautionary principle is typically raised in debates over environmental law and regulation,\nwhich usually operate on a forward-looking basis to deal with ongoing pollution problems. Does\nthe precautionary principle have a place in the tort system, which ostensibly is confronting past\nwrongs?\n\n3. In Defense of Cost-Benefit Reasoning\nDefenders of cost-benefit reasoning have responded to these critiques with their own counterarguments, beginning with a response to the so-called \xe2\x80\x9cincommensurability problem\xe2\x80\x9d:\n\nRobert H. Frank, Why is Cost-Benefit Analysis so Controversial?, 29 J. LEGAL STUD. 913, 914\n(2000)\nThe cost-benefit principle says we should install a guardrail on a dangerous stretch\nof mountain road if the dollar cost of doing so is less than the implicit dollar value\nof the injuries, deaths, and property damage thus prevented. Many critics respond\nthat placing a dollar value on human life and suffering is morally illegitimate.\nThe apparent implication is that we should install the guardrail no matter how much\nit costs or no matter how little it affects the risk of death and injury.\nGiven that we live in a world of scarcity, however, this position is difficult to defend.\nAfter all, money spent on a guardrail could be used to purchase other things we\nvalue, including things that enhance health and safety in other domains. Since we\nhave only so much to spend, why should we install a guardrail if the same money\n171\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nspent on, say, better weather forecasting would prevent even more deaths and\ninjuries?\nMore generally, critics object to the cost-benefit framework\xe2\x80\x99s use of a monetary\nmetric to place the pros and cons of an action on a common footing. They complain,\nfor example, that when a power plant pollutes the air, our gains from the cheap\npower thus obtained simply cannot be compared with the pristine view of the Grand\nCanyon we sacrifice. . . .\nThis view has troubling implications. . . . Scarcity is a simple fact of the human\ncondition. To have more of one good thing, we must settle for less of another.\nClaiming that different values are incommensurable simply hinders clear thinking\nabout difficult trade-offs.\nNotwithstanding their public pronouncements about incommensurability, even the\nfiercest critics of cost-benefit analysis cannot escape such trade-offs. For example,\nthey do not vacuum their houses several times a day, nor do they get their brakes\nchecked every morning. The reason, presumably, is not that clean air and auto\nsafety do not matter, but that they have more pressing uses of their time. Like the\nrest of us, they are forced to make the best accommodations they can between\ncompeting values.\nCass Sunstein articulates a different defense of cost-benefit reasoning, one that focuses on the\narchitecture of the decision-making process:\n\nCass Sunstein, Cognition and Cost-Benefit Analysis, 29 J. LEGAL STUD. 1059, 1060 (2000)\n[C]ost-benefit analysis is best defended as a means of overcoming predictable\nproblems in individual and social cognition. Most of these problems might be\ncollected under the general heading of selective attention. Cost-benefit analysis\nshould be understood as a method for putting \xe2\x80\x9con screen\xe2\x80\x9d important social facts that\nmight otherwise escape private and public attention. Thus understood, cost-benefit\nanalysis is a way of ensuring better priority setting and of overcoming predictable\nobstacles to desirable regulation, whatever may be our criteria for deciding the\nhardest questions about that topic. . . . [T]his method, conceived in a particular way,\nmight attract support from people with varying conceptions of the good and the right,\nincluding, for example, neoclassical economists and those who are quite skeptical\nabout some normative claims in neoclassical economics, involving those who do\nand who do not take private preferences, and willingness to pay, as the proper\nfoundation for regulatory policy.\nSunstein\xe2\x80\x99s support of cost-benefit reasoning sees the method as the best\xe2\x80\x94perhaps the\nonly\xe2\x80\x94tool to make transparent, rational decisions in regulatory agencies and courtrooms. He\nclaims that cost-benefit analysis actually helps us organize a broad range of value judgments,\nwhether or not they fit neatly into existing markets.\nSunstein has also used behavioral science research to suggest that our moral intuitions\nagainst utilitarianism, and potentially for alternatives like the precautionary principle, are\n172\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nfundamentally mistaken. Taking up Judith Jarvis Thomson\xe2\x80\x99s trolley problem, which we\nencountered above, Sunstein argues that in unusual cases our ordinary moral intuitions mislead us\nand that the two trolley scenarios are morally identical:\n\nCass Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531, 540-41 (2005)\nAs a matter of principle, there is no difference between the two cases. People\xe2\x80\x99s\ndifferent reactions are based on moral heuristics that condemn the throwing of the\nstranger but support the throwing of the switch. As a matter of principle, it is worse\nto throw a human being in the path of a trolley than to throw a switch that\n(indirectly?) leads to a death. The relevant heuristics generally point in the right\ndirection. To say the least, it is desirable for people to act on the basis of a moral\nheuristic that makes it extremely abhorrent to throw innocent people to their death.\nBut the underlying heuristics misfire in drawing a distinction between the two\ncleverly devised cases. Hence, people struggle heroically to rescue their intuitions\nand to establish that the two cases are genuinely different in principle. But they\naren\xe2\x80\x99t. In this sense, a moral heuristic . . . leads to errors. And this objection does\nnot bear only on ingeniously devised hypothetical cases. It suggests that a moral\nmistake pervades both commonsense morality and law, including constitutional\nlaw, by treating harmful omissions as morally unproblematic or categorically\ndifferent from harmful actions.\nIs there anything to be said to those who believe that their moral judgments,\ndistinguishing the trolley and footbridge problems, are entirely reflective, and\nembody no heuristic at all? Consider a suggestive experiment designed to see how\nthe human brain responds to the two problems (Greene et al. 2001). The authors do\nnot attempt to answer the moral questions in principle, but they find \xe2\x80\x9cthat there are\nsystematic variations in the engagement of emotions in moral judgment,\xe2\x80\x9d and that\nbrain areas associated with emotion are far more active in contemplating the\nfootbridge problem than in contemplating the trolley problem. An implication of\nGreene et al.\xe2\x80\x99s finding is that human brains are hard-wired to distinguish between\nbringing about a death \xe2\x80\x9cup close and personal\xe2\x80\x9d and doing so at a distance. Of\ncourse, this experiment is far from decisive; emotions and cognition are not easily\nseparable (Nussbaum 2002), and there may be good moral reasons why certain brain\nareas are activated by one problem and not by the other. Perhaps the brain is closely\nattuned to morally irrelevant differences. But consider the case of fear, where an\nidentifiable region of the brain makes helpfully immediate but not entirely reliable\njudgments (Ledoux 1996), in a way that suggests a possible physical location for\nsome of the operations of [our moral heuristics]. The same may well be true in the\ncontext of morality, politics, and law (Greene & Haidt, 2002).\n\n173\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n4. The Logic of Cost-Benefit\nCooley v. Public Service Co., 10 A.2d 673 (N.H. 1940)\nPAGE, J.\nOn November 29, 1935, the Telephone Company maintained a cable on Taylor Street,\nManchester, running north and south. This cable consisted of a lead sheath, inside which were\ncarried a large number of wires connected with the service stations of its subscribers. The cable\nwas supported by rings from a messenger wire strung on the Telephone Company poles. The\nconstruction conformed to standard practices, and the messenger wire was grounded every thousand\nfeet. The sheath of the cable also was grounded. The Telephone Company further maintained at\nthe station which the plaintiff was using when she received her injuries, two protective devices for\ngrounding foreign currents in order to prevent their entrance to the house and to the subscriber\xe2\x80\x99s\ninstrument. There is no evidence that these devices did not operate perfectly.\nAt a point about a mile distant from the plaintiff\xe2\x80\x99s house, the Public Service Company\xe2\x80\x99s\nlines, east and west along Valley Street, crossed the telephone cable at right angles and some eight\nor ten feet above it. These lines were not insulated.\nShortly after midnight, during a heavy storm, several of the Public Service wires over the\nintersection of Valley and Taylor Streets broke and fell to the ground. One of them came into\ncontact with the telephone messenger. This particular wire of the defendant carried a voltage of\nabout 2300. Consequently an arc was created, which burned through the messenger and nearly half\nthrough the cable before the current was shut off. . . .\nWhen the contact of the wires occurred, the plaintiff was standing at the telephone, engaged\nin a long-distance conversation. The contact created a violent agitation in the diaphragm of the\nreceiver and a loud explosive noise. The plaintiff fell to the floor. She has since suffered from what\nher physicians describe as traumatic neurosis, accompanied by loss of sensation on the left side.\nApparently there is no claim that the negligence of the defendant caused the wires to fall.\nThe plaintiff\xe2\x80\x99s sole claim is that the defendant could have anticipated (1) that its wire might fall for\na variety of reasons, which is true; (2) that a telephone subscriber in such case might hear a great\nnoise, which also is true; (3) that as a result of fright thereby induced the user of the telephone would\nsuffer physical injuries, which, as we have seen, is a rare contingency, though it may be anticipated.\nIt is urged that the defendant\xe2\x80\x99s consequent duty was to maintain such devices at cross-overs as\nwould prevent one of its falling wires from coming into contact with a telephone wire.\nThe devices suggested are two. The first is a wire-mesh basket suspended from the poles\nof the defendant at the point of cross-over, above the cable and below the defendant\xe2\x80\x99s wires. Two\nforms were suggested. One would be about six by eight feet. The other would be of an unassigned\nwidth and would stretch the full distance between defendant\xe2\x80\x99s poles. In either case the basket would\nbe insulated. The theory is that falling wires, though alive, would remain harmless in the basket. .\n..\nThere was evidence that baskets and similar devices were used by the Telephone Company,\nsome years ago, for the protection of their wires at cross-overs. But the verdict establishes its lack\n174\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nof duty thus to protect its customers in this particular instance. There was no evidence that electric\nlight companies ever erected baskets or insulated wires in such situations, and there was positive\nevidence that standard construction practices do not require either. The plaintiff cannot claim that\nthe defendant maintained a system less carefully devised than one conforming to accepted practice.\nIt is conceded, however, that due care might require some device better than the usual one. If the\nplaintiff and persons in her situation could be isolated, and duties to others ignored, due care might\nrequire the use of such devices as are here urged.\nBut the same reasoning that would establish a duty to do so raises another duty to the people\nin the street, not to lessen the protective effect of their circuit-breaking device. . . .\nIn the case before us, there was danger of electrocution in the street. As long as the\nTelephone Company\xe2\x80\x99s safety devices are properly installed and maintained, there is no danger of\nelectrocution in the house. The only foreseeable danger to the telephone subscriber is from noisefright and neurosis. Balancing the two, the danger to those such as the plaintiff is remote, that to\nthose on the ground near the broken wires is obvious and immediate. The balance would not be\nimproved by taking a chance to avoid traumatic neurosis of the plaintiff at the expense of greater\nrisk to the lives of others. To the extent that the duty to use care depends upon relationship, the\ndefendant\xe2\x80\x99s duty of care towards the plaintiff is obviously weaker than that towards the man in the\nstreet.\nThe defendant\xe2\x80\x99s duty cannot, in the circumstances, be to both. If that were so, performance\nof one duty would mean nonperformance of the other. If it be negligent to save the life of the\nhighway traveler at the expense of bodily injury resulting from the fright and neurosis of a telephone\nsubscriber, it must be equally negligent to avoid the fright at the risk of another\xe2\x80\x99s life. The law\ncould tolerate no such theory of \xe2\x80\x9cbe liable if you do and liable if you don\xe2\x80\x99t\xe2\x80\x9d. The law does not\ncontemplate a shifting duty that requires care towards A and then discovers a duty to avoid injury\nincidentally suffered by B because there was due care with respect to A. Such a shifting is entirely\ninconsistent with the fundamental conception that the duty of due care requires precisely the\nmeasure of care that is reasonable under all the circumstances. 2 Restatement Torts, \xc2\xa7\xc2\xa7 291-295. .\n..\nIf the duty to the man in the street be forgotten for the moment, the duty to the plaintiff\nwould depend upon anticipation of bodily injuries because of fright at a noise. Of a defendant in\nsuch case it is to be remarked that \xe2\x80\x9cthe likelihood that his conduct will cause bodily harm involves\ntwo uncertain factors, the chance that his act will cause the [emotional] disturbance and the chance\nthat the disturbance if it occurs will result in bodily harm.\xe2\x80\x9d 2 Restatement, Torts, \xc2\xa7 306, comment\nc. The chance of physical contact with a live wire in the street, with consequent electrocution, is\nmuch less remote and complicated than that. It is clearly more foreseeable and is the controlling\none of all the circumstances for present purposes. In this particular case, it could not be found that\nit would be reasonable to neglect the protection of those more obviously at risk than the plaintiff.\nIt is not doubted that due care might require the defendant to adopt some device that would\nafford protection against emotional disturbances in telephone-users without depriving the traveling\npublic of reasonable protection from live wires immediately dangerous to life. Such a device, if it\nexists, is not disclosed by the record. The burden was upon the plaintiff to show its practicability.\nSince the burden was not sustained, a verdict should have been directed for the defendant.\nOther exceptions therefore require no consideration.\n175\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nJudgment for the defendant. All concurred.\n\nNotes\n\n1. A social endeavor. The plaintiff in Cooley tried to prove negligence by focusing on the\ncosts and benefits of the defendant\xe2\x80\x99s actions in relation to her. Judge Page rejected this argument,\ndemonstrating the courts\xe2\x80\x99 use of cost-benefit analysis as a social\xe2\x80\x94rather than private\xe2\x80\x94\ncalculation; he analyzes the reasonableness of the defendant\xe2\x80\x99s safety technology as applied to all\nforeseeable plaintiffs. Does this make sense? How well do you think a social cost-benefit\nanalysis fits into the plaintiff-driven, two-party nature of the tort system?\n\n2. Activities and activity levels\xe2\x80\x94and the strict liability alternative. The plaintiff in Cooley\noffers an alternative technology to make operating phone lines safer. But what if the act of\noperating phone lines with due care is not enough? What if engaging in the activity itself is\nnegligent? Can the tort system deter activities that are unsafe because of the levels of the activity\nthat people engage in? Steven Shavell criticizes the negligence regime for failing to adequately\naddress the problem of over-participation in unsafe activities:\nBy definition, under the negligence rule all that an injurer needs to do to avoid the\npossibility of liability is to make sure to exercise due care if he engages in his\nactivity. Consequently he will not be motivated to consider the effect on accident\nlosses of his choice of whether to engage in his activity or, more generally, of the\nlevel at which to engage in his activity; he will choose his level of activity in\naccordance only with the personal benefits so derived. But surely any increase in\nhis level of activity will typically raise expected accident losses (holding constant\nthe level of care). Thus he will be led to choose too high a level of activity; the\nnegligence rule is not \xe2\x80\x9cefficient.\xe2\x80\x9d . . .\nHowever, under a rule of strict liability, the situation is different. Because an injurer\nmust pay for losses whenever he is involved in an accident, he will be induced to\nconsider the effect on accident losses of both his level of care and his level of\nactivity. His decisions will therefore be efficient. Because drivers will be liable for\nlosses sustained by pedestrians, they will decide not only to exercise due care in\ndriving but also to drive only when the utility gained from it outweighs expected\nliability payments to pedestrians.\nSteven Shavell, Strict Liability versus Negligence, 9 J. LEGAL STUD. 1, 2-3 (1980).\nIs there a way to incorporate unsafe levels of activity into a cost-benefit analysis of due\ncare? Calabresi offers another alternative to the negligence regime to address this problem in his\nclassic \xe2\x80\x9cThe Decision for Accidents\xe2\x80\x9d:\nThere are acts or activities that we would bar in our society regardless of the\nwillingness of the doer to pay for the harm they cause. It is these that we call\n\xe2\x80\x9cuseless\xe2\x80\x9d and feel that there is no societal loss in deterring them specifically. But\ncertainly even if some such activities can be isolated, there are a great many other\n176\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nactivities whose undesirability consists only in the fact that they result in accidents\nand then only to the extent that people would, if they knew the costs of these\naccidents, prefer to abstain from the activity rather than pay those costs. . . .\nThe question then is, Can we not deter these acts or activities more effectively than\nthrough a system of fault liability which, together with insurance, merely raises\nsomewhat the cost to those who as an actuarial class tend to do these acts or\nactivities? I suggest, and it is not a particularly original suggestion, that a system\nof noninsurable tort fines assessed on the individual doer of the \xe2\x80\x9cuseless\xe2\x80\x9d act,\ntogether with general nonfault liability, would do a far better job of deterring\nvalueless activities of this type.\nThis leaves those acts or activities that, as a society, we are unprepared to call\nvalueless\xe2\x80\x94those activities that, subject to some subsequent political\nreconsideration and modification, we want to permit to the extent that they can pay\nfor their accident costs. I would suggest, though it is not crucial to my analysis, that\nthese comprise the bulk of the decisions as to accidents. Despite Learned Hand\xe2\x80\x99s\nformulation that negligence is a balancing of the \xe2\x80\x9cdanger of an activity\xe2\x80\x9d against\nwhat must usefully be given up to avoid that danger, it is altogether too clear that a\nsystem of fault liability is designed to deal only with \xe2\x80\x9cuseless\xe2\x80\x9d conduct and not with\nthe more subtle interests involved in measuring the value and danger of an activity.\nIf using a threshold of terrazzo is not deemed careless, then a system based on\nfault\xe2\x80\x94as an all-or-nothing proposition\xe2\x80\x94will have no effect whatever on this\nactivity. The best way we can establish the extent to which we want to allow such\nactivities is by a market decision based on the relative price of each of these\nactivities and of their substitutes when each bears the costs of the accidents it causes.\nThis can be done by a system of nonfault enterprise liability, a system that assesses\nthe costs of accidents to activities according to their involvement in accidents. By\ncontrast, our fault system, with insurance, assesses the cost of an activity not\naccording to the number of accidents it causes but according to the number of\naccidents it causes in which certain predetermined indicia of fault can be attributed\nto it. This results in a deterrence of only faultily caused accidents in an area where\nby hypothesis we are interested in deterring activities not because of some moral\nimplications but because of the accidents they cause.\nGuido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78\nHARV. L. REV. 713, 718-20 (1965).\nElsewhere, Calabresi makes the point that the nonfault or strict liability standard for\naccidents would accomplish the same economic goals as Learned Hand\xe2\x80\x99s negligence test:\nIf we make the assumptions under which the Learned Hand test would work\nadequately, the fascinating thing is that as good a result in terms of reducing primary\naccident costs could be achieved by a liability rule which is the exact reverse of the\nLearned Hand test. Under such a \xe2\x80\x9creverse Learned Hand test,\xe2\x80\x9d the costs of an\naccident would be borne by the injurer unless accident avoidance on the part of the\nvictim would have cost less than the accident. If a reverse contributory negligence\ntest were added, the victim would bear the accident costs only if the injurer could\nnot also have avoided the accident at less cost than the accident entailed. . . .\n177\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nGuido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J.\n1055, 1058-59 (1972).\nThe two approaches\xe2\x80\x94a cost-benefit fault theory and a nonfault theory of strict liability\xe2\x80\x94\nare not completely identical. \xe2\x80\x9cUnder the Learned Hand test,\xe2\x80\x9d write Calabresi and Hirschoff, \xe2\x80\x9cthe\ncosts of all accidents not worth avoiding are borne by victims, whereas under the reverse Learned\nHand test they would be borne by injurers.\xe2\x80\x9d Id. at 1059. Moreover, the choice between fault and\nnonfault liability standards alters the institutional location of the necessary cost-benefit analysis:\nWhen a case comes to judgment under either of the two Learned Hand type tests, a\ncost-benefit analysis is made by an outside governmental institution (a judge or a\njury) as to the relative costs of the accident and of accident avoidance. . . . The strict\nliability test we suggest does not require that a governmental institution make such\na cost-benefit analysis. It requires of such an institution only a decision as to which\nof the parties to the accident is in the best position to make the cost-benefit analysis\nbetween accident costs and accident avoidance costs and to act on that decision once\nit is made.\nId. at 1060. Nonfault approaches may not eliminate cost-benefit analysis. In fact, by requiring\nthat private actors bear the social costs of their decisions, they create institutional incentives for\nthose actors to engage in preemptive cost-benefit analysis. Of course, it may matter a great deal\nthat the actors charged with engaging in the cost-benefit calculus are private actors rather than\npublic actors. For one thing, the allocation of the decision-making responsibility to the private\nsphere means fewer decisions by the state. Is nonfault liability thus less interventionist\xe2\x80\x94and\nmore favorable toward the private sector\xe2\x80\x94than a liability standard that requires a state\ndetermination of fault?\n\n3. Cost-benefit in practice (I): Does tort law really deter? For much of the middle of the\ntwentieth century, leading scholars doubted that the prospect of tort liability dramatically affected\naccident rates. Mid-twentieth-century Yale torts jurist Professor Fleming James, for example,\nbelieved (as he argued in one especially distinctive article) that people are simply accident-prone\nor not, as the case may be. Incentives, he insisted, were neither here nor there. See Fleming\nJames, Jr. & John Dickinson, Accident Proneness and Accident Law, 63 HARV. L. REV. 769\n(1950). A generation of scholars followed James\xe2\x80\x99s basic idea.\nToday, the literature is considerably less skeptical, though some of the most heroic ideas\nof tort damages as a perfect deterrence device remain far-fetched. Some of the best evidence we\nhave is in the much-studied field of medical malpractice. One recent study examined changes in\nstate common law making the liability standard hinge on compliance with a national physician\xe2\x80\x99s\ncustom rather than a state-level physician\xe2\x80\x99s custom; the author concluded that such state law\nchanges changed physician practice, making them more uniform across regions and bringing them\ninto line with the national standard. Michael Frakes, The Impact of Medical Liability Standards\non Regional Variations in Physician Behavior: Evidence from the Adoption of National-Standard\nRules, 103 AM. ECON. REV. 257 (2013). The same author finds that reform laws reducing tort\ndamages decrease the number of episiotomies during vaginal deliveries without altering outcomes\nas shown by newborns\xe2\x80\x99 Apgar test scores. Michael Frakes, Defensive Medicine and Obstetric\nPractices, 9 J. EMPIRICAL LEGAL. STUD. 457 (2012).\n178\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nEvidence from other areas has been modest and mixed, but still indicates some deterrent\neffect. For example, a leading study by Alma Cohen and Rajeev Dehejia found that transitions to\nno-fault auto liability (and away from tort) led to a 6% increase in traffic-related deaths in the\nUnited States. Alma Cohen & Rajeev Dehejia, The Effect of Automobile Insurance and Accident\nLiability Laws on Traffic Fatalities, 47 J. L. & ECON. 357 (2004). Other studies in the same area\nhave been more equivocal, but the methodological obstacles are considerable.\n\n4. Cost-benefit in practice (II): The problem of insurance. Assuming that tort law does\ndeter, at least sometimes, what happens when potential plaintiffs and defendants are insured?\nHow does liability insurance affect the viability of using negligence to deter unwanted and\nuneconomic acts? Economists and legal scholars call the problem that insurance raises for the\nbehavior of insured actors \xe2\x80\x9cmoral hazard.\xe2\x80\x9d If people are insured, the theory goes, they have less\nincentive to take reasonable precautions to avoid accidents, and our negligence deterrence system\nwill fail. Recall, for example, the defendant in Vaughn v. Menlove from Chapter 4, who chose to\nrisk a fire because he had purchased property insurance.\nFleming James, who was skeptical of the significance of rational incentives, concluded\nthat there was no evidence available to prove that increasing rates of insurance led to increased\ncarelessness. Fleming James, Jr., Accident Liability Reconsidered: The Impact of Liability\nInsurance, 57 YALE L.J. 549 (1948). But today many scholars, especially those of an economic\norientation, are more likely to credit the significance of moral hazard, at least in some forms. And\nthe empirical evidence suggests that there is some reason to think that the moral hazard effect is at\nwork in modern liability insurance markets. Cohen and Dehejia, for example, found that\ncompulsory auto insurance regimes produced an increase in fatalities; for each percentage point\ndecrease in uninsured motorists in a state (i.e., for an increase in drivers covered by insurance),\nthey found a one percent increase in traffic fatalities. Cohen & Dehejia, The Effect of Automobile\nInsurance, supra.\nBut the connection between insurance and accident rates is not a simple one. Insurance\ncompanies know all about moral hazard, of course. They would go bankrupt very quickly if they\ndid not take it into account in pricing and shaping their policies. Much of the structure of the\ntypical liability insurance business is designed to counteract the incentives that the fact of\ninsurance will create for their customers. Insurers try to screen out bad risks at the front-end of\nthe process. And once they enter into insurance contracts, they design those contracts to\nencourage safe behavior; as Professor Tom Baker puts it, insurers seek to create insurance\ncontracts that do \xe2\x80\x9cnot encourage the wicked to apply or tempt good people to do wrong.\xe2\x80\x9d Tom\nBaker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237, 241 (1996).\nOne way insurers encourage safety is by developing and disseminating new safety\nstrategies and mechanisms. Insurance companies have powerful incentives\xe2\x80\x94and an ideal\ninstitutional position\xe2\x80\x94to aggregate information about risks, to analyze it, and to share it with their\npolicy holders. In one of the most famous examples, firms offering insurance against the\ncatastrophic effects of early steam boilers were almost single-handedly responsible for\ndramatically reducing the risks of boiler design and maintenance. See John Fabian Witt, Speedy\nFred Taylor and the Ironies of Enterprise Liability, 103 COLUM. L. REV. 1 (2003).\n\n179\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nLiability insurers also typically adopt \xe2\x80\x9cexperience rating\xe2\x80\x9d for their insurance premiums.\nInsured policy holders whose conduct generates covered accidents often find that their premiums\ngo up. In insurance areas like automobile insurance, insurers also use information such as traffic\ninfractions to gauge an insured driver\xe2\x80\x99s likelihood of being in an accident. Experience rating can\nthus generate incentives of its own for insured actors to take account of the risk of harm to\nothers\xe2\x80\x94incentives that are one degree removed from tort law, but which some observers think\nmay be even more powerful deterrents than the prospect of paying tort damages. The close and\ncertain connections between accidents and traffic infractions, on the one hand, and increased\nautomobile insurance rates, on the other, may make the insurance policy incentives for safety\nmuch more salient than the highly attenuated and uncertain connection between unsafe driving\nand the prospect of tort liability. See, e.g., John G. Fleming, The Role of Negligence in Modern\nTort Law, 53 VA. L. REV. 815, 825 (1967).\n\n5. Cost-benefit in practice (III): Juries and jury instructions. Finally, we are left with the\nrealist\xe2\x80\x99s question: does cost-benefit analysis actually influence juries\xe2\x80\x99 decisions? Law professors\nPatrick Kelley and Laurel Wendt reviewed the recommended jury instructions in forty-eight states\nto see how courts instruct juries on the negligence standard. They laid out five possible\ninterpretations of negligence: (1) whether the defendant\xe2\x80\x99s conduct was morally wrong according\nto prevailing community norms; (2) whether individuals in the jury, upon placing themselves in\nthe defendant\xe2\x80\x99s shoes along with prudence and carefulness, would have acted as the defendant\nactually did; (3) whether the defendant breached a safety convention commonly understood in the\ncommunity to protect the kinds of people like the plaintiff; (4) whether an ordinary, reasonable\nperson would have foreseen danger to others under known circumstances, as described by\nHolmes; and, finally, (5) whether the defendant\xe2\x80\x99s actions accorded with an ex ante cost-benefit\nanalysis, as described by Hand in Carroll Towing.\nThey found that the first three interpretations had varying support by states\xe2\x80\x99 jury\ninstructions. However, they found judges rarely instructed juries using the fourth or fifth\ninterpretations of the negligence standard.\n[T]here seems to be no support in the pattern negligence instructions for Holmes\xe2\x80\x99s\ntheory of the negligence standard. Foreseeability is not mentioned in most of the\nnegligence instructions, and [in the five states] where it is, the foreseeability of\ndanger from the defendant\xe2\x80\x99s conduct simpliciter is not presented as the negligence\nstandard . . . .\nSecond, the cost-benefit test of negligence does not seem to be the probable meaning\nof even those five pattern negligence instructions couched in terms of unreasonable\nforeseeable risk. . . . None of the foreseeability instructions except that of\nLouisiana\xe2\x80\x99s provision set out the detailed cost-benefit explanation of unreasonable\nforeseeable risk. . . . Each instruction identifies foreseeability as the foresight of an\nordinary prudent person, and all but Wisconsin\xe2\x80\x99s instructions ask the jury to\ndetermine, in addition to foreseeable harm from the defendant\xe2\x80\x99s act, whether that\nconduct could reasonably be avoided, or whether the act is one that a reasonably\nprudent person, in the exercise of ordinary care, would not do. . . . It seems to us\nthat a jury would interpret that standard not as an invitation to engage in cost-benefit\nanalysis, but as an invitation to determine how reasonably careful people in their\ncommunity would in fact act in light of all the circumstances, including the\n180\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nforeseeable risk of harm to others from the proposed conduct.\nPatrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of\nPattern Jury Instructions, 77 CHI.-KENT L. REV. 587, 619-20 (2002).\nKelley and Wendt believe their findings indicate that cost-benefit analysis plays only a\nsmall role, if any, in both jury instructions or actual jury deliberations about negligence; instead,\nthey contend, the law asks jurors to determine whether a defendant\xe2\x80\x99s actions falls outside the\nbounds of a reasonably careful or prudent person. Are they right in thinking that the state jury\ninstructions they found rule out the cost-benefit approach? Wouldn\xe2\x80\x99t a reasonably prudent person\nengage in a cost-benefit analysis before acting? Do reasonably prudent people do some kind of\ncost-benefit analysis, even if by the seat of their pants? Should they? Is there any alternative?\nOne possible alternative to the cost-benefit approach to reasonable care arises in those\nsettings where, in some jurisdictions, certain actors are said to be held to a standard of care higher\nthan reasonable care. Consider the next case, Andrews v. United Airlines.\n\nAndrews v. United Airlines, 24 F.3d 39 (9th Cir. 1994)\nKOZINSKI, J.\nWe are called upon to determine whether United Airlines took adequate measures to deal\nwith that elementary notion of physics\xe2\x80\x94what goes up, must come down. For, while the skies are\nfriendly enough, the ground can be a mighty dangerous place when heavy objects tumble from\noverhead compartments.\nI\nDuring the mad scramble that usually follows hard upon an airplane\xe2\x80\x99s arrival at the gate, a\nbriefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews.\nNo one knows who opened the compartment or what caused the briefcase to fall, and Andrews\ndoesn\xe2\x80\x99t claim that airline personnel were involved in stowing the object or opening the bin. Her\nclaim, rather, is that the injury was foreseeable and the airline didn\xe2\x80\x99t prevent it.\nThe district court dismissed the suit on summary judgment, and we review de novo. . . .\nII\nThe parties agree that United Airlines is a common carrier and as such \xe2\x80\x9cowe[s] both a\nduty of utmost care and the vigilance of a very cautious person towards [its] passengers.\xe2\x80\x9d Acosta\nv. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, (1970). Though United is \xe2\x80\x9cresponsible for any,\neven the slightest, negligence and [is] required to do all that human care, vigilance, and foresight\nreasonably can do under all the circumstances,\xe2\x80\x9d it is not an insurer of its passengers\xe2\x80\x99 safety.\n\xe2\x80\x9c[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be\nexercised consistent with the character and mode of conveyance adopted and the practical\noperation of [its] business. . . .\xe2\x80\x9d\nTo show that United did not satisfy its duty of care toward its passengers, Ms. Andrews\n181\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\npresented the testimony of two witnesses. The first was Janice Northcott, United\xe2\x80\x99s Manager of\nInflight Safety, who disclosed that in 1987 the airline had received 135 reports of items falling\nfrom overhead bins. As a result of these incidents, Ms. Northcott testified, United decided to add\na warning to its arrival announcements, to wit, that items stored overhead might have shifted\nduring flight and passengers should use caution in opening the bins. This announcement later\nbecame the industry standard.\nMs. Andrews\xe2\x80\x99s second witness was safety and human factors expert Dr. David Thompson,\nwho testified that United\xe2\x80\x99s announcement was ineffective because passengers opening overhead\nbins couldn\xe2\x80\x99t see objects poised to fall until the bins were opened, by which time it was too late.\nDr. Thompson also testified that United could have taken additional steps to prevent the hazard,\nsuch as retrofitting its overhead bins with baggage nets, as some airlines had already done, or by\nrequiring passengers to store only lightweight items overhead.\nUnited argues that Andrews presented too little proof to satisfy her burden. . . . One\nhundred thirty-five reported incidents, United points out, are trivial when spread over the millions\nof passengers travelling on its 175,000 flights every year. Even that number overstates the\nproblem, according to United, because it includes events where passengers merely observed items\nfalling from overhead bins but no one was struck or injured. Indeed, United sees the low\nincidence of injuries as incontrovertible proof that the safety measures suggested by plaintiff\xe2\x80\x99s\nexpert would not merit the additional cost and inconvenience to airline passengers.\nIII\nIt is a close question, but we conclude that plaintiff has made a sufficient case to\novercome summary judgment. United is hard-pressed to dispute that its passengers are subject to\na hazard from objects falling out of overhead bins, considering the warning its flight crews give\nhundreds of times each day. The case then turns on whether the hazard is serious enough to\nwarrant more than a warning. Given the heightened duty of a common carrier, even a small risk\nof serious injury to passengers may form the basis of liability if that risk could be eliminated\n\xe2\x80\x9cconsistent with the character and mode of [airline travel] and the practical operation of [that]\nbusiness. . . .\xe2\x80\x9d United has demonstrated neither that retrofitting overhead bins with netting (or\nother means) would be prohibitively expensive, nor that such steps would grossly interfere with\nthe convenience of its passengers. Thus, a jury could find United has failed to do \xe2\x80\x9call that human\ncare, vigilance, and foresight reasonably can do under all the circumstances.\xe2\x80\x9d\nThe reality, with which airline passengers are only too familiar, is that airline travel has\nchanged significantly in recent years. As harried travelers try to avoid the agonizing ritual of\nchecked baggage, they hand-carry more and larger items-computers, musical instruments, an\noccasional deceased relative. The airlines have coped with this trend, but perhaps not well enough.\nGiven its awareness of the hazard, United may not have done everything technology permits and\nprudence dictates to eliminate it.\nJurors, many of whom will have been airline passengers, will be well equipped to decide\nwhether United had a duty to do more than warn passengers about the possibility of falling\nbaggage. A reasonable jury might conclude United should have done more; it might also find that\nUnited did enough. Either decision would be rational on the record presented to the district court,\nwhich, of course, means summary judgment was not appropriate.\n182\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNote\n\n1. Common carriers. How is the negligence standard applied to United Airlines different\nfrom that applied to an ordinary negligence defendant? Common carriers, traditionally including\ninnkeepers, landowners, and railroad operators, have been historically held to a higher standard of\ncare. Judge Kozinski\xe2\x80\x99s opinion seems to follow this tradition. Is a standard that holds a common\ncarrier liable for even the slightest negligence actually different from a reasonable care standard?\nWould it be rational to do \xe2\x80\x9call that human care\xe2\x80\x9d can do in order to prevent injuries from\naccidents? Will tort law damages induce a common carrier to take such steps? Does cost-benefit\nanalysis still have a role to play for common carriers?\n\n5. Claim Resolution in the Real World\nSo far in our consideration of the negligence standard and cost-benefit calculations we\nhave proceeded as if parties in the real world engage pervasively in the kind of case-by-case costbenefit thinking that the Learned Hand test and its variations contemplate. But of course, in the\nreal world, the decision to adopt such a strategy is itself subject to a cost-benefit analysis. In\nmany of the most common tort situations, case-by-case evaluations have fallen away in favor of\nwhat are essentially mass settlement systems.\n\nRules of Thumb in Auto Collision Cases\nHow do we define negligence in car accident cases? In a sociological study of how car\ninsurance companies\xe2\x80\x99 claims adjusters determine settlement amounts, H. Laurence Ross (1980)\nfound that insurance adjusters used easy rules of thumb\xe2\x80\x94like whether a traffic rule was\nviolated\xe2\x80\x94to determine liability in an accident, \xe2\x80\x9cregardless of intention, knowledge, necessity, and\nother such qualifications that might receive sympathetic attention even from a traffic court judge.\xe2\x80\x9d\nIn rear-end collisions, adjusters routinely did little investigation, giving a strong presumption of\nliability to the rear driver. When a claimant had the formal right of way in the case of a stop sign\nor green light, there was usually little follow-up investigation before paying the claimant. He\nfound similar rules of thumb for most other forms of auto accidents, including head-on collisions,\nsideswipes, left-turns, and one-car cases. Instead of engaging in the complexities of the\nreasonably prudent person standard, or any other aspect of the negligence standard, car insurance\nadjusters rely on these rules of thumb to determine the vast majority of auto accident settlement\namounts. H. LAURENCE ROSS, SETTLED OUT OF COURT 98-104 (1980).\nWhat does this mean for our understanding of the tort system as a provider of\nindividualized justice? Does every plaintiff get her day in court? John Witt and Samuel\nIssacharoff examined how privatized information aggregation takes place in \xe2\x80\x9cmature torts\xe2\x80\x9d\xe2\x80\x94torts\nwith common fact patterns like the car accidents Ross studied in Settled Out of Court. They argue\nthat the existence of repeat-play lawyers and claims agents on both the plaintiffs\xe2\x80\x99 and the\ndefendants\xe2\x80\x99 side \xe2\x80\x9cpermits private settlement systems to emerge based on the information the\nagents possess about the value of claims in the retail litigation market of adjudication.\xe2\x80\x9d Over\ntime, they claim, these private settlement systems depart substantially from the explicit negligence\ncalculus of the Learned Hand test. In the aggregate, the standardized negotiations of the repeat183\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nplay claims agents and defense lawyers can look less like tort law in the courts than like the public\nbureaucratic systems that administer accident claims in programs like workers\xe2\x80\x99 compensation.\nSuch private claims settlement systems emerged by the 1950s and 1960s:\nThe development and increased coordination of repeat-play claimants\xe2\x80\x99 agents, of\ncourse, promoted considerable anguish among certain sectors of the defense bar.\nYet as some defense-side agents noted, the presence of bargaining agents who knew\nthe short-cuts, the heuristics, and the rules-of-thumb often made the settlement\nprocess considerably more efficient. In Chicago, for example, insurers found that\nfor precisely these reasons, the repeat-play plaintiffs\xe2\x80\x99-lawyer specialist was \xe2\x80\x9can\neasier man to deal with than a general practitioner.\xe2\x80\x9d Insurers dealing with such\nlawyers reported that they were regularly able to strike \xe2\x80\x9cpackage-deals\xe2\x80\x9d in which\nthey disposed of \xe2\x80\x9ca great many cases at one time.\xe2\x80\x9d Indeed, together the plaintiffs\xe2\x80\x99\nbargaining agent and the liability insurer\xe2\x80\x99s claims adjuster were, as the vicepresident of one early casualty insurance organization put it, the \xe2\x80\x9clubricant\xe2\x80\x9d that\nmade the law of torts \xe2\x80\x9crun with as little friction as possible. . . .\xe2\x80\x9d [B]y the mid1960s, automobile accident tort claims were being settled with much greater speed\nthan other personal injury tort claims.\nJohn Fabian Witt & Samuel Issacharoff, The Inevitability of Aggregated Settlement: An\nInstitutional Account of American Tort Law, 57 VAND. L. REV. 1571, 1614 (2004).\nOne example of such repeat-play plaintiffs\xe2\x80\x99-side claims agents are the so-called\n\xe2\x80\x9csettlement mills\xe2\x80\x9d: high-volume personal injury practices that, as Professor Nora Engstrom\ndescribes them, \xe2\x80\x9caggressively advertise and mass produce the resolution of claims, typically with\nlittle client interaction and without initiating lawsuits, much less taking claims to trial.\xe2\x80\x9d The eight\nfirms from around the country that Engstrom studied resolved three times the number of claims\nheard by jury trials in all federal district courts in the same period. Intriguingly, in the absence of\nindividualized accident information or proven ability and willingness to take a claim to trial,\nbargains between insurance companies and mill lawyers were informed by past settlements, rather\nthan past jury verdicts. Engstrom found that, by using these settlement mills, plaintiffs with very\nsmall meritorious claims and plaintiffs with any size of unmeritorious claims fared fairly well,\nwith far lower costs than further litigation would have imposed. However, plaintiffs with\nespecially meritorious claims or serious injuries fared relatively poorly when they hired a\nsettlement mill lawyer. Thus insurance companies may be cooperating with settlement mills\nbecause they \xe2\x80\x9cshare two sets of overlapping interests: speed and certainty. Insurers, it appears,\ncooperate with settlement mills, even in marginal cases, because cooperation is profitable.\xe2\x80\x9d Nora\nEngstrom, Run-of-the-Mill Justice, 22 G. J. LEGAL ETHICS 1485, 1486, 1491 (2009).\nTheoretically, the past settlements that such lawyers rely upon to produce new settlements\nwere once informed by a jury verdict in a related negligence case. Is that a satisfactory\nrelationship to the negligence standard and the formal tort system? If not, what would you do to\ninfluence or change the settlement mill system? Does the merit or seriousness of a plaintiff\xe2\x80\x99s\nclaim change your judgment? Is the existence of the settlement mill a good or a bad thing for the\nplaintiff who wants her day in court?\nInterestingly, Engstrom\xe2\x80\x99s paper was published in a journal of legal ethics. Why do you\nthink that is? What kinds of ethical problems arise from the settlement mill system?\n184\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThe Failure of No-Fault Auto\nIn the mid-1960s, a group of professors responded to the expense of litigation in courts\nover tort cases with a novel proposal: \xe2\x80\x9cno-fault.\xe2\x80\x9d Under their plan, only the gravely injured would\nhave access to the tort system; instead, all car accident victims, regardless of fault, would receive\npartial but speedy compensation from their own insurers. Reformers modeled their plans on the\nworkers\xe2\x80\x99 compensation systems that had displaced tort law in workplaces half a century before.\nThe plans spread widely\xe2\x80\x94and quickly. By 1976, about half of the states in the U.S. adopted\nsome version of no-fault auto, or at least substantially restricted car accident victims\xe2\x80\x99 ability to\nsue.\nBut then the wave of reform halted. Resistance from the plaintiffs\xe2\x80\x99 bar and some\nunexpected problems could reasonably explain the rapid end of no-fault programs. Yet Engstrom\nargues that the halt of no-fault auto expansion came when no-fault systems and the tort settlement\nsystem began to converge. Repeat-play claims agents had begun to produce in the shadow of tort\nlaw a system of settlement that resembled the no-fault systems of the reformers. Auto torts claims\nbecame less adversarial, with more victims recovering modest settlement awards. Meanwhile,\nmodern no-fault systems became more adversarial, with more claims, money, lawyers, and\nlawsuits. With less at stake, the momentum for no-fault systems faded. Nora Engstrom, An\nAlternative Explanation for No-Fault\xe2\x80\x99s \xe2\x80\x98Demise,\xe2\x80\x99 61 DEPAUL L. REV. 303 (2011).\nWhat is at stake in choosing between tort and public compensation mechanisms like\nworkers\xe2\x80\x99 compensation and automobile no-fault systems?\n\nC. Judges and Juries\nOf course, there are still some cases that go to a civil jury. And even those cases that do\nsettle (which is the vast majority) settle in the shadow of the jury system such that their settlement\nvalues reflect the fact of the jury.\nThe civil jury purports to be a shining hallmark of the American tort system\xe2\x80\x94and only the\nAmerican tort system. While the English legal tradition invented the common law jury and then\nrevered it for nearly eight centuries as one of the great \xe2\x80\x9cancient rights\xe2\x80\x9d of the unwritten English\nconstitution, the U.K. largely abandoned the civil jury trial by the middle of the twentieth century.\nEvery common law country that received the civil jury from the British, including Australia and\nCanada, followed suit by the middle of the twentieth century. See NEIL VIDMAR, WORLD JURY\nSYSTEMS (2000). The United States, in short, is an international outlier, which raises two\nquestions: Why has the U.S. held onto an institution that everyone else around the globe has\nthrown aside? And should we join the crowd?\nIn American tort law, the civil jury has played a distinctively large role\xe2\x80\x94so much so that\nDean Leon Green, a twentieth century giant in the field, once wrote that \xe2\x80\x9cprobably there is no\nclass of cases which demands so much jury participation as those we label \xe2\x80\x98negligence.\xe2\x80\x99\xe2\x80\x9d On the\nother hand, Green observed further, \xe2\x80\x9cthere is no other group for which the courts have developed\nso many subtle doctrines for effectually controlling jury judgment and reaching results that the\nappellate courts themselves approve.\xe2\x80\x9d LEON GREEN, JUDGE AND JURY 386 (1930). Reviewing the\nsituation, another leading torts jurist contended that the \xe2\x80\x9callocation of work\xe2\x80\x9d as between \xe2\x80\x9cjudge\n185\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nand jury in torts cases\xe2\x80\x9d is \xe2\x80\x9cthe end to which all doctrines, rules and formulae in current use in such\ncases are directed.\xe2\x80\x9d Fowler V. Harper, Judge and Jury, 6 IND. L.J. 285, 285 (1931).\n\nBaltimore & Ohio Railroad Co. v. Goodman, 275 U.S. 66 (1927)\nHOLMES, J.\nThis is a suit brought by the widow and administratrix of Nathan Goodman against the\npetitioner for causing his death by running him down at a grade crossing. The defence is that\nGoodman\xe2\x80\x99s own negligence caused the death. At the trial the defendant asked the Court to direct\na verdict for it, but the request and others looking to the same direction were refused, and the\nplaintiff got a verdict and a judgment which was affirmed by the Circuit Court of Appeals.\nGoodman was driving an automobile truck in an easterly direction and was killed by a\ntrain running southwesterly across the road at a rate of not less than 60 miles an hour. The line\nwas straight but it is said by the respondent that Goodman \xe2\x80\x98had no practical view\xe2\x80\x99 beyond a\nsection house 243 feet north of the crossing until he was about 20 feet from the first rail, or, as the\nrespondent argues, 12 feet from danger, and that then the engine was still obscured by the section\nhouse. He had been driving at the rate of 10 or 12 miles an hour but had cut down his rate to 5 or\n6 miles at about 40 feet from the crossing. It is thought that there was an emergency in which, so\nfar as appears, Goodman did all that he could.\nWe do not go into further details as to Goodman\xe2\x80\x99s precise situation, beyond mentioning\nthat it was daylight and that he was familiar with the crossing, for it appears to us plain that\nnothing is suggested by the evidence to relieve Goodman from responsibility for his own death.\nWhen a man goes upon a railroad track he knows that he goes to a place where he will be killed if\na train comes upon him before he is clear of the track. He knows that he must stop for the train\nnot the train stop for him. In such circumstances it seems to us that if a driver cannot be sure\notherwise whether a train is dangerously near he must stop and get out of his vehicle, although\nobviously he will not often be required to do more than to stop and look. It seems to us that if he\nrelies upon not hearing the train or any signal and takes no further precaution he does so at his\nown risk. If at the last moment Goodman found himself in an emergency it was his own fault that\nhe did not reduce his speed earlier or come to a stop. It is true. . . that the question of due care\nvery generally is left to the jury. But we are dealing with a standard of conduct, and when the\nstandard is clear it should be laid down once for all by the Courts. . . .\nJudgment reversed.\n\nOLIVER WENDELL HOLMES, JR., THE COMMON LAW 111, 123-4 (1881)\nIf, now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform\nstandards of external conduct, which every man is presumed and required to know, it is obvious\nthat it ought to be possible, sooner or later, to formulate these standards at least to some extent,\nand that to do so must at last be the business of the court. It is equally clear that the featureless\ngenerality, that the defendant was bound to use such care as a prudent man would do under the\ncircumstances, ought to be continually giving place to the specific one, that he was bound to use\nthis or that precaution under these or those circumstances. The standard which the defendant was\n186\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nbound to come up to was a standard of specific acts or omissions, with reference to the specific\ncircumstances in which he found himself. If in the whole department of unintentional wrongs the\ncourts arrived at no further utterance than the question of negligence, and left every case, without\nrudder or compass, to the jury, they would simply confess their inability to state a very large part\nof the law which they required the defendant to know, and would assert, by implication, that\nnothing could be learned by experience. But neither courts nor legislatures have ever stopped at\nthat point. . . .\nWhen a case arises in which the standard of conduct, pure and simple, is submitted to the\njury, the explanation is plain. It is that the court, not entertaining any clear views of public policy\napplicable to the matter, derives the rule to be applied from daily experience, as it has been agreed\nthat the great body of the law of tort has been derived. But the court further feels that it is not\nitself possessed of sufficient practical experience to lay down the rule intelligently. It conceives\nthat twelve men taken from the practical part of the community can aid its judgment. Therefore it\naids its conscience by taking the opinion of the jury.\nBut supposing a state of facts often repeated in practice, is it to be imagined that the court\nis to go on leaving the standard to the jury forever? Is it not manifest, on the contrary, that if the\njury is, on the whole, as fair a tribunal as it is represented to be, the lesson which can be got from\nthat source will be learned? Either the court will find that the fair teaching of experience is that\nthe conduct complained of usually is or is not blameworthy, and therefore, unless explained, is or\nis not a ground of liability; or it will find the jury oscillating to and fro, and will see the necessity\nof making up its mind for itself. There is no reason why any other such question should not be\nsettled, as well as that of liability for stairs with smooth strips of brass upon their edges. The\nexceptions would mainly be found where the standard was rapidly changing, as, for instance, in\nsome questions of medical treatment.\nIf this be the proper conclusion in plain cases, further consequences ensue. Facts do not\noften exactly repeat themselves in practice; but cases with comparatively small variations from\neach other do. A judge who has long sat at nisi prius [i.e., in a trial court] ought gradually to\nacquire a fund of experience which enables him to represent the common sense of the community\nin ordinary instances far better than an average jury. He should be able to lead and to instruct\nthem in detail, even where he thinks it desirable, on the whole, to take their opinion. Furthermore,\nthe sphere in which he is able to rule without taking their opinion at all should be continually\ngrowing.\n\nNotes\n\n1. Rules and standards. Holmes saw great appeal in creating hard and fast rules to govern\ncases with similar fact patterns. In doing so, Holmes helped to illuminate an important distinction\nbetween two different kinds of legal norms. One is rules. The other is standards. Rules provide\ncrisp, on-off metrics for decision-making. For example, an administrative agency might require\nthat automobiles be designed with air bags, and a court might instruct a jury that any car designed\nwithout air bags is negligently designed. Standards, in contrast, offer open-ended and flexible\ncriteria for deciding cases. The law of negligence, for example, might require that automobiles be\ndesigned in a reasonably safe manner, which under some circumstances would require airbags,\nbut which under other circumstances would not.\n187\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nIn Holmes\xe2\x80\x99s view, a rule such as \xe2\x80\x9call drivers crossing the railroad must stop, look, and\nlisten,\xe2\x80\x9d or \xe2\x80\x9call stairs must have brass \xe2\x80\x98nosing\xe2\x80\x99 strips on their edges,\xe2\x80\x9d made for a cleaner decisionmaking tool than the \xe2\x80\x9cfeatureless generality\xe2\x80\x9d of the negligence standard. What are the general\nconsiderations when choosing between standards and rules? Note that the choice between these\ntwo decision strategies is pervasive in social life. Insurance companies rely heavily on rules. So\ndo bureaucracies of any number of kinds. Teachers often use rules in managing large classes.\nThe most famous social movement activists and military leaders, by contrast, have typically opted\nfor standards in developing strategy around their most important efforts. Professor Beverly Gage,\ndirector of Yale\xe2\x80\x99s Brady-Johnson Program in Grand Strategy, observes that Prussian military\ntheorist Carl von Clausewitz rejected \xe2\x80\x9chard-and-fast rules\xe2\x80\x9d as \xe2\x80\x9calways too rigid for the\nbattlefield,\xe2\x80\x9d preferring instead \xe2\x80\x9cthe application of principle,\xe2\x80\x9d which Clausewitz believed \xe2\x80\x9callows\nfor a greater latitude of judgment.\xe2\x80\x9d Movement leader Saul Alinsky likewise asserted that \xe2\x80\x9c[t]here\ncan be no prescriptions for particular situations because the same situation rarely recurs, any more\nthan history repeats itself.\xe2\x80\x9d Alinsky insisted that it was \xe2\x80\x9cthe principles that the organizer must\ncarry with him in battle.\xe2\x80\x9d The application of imagination, in Alinsky\xe2\x80\x99s view, allows activists to\nrelate principles \xe2\x80\x9ctactically to specific situations\xe2\x80\x9d in a way that no uniform rule could capture. See\nBeverly Gage, The Blob and the Mob, in RETHINKING GRAND STRATEGY (Christopher Nichols &\nAndrew Preston eds., forthcoming Oxford University Press).\nWhat are the considerations that prompt effective decisionmakers to choose rules over\nstandards or vice versa? For the law, note that the choice between these two legal technologies\nmay entail important consequences for the relative power of judges and juries.\n\n2. Does a jury serve any role other than the updating function Holmes alludes to in his\ndiscussion of medical malpractice cases, even in repeated fact pattern cases? Seven years after\nGoodman, Holmes\xe2\x80\x99s replacement on the Supreme Court, Benjamin Cardozo, revisited Holmes\xe2\x80\x99s\nhard and fast judge-made rule for railroad crossing cases.\n\nPokora v. Wabash Railroad Co., 292 U.S. 98 (1934)\nCARDOZO, J.\nJohn Pokora, driving his truck across a railway grade crossing in the city of Springfield,\nIll., was struck by a train and injured. Upon the trial of his suit for damages, the District Court\nheld that he had been guilty of contributory negligence, and directed a verdict for the defendant.\nThe Circuit Court of Appeals (one judge dissenting) affirmed . . . resting its judgment on the\nopinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66. A writ of certiorari brings the\ncase here.\nPokora was an ice dealer, and had come to the crossing to load his truck with ice. The\ntracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a\ncrossing at Edwards street running east and west. Two ice depots are on opposite corners of\nTenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving\nwest along Edwards street, stopped at the first of these corners to get his load of ice, but found so\nmany trucks ahead of him that he decided to try the depot on the other side of the way. In this\ncrossing of the railway, the accident occurred.\n188\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThe defendant has four tracks on Tenth street; a switch track on the east, then the main\ntrack, and then two switches. Pokora, as he left the northeast corner where his truck had been\nstopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet\neast of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet\nfrom the north line of Edwards street, cut off his view of the tracks beyond him to the north. At\nthe same time he listened. There was neither bell nor whistle. Still listening, he crossed the\nswitch, and reaching the main track was struck by a passenger train coming from the north at a\nspeed of twenty-five to thirty miles an hour.\n. . . The record does not show in any conclusive way that the train was visible to Pokora\nwhile there was still time to stop. A space of eight feet lay between the west rail of the switch and\nthe east rail of the main track, but there was an overhang of the locomotive (perhaps two and a\nhalf or three feet), as well as an overhang of the box cars, which brought the zone of danger even\nnearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was\nfarther back (perhaps five feet or even more), just how far we do not know, for the defendant has\nomitted to make proof of the dimensions. . . . For all that appears he had no view of the main track\nnorthward, or none for a substantial distance, till the train was so near that escape had been cut\noff.\nIn such circumstances the question, we think, was for the jury whether reasonable caution\nforbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt\nit was his duty to look along the track from his seat, if looking would avail to warn him of the\ndanger. This does not mean, however, that if vision was cut off by obstacles, there was\nnegligence in going on, any more than there would have been in trusting to his ears if vision had\nbeen cut off by the darkness of the night. Pokora made his crossing in the daytime, but like the\ntraveler by night he used the faculties available to one in his position. A jury, but not the court,\nmight say that with faculties thus limited he should have found some other means of assuring\nhimself of safety before venturing to cross. The crossing was a frequented highway in a populous\ncity. Behind him was a line of other cars, making ready to follow him. To some extent, at least,\nthere was assurance in the thought that the defendant would not run its train at such a time and\nplace without sounding bell or whistle. Indeed, the statutory signals did not exhaust the\ndefendant\xe2\x80\x99s duty when to its knowledge there was special danger to the traveler through\nobstructions on the roadbed narrowing the field of vision. All this the plaintiff, like any other\nreasonable traveler, might fairly take into account. All this must be taken into account by us in\ncomparing what he did with the conduct reasonably to be expected of reasonable men.\nThe argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is\na barrier in the plaintiff\xe2\x80\x99s path, irrespective of the conclusion that might commend itself if the\nquestion were at large. There is no doubt that the opinion in that case is correct in its result.\nGoodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a\nclear space of eighteen feet within which the train was plainly visible. With that opportunity, he\nfell short of the legal standard of duty established for a traveler when he failed to look and see.\nThis was decisive of the case. But the court did not stop there. It added a remark, unnecessary\nupon the facts before it, which has been a fertile source of controversy. \xe2\x80\x9cIn such circumstances it\nseems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must\nstop and get out of his vehicle, although obviously he will not often be required to do more than to\nstop and look.\xe2\x80\x9d . . .\n189\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nStandards of prudent conduct are declared at times by courts, but they are taken over from\nthe facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday\nexperience informs us. Besides being uncommon, it is very likely to be futile, and sometimes\neven dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn\nnothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets\nhis car in motion, the hidden train may be upon him. Often the added safeguard will be dubious\nthough the track happens to be straight, as it seems that this one was, at all events as far as the\nstation, about five blocks to the north. A train traveling at a speed of thirty miles an hour will\ncover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the\ndriver turns his back to regain the waiting car, and may then descend upon him suddenly when his\ncar is on the track. Instead of helping himself by getting out, he might do better to press forward\nwith all his faculties alert. So a train at a neighboring station, apparently at rest and harmless,\nmay be transformed in a few seconds into an instrument of destruction. At times the course of\nsafety may be different. One can figure to oneself a roadbed so level and unbroken that getting\nout will be a gain. Even then the balance of advantage depends on many circumstances and can\nbe easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he\nwas to leave it on the switch, there was the possibility that the box cars would be shunted down\nupon him before he could regain his seat. The defendant did not show whether there was a\nlocomotive at the forward end, or whether the cars were so few that a locomotive could be seen.\nIf he was to leave his vehicle near the curb, there was even stronger reason to believe that the\nspace to be covered in going back and forth would make his observations worthless. One must\nremember that while the traveler turns his eyes in one direction, a train or a loose engine may be\napproaching from the other.\nIllustrations such as these bear witness to the need for caution in framing standards of\nbehavior that amount to rules of law. The need is the more urgent when there is no background of\nexperience out of which the standards have emerged. They are then, not the natural flowerings of\nbehavior in its customary forms, but rules artificially developed, and imposed from without.\nExtraordinary situations may not wisely or fairly be subjected to tests or regulations that are\nfitting for the commonplace or normal. In default of the guide of customary conduct, what is\nsuitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the\njudgment of a jury. The opinion in Goodman\xe2\x80\x99s case has been a source of confusion in the federal\ncourts to the extent that it imposes a standard for application by the judge, and has had only\nwavering support in the courts of the states. We limit it accordingly.\nThe judgment should be reversed, and the cause remanded for further proceedings in\naccordance with this opinion.\n\nNotes\n\n1. Cardozo versus Holmes. Does Pokora overrule Goodman? Or are the two grappling with\ndifferent fact patterns? In Pokora, Cardozo suggests that the lower federal courts had not\nsupported the hard and fast rule outlined in Goodman. Why might trial courts opt for a more juryfriendly, standard-like Pokora doctrine instead of a more judge-friendly, rule-like Goodman\ndoctrine?\n\n190\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n2. Grade-crossing accidents in the 21st century. Grade-crossing accidents continue to vex\nthe twenty-first century tort system. In the mid-2000s, the New York Times found that, \xe2\x80\x9c[o]n\naverage, one person a day dies at a crossing in the United States.\xe2\x80\x9d In a series of stories, the paper\ndocumented the challenges plaintiffs face in wrongful death suits against railroad companies.\nAmong other things, the Times series suggested that railroads systematically destroyed relevant\nevidence in grade-crossing cases to avoid liability. See, e.g., Walt Bogdanish, In Deaths at Rail\nCrossings, Missing Evidence and Silence, N.Y. TIMES, Jul. 11, 2004.\nDespite Cardozo\xe2\x80\x99s apparent win in the judges versus juries debate in railroad crossings in\nthe 1930s with Pokora, some state courts have continued to demand a Goodman rule-like\nstructure in grade-crossing accidents, especially in single-track and open country situations. In\nRidgeway v. CSX Transportation, Inc., 723 So. 2d 600, 605 (Ala. 1998), the court found the\nGoodman rule \xe2\x80\x9cdeeply rooted in Alabama law\xe2\x80\x9d and elaborated that the rule in Alabama meant that\n\xe2\x80\x9ca person who fails to stop, look, and listen before crossing a railroad track is, in the absence of\nspecial circumstances, contributorily negligent as a matter of law.\xe2\x80\x9d The Supreme Court of\nVirginia also adopted a version of Goodman, calling a driver who had failed to adequately stop,\nlook, and listen \xe2\x80\x9cthe architect of his own misfortune.\xe2\x80\x9d Wright v. Norfolk & W. Ry. Co., 427\nS.E.2d 724, 730 (Va. 1993). The driver had flouted Virginia law, which required \xe2\x80\x9cthe operator of\na vehicle approaching a grade crossing . . . to look and listen at a time and place when both\nlooking and listening will be effective, intelligently using both eyes and ears.\xe2\x80\x9d Id. (internal\ncitations omitted).\nOther state courts side with Pokora and resolve the grade-crossing debate on the side of\njuries rather than judges. Judge Posner analogized an old Illinois railroad crossing rule to the\nGoodman rule and found that \xe2\x80\x9c[b]oth rules buck the twentieth-century trend\xe2\x80\x94as strong in Illinois\nas anywhere\xe2\x80\x94toward leaving questions of care to the jury to be decided under the broad,\nunelaborated standard of negligence.\xe2\x80\x9d Trevino v. Union Pac. R. Co., 916 F.2d 1230, 1235 (7th\nCir. 1990). And the more complicated the rail crossing, the more likely the plaintiff will get past\nthe judge to the jury. For example, in McKinney v. Yelavich, 90 N.W.2d 883 (Mich. 1958), the\nSupreme Court of Michigan refused the lower court\xe2\x80\x99s efforts towards \xe2\x80\x9crule canonization\xe2\x80\x9d of\ncontributory negligence in crossing cases, given that the pedestrian plaintiff had been hit in a\ncomplicated, poorly marked six-way intersection. The court gave a history of the Goodman and\nPokora before explaining its view of the problem with allowing judges to craft hard and fast rules\nin negligence cases:\nWe have elaborated upon the history of the stop, look and listen \xe2\x80\x9crule\xe2\x80\x9d because it is\ncharacteristic of a host of others. Each has its origin in a justifiable holding in a\nparticular fact situation. By lazy repetition the holding becomes a \xe2\x80\x9crule,\xe2\x80\x9d entirely\ndivorced from its creative facts. It grows as an excrescence of injustice until its very\nstrength concentrates a court\xe2\x80\x99s attention upon it, with, normally, the result seen in\nthe Pokora case.\nId. Pokora reigns not only in most state courts, but also in the Third Restatement, which warns\nthat apparently \xe2\x80\x9cconstant or recurring issue[s] of conduct\xe2\x80\x9d often turn out \xe2\x80\x9con closer inspection\xe2\x80\x9d to\ninvolve too many \xe2\x80\x9cvariables\xe2\x80\x9d for one-size-fits-all treatment. Tort law, insist the editors of the\nRestatement, adopts \xe2\x80\x9can ethics of particularism, which tends to cast doubt on the viability of\ngeneral rules capable of producing determinate results.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS.\n& EMOT. HARM \xc2\xa7 8 (2010). On the other hand, even the Restatement editors concede that\n\xe2\x80\x9c[o]ccasionally . . . the need for providing a clear and stable answer to the question of negligence\n191\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nis so overwhelming as to justify a court in withdrawing the negligence evaluation from the jury.\xe2\x80\x9d\nThey cite, for example, highway cases involving seatbelts, where the considerations are \xe2\x80\x9cof such\nforce as to make it acceptable for a state\xe2\x80\x99s highest court to reach a final, general decision as to\nwhether not wearing seat belts is or is not contributory negligence.\xe2\x80\x9d Id.\n\n3. The judge-jury debate. The judge versus jury debate is by no means confined to rail\ncrossing accidents. Similar debates have cropped up around other repeat fact pattern cases. For\nexample, New York courts sought to manage slip-and-fall cases in public spaces with the doctrine\nthat businesses have no duty to warn customers of \xe2\x80\x9copen and notorious\xe2\x80\x9d hazards over which they\ncould trip and fall. See, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113 (2d Cir. 2000); Pinero\nv. Rite Aid of New York, Inc., 294 A.D. 2d 251 (N.Y. App. Div. 2002). Where a hazard is \xe2\x80\x9copen\nand notorious\xe2\x80\x9d as a matter of law, a defendant has no duty to warn.\n\n4. Studying the jury. The canonical study of juries was done at the University of Chicago by\nProfessors Harry Kalven and Hans Zeisel, who studied 8,000 civil and criminal juries in the early\n1960s. They concluded that juries and judges agreed on a case\xe2\x80\x99s outcome in 78% of criminal\ncases and 79% of civil cases. As they put it, \xe2\x80\x9cthe jury agrees with the judge often enough to be\nreassuring, yet disagrees often enough to keep it interesting.\xe2\x80\x9d Harry Kalven, Jr., The Dignity of\nthe Civil Jury, 50 VA. L. REV. 1055, 1064 (1964).\nIn the 20% of criminal cases in which the jury and judge disagreed, the jury was far more\nlikely than a judge to acquit rather than convict. See HARRY KALVEN, JR. & HANS ZEISEL, THE\nAMERICAN JURY 55-81 (1966). But the asymmetry of judge-jury disagreement in criminal cases\ndid not extend to the civil cases in the Kalven and Zeisel sample. In civil cases involving\ndisagreement, judges and juries exhibited no systematic divergence from one another as between\nplaintiffs and defendants. \xe2\x80\x9cWhereas the greater leniency of the jury toward the criminal defendant\nis congruent with popular expectations, the equality of pro-plaintiff response between judge and\njury in civil cases is in sharp contrast to popular expectations.\xe2\x80\x9d Kalven, The Dignity of the Civil\nJury, supra at 1065.\nIndeed, common popular perceptions of the jury tend to ascribe to the institution the\nfailures of costliness, inefficiency, and inexperience\xe2\x80\x94and sometimes even sheer incompetence.\nSee, e.g., FRANKLIN STRIER, RECONSTRUCTING JUSTICE: AN AGENDA FOR TRIAL REFORM (1994).\nYet more recent surveys of empirical work on the jury system tend to confirm Kalven and Zeisel\xe2\x80\x99s\ninitial work, suggesting that judges and juries are not as different decision-makers as one might\nimagine. See, e.g., Neil Vidmar, The Performance of the American Civil Jury: An Empirical\nPerspective, 40 ARIZ. L. REV. 849 (1998).\nSo if Kalven and Zeisel\xe2\x80\x99s findings continue to hold true today\xe2\x80\x94if judges and juries agree\nthe vast majority of the time and are as pro-plaintiff as one another\xe2\x80\x94is there anything to be said\non behalf of juries than cannot also be said on behalf of judges? For example, neither judges nor\njuries bring subject-matter expertise to the resolution of complicated questions of health and\nsafety.\nOne area where juries seem to behave differently on a systematic basis from judges is in\nthe awarding of punitive damages. We will turn to punitive damages at the end of this casebook.\nFor now, the important point is that juries seem to handle punitive damages awards quite\n192\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ndifferently from judges. One study of over 500 mock jury sessions found that the jury group\ndeliberation process produced radical changes in damages awards. They found that, \xe2\x80\x9c[a]s\ncompared with the median of individual predeliberation judgments, dollar awards increased after\ngroup deliberation, often dramatically so: Among juries that voted to award punitive damages,\n27% reached dollar verdicts that were as high or higher than the highest predeliberation judgment\namong their own jurors.\xe2\x80\x9d David Schkade, Cass Sunstein & Daniel Kahneman, Deliberating\nAbout Dollars: The Severity Shift, in PUNITIVE DAMAGES (2002) (emphasis omitted). In fact,\nwhile moral judgments of fault did not change after deliberation, dollar amounts did.\nElsewhere, Sunstein has attributed this dollar-increasing phenomenon to the psychological\ndynamics of intra-group polarization by which groups \xe2\x80\x9cgo to extremes.\xe2\x80\x9d See Cass Sunstein, The\nLaw of Group Polarization 1, 18-19 (John M. Olin Law & Economics Working Paper No. 91,\n2000).\nOthers have faulted juries for rejecting\xe2\x80\x94and even punishing\xe2\x80\x94explicit cost-benefit\nreasoning through punitive damage awards. In the late 1990s, Professor Kip Viscusi surveyed\nabout 500 juror-eligible adults to determine how they determine damages in hypothetical cases.\nHe found that individuals awarded 50% larger punitive damages for companies that had\nperformed a cost-benefit analysis, as compared to a similarly at-fault company that did not\nperform a cost-benefit analysis. In addition, individuals awarded larger punitive damages against\ncompanies that placed a greater value on the loss of a human life, in comparison to a company\nthat devalued human life. Thus \xe2\x80\x9ccompanies are in the bizarre position of risking greater liability\nif they place more weight on consumer safety.\xe2\x80\x9d W. Kip Viscusi, Corporate Risk Analysis: A\nReckless Act?, 52 STAN. L. REV. 547, 555-60 (2000).\n\n5. Why are juries still around? If juries make the same decisions as judges, except when\njuries admonish wrongdoers with extreme (and, according to many observers, unwarranted)\npunitive damages, why are civil juries still around? What explains the persistence of the\nAmerican civil jury system? The Seventh Amendment, which guarantees a civil jury in federal\ncourts, has clear explanatory power for the federal civil jury system. But American tort law is\nmostly state law, and the Seventh Amendment is not incorporated against the states and so does\nnot apply at all in state courts, which are the more important institutions for most tort cases. To\nbe sure, state constitutions have jury-trial guarantees, too. But these provisions cannot explain the\npersistence of the civil jury, because state constitutions almost never entrench their provisions\nagainst subsequent political reform. State constitutions are typically almost as easy to amend as\nstatutes. See Helen Herschkoff, Positive Rights and State Constitutions: The Limits of Federal\nRationality Review, 112 HARV. L. REV. 1131 (1999); G. Alan Tarr, Understanding State\nConstitutions, 65 TEMP. L. REV. 1169, 1181-84 (1992).\nThe problem of explaining the durability of the jury grows when we look at its history.\nWhen the Seventh Amendment was ratified, the civil jury may have been seen as \xe2\x80\x9ca bulwark\nagainst tyranny.\xe2\x80\x9d But very quickly objections and critiques emerged. By the time of the adoption\nof the Federal Rules of Civil Procedure in 1938, many scholars and judges \xe2\x80\x9cregarded civil juries\nless as a bulwark . . . than as a nuisance.\xe2\x80\x9d Renee Lerner, The Rise of Directed Verdict: Jury\nPower in Civil Cases Before the Federal Rules of 1938,\xe2\x80\x9d 81 G.W.U. L. REV. 448, 451-52 (2013).\nSo how did the jury survive, given such criticism? Lerner argues that the rise of jury-limiting\nprocedures in the nineteenth and twentieth centuries, along with substantive tort doctrines like\ncontributory negligence, and later the rise of a powerful summary judgment rule, narrowed the\n193\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\njury\xe2\x80\x99s authority so substantially as to make abolishing the institution less imperative. Green\nexpressed much the same idea when he wrote that\nthe extravagant pains we take to preserve the integrity of jury trial in final analysis\nare completely counteracted in the more extravagant provisions which we make for\n[judicial] review, together with the remarkable technique . . . courts have developed\nfor subjecting every phase of trial to their own scrutiny and judgment.\nLEON GREEN, JUDGE AND JURY 390-91 (1930). The Green and Lerner explanation of the\npersistence of the civil jury system is that jury trials survive in the United States, and only in the\nUnited States, in significant part because they exist in theory but barely exist in practice. The\npattern grows stronger when we see that jury trials are expressly disallowed in the Federal Tort\nClaims Act, the Longshoreman and Harbor Workers Compensation Act, and the Miller and\nTucker Acts (governing contract claims against the federal government). There are no juries in\nTax Court, Customs Court, or the Court of Claims. Workers\xe2\x80\x99 compensation did away with juries\nfor work accidents. And entire fields such as admiralty and maritime law, naturalization and\nimmigration law, and bankruptcy law are largely conducted in the absence of juries. See Edward\nDevitt, Federal Civil Jury Trials Should Be Abolished, 60 A.B.A. J. 570 (1974).\nAnother distinctive factor in the U.S. is the politically influential plaintiffs\xe2\x80\x99 bar, which\nresponded by embracing the beleaguered institution. Even as judges attempted to pry tort cases\naway from the jury and scholars and politicians attempted to pry personal injury cases away from\ncivil trials entirely, in the 1950s and early 1960s, the plaintiffs\xe2\x80\x99 bar became a powerful interest\ngroup defending the common law trial and the jury. Rallying against administrative alternatives\nas \xe2\x80\x9cbureaucratic socialism\xe2\x80\x9d and \xe2\x80\x9cmodern totalitarianism,\xe2\x80\x9d against which only the jury could stand\ntall, the plaintiffs\xe2\x80\x99 bar lobbied loudly and in many cases successfully against the displacement of\nthe ancient Anglo-American institution. See JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS\n209-10 (2007).\nSetting aside the continuing controversy over the merits of the jury, virtually everyone\nagrees that in day-to-day practice juries are deciding less and less. In a review of data on state and\nfederal court trials through the mid-2000s, Professor Marc Galanter discovered a century-long\ndecline in the proportion of civil trials terminating in or after trial: while about 20% of cases\nended in trial in 1938, just 2% did in 2003. In fact, even as the absolute number of cases in\nfederal and state systems has increased, there has still been a decline in the absolute number of\ncivil trials. In 1992, federal courts held 1,728 tort trials with juries, and state courts in the\nseventy-five most populous counties held 9,431. Yet in 2001, federal courts held 1,471 tort trials\nwith juries, and the county courts held 7,218. That\xe2\x80\x99s a respective 33% and 24% decline in jury\ntrials for tort cases over the course of a decade. Marc Galanter, The Hundred-Year Decline of\nTrials and the Thirty Years War, 57 STAN. L. REV. 1255, 1256-59 (2005).\n\n6. Replacing the jury. What, if anything, has replaced the jury? In addition to more judgeintensive inquiries into the plausibility of pleadings, summary judgment, and class certification\nprocesses, civil trials have been dominated by a heightened judicial role in scrutinizing expert\nwitnesses (in what are known as Daubert hearings). Professor Richard Nagareda contends that\n\xe2\x80\x9c[t]he full-scale, front-to-back, common law trial before a jury has nearly vanished. Its\nreplacement effectively consists of a regime of sequenced trial-like proceedings on what are\n194\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nformally pretrial motions, all ruled upon by a judge alone.\xe2\x80\x9d Richard Nagareda, 1938 All Over\nAgain? Pretrial as Trial in Complex Litigation, 60 DEPAUL L. REV. 647, 667-68 (2010).\nMore broadly, Professor John Langbein argues that the Federal Rules of Civil Procedure\ndisplaced both judge and jury by arming both plaintiff and defendant with the information they\nneed to settle early on in a case:\n[A] civil procedure system serves two connected functions: investigating the facts\nand adjudicating the dispute. The better the system investigates and clarifies the\nfacts, the more it promotes settlement and reduces the need to adjudicate. The\nAnglo-American common law for most of its history paid scant attention to the\ninvestigative function. . . . Pleading was the only significant component of pretrial\nprocedure, and the dominant function of pleading was to control the jury by\nnarrowing to a single issue the question that the jury would be asked to decide. This\nprimitive pretrial process left trial as the only occasion at which it was sometimes\npossible to investigate issues of fact. Over time, the jury-free equity courts\ndeveloped techniques to enable litigants to obtain testimonial and documentary\nevidence in advance of the adjudication. The fusion of law and equity in the Federal\nRules of Civil Procedure of 1938 brought those techniques into the merged\nprocedure, and expanded them notably. The signature reform of the Federal Rules\nwas to shift pretrial procedure from pleading to discovery. A new system of civil\nprocedure emerged, centered on the discovery of documents and the sworn\ndepositions of parties and witnesses. Related innovations, the pretrial conference\nand summary judgment, reinforced the substitution of discovery for trial. This new\nprocedure system has overcome the investigation deficit that so afflicted common\nlaw procedure, enabling almost all cases to be settled or dismissed without trial.\nPretrial procedure has become nontribal procedure by making trial obsolete.\nJohn Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522 (2012).\nIronically, the decline in jury trials may not be a sign of the decline of jury power at all.\nIn a world where discovery and pre-trial procedures such as Daubert hearings allow the parties to\nhave increasingly good information about the value of their claims, plaintiffs and defendants alike\nwill look to settle more often. But settlement happens in the shadow of the jury. Settlements, in\nother words, reflect the expected costs and benefits of going to trial with a jury. Indeed, the\npervasiveness of settlement may undermine one of the main complaints with juries. Many object\nthat the random draw of lay juries injects an element of chance into the dispute resolution process.\nIt is not fair, critics say, that important cases are resolved by the luck of the draw in juror\nselection. But in a world of pervasive private settlements, one bad jury hardly matters. The\nquirks of any one jury\xe2\x80\x99s outlier decision are washed away in the averaging that parties do when\nthey estimate settlement values.\n\n195\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nD. Custom\n1. The Basic Rule\xe2\x80\x94and Its Functions\nThe T.J. Hooper, 60 F.2d 737 (2d Cir. 1932)\nHAND, J.\n[This case arose out of the foundering of two coal barges off the mid-Atlantic coast in March,\n1928. Two tugs, the T. J. Hooper and Montrose, left Hampton Roads, bound for New York and\nNew England ports on March 7. Each tug towed three barges. There were no storm warnings at\nany station along the coast until 9:30 a.m. on March 9th, when the tugs were in the vicinity of\nAtlantic City, or about 50 miles north of Delaware breakwater. Later that day, the tugs ran into\nstrong winds and heavy seas. Early the next morning, one barge in the tow of each tug sank with\ntheir cargoes, though the crew of barges escaped unharmed. There was no allegation that the tugs\nacted negligently in leaving Hampton bays on the 7th. Several other tugs traveling along the coast\nthat day pulled into the Delaware breakwater on the 8th, but the district court found that they did\nso only because they were equipped with radios and received early warnings of the impending\nstorm. And once the storm broke, all the parties conceded that the wiser course was to try to push\nthrough. The case thus came down to a single question: whether the cargo and barge owners were\nright in their claim that \xe2\x80\x9cthe two tugs were unseaworthy in not having effective radio sets, capable\nof receiving the forecasts of unfavorable weather broadcast along the coast on March 8th.\xe2\x80\x9d]\nA March gale is not unusual north of Hatteras; barges along the coast must be ready to\nmeet one, and there is in the case at bar no adequate explanation for the result except that these\nwere not well-found. . . .\nThe weather bureau at Arlington broadcasts two predictions daily, at ten in the morning\nand ten in the evening. Apparently there are other reports floating about, which come at uncertain\nhours but which can also be picked up. The Arlington report of the morning read as follows:\n\xe2\x80\x9cModerate north, shifting to east and southeast winds, increasing Friday, fair weather to-night.\xe2\x80\x9d\nThe substance of this, apparently from another source, reached a tow bound north to New York\nabout noon, and, coupled with a falling glass, decided the master to put in to the Delaware\nBreakwater in the afternoon. The glass had not indeed fallen much and perhaps the tug was over\ncautious; nevertheless, although the appearances were all fair, he thought discretion the better part\nof valor. Three other tows followed him . . . .\nMoreover, the \xe2\x80\x9cMontrose\xe2\x80\x9d and the \xe2\x80\x9cHooper\xe2\x80\x9d would have had the benefit of the evening\nreport from Arlington had they had proper receiving sets. This predicted worse weather; it read:\n\xe2\x80\x9cIncreasing east and southeast winds, becoming fresh to strong, Friday night and increasing\ncloudiness followed by rain Friday.\xe2\x80\x9d The bare \xe2\x80\x9cincrease\xe2\x80\x9d of the morning had become \xe2\x80\x9cfresh to\nstrong.\xe2\x80\x9d To be sure this scarcely foretold a gale of from forty to fifty miles for five hours or more,\nrising at one time to fifty-six; but if the four tows thought the first report enough, the second ought\nto have laid any doubts. The master of the \xe2\x80\x9cMontrose\xe2\x80\x9d himself, when asked what he would have\ndone had he received a substantially similar report, said that he would certainly have put in. The\nmaster of the \xe2\x80\x9cHooper\xe2\x80\x9d was also asked for his opinion, and said that he would have turned back\nalso, but this admission is somewhat vitiated by the incorporation in the question of the statement\n196\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthat it was a \xe2\x80\x9cstorm warning,\xe2\x80\x9d which the witness seized upon in his answer. All this seems to us\nto support the conclusion of the judge that prudent masters, who had received the second warning,\nwould have found the risk more than the exigency warranted . . . .\nThey did not, because their private radio receiving sets, which were on board, were not in\nworking order. These belonged to them personally, and were partly a toy, partly a part of the\nequipment, but neither furnished by the owner, nor supervised by it. It is not fair to say that there\nwas a general custom among coastwise carriers so as to equip their tugs. One line alone did it; as\nfor the rest, they relied upon their crews, so far as they can be said to have relied at all. An\nadequate receiving set suitable for a coastwise tug can now be got at small cost and is reasonably\nreliable if kept up; obviously it is a source of great protection to their tows. Twice every day they\ncan receive these predictions, based upon the widest possible information, available to every\nvessel within two or three hundred miles and more. Such a set is the ears of the tug to catch the\nspoken word, just as the master\xe2\x80\x99s binoculars are her eyes to see a storm signal ashore. Whatever\nmay be said as to other vessels, tugs towing heavy coal laden barges, strung out for half a mile,\nhave little power to maneuver, and do not, as this case proves, expose themselves to weather\nwhich would not turn back stauncher craft. They can have at hand protection against dangers of\nwhich they can learn in no other way.\nIs it then a final answer that the business had not yet generally adopted receiving sets?\nThere are yet, no doubt, cases where courts seem to make the general practice of the calling the\nstandard of proper diligence; we have indeed given some currency to the notion ourselves. . . .\nIndeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its\nmeasure; a whole calling may have unduly lagged in the adoption of new and available devices. It\nmay never set its own tests, however persuasive be its usages. Courts must in the end say what is\nrequired; there are precautions so imperative that even their universal disregard will not excuse\ntheir omission. . . . But here there was no custom at all as to receiving sets; some had them, some\ndid not; the most that can be urged is that they had not yet become general. Certainly in such a\ncase we need not pause; when some have thought a device necessary, at least we may say that\nthey were right, and the others too slack. The statute (section 484, title 46, U.S. Code [46 USCA\n\xc2\xa7 484]) does not bear on this situation at all. It prescribes not a receiving, but a transmitting set,\nand for a very different purpose; to call for help, not to get news. We hold the tugs therefore\nbecause had they been properly equipped, they would have got the Arlington reports. The injury\nwas a direct consequence of this unseaworthiness.\nDecree affirmed.\n\nNotes\n\n1. What is the custom? In the District Court, Judge Alfred Coxe adopted a different view of\nthe custom in question, but came to the same outcome. As Judge Coxe saw it, there was a custom\non tugs to have radios on board. Coxe then applied the custom to conclude that The T.J. Hooper\nand The Monrose were unseaworthy for failure to have complied with the custom. How did\nJudge Hand reach the same end point even though he came to the opposite view of the relevant\npractice?\n\n197\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n2. The Restatement. According to the Restatement (Third) of Torts, \xe2\x80\x9ccomplying with custom\nconfirms that the actor has behaved in an ordinary way.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS.\n& EMOT. HARM \xc2\xa7 13 cmt. a (2010). The Restatement further provides that compliance with\ncustom is \xe2\x80\x9cevidence that the actor\xe2\x80\x99s conduct is not negligent but does not preclude a finding of\nnegligence.\xe2\x80\x9d Id. \xc2\xa7 13.\n\n3. When is a practice a custom? Customs may provide evidence of reasonableness. But\nwhat constitutes a custom?\nA custom, according to one prominent torts treatise, is \xe2\x80\x9ca fairly well-defined and regular\nusage or way of doing a specific thing, among a group of people such as a trade, calling, or\nprofession.\xe2\x80\x9d 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER, JAMES &\nGRAY ON TORTS \xc2\xa7 17.3 (3d ed. 2006). The U.S. Supreme Court, in an 1838 action for ejectment\nof land, defined custom as \xe2\x80\x9cthe law or rule which is not written and which men have used for a\nlong time, supporting themselves by it in the things and reasons with respect to which they have\nexercised it,\xe2\x80\x9d being introduced by the people, deriving its authority from the express or tacit\nconsent of the king, and having the force of law. See Strother v. Lucas, 37 U.S. 410, 445-46\n(1838).\nTo count as a custom, a practice must be general, see Wise & Co. v. Wecoline Products,\n36 N.E.2d 623 (N.Y. 1941); Alberts v. Mutual Serv. Cas. Ins. Co., 123 N.W.2d 96 (S.D. 1963),\ndefinite, fixed, reasonable, and old enough to have been known to parties, see Dial v. Lathrop R-II\nSch. Dist., 871 S.W.2d 444, 449 (Mo. 1994). A custom does not have to be universal. See U.S. v.\nStanolind Crude Oil Purchasing Co., 113 F.2d 194 (C.C.A. 10th Cir. 1940). However, it has to\nbe known and practiced by more than a few people and cannot be limited to isolated instances.\nSee El Encanto, Inc. v. Boca Raton Club, Inc., 68 So.2d 819 (Fla. 1953).\n\n4. Majoritarian default rules. Why defer to custom, as Judge Coxe suggests? One reason\nmight be that the groups that create customs and are responsible for the practices in a given field\nhave lots of very good information about the relevant field and are well positioned\xe2\x80\x94much better\npositioned than judges and juries\xe2\x80\x94to make informed decisions about which risks are reasonable\nand which risks are not. An industry practice or custom is something that arises out of those\ninformed decisions. The case for following custom is strongest when, as in The T.J. Hooper, the\nparties are in contractual relationships with one another in which the customs of the relevant\nindustry are known to all involved.\nWe might think of industry customs or practices in such cases as default rules of\ncontractual interpretation, or contract presumptions. The question, one might say, is this: how\nwould the parties have allocated the losses arising out of the absence of radios on the tugs? In\nmany circumstances, the answer to this question might be said to lie in the custom of the trade. If\nthe custom is to have radios, then we might imagine that the preferred arrangement among barge\nowners and tug boat companies is to have radios\xe2\x80\x94and thus that the presumptive or default term of\nthe contract for cases of losses because of the absence of such a radio would be to allocate the\ncosts to the tugs. In most cases, the theory goes, the allocation that follows what the parties would\nusually do\xe2\x80\x94the so-called majoritarian default\xe2\x80\x94will best reflect the expectations of the parties.\nFor this argument in contract law more generally, see Robert Scott, Theory of Default Rules, 19 J.\nLEGAL STUD. 597, 607-08 (1990).\n198\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n5. Neighbors and strangers. Would Judge Coxe\xe2\x80\x99s deference to the custom of the industry be\nas warranted if the claimants had been strangers rather than the barge and cargo owners? For\nexample, what if the claimants were not the barges and cargo owners, but rather a third-party\nvessel damaged by the tug in the storm? Or what about a coastal property owner suffering\ndamage if the tug or its barges were cast upon land in the storm? The parties to tug and barge\ncontracts may have very good information about the risks of storms and the costs and benefits of\nradios. But do they have good reason\xe2\x80\x94absent tort liability\xe2\x80\x94for considering the interests of such\nthird parties?\n\n6. The odd thing about Hand\xe2\x80\x99s opinion is that he refuses to defer to the industry practice, as\nhe construes it, even though there were contracts among all the relevant parties. Why not defer to\ncustom in such an instance? How can Judge Hand be so certain that he is better positioned than\ntugs and barges and cargo owners to know what is good for them? Of course, even where there\nare contractual relations between the relevant parties, deference to the customary practice as a\ngoverning term in that relation may not be warranted. For example, what if the parties have\nasymmetric information about the risks in question? Customs and practices in a particular field\nmay not reflect the implicit contract terms that are best for everyone involved. Consider, for\nexample, the next case, Trimarco v. Klein:\n\nTrimarco v. Klein, 436 N.E.2d 502 (N.Y. 1982)\n[Plaintiff Vincent N. Trimarco recovered a judgment of $240,000 for personal injuries\nsuffered when he fell through a glass door enclosing the bathtub in the apartment plaintiff rented\nin defendant\xe2\x80\x99s building. The Court of Appeals summarized the following as facts a reasonable\ntrier of fact could have found:\n\xe2\x80\x9c[A]ccording to the trial testimony, at the time of the incident [,] plaintiff . . . was in the\nprocess of sliding the door open so that he could exit the tub. It is undisputed that the occurrence\nwas sudden and unexpected and the injuries he received from the lacerating glass most severe.\n\xe2\x80\x9cThe door, which turned out to have been made of ordinary glass variously estimated as\none sixteenth to one quarter of an inch in thickness, . . . presented no different appearance to the\nplaintiff . . . than did tempered safety glass, which [plaintiff] assumed it to be. Nor was there any\nsuggestion that defendants ever brought its true nature to their attention.\n\xe2\x80\x9c. . . [S]ince at least the early 1950\xe2\x80\x99s, a practice of using shatterproof glazing materials for\nbathroom enclosures had come into common use, so that by 1976 the glass door here no longer\nconformed to accepted safety standards. . . . [D]efendants\xe2\x80\x99 managing agent, who long had\nenjoyed extensive familiarity with the management of multiple dwelling units in the New York\nCity area, [further testified] that, since at least 1965, it was customary for landlords who had\noccasion to install glass for shower enclosures, whether to replace broken glass or to comply with\nthe request of a tenant or otherwise, to do so with \xe2\x80\x9csome material such as plastic or safety glass.\xe2\x80\x9d\nThe Appellate Division reversed plaintiff\xe2\x80\x99s jury verdict and dismissed the complaint,\nruling that even \xe2\x80\x9cassuming that there existed a custom and usage at the time to substitute\n199\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nshatterproof glass\xe2\x80\x9d and that this was a \xe2\x80\x9cbetter way or a safer method of enclosing showers,\xe2\x80\x9d\nplaintiff could not recover \xe2\x80\x9cunless prior notice of the danger came to the defendants either from\nthe plaintiff or by reason of a similar accident in the building.\xe2\x80\x9d . . . The dissenters in the Appellate\nDivision argued that there \xe2\x80\x9cindeed was \xe2\x80\x98ample\xe2\x80\x99 evidence of custom and usage to support the\nplaintiff\xe2\x80\x99s verdict.\xe2\x80\x9d]\nFUCHSBERG, J.\n. . . Which brings us to the well-recognized and pragmatic proposition that when \xe2\x80\x9ccertain\ndangers have been removed by a customary way of doing things safely, this custom may be\nproved to show that [the one charged with the dereliction] has fallen below the required standard.\xe2\x80\x9d\n. . . Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable\nconduct under all the circumstances, the quintessential test of negligence.\nIt follows that, when proof of an accepted practice is accompanied by evidence that the\ndefendant conformed to it, this may establish due care . . . , and, contrariwise, when proof of a\ncustomary practice is coupled with a showing that it was ignored and that this departure was a\nproximate cause of the accident, it may serve to establish liability . . . . Put more conceptually,\nproof of a common practice aids in \xe2\x80\x9cformulat[ing] the general expectation of society as to how\nindividuals will act in the course of their undertakings, and thus to guide the common sense or\nexpert intuition of a jury or commission when called on to judge of particular conduct under\nparticular circumstances\xe2\x80\x9d (Pound, Administrative Application of Legal Standards, 44 ABA REP,\n445, 456-57).\nThe source of the probative power of proof of custom and usage is described differently\nby various authorities, but all agree on its potency. Chief among the rationales offered is, of\ncourse, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore,\nEvidence [3d ed], \xc2\xa7 461; Prosser, Torts [4th ed], \xc2\xa7 33). Support for its relevancy and reliability\ncomes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a\nprecaution in actual operation and the readiness with which it can be employed (Morris, Custom\nand Negligence, 42 COL[UM]. L. REV. 1147, 1148 [(1942)]). Following in the train of both of\nthese boons is the custom\xe2\x80\x99s exemplification of the opportunities it provides to others to learn of\nthe safe way, if that the customary one be. . . .\nFrom all this it is not to be assumed customary practice and usage need be universal. It\nsuffices that it be fairly well defined and in the same calling or business so that \xe2\x80\x9cthe actor may be\ncharged with knowledge of it or negligent ignorance\xe2\x80\x9d (Prosser, Torts [4th ed], \xc2\xa7 33, p. 168 . . .).\nHowever, once its existence is credited, a common practice or usage is still not necessarily\na conclusive or even a compelling test of negligence . . . . Before it can be, the jury must be\nsatisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the\nbehavior which adhered to the custom or the unreasonableness of that which did not . . . . After\nall, customs and usages run the gamut of merit like everything else. That is why the question in\neach instance is whether it meets the test of reasonableness. As Holmes\xe2\x80\x99 now classic statement on\nthis subject expresses it, \xe2\x80\x9c[w]hat usually is done may be evidence of what ought to be done, but\nwhat ought to be done is fixed by a standard of reasonable prudence, whether it usually is\ncomplied with or not\xe2\x80\x9d (Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470 [(1903)]).\n\n200\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nSo measured, the case the plaintiff presented . . . was enough to send it to the jury and to\nsustain the verdict reached. The expert testimony, [and] the admissions of the defendant\xe2\x80\x99s\nmanager . . . easily filled that bill. Moreover, it was also for the jury to decide whether, at the\npoint in time when the accident occurred, the modest cost and ready availability of safety glass\nand the dynamics of the growing custom to use it for shower enclosures had transformed what\nonce may have been considered a reasonably safe part of the apartment into one which, in the\nlight of later developments, no longer could be so regarded.\nFurthermore, the charge on this subject was correct. The Trial Judge placed the evidence\nof custom and usage \xe2\x80\x9cby others engaged in the same business\xe2\x80\x9d in proper perspective, when,\namong other things, he told the jury that the issue on which it was received was \xe2\x80\x9cthe\nreasonableness of the defendant\xe2\x80\x99s conduct under all the circumstances.\xe2\x80\x9d He also emphasized that\nthe testimony on this score was not conclusive, not only by saying so but by explaining that \xe2\x80\x9cthe\nmere fact that another person or landlord may have used a better or safer practice does not\nestablish a standard\xe2\x80\x9d and that it was for the jurors \xe2\x80\x9cto determine whether or not the evidence in\nthis case does establish a general custom or practice.\xe2\x80\x9d\n[Notwithstanding its decision to reverse the Appellate Division, the Court of Appeals\nremanded for a new trial on the ground that the trial judge had erroneously omitted evidence of a\nnon-retroactive statute requiring that newly-installed showers use tempered safety glass.]\nOrder reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new\ntrial in accordance with the opinion herein.\n\nNotes\n\n1. What was the custom in the industry with respect to shower glass? Who instituted the\ncustom? And who would have been in a position to know about it and guide their conduct\naccordingly?\n\n2. Penalty default rules. Professors Ian Ayres and Robert Gertner take issue with deference\nto custom, at least under conditions of asymmetric information. Their observation is that\ndeference to the majoritarian or customary practice will sometimes allow parties with better\ninformation about the risks in question to take advantage of parties who, for lack of information,\nhave underestimated those risks. Ayres and Gertner therefore contend that the better approach to\nfilling in missing contract terms is not by inserting the customary rule, but rather by inserting a\nrule that disfavors the party with more information. Moving forward, such a rule\xe2\x80\x94which they\ncall a \xe2\x80\x9cpenalty default\xe2\x80\x9d because it would penalize the party with better information\xe2\x80\x94creates\npowerful incentives for the informed party to lay its information on the table so that the less\ninformed counterparty has the chance to take it into account.\nDoes the Ayres and Gertner theory of penalty defaults help explain the outcome in\nTrimarco? Here is the thought experiment: If the lease between the landlord and the tenant had\nstated that the shower glass in the apartment was NOT safety glass, but that the landlord would\nreplace the glass with new safety glass upon request, would the tenant-plaintiff have won? If you\ndon\xe2\x80\x99t think that anyone reads leases (note: you should read your leases!), then what if such a\n201\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nnotice were posted on the shower glass itself? A penalty default in the Ayres-Gertner sense would\ninduce landlords to find some way to convey information about the risks in question. See Ian\nAyres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default\nRules, 99 YALE L.J. 87, 127 (1989).\n\n2. Custom and Medical Malpractice Cases\nThe custom rule takes on a different cast in medical care cases. The following materials\nshow that in a wide swath of medical negligence cases, the custom of the profession will set the\nstandard. In a smaller subset\xe2\x80\x94involving negligence in disclosing treatment risks\xe2\x80\x94it may not. As\nyou read, ask yourself why\xe2\x80\x94if at all\xe2\x80\x94the custom of the profession ought to be treated differently\nin medical care than in other social domains.\n\nBrune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968)\nSPALDING, J.\nIn this action of tort for malpractice Theresa Brune (plaintiff) seeks to recover from the\ndefendant because of alleged negligence in administering a spinal anesthetic. There is a count by\nthe plaintiff\xe2\x80\x99s husband for consequential damages. The jury returned verdicts for the defendant on\neach count. The case comes here on the plaintiffs\xe2\x80\x99 exceptions to the judge\xe2\x80\x99s refusal to grant\ncertain requests for instructions, to portions of the charge, and to the denial of the plaintiffs\xe2\x80\x99\nmotion for a new trial.\nThe plaintiff was delivered of a baby on October 4, 1958, at St. Luke\xe2\x80\x99s Hospital in New\nBedford. During the delivery, the defendant, a specialist in anesthesiology practising in New\nBedford, administered a spinal anesthetic to the plaintiff containing eight milligrams of\npontocaine in one cubic centimeter of ten per cent solution of glucose. When the plaintiff\nattempted to get out of bed eleven hours later, she slipped and fell on the floor. The plaintiff\nsubsequently complained of numbness and weakness in her left leg, an affliction which appears to\nhave persisted to the time of trial.\nTestimony was given by eight physicians. Much of it related to the plaintiff\xe2\x80\x99s condition.\nThere was ample evidence that her condition resulted from an excessive dosage of pontocaine.\nThere was medical evidence that the dosage of eight milligrams of pontocaine was\nexcessive and that good medical practice required a dosage of five milligrams or less. There was\nalso medical evidence, including testimony of the defendant, to the effect that a dosage of eight\nmilligrams in one cubic centimeter of ten per cent dextrose was proper. There was evidence that\nthis dosage was customary in New Bedford in a case, as here, of a vaginal delivery. . . .\nThe plaintiffs\xe2\x80\x99 exception to the refusal to give their first request for instruction and their\nexception to a portion of the charge present substantially the same question and will be considered\ntogether. The request reads: \xe2\x80\x9cAs a specialist, the defendant owed the plaintiff the duty to have\nand use the care and skill commonly possessed and used by similar specialist[s] in like\ncircumstances.\xe2\x80\x9d The relevant portion of the charge excepted to was as follows: \xe2\x80\x9c[The defendant]\n202\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nmust measure up to the standard of professional care and skill ordinarily possessed by others in\nhis profession in the community, which is New Bedford, and its environs, of course, where he\npractices, having regard to the current state of advance of the profession. If, in a given case, it\nwere determined by a jury that the ability and skill of the physician in New Bedford were fifty\npercent inferior to that which existed in Boston, a defendant in New Bedford would be required to\nmeasure up to the standard of skill and competence and ability that is ordinarily found by\nphysicians in New Bedford.\xe2\x80\x9d\nThe basic issue raised by the exceptions to the charge and to the refused request is\nwhether the defendant was to be judged by the standard of doctors practising in New Bedford.\nThe instruction given to the jury was based on the rule, often called the \xe2\x80\x9ccommunity\xe2\x80\x9d or\n\xe2\x80\x9clocality\xe2\x80\x9d rule first enunciated in Small v. Howard, 128 Mass. 131, a case decided in 1880. There\nthe defendant, a general practitioner in a country town with a population of 2,500, was consulted\nby the plaintiff to treat a severe wound which required a considerable degree of surgical skill. In\nan action against the defendant for malpractice this court defined his duty as follows: \xe2\x80\x9cIt is a\nmatter of common knowledge that a physician in a small country village does not usually make a\nspecialty of surgery, and, however well informed he may be in the theory of all parts of his\nprofession, he would, generally speaking, be but seldom called upon as a surgeon to perform\ndifficult operations. He would have but few opportunities of observation and practice in that line\nsuch as public hospitals or large cities would afford. The defendant was applied to, being the\npractitioner in a small village, and we think it was correct to rule that \xe2\x80\x98he was bound to possess\nthat skill only which physicians and surgeons of ordinary ability and skill, practising in similar\nlocalities, with opportunities for no larger experience, ordinarily possess; and he was not bound to\npossess that high degree of art and skill possessed by eminent surgeons practising in large cities,\nand making a specialty of the practice of surgery. . . .\xe2\x80\x99\xe2\x80\x9d\nThe rationale of the rule of Small v. Howard is that a physician in a small or rural\ncommunity will lack opportunities to keep abreast with the advances in the profession and that he\nwill not have the most modern facilities for treating his patients. Thus, it is unfair to hold the\ncountry doctor to the standard of doctors practising in large cities. The plaintiffs earnestly\ncontend that distinctions based on geography are no longer valid in view of modern developments\nin transportation, communication and medical education, all of which tend to promote a certain\ndegree of standardization within the profession. Hence, the plaintiffs urge that the rule laid down\nin Small v. Howard almost ninety years ago now be reexamined in the light of contemporary\nconditions. . . .\nBecause of the importance of the subject, and the fact that we have been asked to abandon\nthe \xe2\x80\x9clocality\xe2\x80\x9d rule we have reviewed the relevant decisions at some length. We are of opinion that\nthe \xe2\x80\x9clocality\xe2\x80\x9d rule of Small v. Howard which measures a physician\xe2\x80\x99s conduct by the standards of\nother doctors in similar communities is unsuited to present day conditions. The time has come\nwhen the medical profession should no longer be Balkanized by the application of varying\ngeographic standards in malpractice cases. Accordingly, Small v. Howard is hereby overruled.\nThe present case affords a good illustration of the inappropriateness of the \xe2\x80\x9clocality\xe2\x80\x9d rule to\nexisting conditions. The defendant was a specialist practising in New Bedford, a city of 100,000,\nwhich is slightly more than fifty miles from Boston, one of the medical centers of the nation, if\nnot the world. This is a far cry from the country doctor in Small v. Howard, who ninety years ago\nwas called upon to perform difficult surgery. Yet the trial judge told the jury that if the skill and\nability of New Bedford physicians were \xe2\x80\x9cfifty percent inferior\xe2\x80\x9d to those obtaining in Boston the\n203\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ndefendant should be judged by New Bedford standards, \xe2\x80\x9chaving regard to the current state of\nadvance of the profession.\xe2\x80\x9d This may well be carrying the rule of Small v. Howard to its logical\nconclusion, but it is, we submit, a reductio ad absurdum of the rule.\nThe proper standard is whether the physician, if a general practitioner, has exercised the\ndegree of care and skill of the average qualified practitioner, taking into account the advances in\nthe profession. In applying this standard it is permissible to consider the medical resources\navailable to the physician as one circumstance in determining the skill and care required. Under\nthis standard some allowance is thus made for the type of community in which the physician\ncarries on his practice. See Prosser, Torts (3d ed.) \xc2\xa7 32 (pp. 166-167).\nOne holding himself out as a specialist should be held to the standard of care and skill of\nthe average member of the profession practising the specialty, taking into account the advances in\nthe profession. And, as in the case of the general practitioner, it is permissible to consider the\nmedical resources available to him.\nBecause the instructions permitted the jury to judge the defendant\xe2\x80\x99s conduct against a\nstandard that has now been determined to be incorrect, the plaintiffs\xe2\x80\x99 exceptions to the charge and\nto the refusal of his request must be sustained. . . .\n\nNotes\n\n1. Compare Brune to Trimarco or T.J. Hooper. Why is the rule for custom in medical\nmalpractice different from the rule for custom in negligence cases more generally?\n\n2. Custom in medical malpractice cases. Although most courts have deferred to custom in\nmedical malpractice cases, the Washington Supreme Court did the opposite in Helling v. Carey.\nIn Helling, the plaintiff, a 32-year-old patient, consulted the defendants, two ophthalmologists, for\nwhat seemed to be myopia. The physicians did not administer a pressure or field of vision test\nuntil nine years after the plaintiff\xe2\x80\x99s first consultation. Upon administering the test, however, the\nphysicians discovered that the patient was actually suffering from glaucoma, a disease that is\nundetectable in the absence of a pressure test \xe2\x80\x9cuntil the damage has become irreversible.\xe2\x80\x9d Helling\nv. Carey, 519 P.2d 981, 981 (Wash. 1974). At the time of test, the plaintiff had \xe2\x80\x9cessentially lost\nher peripheral vision.\xe2\x80\x9d Id. at 982. The plaintiff sued the ophthalmologists, alleging that she\n\xe2\x80\x9csustained severe and permanent damage to her eyes as a proximate result of the defendants\xe2\x80\x99\nnegligence in failing to administer a timely glaucoma test.\xe2\x80\x9d Id. Even though medical experts\ntestified that the \xe2\x80\x9cstandards for the profession . . . do not require routine pressure test[s] for\nglaucoma\xe2\x80\x9d for patients under forty, the court disagreed. Id. Overriding physicians\xe2\x80\x99 customary\npractices, the Washington Supreme Court held that the \xe2\x80\x9creasonable standard that should have been\nfollowed [by the physicians] . . . was the timely giving of [a] simple, harmless pressure test to\nth[e] plaintiff.\xe2\x80\x9d Id. at 984.\nIn later cases, Washington courts curtailed Helling\xe2\x80\x99s holding. For example, just two years\nafter Helling was decided, the Washington Court of Appeals noted, \xe2\x80\x9c[Helling\xe2\x80\x99s] holding . . . was\nintended to be restricted solely to its own \xe2\x80\x98unique\xe2\x80\x99 facts, i.e., cases in which an ophthalmologist is\n204\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nalleged to have failed to test for glaucoma under the same or similar circumstances.\xe2\x80\x9d Meeks v.\nMarx, 550 P.2d 1158, 1162 (Wash. Ct. App. 1976).\n\n3. The glaucoma case. Glaucoma testing is now standard, though probably not as a result of\nthe Washington Supreme Court\xe2\x80\x99s decision in Helling. Because \xe2\x80\x9cglaucoma is a process,\xe2\x80\x9d\nphysicians often use glaucoma tests to establish a baseline to determine whether the optic nerve\nhas changed. George L. Spaeth, Glaucoma Testing: Too Much of a Good Thing, 20 REV.\nOPHTHALMOLOGY 100, 103 (2013). Frequent and unnecessary glaucoma testing, however, has\n\xe2\x80\x9cdevelop[ed] a standard of care that says [glaucoma testing] should be done.\xe2\x80\x9d Some combination\nof third-party-payment for medical services, tort liability risk, and professional standardization\nhas had the effect of \xe2\x80\x9cdriv[ing] up the cost of care significantly and unnecessarily.\xe2\x80\x9d Id. at 102.\n\n4. Negligent treatment versus negligence in disclosing risks. Doctors, like all actors, can be\nnegligent in multiple ways. Imagine a different infant-delivery scenario from Brune, where at\nsome point in the patient\xe2\x80\x99s labor, she is given the option to continue trying for a vaginal birth or\nopting for birth by Cesarean section (a surgical procedure involving incisions in the mother\xe2\x80\x99s\nabdomen and uterus). After a brief conversation with her doctor, focusing entirely on the risks\nand benefits to the as-yet unborn baby, the patient opts for the Cesarean. The procedure is\nperformed skillfully but nonetheless leads to debilitating complications for the mother, including\npersistent pain, an infected incision, and loss of normal bowel functioning, none of which the\ndoctor discussed with the patient prior to the surgery. Given that the procedure was performed\nskillfully, is there no recognizable injury here? If there is an injury that the law might remedy,\nwhat conduct on the doctor\xe2\x80\x99s part should we focus on and how should we judge it? If the doctor\nfollowed the disclosure customs of the profession, should that shield the doctor from liability? Or\nare there reasons for preferring a different standard here? These are the questions that the next\ncase takes up.\n\nCanterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)\nROBINSON, J.\n...\nAt the time of the events which gave rise to this litigation, appellant was nineteen years of\nage, a clerk-typist employed by the Federal Bureau of Investigation. In December, 1958, he\nbegan to experience severe pain between his shoulder blades. He consulted two general\npractitioners, but the medications they prescribed failed to eliminate the pain. Thereafter,\nappellant secured an appointment with Dr. Spence, who is a neurosurgeon.\nDr. Spence examined appellant in his office at some length but found nothing amiss. On\nDr. Spence\xe2\x80\x99s advice appellant was x-rayed, but the films did not identify any abormality. Dr.\nSpence then recommended that appellant undergo a myelogram\xe2\x80\x93a procedure in which dye is\ninjected into the spinal column and traced to find evidence of disease or other disorder\xe2\x80\x93at the\nWashington Hospital Center.\n\n205\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nAppellant entered the hospital on February 4, 1959. The myelogram revealed a \xe2\x80\x9cfilling\ndefect\xe2\x80\x9d in the region of the fourth thoracic vertebra. Since a myelogram often does no more than\npinpoint the location of an aberration, surgery may be necessary to discover the cause. Dr.\nSpence told appellant that he would have to undergo a laminectomy\xe2\x80\x93the excision of the posterior\narch of the vertebra\xe2\x80\x93to correct what he suspected was a ruptured disc. Appellant did not raise any\nobjection to the proposed operation nor did he probe into its exact nature.\nAppellant explained to Dr. Spence that his mother was a widow of slender financial means\nliving in Cyclone, West Virginia, and that she could be reached through a neighbor\xe2\x80\x99s\ntelephone. . . . Dr. Spence told her that the surgery was occasioned by a suspected ruptured disc.\nMrs. Canterbury then asked if the recommended operation was serious and Dr. Spence replied\n\xe2\x80\x9cnot any more than any other operation.\xe2\x80\x9d\n...\nDr. Spence performed the laminectomy on February 11 at the Washington Hospital\nCenter. Mrs. Canterbury traveled to Washington, arriving on that date but after the operation was\nover, and signed a consent form at the hospital. The laminectomy revealed several anomalies: a\nspinal cord that was swollen and unable to pulsate, an accumulation of large tortuous and dilated\nveins, and a complete absence of epidural fat which normally surrounds the spine. . . .\nFor approximately the first day after the operation appellant recuperated normally, but\nthen suffered a fall and an almost immediate setback. Since there is some conflict as to precisely\nwhen or why appellant fell, we reconstruct the events from the evidence most favorable to him.\nDr. Spence left orders that appellant was to remain in bed during the process of voiding. These\norders were changed to direct that voiding be done out of bed, and the jury could find that the\nchange was made by hospital personnel. Just prior to the fall, appellant summoned a nurse and\nwas given a receptacle for use in voiding, but was then left unattended. Appellant testified that\nduring the course of the endeavor he slipped off the side of the bed, and that there was no one to\nassist him, or side rail to prevent the fall.\nSeveral hours later, appellant began to complain that he could not move his legs and that\nhe was having trouble breathing; paralysis seems to have been virtually total from the waist down.\nDr. Spence was notified on the night of February 12, and he rushed to the hospital. Mrs.\nCanterbury signed another consent form and appellant was again taken into the operating room.\nThe surgical wound was reopened and Dr. Spense created a gusset to allow the spinal cord greater\nroom in which to pulsate.\nAppellant\xe2\x80\x99s control over his muscles improved somewhat after the second operation but\nhe was unable to void properly. . . . For several years after his discharge he was under the care of\nseveral specialists, and at all times was under the care of a urologist. At the time of the trial in\nApril, 1968, appellant required crutches to walk, still suffered from urinal incontinence and\nparalysis of the bowels, and wore a penile clamp.\n. . . The damages appellant claims include extensive pain and suffering, medical expenses,\nand loss of earnings.\nII\n206\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nAppellant filed suit in the District Court on March 7, 1963, four years after the\nlaminectomy and approximately two years after he attained his majority. . . . Against Dr. Spence it\nalleged, among other things, . . . failure to inform him beforehand of the risk involved.\n. . . At trial . . . Dr. Spence . . . admitted that trauma can be a cause of paralysis. Dr.\nSpence further testified that even without trauma paralysis can be anticipated \xe2\x80\x9csomewhere in the\nnature of one percent\xe2\x80\x9d of the laminectomies performed, a risk he termed \xe2\x80\x9ca very slight\npossibility.\xe2\x80\x9d He felt that communication of that risk to the patient is not good medical practice\nbecause it might deter patients from undergoing needed surgery and might produce adverse\npsychological reactions which could preclude the success of the operation.\nAt the close of appellant\xe2\x80\x99s case in chief, each defendant moved for a directed verdict and\nthe trial judge granted both motions. The basis of the ruling, he explained, was that appellant had\nfailed to produce any medical evidence indicating negligence on Dr. Spence\xe2\x80\x99s part in diagnosing\nappellant\xe2\x80\x99s malady or in performing the laminectomy\xe2\x80\xa6 The judge did not allude specifically to\nthe alleged breach of duty by Dr. Spence to divulge the possible consequences of the\nlaminectomy.\nWe reverse. The testimony of appellant and his mother that Dr. Spence did not reveal the\nrisk of paralysis from the laminectomy made out a prima facie case of violation of the physician\xe2\x80\x99s\nduty to disclose which Dr. Spence\xe2\x80\x99s explanation did not negate as a matter of law. . . .\nIII\nSuits charging failure by a physician adequately to disclose the risks and alternatives of\nproposed treatment are not innovations in American law. They date back a good half-century, and\nin the last decade they have multiplied rapidly. There is, nonetheless, disagreement among the\ncourts and the commentators on many major questions, and there is no precedent of our own\ndirectly in point. . . .\nThe root premise is the concept, fundamental in American jurisprudence, that \xe2\x80\x9c[e]very\nhuman being of adult years and sound mind has a right to determine what shall be done with his\nown body. . . .\xe2\x80\x9d True consent to what happens to one\xe2\x80\x99s self is the informed exercise of a choice,\nand that entails an opportunity to evaluate knowledgeably the options available and the risks\nattendant upon each. The average patient has little or no understanding of the medical arts, and\nordinarily has only his physician to whom he can look for enlightenment with which to reach an\nintelligent decision. From these almost axiomatic considerations springs the need, and in turn the\nrequirement, of a reasonable divulgence by physician to patient to make such a decision possible.\nA physician is under a duty to treat his patient skillfully but proficiency in diagnosis and\ntherapy is not the full measure of his responsibility. The cases demonstrate that the physician is\nunder an obligation to communicate specific information to the patient when the exigencies of\nreasonable care call for it. Due care may require a physician perceiving symptoms of bodily\nabnormality to alert the patient to the condition. It may call upon the physician confronting an\nailment which does not respond to his ministrations to inform the patient thereof. It may\ncommand the physician to instruct the patient as to any limitations to be presently observed for his\nown welfare, and as to any precautionary therapy he should seek in the future. It may oblige the\nphysician to advise the patient of the need for or desirability of any alternative treatment\npromising greater benefit than that being pursued. Just as plainly, due care normally demands that\n207\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthe physician warn the patient of any risks to his well-being which contemplated therapy may\ninvolve.\nThe context in which the duty of risk-disclosure arises is invariably the occasion for\ndecision as to whether a particular treatment procedure is to be undertaken. To the physician,\nwhose training enables a self-satisfying evaluation, the answer may seem clear, but it is the\nprerogative of the patient, not the physician, to determine for himself the direction in which his\ninterests seem to lie. To enable the patient to chart his course understandably, some familiarity\nwith the therapeutic alternatives and their hazards becomes essential.\nA reasonable revelation in these respects is not only a necessity but, as we see it, is as\nmuch a matter of the physician\xe2\x80\x99s duty. It is a duty to warn of the dangers lurking in the proposed\ntreatment, and that is surely a facet of due care. It is, too, a duty to impart information which the\npatient has every right to expect. The patient\xe2\x80\x99s reliance upon the physician is a trust of the kind\nwhich traditionally has exacted obligations beyond those associated with arms length transactions.\nHis dependence upon the physician for information affecting his well-being, in terms of\ncontemplated treatment, is well-nigh abject. . . . We now find, as a part of the physician\xe2\x80\x99s overall\nobligation to the patient, a similar duty of reasonable disclosure of the choices with respect to\nproposed therapy and the dangers inherently and potentially involved.\nThis disclosure requirement . . . reflects much more of a change in doctrinal emphasis than\na substantive addition to malpractice law. It is well established that the physician must seek and\nsecure his patient\'s consent before commencing an operation or other course of treatment. It is\nalso clear that the consent, to be efficacious, must be free from imposition upon the patient. It is\nthe settled rule that therapy not authorized by the patient may amount to a tort\xe2\x80\x93a common law\nbattery\xe2\x80\x93by the physician. And it is evident that it is normally impossible to obtain a consent\nworthy of the name unless the physician first elucidates the options and the perils for the patient\'s\nedification. Thus the physician has long borne a duty, on pain of liability for unauthorized\ntreatment, to make adequate disclosure to the patient. The evolution of the obligation to\ncommunicate for the patient\'s benefit as well as the physician\'s protection has hardly involved an\nextraordinary restructuring of the law.\nIV\nDuty to disclose has gained recognition in a large number of American jurisdictions, but\nmore largely on a different rationale. The majority of courts dealing with the problem have made\nthe duty depend on whether it was the custom of physicians practicing in the community to make\nthe particular disclosure to the patient. If so, the physician may be held liable for an unreasonable\nand injurious failure to divulge, but there can be no recovery unless the omission forsakes a\npractice prevalent in the profession. We agree that the physician\xe2\x80\x99s noncompliance with a\nprofessional custom to reveal, like any other departure from prevailing medical practice, may give\nrise to liability to the patient. We do not agree that the patient\xe2\x80\x99s cause of action is dependent upon\nthe existence and nonperformance of a relevant professional tradition.\n...\n. . . We sense the danger that what in fact is no custom at all may be taken as an\naffirmative custom to maintain silence, and that physician-witnesses to the so-called custom may\nstate merely their personal opinions as to what they or others would do under given\n208\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nconditions . . . . Nor can we ignore the fact that to bind the disclosure obligation to medical usage\nis to arrogate the decision on revelation to the physician alone. Respect for the patient\xe2\x80\x99s right of\nself-determination on particular therapy demands a standard set by law for physicians rather than\none which physicians may or may not impose upon themselves.\n...\nV\nOnce the circumstances give rise to a duty on the physician\xe2\x80\x99s part to inform his patient,\nthe next inquiry is the scope of the disclosure the physician is legally obliged to make. The courts\nhave frequently confronted this problem but no uniform standard defining the adequacy of the\ndivulgence emerges from the decisions. Some have said \xe2\x80\x9cfull\xe2\x80\x9d disclosure, a norm we are\nunwilling to adopt literally. It seems obviously prohibitive and unrealistic to expect physicians to\ndiscuss with their patients every risk of proposed treatment\xe2\x80\x93no matter how small or remote\xe2\x80\x93and\ngenerally unnecessary from the patient\xe2\x80\x99s viewpoint as well. . . .\nThe larger number of courts, as might be expected, have applied tests framed with\nreference to prevailing fashion within the medical profession. Some have measured the disclosure\nby \xe2\x80\x9cgood medical practice,\xe2\x80\x9d others by what a reasonable practitioner would have bared under the\ncircumstances, and still others by what medical custom in the community would demand. We\nhave explored this rather considerable body of law but are unprepared to follow it. The duty to\ndisclose, we have reasoned, arises from phenomena apart from medical custom and practice. The\nlatter, we think, should no more establish the scope of the duty than its existence. Any definition\nof scope in terms purely of a professional standard is at odds with the patient\xe2\x80\x99s prerogative to\ndecide on projected therapy himself. That prerogative, we have said, is at the very foundation of\nthe duty to disclose, and both the patient\xe2\x80\x99s right to know and the physician\xe2\x80\x99s correlative obligation\nto tell him are diluted to the extent that its compass is dictated by the medical profession.\nIn our view, the patient\xe2\x80\x99s right of self-decision shapes the boundaries of the duty to reveal.\nThat right can be effectively exercised only if the patient possesses enough information to enable\nan intelligent choice. The scope of the physician\xe2\x80\x99s communications to the patient, then, must be\nmeasured by the patient\xe2\x80\x99s need, and that need is the information material to the decision. Thus the\ntest for determining whether a particular peril must be divulged is its materiality to the patient\xe2\x80\x99s\ndecision: all risks potentially affecting the decision must be unmasked. And to safeguard the\npatient\xe2\x80\x99s interest in achieving his own determination on treatment, the law must itself set the\nstandard for adequate disclosure.\nOptimally for the patient, exposure of a risk would be mandatory whenever the patient\nwould deem it significant to his decision, either singly or in combination with other risks. Such a\nrequirement, however, would summon the physician to second-guess the patient, whose ideas on\nmateriality could hardly be known to the physician. That would make an undue demand upon\nmedical practitioners, whose conduct, like that of others, is to be measured in terms of\nreasonableness. Consonantly with orthodox negligence doctrine, the physician\xe2\x80\x99s liability for\nnondisclosure is to be determined on the basis of foresight, not hindsight; no less than any other\naspect of negligence, the issue on nondisclosure must be approached from the viewpoint of the\nreasonableness of the physician\xe2\x80\x99s divulgence in terms of what he knows or should know to be the\npatient\xe2\x80\x99s informational needs. If, but only if, the fact-finder can say that the physician\xe2\x80\x99s\n209\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ncommunication was unreasonably inadequate is an imposition of liability legally or morally\njustified\xe2\x80\xa6\nFrom these considerations we derive the breadth of the disclosure of risks legally to be\nrequired. The scope of the standard is not subjective as to either the physician or the patient; it\nremains objective with due regard for the patient\xe2\x80\x99s informational needs and with suitable leeway\nfor the physician\xe2\x80\x99s situation. In broad outline, we agree that \xe2\x80\x9c[a] risk is thus material when a\nreasonable person, in what the physician knows or should know to be the patient\xe2\x80\x99s position, would\nbe likely to attach significance to the risk or cluster of risks in deciding whether or not to forego\nthe proposed therapy.\xe2\x80\x9d\nThe topics importantly demanding a communication of information are the inherent and\npotential hazards of the proposed treatment, the alternatives to that treatment, if any, and the\nresults likely if the patient remains untreated. The factors contributing significance to the\ndangerousness of a medical technique are, of course, the incidence of injury and the degree of the\nharm threatened. A very small chance of death or serious disablement may well be significant; a\npotential disability which dramatically outweighs the potential benefit of the therapy or the\ndetriments of the existing malady may summons discussion with the patient.\nThere is no bright line separating the significant from the insignificant; the answer in any\ncase must abide a rule of reason. Some dangers\xe2\x80\x93infection, for example\xe2\x80\x93are inherent in any\noperation; there is no obligation to communicate those of which persons of average sophistication\nare aware. Even more clearly, the physician bears no responsibility for discussion of hazards the\npatient has already discovered, or those having no apparent materiality to patients\xe2\x80\x99 decision on\ntherapy. The disclosure doctrine, like others marking lines between permissible and\nimpermissible behavior in medical practice, is in essence a requirement of conduct prudent under\nthe circumstances. Whenever nondisclosure of particular risk information is open to debate by\nreasonable-minded men, the issue is for the finder of the facts.\n...\nX\n. . . [T]he evidence was clearly sufficient to raise an issue as to whether Dr. Spence\xe2\x80\x99s\nobligation to disclose information on risks was reasonably met or was excused by the surrounding\ncircumstances. . . . There was no emergency to frustrate an opportunity to disclose, and Dr.\nSpence\xe2\x80\x99s expressed opinion that disclosure would have been unwise did not foreclose a contrary\nconclusion by the jury. . . . The jury, not Dr. Spence, was the final arbiter of whether\nnondisclosure was reasonable under the circumstances.\n...\nReversed and remanded for a new trial.\n\n210\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNotes\n\n1. Disclosure, medical custom, and materiality to patients. Are you persuaded that cases\ninvolving injurious failures to disclose risks in the course of medical treatment should be treated\ndifferently from cases involving injurious missteps in administering medical treatment? Why or\nwhy not? Note that \xe2\x80\x9ca little more than half\xe2\x80\x9d of U.S. jurisdictions, many by statute, have adopted a\ndisclosure standard anchored in the custom of the medical community. But since 1972, when\nCanterbury was decided, courts considering the issue for the first time and doing so unconstrained\nby statutes have gravitated toward the patient-centered materiality standard. DAN B. DOBBS, THE\nLAW OF TORTS \xc2\xa7 250 655 (2000).\n\n2. The causation hurdle. As we will discuss in a subsequent chapter, a finding of liability in\na negligence case requires more than a finding that the defendant behaved unreasonably; it also\nrequires a finding that the defendant\xe2\x80\x99s unreasonable conduct caused the plaintiff\xe2\x80\x99s injury. The\ncourt in Canterbury elaborated on what the causation requirement demands in a medical\nnegligence case where the gist of the negligence is failure to disclose:\nA causal connection exists when, but only when, disclosure of significant risks\nincidental to treatment would have resulted in a decision against it. The patient\nobviously has no complaint if he would have submitted to the therapy\nnotwithstanding awareness that the risk was one of its perils. On the other hand, the\nvery purpose of the disclosure rule is to protect the patient against consequences\nwhich, if known, he would have avoided by foregoing the treatment. The more\ndifficult question is whether the factual issue on causality calls for an objective or a\nsubjective determination.\n...\n[W]e believe [courts should] resolve the causality issue on an objective basis: in\nterms of what a prudent person in the patient\xe2\x80\x99s position would have decided if\nsuitably informed of all perils bearing significance. If adequate disclosure could\nreasonably be expected to have caused that person to decline the treatment because\nof the revelation of the kind of risk or danger that resulted in harm, causation is\nshown, but otherwise not. The patient\xe2\x80\x99s testimony is relevant on that score of course\nbut it would not threaten to dominate the findings. And since that testimony would\nprobably be appraised congruently with the factfinder\xe2\x80\x99s belief in its reasonableness,\nthe case for a wholly objective standard for passing on causation is strengthened.\nSuch a standard would in any event ease the fact-finding process and better assure\nthe truth as its product.\n464 F.2d 772, 790-91.\n\n3. Failure to disclose cases in practice. Taking into account the standard of care articulated\nin Canterbury and the causation approach noted above, how easy or difficult do you think it is in\npractice for plaintiffs to win damages in failure-to-disclose cases? What kind of evidence does\n211\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthe legal standard in Canterbury demand of plaintiffs? Note that the retrial of this case resulted in\na verdict in the defendant\xe2\x80\x99s favor. 509 F.2d 537 (D.C. Cir. 1975).\n\n4. What risks are material? Cases like Canterbury prompt hard questions about the types of\nhealth risks that can fairly be deemed \xe2\x80\x9cmaterial.\xe2\x80\x9d They also raise questions about other categories\nof information that might make a medical treatment more or less risky. Is a doctor\xe2\x80\x99s dependency\non drugs or alcohol material information that a doctor has a duty to disclose? What about a\ndoctor\xe2\x80\x99s pecuniary interest in the procedure, such as having a financial stake in the experimental\nmedical device being used? Should a doctor disclose any disciplinary history?\n\n5. Facts versus opinions. Patients rely on medical professionals not only for information but\nalso for interpretation\xe2\x80\x94expert guidance on what the information in front of them means. What\nkind of interpretations are patients entitled to? A case that highlights this question is Doe v.\nPlanned Parenthood, 956 N.E.2d 564 (Ill. 2011):\nAccording to the complaint, the plaintiff, about three months pregnant, visited a\nhelp center because of uncertainty over her pregnancy. At the pregnancy help\ncenter she was told that the fetus she was carrying was a \xe2\x80\x9chuman being.\xe2\x80\x9d\nThereafter, she visited the Planned Parenthood office in Chicago, which she\nidentifies as an \xe2\x80\x9cabortion clinic.\xe2\x80\x9d According to her complaint, she was counseled\nat Planned Parenthood that the fetus she was carrying was not a \xe2\x80\x9chuman being.\xe2\x80\x9d\nWhile at Planned Parenthood, the plaintiff signed a form consenting to a pregnancy\ntermination procedure that same day, which she underwent.\nTwo years after this procedure, Doe filed a complaint asserting that she would not have consented\nto an abortion had the defendant not \xe2\x80\x9cincorrectly denied th[e] fact\xe2\x80\x9d of \xe2\x80\x9ca human being in\nexistence.\xe2\x80\x9d Id. Upholding the trial court\xe2\x80\x99s dismissal of her complaint, the court declined to\ncharacterize the requested information as \xe2\x80\x9cfact,\xe2\x80\x9d instead describing it as a \xe2\x80\x9cscientific, moral, or\nphilosophical viewpoint\xe2\x80\x9d on a \xe2\x80\x9cprofound\xe2\x80\x9d and divisive question. Id. at 572-73. Whether medical\nproviders ought to have a duty to disclose such information, the court implied, was better left to\nthe legislature. (\xe2\x80\x9cNo court . . . has found a common law duty requiring doctors to tell their\npregnant patients that aborting an embryo, or fetus, is the killing of an existing human being.\xe2\x80\x9d)\nId. at 572.\nMany commentators think that medical malpractice is one of the least well-functioning\nareas of American tort law. Consider the views of some of the leading authorities on medical\nmalpractice, David Studdert, Michelle Mello, and Troyen Brennan:\n\nDavid M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice, 350 NEW\nENG. J. MED. 283, 283-86 (2004)\nPrompted by the malpractice crisis of the mid-1980s, a research team at Harvard\nUniversity embarked on a review of medical records from over 30,000 hospital discharges and\n3500 malpractice claims in New York. The reviewers found rates of adverse events and negligent\nadverse events (3.7 percent and 1.0 percent, respectively) that were remarkably close to those in\nCalifornia. Extrapolations from these rates produced alarming estimates of the burden of medical\n212\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ninjury, including projections that negligent care caused approximately 20,000 disabling injuries\nand 7000 deaths in New York hospitals in 1984. Overall, there were 7.6 times as many negligent\ninjuries as there were claims.\nBut it was the matching of specific claims to specific injuries in New York that threw the\ntroubling relationship between malpractice claims and injuries into sharp relief. Only 2 percent of\nnegligent injuries resulted in claims, and only 17 percent of claims appeared to involve a negligent\ninjury. . . . In a third study, conducted in Utah and Colorado in the late 1990s, the injury rates\ndetected were similar to those in New York, and the disconnections observed between injury and\nlitigation were virtually identical, suggesting that the core problems were neither regionally nor\ntemporally idiosyncratic. . . .\nThe overall picture that emerges from these studies is disheartening. When all patients\nwith negligent injuries are considered, not just those who manage to seek compensation as\nplaintiffs, the findings from the studies in California, in New York, and in Utah and Colorado are\na searing indictment of the performance of the malpractice system. The data reveal a profoundly\ninaccurate mechanism for distributing compensation. It is also tremendously inefficient.\nApproximately 60 cents of every dollar expended on the system is absorbed by administrative\ncosts (predominantly legal fees), an amount that is twice the overhead rate for an average\nworkers\xe2\x80\x99 compensation scheme. . . .\n\nNotes\n\n1. State malpractice judgments. In recent years, state medical malpractice judgments have\nbeen declining. In Washington, the number of malpractice payments \xe2\x80\x9cdeclined 6.1% from 1991\nto 2004.\xe2\x80\x9d The total number of payments declined 35.6 percent over the same period. Fewer\nLawsuits and More Doctors: The Myths of Washington State\xe2\x80\x99s Medical Malpractice \xe2\x80\x9cCrisis,\xe2\x80\x9d\nPUB. CITIZEN (Sept. 2005), https://perma.cc/C6S9-QEQF. And the declines seem to be\ncontinuing. In Oklahoma, a 2012 report found the number of malpractice judgments to be at a\ndecade low. See below.\n\n213\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nOKLAHOMA MALPRACTICE JUDGMENTS\n114\n\n2011\n\n124\n\n2010\n\n159\n\n2009\n146\n\n2008\n\n160\n\n2007\n148\n\n2006\n2005\n\n168\n\n2004\n\n167\n153\n\n2003\n127\n\n2002\n\n135\n\n2001\n\nSource: Data obtained from Wayne Green, State Malpractice Judgments Down 28 Percent Since 2009, TULSA\nWORLD, July 31, 2012, available at https://perma.cc/2SNT-5TPU.\n\nThese state-level trends are not aberrations. A recent study of nationwide medical\nmalpractice claims showed that between 1994 and 2014, the rate of medical malpractice claims\npaid on behalf of physicians decreased by 55.7 percent. Adam C. Schaffer, M.D., et al., Rates and\nCharacteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014,\nJAMA INTERN. MED. (Mar. 27, 2017), https://perma.cc/L5PZ-JKNE.\n\n2. Medical malpractice and insurance premiums. Doctors complain mightily (and often\nwith good reason!) about the costs of their malpractice insurance. Physicians\xe2\x80\x99 insurance\npremiums rose in the 1970s, 1980s, and 2000s. But the increase does not seem to have been\ndriven by a medical malpractice crisis. Through studying Texas Department of Insurance data,\nBernard Black and his co-authors argue that the number of large paid malpractice claims (over\n$25,000 per claim in constant 1998 dollars) was constant from 1991 to 2002. The number of\nsmall paid claims (less than $10,000 per claim in constant 1998 dollars) actually declined over the\nsame period. See Bernard Black, Charles Silver, David A. Hyman & William M. Sage, Stability,\nNot Crisis: Medical Malpractice Claim Outcomes in Texas: 1988-2002, 2 J. EMPIRICAL LEGAL\nSTUD. 207, 207 (2005).\n3. Changing the supply of physicians? Rising premiums, however, \xe2\x80\x9cseem not to have an\neffect on the total number of physicians in each state.\xe2\x80\x9d Katherine Baicker & Amitabh Chandra,\nDefensive Medicine and Disappearing Doctors, 28 REG. 24, 29 (2005). Older practitioners in\nrural areas may leave their practices when premiums increase because they have \xe2\x80\x9cfewer patients\nover whom to spread their increased costs of malpractice premiums.\xe2\x80\x9d Id. But it is not clear that\nthese departures wouldn\xe2\x80\x99t have happened anyway even absent any change in medical malpractice\n214\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nrates. Nor is it clear, though it can be hard to say so, that these departures are always a bad thing.\nPerhaps because of the pervasiveness of third-party-payer fee-for-service health care, or perhaps\nbecause of the small size of medical malpractice costs as a fraction of health care costs generally,\nrising premiums seem not to have had an effect on the supply of physicians, despite widespread\nanecdotal evidence to the contrary.\nConsider also the data from Texas, which in 2003 adopted a series of tort reform measures\nto protect physicians from medical malpractice claims and thereby diminish a perceived incentive\nfor doctors to leave the state. The measures certainly succeeded in reducing physicians\xe2\x80\x99 liability:\nbetween 2003 and 2009, Texas saw a 70 percent drop in payouts on medical malpractice claims.\nDavid A. Hyman, et al., Does Tort Reform Affect Physician Supply? Evidence from Texas, 42\nINT\xe2\x80\x99L REV. OF L. AND ECON. 203, 203 (2015), https://perma.cc/QWM9-RWT7. And sure enough,\nthe number of physicians applying for and receiving medical licenses in Texas increased after\n2003, a cause for celebration for many tort reform supporters. But is correlation necessarily\ncausation here? A 2015 study says no, finding \xe2\x80\x9cno evidence that the number of active Texas\nphysicians per capita is any larger than it would have been without tort reform\xe2\x80\x9d and that increases\nin the number of doctors in Texas after 2003 were more likely the result of other forces, such as\nincreasing numbers of physicians nationwide and an influx of doctors moving to Texas after\nHurricane Katrina. Id. at 204.\n\n4. Medical malpractice and health care costs. According to a 2010 publication, the costs of\nthe medical liability system amount to $55.6 billion per year, or 2.4% of the United States\xe2\x80\x99 total\nhealth care expenditures. Michelle M. Mello, Amitabh Chandra, Atul A. Gawande & David M.\nStuddert, National Costs of the Medical Liability System, 29 HEALTH AFFAIRS 1569 (2010). The\nauthors of the study included in that figure $45 billion in so-called defensive medicine, which they\ndefined as \xe2\x80\x9ctests, procedures, or visits, or [decisions to] avoid certain high-risk patients or\nprocedures, primarily (but not solely) because of concern about malpractice liability.\xe2\x80\x9d Defensive\nmedicine includes \xe2\x80\x9csupplemental care, such as additional testing or treatment; replaced care, such\nas referral to other physicians; and reduced care, including refusal to treat particular patients.\xe2\x80\x9d\nLee Black, Health Law: Effect of Malpractice Law on the Practice of Medicine, 9 AM. MED.\nASS\xe2\x80\x99N J. ETHICS 437, 437 (2007). But as the authors of the Health Affairs study emphasize, there\nare at least two problems with their defensive medicine estimate. First, it is exceedingly difficult\nto distinguish defensive care from care that has been caused by incentives to provide more care\nthat are inherent in the third-party payer system; any estimates of the costs of defensive medicine\nmust therefore be treated with great caution. Second, the estimate tells us nothing about either the\nbenefits (or perhaps additional harms) for patients of the additional care produced by the threat of\nmalpractice suits. After all, one of the aims of tort law is to incentivize sensible expenditures on\nsafety. One thing that seems clear is that absent such complicated questions about the costs of\naltered care, the cost of medical malpractice premiums themselves is a tiny fraction of the costs of\nthe health care system generally. See The Medical Malpractice Scapegoat, PUB. CITIZEN 5 (Feb.\n28, 2017), https://perma.cc/3PZZ-RETN (noting that in 2015, medical malpractice payments on\nbehalf of doctors amounted to about 0.2 percent of costs for hospital and physician services and\nabout 0.1 percent of all healthcare costs).\n\n5. How important really is medical malpractice reform to doctors? Even though the\nAmerican Medical Association (AMA) has taken strong public positions in favor of malpractice\nreform to reduce malpractice costs, the AMA apparently did not make malpractice reform a\n215\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\npriority in closed-door Affordable Care Act negotiations with the White House. Instead, the\nAMA focused on increasing physicians\xe2\x80\x99 Medicare payments, purportedly to the exclusion of\nvirtually all else. See Ezekiel Emanuel, Inside the Making of Obamacare, WALL ST. J., Mar. 8,\n2014, at C3 (noting that the final version of the Affordable Care Act merely \xe2\x80\x9cfunded states to test\ntheir own malpractice reforms\xe2\x80\x9d). Does this tell us anything about the real politics of medical\nmalpractice?\n\n6. Is there an effect of medical malpractice liability on health outcomes? One goal of\nmedical malpractice liability is to improve health outcomes by creating good incentives for\nmedical professionals. Yet many observers doubt that liability has any consistent relationship to\nhealth outcomes. One empirical study used Medicare claims data to examine the impact of states\xe2\x80\x99\nmalpractice regimes on patients\xe2\x80\x99 health outcomes post-surgery. The researchers found no\nconsistent relationship between a state\xe2\x80\x99s malpractice laws and patients\xe2\x80\x99 risk of death or\ncomplications arising from surgery. Christina A. Minami et al., Association Between State\nMedical Malpractice Environment and Postoperative Outcomes in the United States, 224 J. AM.\nCOLLEGE SURGEONS 310 (2017); see also Michael Frakes & Anupam B. Jena, Does Medical\nMalpractice Law Improve Health Care Quality?, 143 J. PUBLIC ECON. 142 (2016) (suggesting that\ndamage caps play \xe2\x80\x9cat most a modest role\xe2\x80\x9d in improving patient outcomes). Nor do state damage\ncaps seem to affect rates of births by cesarean section, though the evidence is mixed. Sabrina\nSafrin, The C-Section Epidemic: What\xe2\x80\x99s Tort Reform Got to Do with It?, 2018 U. ILL. L. REV. 747\n(2018); see also Janet Currie & W. Bentley MacLeod, First Do No Harm? Tort Reform and Birth\nOutcomes, 123 Q. J. ECON. 795 (2008). On the other hand, studies of medical malpractice have\nfound that in at least some areas of medical care, there are good reasons to think that tort liability\nhas played a substantial and constructive role in improving outcomes. Anesthesiology, which\nproved susceptible to monitoring and automation, and which was far more dangerous than it is\nnow, is the lead example. See TOM BAKER, THE MEDICAL MALPRACTICE MYTH 108-10 (2008);\nsee also Robert A. Caplan, Karen L. Posner, Richard J. Ward & Frederick W. Cheney, Adverse\nRespiratory Events in Anesthesia: A Closed Claims Analysis, 72 ANESTHESIOLOGY 828 (1990)\n(using malpractice claims to identify the leading cause of injury in anesthetic practice\xe2\x80\x94adverse\nrespiratory events\xe2\x80\x94and observing that 72 percent of these injuries could be prevented with better\nmonitoring and equipment); Steven E. Pegalis & B. Sonny Bal, Closed Medical Negligence\nClaims Can Drive Patient Safety and Reduce Litigation, 470 CLINICAL ORTHOPAEDICS &\nRELATED RES. 1398, 1401 (2012), https://perma.cc/92LS-46FJ (summarizing anesthesiology\nfindings, as well as the findings of two studies from the field of obstetrics).\n\nE. Statutes and Regulations\nSo far we have dealt mostly with court-made, common law materials. But a pervasive\nquestion in the modern state is how to deal with legislation and regulatory directives. Writing\nmore than thirty years ago, Guido Calabresi put it this way:\nThe last fifty to eighty years have seen a fundamental change in American law. In\nthis time we have gone from a legal system dominated by the common law, divined\nby courts, to one in which statutes, enacted by legislatures, have become the primary\nsource of law. The consequences of this \xe2\x80\x9corgy of statute making,\xe2\x80\x9d in Grant\nGilmore\xe2\x80\x99s felicitous phrase, are just beginning to be recognized. The change itself\n216\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nand its effect on our whole legal system have not been systematically treated.\nGUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982). The statutory revolution\nhas had vast implications for tort law. What do legislative rules governing conduct mean for\nquestions about the reasonableness of that conduct? Does it matter whether the rule in question is\na permission or a prohibition? What are the distinctive virtues and vices of legislatures and courts\nin making judgments about tort liability standards?\nIn what follows in this section, we take up three specific problems arising out of\nlegislative and regulatory directives in the torts field. (1) What is the significance of deviation\nfrom a legislative or regulatory safety standard for determinations of common law reasonableness\nand negligence? (2) What is the significance of compliance with a legislative or regulatory safety\nstandard for determinations of common law reasonableness and negligence? (3) When does a\nstatutory safety standard imply a private cause of action in tort that would not have existed at\ncommon law?\n\n1. Violations of Statutory Standards\nMartin v. Herzog, 19 N.E.2d 987 (N.Y. 1920)\nCARDOZO, J.\nThe action is one to recover damages for injuries resulting in death. Plaintiff and her\nhusband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck\nby the defendant\xe2\x80\x99s automobile coming in the opposite direction. They were thrown to the ground,\nand the man was killed. At the point of the collision the highway makes a curve. The car was\nrounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from\nthe gloom. Negligence is charged against the defendant, the driver of the car, in that he did not\nkeep to the right of the center of the highway. Highway Law, \xc2\xa7 286, subd. 3, and section 332\n(Consol. Laws, c. 25). Negligence is charged against the plaintiff\xe2\x80\x99s intestate, the driver of the\nwagon, in that he was traveling without lights. Highway Law, \xc2\xa7 329a, as amended by Laws 1915,\nc. 367. There is no evidence that the defendant was moving at an excessive speed. There is none\nof any defect in the equipment of his car. The beam of light from his lamps pointed to the right as\nthe wheels of his car turned along the curve toward the left; and, looking in the direction of the\nplaintiff\xe2\x80\x99s approach, he was peering into the shadow. The case against him must stand, therefore,\nif at all, upon the divergence of his course from the center of the highway. The jury found him\ndelinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.\nWe agree with the Appellate Division that the charge to the jury was erroneous and\nmisleading. . . . In the body of the charge the trial judge said that the jury could consider the\nabsence of light \xe2\x80\x9cin determining whether the plaintiff\xe2\x80\x99s intestate was guilty of contributory\nnegligence in failing to have a light upon the buggy as provided by law. I do not mean to say that\nthe absence of light necessarily makes him negligent, but it is a fact for your consideration.\xe2\x80\x9d The\ndefendant requested a ruling that the absence of a light on the plaintiff\xe2\x80\x99s vehicle was \xe2\x80\x9cprima facie\nevidence of contributory negligence.\xe2\x80\x9d This request was refused, and the jury were again\ninstructed that they might consider the absence of lights as some evidence of negligence, but that\nit was not conclusive evidence. The plaintiff then requested a charge that \xe2\x80\x9cthe fact that the\n217\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nplaintiff\xe2\x80\x99s intestate was driving without a light is not negligence in itself,\xe2\x80\x9d and to this the court\nacceded. The defendant saved his rights by appropriate exceptions.\nWe think the unexcused omission of the statutory signals is more than some evidence of\nnegligence. It is negligence in itself. Lights are intended for the guidance and protection of other\ntravelers on the highway. Highway Law, \xc2\xa7 329a. By the very terms of the hypothesis, to omit,\nwillfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be\npreserved in life or limb, is to fall short of the standard of diligence to which those who live in\norganized society are under a duty to conform. That, we think, is now the established rule in this\nstate. . . . Whether the omission of an absolute duty, not willfully or heedlessly, but through\nunavoidable accident, is also to be characterized as negligence, is a question of nomenclature into\nwhich we need not enter, for it does not touch the case before us. There may be times, when, if\njural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must\nbe kept distinct in speech and thought. . . .\nIn the conditions here present they come together and coalesce. A rule less rigid has been\napplied where the one who complains of the omission is not a member of the class for whose\nprotection the safeguard is designed. . . . Some relaxation there has also been where the safeguard\nis prescribed by local ordinance, and not by statute. . . . Courts have been reluctant to hold that the\npolice regulations of boards and councils and other subordinate officials create rights of action\nbeyond the specific penalties imposed. This has led them to say that the violation of a statute is\nnegligence, and the violation of a like ordinance is only evidence of negligence. An ordinance,\nhowever, like a statute, is law within its sphere of operation, and so the distinction has not escaped\ncriticism. . . . Whether it has become too deeply rooted to be abandoned, even if it be thought\nillogical, is a question not now before us. . . .\nIn the case at hand, we have an instance of the admitted violation of a statute intended for\nthe protection of travelers on the highway, of whom the defendant at the time was one. Yet the\njurors were instructed in effect that they were at liberty in their discretion to treat the omission of\nlights either as innocent or as culpable. . . . They might as well have been told that they could use\na like discretion in holding a master at fault for the omission of a safety appliance prescribed by\npositive law for the protection of a workman. . . . Jurors have no dispensing power, by which they\nmay relax the duty that one traveler on the highway owes under the statute to another. It is error\nto tell them that they have. The omission of these lights was a wrong, and, being wholly\nunexcused, was also a negligent wrong. No license should have been conceded to the triers of the\nfacts to find it anything else.\n...\nWe are persuaded that the tendency of the charge, and of all the rulings, following it, was\nto minimize unduly, in the minds of the triers of the facts, the gravity of the decedent\xe2\x80\x99s fault.\nErrors may not be ignored as unsubstantial, when they tend to such an outcome. A statute\ndesigned for the protection of human life is not to be brushed aside as a form of words, its\ncommands reduced to the level of cautions, and the duty to obey attenuated into an option to\nconform. The order of the Appellate Division should be affirmed, and judgment absolute directed\non the stipulation in favor of the defendant, with costs in all courts.\n\n218\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNote\n\n1. Why should the common law rely so heavily on statutes? Does Cardozo offer reasons for\nthe deference to statutes on which he insists? Relevant considerations include the vindication of\ndemocratic processes and the relative virtues of legislatures and courts as institutions for riskregulation.\nDoes the case for deference to statutes seem the same after reading the next case?\n\nTedla v. Ellman, 19 N.E.2d 287 (N.Y. 1939)\nLEHMAN, J.\nWhile walking along a highway, Anna Tedla and her brother, John Bachek, were struck\nby a passing automobile, operated by the defendant Hellman. She was injured and Bachek was\nkilled. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs.\nTedla, was engaged in the same occupation. They often picked up junk at the incinerator of the\nvillage of Islip. At the time of the accident they were walking along \xe2\x80\x9cSunrise Highway\xe2\x80\x9d [a major\nroute connecting New York City and Long Island] and wheeling baby carriages containing junk\nand wood which they had picked up at the incinerator. It was about six o\xe2\x80\x99clock, or a little earlier,\non a Sunday evening . . . . Darkness had already set in. Bachek was carrying a lighted lantern, or,\nat least, there is testimony to that effect. The jury found that the accident was due solely to the\nnegligence of the operator of the automobile. The defendants do not, upon this appeal, challenge\nthe finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla\nand her brother were guilty of contributory negligence as matter of law.\nSunrise Highway, at the place of the accident, consists of two roadways, separated by a\ngrass plot. There are no footpaths along the highway and the center grass plot was soft. It is not\nunlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances,\nbut a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably\nprudent person would use. The Vehicle and Traffic Law (Consol. Laws, c. 71) provides that\n\xe2\x80\x9cPedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be\nsubject to, and comply with, the rules governing vehicles, with respect to meeting and turning out,\nexcept that such pedestrians shall keep to the left of the center line thereof, and turn to their left\ninstead of right side thereof, so as to permit all vehicles passing them in either direction to pass on\ntheir right. Such pedestrians shall not be subject to the rules governing vehicles as to giving\nsignals.\xe2\x80\x9d . . . Mrs. Tedla and her brother did not observe the statutory rule, and at the time of the\naccident were proceeding in easterly direction on the east bound or right-hand roadway. . . . The\ntrial judge left to the jury the question whether failure to observe the statutory rule was a\nproximate cause of the accident . . . . Upon this appeal, the only question presented is whether, as\nmatter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center\nline of a highway constitutes contributory negligence which bars any recovery by the plaintiff.\n. . . Custom and common sense have always dictated that vehicles should have the right of\nway over pedestrians and that pedestrians should walk along the edge of a highway so that they\nmight step aside for passing vehicles with least danger to themselves and least obstruction to\nvehicular traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians\n219\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nwith the same uniformity as by vehicles; though, in general, they probably followed, until\nrecently, the same rules as vehicles.\n. . . Until . . . 1933, [when the Legislature enacted the Vehicle and Traffic Law], there was\nno special statutory rule for pedestrians walking along a highway. Then for the first time it\nreversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided\nthat pedestrians shall keep to the left of the center line of a highway.\nThe plaintiffs showed by the testimony of a State policeman that \xe2\x80\x9cthere were very few\ncars going east\xe2\x80\x9d at the time of the accident, but that going west there was \xe2\x80\x9cvery heavy Sunday\nnight traffic.\xe2\x80\x9d Until the recent adoption of the new statutory rule for pedestrians, ordinary\nprudence would have dictated that pedestrians should not expose themselves to the danger of\nwalking along the roadway upon which the \xe2\x80\x9cvery heavy Sunday night traffic\xe2\x80\x9d was proceeding\nwhen they could walk in comparative safety along a roadway used by very few cars. It is said that\nnow, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of\nlaw when they use the safer roadway, unless that roadway is left of the center of the road. . . . If\nthat be true, then the Legislature has decreed that pedestrians must observe the general rule of\nconduct which it has prescribed for their safety even under circumstances where observance\nwould subject them to unusual risk; that pedestrians are to be charged with negligence as matter of\nlaw for acting as prudence dictates. . . .\nThe appellants lean heavily upon [Martin v. Herzog] and kindred cases and the principle\nestablished by them. The analogy is, however, incomplete. The \xe2\x80\x9cestablished rule\xe2\x80\x9d should not be\nweakened either by subtle distinctions or by extension beyond its letter or spirit into a field where\n\xe2\x80\x9cby the very terms of the hypothesis\xe2\x80\x9d it can have no proper application. At times the indefinite\nand flexible standard of care of the traditional reasonably prudent man may be, in the opinion of\nthe Legislature, an insufficient measure of the care which should be exercised to guard against a\nrecognized danger; at times, the duty, imposed by custom, that no man shall use what is his to the\nharm of others provides insufficient safeguard for the preservation of the life or limb or property\nof others. Then the Legislature may by statute prescribe additional safeguards and may define\nduty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the\ncare required is no longer what the reasonably prudent man would do under the circumstances but\nwhat the Legislature has commanded. That is the rule established by the courts and \xe2\x80\x9cby the very\nterms of the hypothesis\xe2\x80\x9d the rule applies where the Legislature has prescribed safeguards \xe2\x80\x9cfor the\nbenefit of another that he may be preserved in life or limb.\xe2\x80\x9d In that field debate as to whether the\nsafeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to\nthat fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably\nnecessary and where the legislative anticipation of dangers is realized and harm results through\nheedless or willful omission of the prescribed safeguard, injury flows from wrong and the\nwrongdoer is properly held responsible for the consequent damages.\nThe statute upon which the defendants rely is of different character. It does not prescribe\nadditional safeguards which pedestrians must provide for the preservation of the life or limb or\nproperty of others, or even of themselves, nor does it impose upon pedestrians a higher standard\nof care. What the statute does provide is rules of the road to be observed by pedestrians and by\nvehicles, so that all those who use the road may know how they and others should proceed, at\nleast under usual circumstances. A general rule of conduct\xe2\x80\x94and, specifically, a rule of the\nroad\xe2\x80\x94may accomplish its intended purpose under usual conditions, but, when the unusual occurs,\nstrict observance may defeat the purpose of the rule and produce catastrophic results.\n220\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNegligence is failure to exercise the care required by law. Where a statute defines the\nstandard of care and the safeguards required to meet a recognized danger, then, as we have said,\nno other measure may be applied in determining whether a person has carried out the duty of care\nimposed by law. Failure to observe the standard imposed by statute is negligence, as a matter of\nlaw. On the other hand, where a statutory general rule of conduct fixes no definite standard of\ncare which would under all circumstances tend to protect life, limb or property but merely codifies\nor supplements a common-law rule, which has always been subject to limitations and exceptions;\nor where the statutory rule of conduct regulates conflicting rights and obligations in manner\ncalculated to promote public convenience and safety, then the statute, in the absence of clear\nlanguage to the contrary, should not be construed as intended to wipe out the limitations and\nexceptions which judicial decisions have attached to the common-law duty; nor should it be\nconstrued as an inflexible command that the general rule of conduct intended to prevent accidents\nmust be followed even under conditions when observance might cause accidents. We may assume\nreasonably that the Legislature directed pedestrians to keep to the left of the center of the road\nbecause that would cause them to face traffic approaching in that lane and would enable them to\ncare for their own safety better than if the traffic approached them from the rear. We cannot\nassume reasonably that the Legislature intended that a statute enacted for the preservation of the\nlife and limb of pedestrians must be observed when observance would subject them to more\nimminent danger.\n...\nEven under that construction of the statute, a pedestrian is, of course, at fault if he fails\nwithout good reason to observe the statutory rule of conduct. The general duty is established by\nthe statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible\nfor the damages resulting from his wrong. . . .\nIn each action, the judgment should be affirmed, with costs.\nO\xe2\x80\x99BRIEN and FINCH, JJ., dissent on the authority of Martin v. Herzog . . . .\n\nNotes\n\n2. Distinguishing Martin v. Herzog. How does Judge Lehman distinguish Cardozo\xe2\x80\x99s\napproach in Martin v. Herzog? Does the distinction between safety statutes and \xe2\x80\x9crules of the\nroad\xe2\x80\x9d explain the difference between Martin and Tedla?\n\n3. Irving Lehman. In 1939, Irving Lehman\xe2\x80\x99s brother, Herbert Lehman, was governor of New\nYork. Both Lehmans were highly-respected mid-century liberals. The New York Times obituary\nfor Irving, who died in 1945, described him as a jurist \xe2\x80\x9cwhose interpretation of the law made it a\nliving force subject to change and development with the appearance of new problems and new\noutlooks.\xe2\x80\x9d Irving Lehman, 69, Noted Jurist, Dies, N.Y. TIMES, Sept. 23, 1945. Does a flexible\ntheory of the law as a living and evolving institution help explain Lehman\xe2\x80\x99s decision in Tedla?\nDoes Judge Lehman\xe2\x80\x99s \xe2\x80\x9cliving law\xe2\x80\x9d theory have implications for the relationship between statutes\nand the common law more generally? Note that the book with which we began this section,\nGuido Calabresi\xe2\x80\x99s A Common Law for the Age of Statutes, was principally concerned with the\n221\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nproblem of statutes that had become, by passage of time and changes in values, out of date or\notherwise out of step with the spirit of the times.\n\n4. Meta institutional choice. Does Lehman\xe2\x80\x99s opinion require a general theory of the relative\nvirtues of courts as opposed to legislatures as decision-makers about risk? Or does Lehman need\nmerely to establish a meta rule about which institution is properly authorized to decide which\ninstitution is the better decision-maker under the circumstances?\n\n5. Statutory standards. Even when a court does defer to the statute as supplying the relevant\nstandard of conduct, it does not necessarily follow that any loss caused by a departure from the\nstatutory standard is a loss for which the departing party may be held liable. As Cardozo wrote in\nMartin, courts are \xe2\x80\x9cless rigid\xe2\x80\x9d when the party charging negligence on the basis of a statutory\nsafeguard \xe2\x80\x9cis not a member of the class for whose protection the safeguard is designed.\xe2\x80\x9d\nMoreover, courts have generally held that statutory standards are only to be treated as negligence\nper se when the losses that occur are the kinds of losses the legislature sought to guard against in\npassing the statute. Consider the terrible case of the very wet sheep:\n\nGorris v. Scott, [1874] L.R. 9 Ex. 125\nKELLY, C.B.\nThis is an action to recover damages for the loss of a number of sheep which the\ndefendant, a shipowner, had contracted to carry, and which were washed overboard and lost by\nreason (as we must take it to be truly alleged) of the neglect to comply with a certain order made\nby the Privy Council, in pursuance of the Contagious Diseases (Animals) Act, 1869. The Act was\npassed merely for sanitary purposes, in order to prevent animals in a state of infectious disease\nfrom communicating it to other animals with which they might come in contact. Under the\nauthority of that Act, certain orders were made; amongst others, an order by which any ship\nbringing sheep or cattle from any foreign port to ports in Great Britain is to have the place\noccupied by such animals divided into pens of certain dimensions, and the floor of such pens\nfurnished with battens or foot holds. The object of this order is to prevent animals from being\novercrowded, and so brought into a condition in which the disease guarded against would be\nlikely to be developed. This regulation has been neglected, and the question is, whether the loss,\nwhich we must assume to have been caused by that neglect, entitles the plaintiffs to maintain an\naction.\nThe argument of the defendant is, that the Act has imposed penalties to secure the\nobservance of its provisions, and that, according to the general rule, the remedy prescribed by the\nstatute must be pursued . . . .\nBut, looking at the Act, it is perfectly clear that its provisions were all enacted with a\ntotally different view; there was no purpose, direct or indirect, to protect against such damage;\nbut, as is recited in the preamble, the Act is directed against the possibility of sheep or cattle being\nexposed to disease on their way to this country. . . . [T]he damage complained of here is\nsomething totally apart from the object of the Act of Parliament, and it is in accordance with all\nthe authorities to say that the action is not maintainable.\n222\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nPIGOTT, B.\nThe object . . . of the regulations which have been broken was, not to prevent cattle from\nbeing washed overboard, but to protect them against contagious disease. . . . If, indeed, by reason\nof the neglect complained of, the cattle had contracted a contagious disease, the case would have\nbeen different. But as the case stands on this declaration, the answer to the action is this: Admit\nthere has been a breach of duty; admit there has been a consequent injury; still the legislature was\nnot legislating to protect against such an injury, but for an altogether different purpose; its object\nwas not to regulate the duty of the carrier for all purposes, but only for one particular purpose. . . .\nJudgment for the defendant.\n\nThe Restatement Approach\nThe Restatement (Second) of Torts\xe2\x80\x99s provisions for statutes and tort liability restate the\napproach found in Martin, Tedla, and Gorris. A statutory or regulatory standard of conduct may\nbe adopted as the standard of reasonableness where that statute\xe2\x80\x99s or regulation\xe2\x80\x99s purpose is, at\nleast in part, \xe2\x80\x9cto protect a class of persons\xe2\x80\x9d that includes the plaintiff, and where the statute\xe2\x80\x99s or\nregulation\xe2\x80\x99s purpose is to protect the \xe2\x80\x9cparticular interest invaded\xe2\x80\x9d against the particular sort of\nharm complained of. RESTATEMENT (SECOND) OF TORTS \xc2\xa7 286 (1965). Section 288 further\nprovides that an actor\xe2\x80\x99s violations of statutory or regulatory standards are excused, and thus are\nnot negligence, when the actor\xe2\x80\x99s incapacity makes the violation reasonable; where the actor\n\xe2\x80\x9cneither knows nor should know of the occasion for compliance\xe2\x80\x9d; where the actor is \xe2\x80\x9cunable after\nreasonable diligence or care to comply\xe2\x80\x9d; where the actor is \xe2\x80\x9cconfronted by an emergency not due\nto his own misconduct\xe2\x80\x9d; or where \xe2\x80\x9ccompliance would involve a greater risk of harm to the actor\nor to others.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 288A (1965).\nDo Section 288\xe2\x80\x99s exceptions comport with the basic rule of negligence per se set out in\nSection 286 and in Martin v. Herzog? Does the Restatement offer a coherent reformulation of the\ncaselaw? Or does it merely reproduce the caselaw\xe2\x80\x99s tensions, in particular the tension between\nMartin and Tedla? The Restatement (Third) of Torts offers a more linguistically economical\nformulation, but not one that does any better than its predecessor. See RESTATEMENT (THIRD) OF\nTORTS: PHYS. & EMOT. HARM \xc2\xa7\xc2\xa7 14-15 (2010).\n\n2. A Regulatory Compliance Defense?\nSo far the cases we have considered arise out of the violations of statutory standards. But\nwhat about when a party complies with such a standard? If violations are negligence per se, does\ncompliance constitute reasonableness as a matter of law?\nControversially, the traditional answer is no. In Lugo v. LJN Toys, for example, a New\nYork court rejected the defendant\xe2\x80\x99s contention that its compliance with safety regulations\nabsolved it from liability, citing the long-standing rule that \xe2\x80\x9cwhile compliance with a statute may\nconstitute some evidence of due care, it does not preclude a finding of negligence.\xe2\x80\x9d 539 N.Y.S.2d\n922, 924 (1989), aff\xe2\x80\x99d, 552 N.E.2d 162 (1990). The standard rationale is that legislation sets a\n223\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nfloor on conduct, not a ceiling, and that courts and juries are entitled to insist that actors surpass\nstatutory safety standards when, under the circumstances, reasonableness so requires. Moreover,\ndefenders of the common law rule insist that there are good reasons underlying it. Administrative\nagencies and legislatures, they contend, are subject to the phenomenon known as \xe2\x80\x9cregulatory\ncapture,\xe2\x80\x9d under which regulations serve not the interest of the public, but the interests of the\nregulated entity. The basic problem, as influentially identified by political scientist Theodore\nLowi in the late 1960s, is that regulators unavoidably interact with the industries they regulate.\nThose industries have ample opportunity and motive to advance their interests with regulators.\nThe public, by contrast, is diffuse and disorganized and may not press its interests nearly as\nforcefully in the regulatory process. The problem grows worse in systems like the United States,\nwith the so-called \xe2\x80\x9crevolving door\xe2\x80\x9d between the regulator and the regulated entities. If regulators\nare former employees of the firms they regulate\xe2\x80\x94and hope to be employees of such firms once\nagain in the future\xe2\x80\x94then critics contend that the regulations will almost certainly favor the\nregulated entities interests over those of the public in situations where the two diverge.\nCritics, however, contend that the absence of a regulatory compliance defense means that\nregulated actors face two separate regulatory systems, one statutory and the other common law.\nThe absence of a such a defense means that they bear the burdens of both but not the benefits.\nIn the early 1990s, the American Law Institute (publisher of the Restatements) issued a\nReporter\xe2\x80\x99s Study that made recommendations for a revised regulatory compliance defense. The\nALI reporter, Richard B. Steward, proposed that compliance with a safety standard be made a\ncomplete defense to the charge of negligence when: (a) the standard was promulgated by a\nspecialized administrative agency charged with the power to monitor and assess and regulate the\nrisk in question; and (b) when the regulated entity seeking to invoke the defense made disclosures\nto the agency about the risks in question. In particular, Stewart\xe2\x80\x99s proposal would have required\nthat:\nthe defendant must have publicly disclosed to the relevant regulatory agency any\nmaterial information in its possession (or of which it has reason to be aware)\nconcerning the risks posed by the defendant\xe2\x80\x99s activities and/or the means of\ncontrolling them. This requirement would extend to information indicating that\nagency standards or tests may be inadequate or inappropriate . . . .\nRegulatory Compliance Preclusion of Tort Liability: Limiting the Dual-Track System, 88 GEO.\nL.J. 2167 (2000). Is Stewart\xe2\x80\x99s proposal superior to the traditional common law approach to\nregulatory compliance? Defenders of the traditional approach often cite the risk of regulatory\ncapture. Stewart\xe2\x80\x99s public disclosure requirement was designed to ameliorate the capture problem\nwhile preserving the virtues of the risk regulators as against the decisions of lay juries in common\nlaw courts.\nIn the end, controversy over Stewart\xe2\x80\x99s proposal prevented it from being added to the\nRestatement, though the Third Restatement did add a more modest alteration, contending that the\ncommon law reasonableness standard should not require a course of conduct that is forbidden by\nsome a statutory or administrative standard. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR\nPHYSICAL AND EMOTIONAL HARM \xc2\xa7 16(b):\n\n224\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n3. Torts in the Modern State: Implied Private Causes of Action\nA further question for statutes and tort suits arises when a statute imposes an obligation\nthat did not exist at common law. Does failure to comply with that statutory obligation, when\nsuch failure causes harm, give rise to a separate cause of action for damages (i.e., something other\nthan common law negligence) to enforce the public standard? When the legislation explicitly\nauthorizes private causes of action, the answer is a relatively straightforward yes. Subject to the\nlimitations of the Constitution\xe2\x80\x99s standing requirements, Congress and the state legislatures are\ngenerally free to authorize private parties to act as the enforcers of publicly enacted norms.\nBut what about legislation that does not specify whether private parties may enforce its\nprovisions? Here the problem is more difficult.\n\nUhr v. East Greenbush Central School District, 94 N.Y.2d 32 (1999)\nROSENBLATT, J.\nEducation Law \xc2\xa7 905 (1) requires school authorities in the State of New York to examine\nstudents between 8 and 16 years of age for scoliosis at least once in each school year. The\nprincipal issue on this appeal is whether the statute authorizes a private right of action.\nDuring the 1992-1993 school year, the infant plaintiff was a seventh grade student at the\nGoff Middle School, operated by defendant East Greenbush Central School District. In October\n1992, as part of a school program, a nurse screened her for scoliosis. The results were negative.\nShe was examined during the following school year (1993-1994) by a school nurse who checked\nher height, weight and vision but allegedly did not screen her for scoliosis.\nIn March 1995, when the infant plaintiff was a ninth grader during the 1994-1995 school\nyear at Columbia High School . . . a school nurse screened her for scoliosis and the examination\nproved positive. . . . [A]n orthopedic doctor . . . concluded that her scoliosis had progressed to the\npoint that surgery was required instead of the braces that often can be utilized when the condition\nis diagnosed earlier. The infant plaintiff underwent surgery in July 1995.\nPlaintiffs have alleged two causes of action . . . . One is based on a claimed violation\nof Education Law \xc2\xa7 905 (1), one on common-law negligence. Plaintiffs assert, in essence, that\nthe District was negligent in failing to examine the infant plaintiff for scoliosis during the 19931994 school year, as a result of which her ailment was allowed to progress undetected, to her\ndetriment. Supreme Court granted the District\'s motion for summary judgment, holding\nthat Education Law \xc2\xa7 905 (1) does not create a private right of action, and that plaintiffs had\notherwise failed to state a claim for common-law negligence. The Appellate Division affirmed.\nWe granted leave to appeal to this Court and now affirm.\n...\nThe Test For the Availability of a Private Right of Action\n\n225\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n. . . A statutory command . . . does not necessarily carry with it a right of private\nenforcement by means of tort litigation . . . .\nWhen a statute is silent, as it is here, courts have had to determine whether a private right\nof action may be fairly implied. . . . In making the determination, we ask:\n\xe2\x80\x9c(1) whether the plaintiff is one of the class for whose particular benefit the statute was\nenacted;\n\xe2\x80\x9c(2) whether recognition of a private right of action would promote the legislative\npurpose; and\n\xe2\x80\x9c(3) whether creation of such a right would be consistent with the legislative scheme\xe2\x80\x9d\n(Sheehy v. Big Flats Community Day, 73 NY2d, at 633, supra).\nThere is no doubt that the infant plaintiff is a member of the class for whose\nparticular benefit Education Law \xc2\xa7 905 (1) was enacted. The first prong is satisfied.\nThe second prong is itself a two-part inquiry. We must first discern what the Legislature\nwas seeking to accomplish when it enacted the statute, and then determine whether a private right\nof action would promote that objective (see, e.g., Burns Jackson Miller Summit & Spitzer v\nLindner, 59 NY2d, at 330, supra).\nHere, the purpose of the statute is obvious. Scoliosis is a curvature of the spine which, if\nleft undetected in children, can be crippling . . . . Upon early detection, scoliosis can be treated\nsuccessfully, often without the need for surgery. . . .\nEarly detection of the condition serves the dual legislative purpose of promoting public\nhealth and avoiding costly hospitalization.\nIn arguing that a private right of action would promote these objectives, plaintiffs assert\nthat the risk of liability for failure to screen will encourage compliance with Education Law \xc2\xa7 905\n(1), and thereby further the statute\xe2\x80\x99s purpose of providing broad-based screenings that benefit the\npublic. In response, the District argues that the risk of liability will prompt school districts to\nseek waivers of the requirement to screen and thus defeat the statute\xe2\x80\x99s purpose.\n. . . Although the District\xe2\x80\x99s \xe2\x80\x9cwaiver\xe2\x80\x9d argument is not entirely implausible it is an\ninsufficient basis on which to conclude that private enforcement would not promote the statute\xe2\x80\x99s\npurpose. . . . [W]e conclude that a private right of action would promote the legislative purpose\nand, therefore, the second prong is satisfied.\nWe turn next to the third Sheehy prong\xe2\x80\x94whether a private right of action is consistent\nwith the legislative scheme. . . . [P]rivate avenues of enforcement do not always harmonize [with\npublic enforcement] . . . . Both may . . . promote statutory compliance . . . but . . . are born of\ndifferent motivations and may produce a different allocation of benefits owing to differences in\napproach . . . .\nPlaintiffs argue that a private right of action is not only consistent with Education Law \xc2\xa7\n905 (1) but also necessary for its operation. They assert that the statute offers no other practical\nmeans of enforcement and that a private right of action is imperative, in order to give it life. We\ndisagree and conclude that a private right of action would not be consistent with the statutory\n226\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nscheme. . . . [T]he statute carries its own potent official enforcement mechanism. The Legislature\nhas expressly charged the Commissioner of Education with the duty to implement Education Law\n\xc2\xa7 905 (1) and has equipped the Commissioner with authority to adopt rules and regulations for\nsuch purpose (see, Education Law \xc2\xa7 905 [1]; \xc2\xa7 911). Moreover, the Legislature has vested the\nCommissioner with power to withhold public funding from noncompliant school districts. Thus,\nthe Legislature clearly contemplated administrative enforcement of this statute. The question then\nbecomes whether, in addition to administrative enforcement, an implied private right of action\nwould be consistent with the legislative scheme.\nIt would not. The evolution of Education Law \xc2\xa7 905 (2) is compelling evidence of the\nLegislature\xe2\x80\x99s intent to immunize the school districts from any liability that might arise out of the\nscoliosis screening program. . . . [T]he Legislature deemed that the school district \xe2\x80\x9cshall not suffer\nany liability to any person as a result of making such test or examination\xe2\x80\x9d (emphasis added). . . .\n[P]laintiffs would interpret the statute as conferring immunity for misfeasance but not\nnonfeasance. . . .\nPlaintiffs\xe2\x80\x99 reading of the statute might have some appeal if we did not have persuasive\nevidence as to the Legislature\xe2\x80\x99s intent to immunize the school districts for both nonfeasance and\nmisfeasance. The Legislature revealed its stance, in support of the District\xe2\x80\x99s interpretation, when\nin 1994 it amended Education Law \xc2\xa7 905 (2) in reaction to an Appellate Division ruling in Bello\nv. Board of Educ. (139 AD2d 945). The Bello Court ruled that Education Law \xc2\xa7 905 (2) did not\nimpose liability for the school district\xe2\x80\x99s failure to notify a child\xe2\x80\x99s parents of the positive results of\nthe screening (Bello v. Board of Educ., 139 AD2d, at 945, supra). . . . The Legislature specifically\nresponded to Bello by amending Education Law \xc2\xa7 905 (2) to require parental notification of\npositive test results within 90 days after the test (L 1994, ch 197). Revealingly, the Legislature\nevidently saw no need to amend Education Law \xc2\xa7 905 in any other way . . . . Its failure to\notherwise amend the statute is strong evidence of the Legislature\xe2\x80\x99s conclusion that the Appellate\nDivisions had correctly interpreted the statute\xe2\x80\x99s immunity provision.\nThere is also the matter of cost to the school districts, as evidenced by the Legislature\xe2\x80\x99s\nexpressed sensitivity in that regard. . . .\nGiven the Legislature\xe2\x80\x99s concern over the possible costs to the school districts\xe2\x80\x94as\nevidenced by the statutory immunity provision and the other legislative statements reflecting those\nconcerns\xe2\x80\x94we conclude that the Legislature did not intend that the districts bear the potential\nliability for a program that benefits a far wider population. If we are to imply such a right, we\nmust have clear evidence of the Legislature\xe2\x80\x99s willingness to expose the governmental entity to\nliability that it might not otherwise incur. The case before us reveals no such legislative intent.\nIn sum, we conclude that a private right of action to enforce Education Law \xc2\xa7 905 (1) is\ninconsistent with the statute\xe2\x80\x99s legislative scheme and therefore cannot be fairly implied.\nCommon-Law Negligence\n. . . [P]laintiffs argue that the District assumed a duty to the infant plaintiff and her parents\nby creating a special relationship with them in connection with the Education Law \xc2\xa7 905\n(1) program and that it breached its duty by failing to perform the examination during the 19931994 school year. We agree with the courts below that plaintiffs have failed as a matter of law to\nstate a claim for common-law negligence.\n227\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nAccordingly, the order of the Appellate Division should be affirmed, with costs.\n\nNotes\n\n1. Torts in the modern state. State courts (and federal courts applying state tort law) have\naddressed implied cause of action claims in a variety of contexts. In Sheehy v. Big Flats\nCommunity Day, Inc., 73 N.Y.2d 629 (1989), the New York Court of Appeals held that a state law\nprohibiting the furnishing of alcoholic beverages to anyone under the legal age did not create a\nprivate cause of action for a minor plaintiff who was injured while intoxicated because the law\nwas intended to authorize suits by those injured by intoxicated minors. In Lu v. Hawaiian\nGardens Casino, 50 Cal. 4th 592 (2010), the Supreme Court of California held that employees\ncould not sue to enforce a provision of the state\xe2\x80\x99s labor code, which prohibited employers from\ntaking gratuities left for employees.\nNote that private right of action analyses ask whether the statute in question imposes a\nduty on the defendant owed to and enforceable by the plaintiff in a private suit for damages, rather\nthan whether the statutory standard sets the measure of negligence for purposes of a common law\nnegligence claim. But sometimes, as in Uhr, plaintiffs advance both types of claims\xe2\x80\x94they are,\nafter all, functionally very similar\xe2\x80\x94and the analysis can become muddy. For an example of a\ncase that elucidates better than Uhr the distinction between a statute-based private cause of action\nand a common law negligence claim that relies on a statutorily created standard, consider\nMarquay v. Eno, 662 A.2d 272 (N.H. 1995), involving three plaintiffs who alleged that, as middle\nand high school students, school district employees subjected them to sexual and other abuse;\nclaims of negligence against some of the defendants turned on their failure to report suspected\nchild abuse, as required by New Hampshire state law. Taking up the relationship of a statutory\nviolation to civil liability, the court explained:\n. . . whether or not the common law recognizes a cause of action, the plaintiff may\nmaintain an action under an applicable statute where the legislature intended\nviolation of that statute to give rise to civil liability. The doctrine of negligence per\nse, on the other hand, provides that where a cause of action does exist at common\nlaw, the standard of conduct to which a defendant will be held may be defined as\nthat required by statute, rather than as the usual reasonable person standard. The\ndoctrine of negligence per se, however, plays no role in the creation of common law\ncauses of action. Thus, in many cases, the common law may fail to recognize\nliability for failure to perform affirmative duties that are imposed by statute.\nId. at 713-14. In other words, the court recognized a scenario in which a common law negligence\nclaim might fail, because the common law does not recognize the kind of duty that the statute\nimposes, but a statutory violation might nonetheless translate into civil liability, producing\nfunctionally the same result (monetary damages); see also Cuyler v. United States, 362 F.3d 949\n(7th Cir. 2004) (discussing whether violation of an Illinois child abuse reporting statute constitutes\nnegligence per se and, in doing so, distinguishing between a common law cause of action and a\nstatutory one).\n\n228\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n2. Federal implied causes of action. Federal implied causes of action have a relatively short\nhistory. The Supreme Court first recognized an implied cause of action in Texas & Pacific\nRailway Co. v. Rigsby, 241 U.S. 33 (1916) (authorizing private parties to sue under the Safety\nAppliance Act of 1910). The modern wave of implied federal cause of action cases began after\nthe onslaught of New Deal legislation, when the Court liberally authorized private causes of\naction under the Securities and Exchange Act of 1934 and the Investment Advisers Act of 1940.\nSee John A. Maher, Implied Private Rights of Action and the Federal Securities Laws: A\nHistorical Perspective, 37 WASH. & LEE L. REV. 783, 789-804 (1980). The capstone of the New\nDeal private cause of action cases came in Cort v. Ash, 422 U.S. 66 (1975). Although the Cort\nCourt held that 18 U.S.C. \xc2\xa7 610, a criminal statute prohibiting corporations from making federal\nelection contributions, did not authorize a plaintiff stockholder to sue to enjoin the corporation\nfrom publishing political advertisements from its general funds, the Court established a fourfactor test for determining whether a federal statute implied a private cause of action. A mere four\nyears later, however, the Court backtracked in Touche Ross & Co. v. Redington, 442 U.S. 560,\n576 (1979), reading the Cort test as an application of traditional principles of legislative intent.\nNonetheless, many state courts, including the New York Court of Appeals in Sheehy and Uhr,\napply tests based on Cort\xe2\x80\x99s first three factors. In the twenty-first century, the Supreme Court has\ncut back still further on implied causes of action under federal statutes. In Alexander v. Sandoval,\n532 U.S. 275 (2001), the respondent sued to enforce disparate-impact regulations promulgated\nunder Title VI of the Civil Rights Act of 1964. The respondent alleged that Alabama\xe2\x80\x99s Englishonly driver\xe2\x80\x99s license test violated Title VI\xe2\x80\x99s prohibition on discrimination in public programs\nbecause of race, color, or national origin. The Sandoval Court held that Title VI did not create a\nprivate cause of action for disparate impact claims. For a criticism of the Court\xe2\x80\x99s decision, see\nBradford C. Mank, Legal Context: Reading Statutes in Light of Prevailing Legal Precedent, ARIZ.\nST. L.J. 816, 856-66 (2002).\n\n3. A logic for implied causes of action. When should governments authorize private\nenforcement? Lawyer economist Steven Shavell argues that the effectiveness of private damages\nactions as an enforcement mechanism turns on several factors, chief among which are (a) whether\nprivate parties have access to the information necessary to be effective regulators of risky\nactivities, and (b) whether the actors whose conduct is to be regulated can pay for the full\nmagnitude of the harm. If private parties do not have enough information to bring enforcement\nactions, then their effectiveness will of course be severely limited. Consider, for example, using\nprivate enforcement to police safety regulations in a nuclear power plant. Similarly, if the\nregulated actor or actors present a risk of harm to others that exceeds their ability to pay, then the\nthreat of tort damages after the fact will prove to be an insufficient deterrent. The paradigmatic\nexample here is the judgment-proof individual, but, although it is somewhat terrifying, we might\njust as well consider nuclear power plants again, since the chances that a power plant operator\ncould be made to internalize the costs of a Chernobyl-like meltdown are slim to none. For the\nbasic analysis, see Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL\nSTUD. 357, 357-64 (1984).\n\n4. Private enforcement and public enforcement. Objections to private causes of action often\nfocus on the risk of over deterrence, which can arise when regulated actors face both public and\nprivate sanctions, each of which might be effective on its own, but which together require too\nmuch care. See W. KIP VISCUSI, REGULATION THROUGH LITIGATION 1-6 (2002). One especially\nproblematic version of this occurs when plaintiffs\xe2\x80\x99 lawyers piggyback on regulatory action that\n229\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nwould have been sufficient in and of itself. (Chapter 9 of this book takes this problem up in more\ndetail.) Still others criticize private litigation on democracy grounds. Negotiated tort settlements,\nthey say, force regulated entities to accept regulatory policies outside of the democraticallyaccountable rulemaking process. Of course, since the private causes of action for damages only\nexist if courts conclude that the statutes they enforce imply the availability of such causes of\naction, then these suits are themselves the creatures of democratic legislation. Legislatures are\nentirely free to abolish such private causes of action.\nDefenders of certain private causes of action observe that courts and juries are less\nvulnerable than legislatures and regulators to interest group politics. Moreover, where\nbureaucratic systems often become ossified and rigid, judges and juries continuously update their\ndamages evaluations. See generally John Fabian Witt, Bureaucratic Legalism, American Style:\nPrivate Bureaucratic Legalism and the Governance of the Tort System, 56 DEPAUL L. REV. 261,\n272 (2007).\n\n5. The False Claims Act. One interesting model for public and private enforcement is the\nFalse Claims Act\xe2\x80\x99s (FCA) qui tam provisions, which permit private persons (styled as \xe2\x80\x9crelators\xe2\x80\x9d)\nto bring civil actions against private parties who defraud the federal government. In return,\nrelators receive 15% to 25% of the proceeds of the action or settlement or 25% to 30% if the\ngovernment chooses not to pursue the litigation. 31 U.S.C. \xc2\xa7 3730(b)-(d). Critics of these qui tam\nprovisions claim that inefficient, specialized relator-side firms increasingly dominate qui tam\nlitigation. Others argue that these firms have positive effects on the system because they enjoy\nhigher success rates and expose larger frauds than less experienced firms. David Freeman\nEngstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112\nCOLUM. L. REV. 1244, 1248-50 (2012).\n\n6. Bivens v. Six Unknown Named Agents. Constitutional provisions have been held to\nimply private causes of action for damages as well as statutory provisions. In Bivens v. Six\nUnknown Named Agents, 403 U.S. 388 (1971), the Supreme Court ruled that federal officials may\nbe sued in their personal capacity for damages caused by constitutional violations. In the Bivens\ncase, the Court held that the Fourth Amendment implied a private cause of action against the\nfederal officers who violated the petitioner\xe2\x80\x99s right to be free from unreasonable searches and\nseizures. The Court subsequently expanded Bivens liability to violations of the Fifth, Davis v.\nPassman, 442 U.S. 228 (1979), and Eighth Amendments, Carlson v. Green, 446 U.S. 14 (1980).\nBut Carlson marked the high-water mark for Bivens-style implied constitutional causes of action.\nAs in the implied statutory causes of action cases, the Court has been much more reluctant in\nrecent decades to find implied private actions; the justices have not extended liability to new\ndefendants or new constitutional claims since 1980. For a recent example, see Hernandez v.\nMesa, 589 U.S. __ (2020) (declining to recognize a Bivens claim in the \xe2\x80\x9cnew \xe2\x80\x98context\xe2\x80\x99\xe2\x80\x9d of a\ncross-border shooting). For a discussion of Bivens and its consequences for official liability, see\nAlexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the\nIndividual Liability Model, 62 STAN. L. REV. 809 (2010). Plaintiffs may sue state and local\nofficials for similar constitutional violations under a federal statute that explicitly authorizes\nprivate causes of action. See 42 U.S.C. \xc2\xa7 1983.\n\n230\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n7. The Restatement approach. Section 874 of the Second Restatement recommends that\nimplied private causes of action be recognized when such a cause of action \xe2\x80\x9cis appropriate in\nfurtherance of the purpose of the legislation and needed to assure the effectiveness of the\nprovision. RESTATEMENT (SECOND) OF TORTS, \xc2\xa7 874A.\nThe Third Restatement contains no analog to Section 874. However, the Third\nRestatement does note that in \xe2\x80\x9ca suit brought by the victim of [a statutory violation], the court,\nrelying on ordinary principles of legislative interpretation, may in appropriate cases infer from the\nstatute a cause of action for damages against a violator.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS.\nAND EMOT. HARM \xc2\xa714, cmt. b (2010). Additionally, the Third Restatement permits a court to rely\non a statute to find that the plaintiff owes an affirmative duty to the defendant, which, when\nbreached, creates a common law cause of action. See id. \xc2\xa7 38 (\xe2\x80\x9cAffirmative Duty Based on\nStatutory Provisions Imposing Obligations to Protect Another\xe2\x80\x9d).\nFor a discussion of the relationship between Section 38 and Section 874A of the Second\nRestatement, see RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa738, cmt. A (2010); see\nalso id. at \xc2\xa738, cmt. d.\n\nF. Proof of Negligence\nIt is one thing to understand the basic elements of the negligence cause of action. But in\npractice, a plaintiff needs to prove her case, too. The question of what precisely it means to meet\na plaintiff\xe2\x80\x99s burden of proof turns out to be a tricky one. Consider Judge Posner\xe2\x80\x99s opinion in\nHoward v. Wal-Mart:\n\n1. The Basic Problem\nHoward v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998)\nPOSNER, C.J.\nWe have before us a charming miniature of a case. In 1993 Dolores Howard, age 65,\nslipped and fell in a puddle of liquid soap that someone\xe2\x80\x94no one knows who\xe2\x80\x94had spilled on the\nfloor of the aisle in a Wal-Mart store in Cahokia, Illinois. . . . The jury awarded her $18,750.\nWal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential\neffect in future slip-and-fall cases of the judge\xe2\x80\x99s refusal to grant judgment for Wal-Mart as a\nmatter of law. We don\xe2\x80\x99t tell people whether to exercise their rights of appeal, but we feel\nimpelled to remind Wal-Mart and its lawyer that a district court\xe2\x80\x99s decision does not have\nprecedential authority . . . let alone a jury verdict or an unreported order by a magistrate judge . . .\nrefusing on unstated grounds to throw out a jury\xe2\x80\x99s verdict.\nThe issue on appeal is whether there was enough evidence of liability to allow the case to\ngo to a jury, and, specifically, whether there was enough evidence that an employee rather than a\ncustomer spilled the soap. . . . Even if a customer spilled it, Wal-Mart could be liable if it failed to\nnotice the spill and clean it up within a reasonable time. . . . It has a legal duty to make its\npremises reasonably safe for its customers. But there is no evidence with regard to how much\n231\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ntime elapsed between the spill and the fall; it may have been minutes. Wal-Mart is not required to\npatrol the aisles continuously, but only at reasonable intervals. . . . So Howard could prevail only\nif there was enough evidence that an employee spilled the soap to satisfy the requirement of\nproving causation by a preponderance of the evidence.\nThe accident occurred in the morning, and morning is also when the employees stock the\nshelves. The defendant presented evidence that the puddle of liquid soap on which Howard\nslipped was about the diameter of a softball and was in the middle of the aisle. Howard testified\nthat it was a large puddle on the right side of the aisle and \xe2\x80\x9cwhen I got up, I had it all over me, my\ncoat, my pants, my shoes, my socks.\xe2\x80\x9d An employee could have dropped one of the plastic\ncontainers of liquid soap on the floor while trying to shelve it and the container could have broken\nand leaked. Or the cap on one of the containers might have come loose. Or the containers might\nhave been packed improperly in the box from which they were loaded onto the shelves and one of\nthem might have sprung a leak. Alternatively, as Wal-Mart points out, a customer, or a\ncustomer\xe2\x80\x99s child, might have knocked a container off the shelf. A curious feature of the case,\nhowever, is that the container that leaked and caused the spill was never found. Howard argues,\nnot implausibly, that a customer who had come across a damaged container or had damaged it\nwould be unlikely to purchase it, having lost part of its contents\xe2\x80\x94a large part, if Howard\xe2\x80\x99s\ntestimony was believed; and the jury was entitled to believe it\xe2\x80\x94or indeed to put it in her shopping\ncart and risk smearing her other purchases with liquid soap. In light of this consideration, we\ncannot say that the jury was irrational in finding that the balance of probabilities tipped in favor of\nthe plaintiff, though surely only by a hair\xe2\x80\x99s breadth.\nIs a hair\xe2\x80\x99s breadth enough, though? Judges, and commentators on the law of evidence,\nhave been troubled by cases in which the plaintiff has established a probability that only minutely\nexceeds 50 percent that his version of what happened is correct. The concern is illuminated by the\nmuch-discussed bus hypothetical. Suppose that the plaintiff is hit by a bus, and it is known that\n51 percent of the buses on the road where the plaintiff was hit are owned by Bus Company A and\n49 percent by Company B. The plaintiff sues A and asks for judgment on the basis of this statistic\nalone (we can ignore the other elements of liability besides causation by assuming they have all\nbeen satisfied, as in this case); he tenders no other evidence. If the defendant also puts in no\nevidence, should a jury be allowed to award judgment to the plaintiff? The law\xe2\x80\x99s answer is \xe2\x80\x9cno.\xe2\x80\x9d\nSee Richard W. Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof:\nPruning the Bramble Bush by Clarifying the Concepts, 73 IOWA L. REV. 1001, 1050-51 (1988),\nand cases cited there. Our hypothetical case is a variant of Smith v. Rapid Transit, 317 Mass. 469,\n58 N.E.2d 754 (1945), where the court held that it \xe2\x80\x9cwas not enough\xe2\x80\x9d \xe2\x80\x9cthat perhaps the\nmathematical chances somewhat favor the proposition that a bus of the defendant caused the\naccident.\xe2\x80\x9d Id. at 755. . . .\nSmith . . . involve[s] explicitly probabilistic evidence. But as all evidence is probabilistic\nin the sense of lacking absolute certainty, all evidence can be expressed in probabilistic terms, and\nso the problem or dilemma presented by those cases is general. The eyewitness might say that he\nwas \xe2\x80\x9c99 percent sure\xe2\x80\x9d that he had seen the defendant, and jurors appraising his testimony might\nreckon some different probability that he was correct. What powers the intuition that the plaintiff\nshould lose the bus case is not the explicitly probabilistic nature of the evidence, but the\nevidentiary significance of missing evidence. If the 51/49 statistic is the plaintiff\xe2\x80\x99s only evidence,\nand he does not show that it was infeasible for him to obtain any additional evidence, the\ninference to be drawn is not that there is a 51 percent probability that it was a bus owned by A that\nhit the plaintiff. It is that the plaintiff either investigated and discovered that the bus was actually\n232\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nowned by B (and B might not have been negligent and so not liable even if a cause of the\naccident, or might be judgment-proof and so not worth suing), or that he simply has not bothered\nto conduct an investigation. If the first alternative is true, he should of course lose; and since it\nmay be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent\nand the plaintiff has failed to carry his burden of proof. If the second alternative is true\xe2\x80\x94the\nplaintiff just hasn\xe2\x80\x99t conducted an investigation\xe2\x80\x94he still should lose. A court shouldn\xe2\x80\x99t be\nrequired to expend its scarce resources of time and effort on a case until the plaintiff has\nconducted a sufficient investigation to make reasonably clear that an expenditure of public\nresources is likely to yield a significant social benefit. This principle is implicit in the law\xe2\x80\x99s\ndecision to place the burden of producing evidence on the plaintiff rather than on the defendant.\nSuppose it would cost the court system $10,000 to try even a barebones case. This expenditure\nwould be worthless from the standpoint of deterring accidents should it turn out that the bus was\nowned by B. It makes sense for the court to require some advance investigation by the plaintiff in\norder to increase the probability that a commitment of judicial resources would be worthwhile.\nThese objections to basing a decision on thin evidence do not apply to the present case.\nNot only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it\nwould have been unreasonable, given the stakes, to expect her to conduct a more thorough\ninvestigation. This is a tiny case; not so tiny that it can be expelled from the federal court system\nwithout a decision, but so tiny that it would make no sense to try to coerce the parties to produce\nmore evidence, when, as we have said, no inference can be drawn from the paucity of evidence\nthat the plaintiff was afraid to look harder for fear that she would discover that a customer and not\nan employee of Wal-Mart had spilled the soap.\nWe conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a\nreported appellate decision, unlike the decision of the district court, will have precedential\nauthority!\nAffirmed.\n\nNotes\n\n1. Statistical evidence in the common law. Why is it not enough for plaintiffs to prove their\ncase using statistical evidence that establishes a \xe2\x80\x9cmore likely than not\xe2\x80\x9d probability that the\ndefendant was negligent?\nAccording to Professor Daniel Shaviro, courts refuse to rule for plaintiffs in such cases for\nthree reasons. First, relying on such evidence \xe2\x80\x9cmakes the unjust punishment of innocent persons\ncertain, rather than probable,\xe2\x80\x9d effectively allowing such defendants \xe2\x80\x9cto be sacrificed for general\nsocial benefit.\xe2\x80\x9d Daniel Shaviro, Commentary, Statistical-Probability Evidence and the\nAppearance of Justice, 103 HARV. L. REV. 530, 535 (1989) (emphasis omitted). Second, such\nevidence \xe2\x80\x9cviolates the principle that defendants should be treated as unique individuals.\xe2\x80\x9d Id. at\n537 (emphasis omitted). Third, \xe2\x80\x9cdefendants should not be held . . . liable absent \xe2\x80\x98actual belief\xe2\x80\x99 by\nthe jury, and such belief cannot be derived from statistical-probability evidence.\xe2\x80\x9d Id. at 539.\nProfessor Laurence Tribe similarly argues that courts\xe2\x80\x99 reliance on statistical evidence\n\xe2\x80\x9cdehumaniz[es] . . . justice,\xe2\x80\x9d directing jurors to focus on defendants\xe2\x80\x99 liability, rather than\ninnocence, and \xe2\x80\x9cdistort[ing] . . . important values . . . that society means to express or to pursue\n233\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthrough . . . legal trials.\xe2\x80\x9d Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the\nLegal Process, 84 HARV. L. REV. 1329, 1375, 1330 (1971). For more information on statistical\nevidence in trials, see infra Chapter 6, Causation.\nRecall, however, the case of Martin v. Herzog, in which Mrs. Martin could not recover\ndamages after her husband was killed by a car that crossed the median simply because their buggy\nwas not equipped with a light. The rule of per se negligence forbids courts from taking into\naccount some of the values that Professor Tribe and others might think important. A rule\ncharacterizing certain conduct as per se negligent is a kind of statistical judgment about the class\nof cases covered by the rule. Why isn\xe2\x80\x99t the use of rules, as opposed to standards, similarly\nperceived to be objectionable as statistical proof?\nNote, too, that of course insurers use statistics all the time to generalize about the riskiness\nof certain groups. Even if a teenage boy is, himself, incredibly cautious, and even if detailed\ninquiry into his behavior would produce a low risk assessment, he will nevertheless almost\ncertainly face a higher insurance premium than a middle aged woman. Professor Frederick\nSchauer argues that the stereotype of teenage boys being riskier drivers is a \xe2\x80\x9cnonspurious\xe2\x80\x9d\ngeneralization\xe2\x80\x94i.e., there is sound empirical evidence that a higher percentage of teenage boys\ndrive recklessly than other groups\xe2\x80\x94and therefore should be fair to rely on as insurance companies\nevaluate premiums and risk. FREDERICK SCHAUER, PROFILES, PROBABILITIES & STEREOTYPES, 15\n(2003). Schauer goes on to argue that empirically sound generalizations are often superior ways\nto organize decision-making than the particularized evaluations defended by Professor Tribe. Not\nonly might a generalized decision-making regime make fewer errors in the long run, it may also\n\xe2\x80\x9cserve other important goals and embody other important values,\xe2\x80\x9d such as efficiency and\nobjectivity. Id. at 24.\nWhile the teenage driver example of the use of the \xe2\x80\x9creasonable person\xe2\x80\x9d may seem\nacceptable, what about charging homebuyers a higher interest rate on their mortgage because their\nbuyers in their low-income neighborhood are statistically more likely to default?\n\n2. Burdens of production, burdens of persuasion. The burden of proof consists of the burden\nof production and the burden of persuasion. The burden of production requires a party, initially\nthe plaintiff, to produce \xe2\x80\x9csufficient evidence to support a finding in favor of that [party].\xe2\x80\x9d Bruner\nv. Office of Pers. Mgmt., 996 F.2d 290, 293 (Fed. Cir. 1993). Once the plaintiff has met her\nburden of production, the defendant may be required to offer evidence showing otherwise or\ncalling into question a material fact lest the defendant be defeated by a motion for summary\njudgment. Id. Not all prima facie cases by the plaintiff\xe2\x80\x94cases presenting sufficient evidence to\nsupport a finding in the plaintiff\xe2\x80\x99s favor\xe2\x80\x94will support a plaintiff\xe2\x80\x99s summary judgment motion\nabsent evidence offered by the defendant. But some will. And in this sense, although the burden\nof production starts with the plaintiff, we can think of it as shifting back and forth during a\nproceeding whenever either party develops evidence that would require a reasonable trier of fact\nto find for that party absent an additional showing of contrary evidence. The burden of\npersuasion, by contrast, generally \xe2\x80\x9crests with one party throughout the case.\xe2\x80\x9d Rivera v. Philip\nMorris, Inc., 209 P.3d 271, 275 (Nev. 2009). To meet the burden of persuasion, a party must\n\xe2\x80\x9cproduce sufficient evidence to convince a judge that a fact has been established.\xe2\x80\x9d Id. In civil\ncases, the threshold is a preponderance of the evidence. The party bearing the burden of\npersuasion, typically the plaintiff, at least as to the prima facie case, bears the risk that the\n234\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nevidence is in perfect equipoise. But she can win if the jury decides that her version of the events\nin question is just that much more likely than her adversary\xe2\x80\x99s version.\n\n3. Status Quo Bias? One view is that the basis for this basic feature of virtually all civil\nlitigation is a bias for the status quo. According to a leading treatise on the law of evidence, for\nexample, pleading and proof burdens are usually assigned to the plaintiff because the plaintiff is\nthe one seeking \xe2\x80\x9cto change the present state of affairs\xe2\x80\x9d and therefore \xe2\x80\x9cnaturally should be\nexpected to bear the risk of failure of proof or persuasion.\xe2\x80\x9d JOHN W. STRONG, MCCORMICK ON\nEVIDENCE \xc2\xa7 337, at 412 (5th ed., 1999). Is this a good argument for the initial allocation? What\nother arguments might be made?\n\n2. Res Ipsa Loquitur\nThe problem of cases in which proof is difficult to establish is a longstanding one, of\ncourse. Courts have used the doctrine of res ipsa loquitur (\xe2\x80\x9cthe thing speaks for itself\xe2\x80\x9d) to assign\nliability in such cases. Consider the two cases and notes below:\n\nByrne v. Boadle, 159 Eng. Rep. 299 (Court of Exchequer and Exchequer Chamber, 1863)\nThe plaintiff was walking in a public street past the defendant\xe2\x80\x99s shop when a barrel of\nflour fell upon him from a window above the shop, and seriously injured him. Held sufficient\nprima facie evidence of negligence for the jury, to cast on the defendant the onus of proving that\nthe accident was not caused by his negligence. . . .\nAt the trial . . . , the evidence adduced on the part of the plaintiff was as follows:\xe2\x80\x94A\nwitness named Critchley said: \xe2\x80\x9cOn the 18th July, I was in Scotland Road, on the right side going\nnorth, defendant\xe2\x80\x99s shop is on that side. When I was opposite to his shop, a barrel of flour fell\nfrom a window above in defendant\xe2\x80\x99s house and shop, and knocked the plaintiff down. . . . I did\nnot see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It\nstruck him on the shoulder and knocked him towards the shop. No one called out until after the\naccident.\xe2\x80\x9d The plaintiff said: \xe2\x80\x9cOn approaching Scotland Place and defendant\xe2\x80\x99s shop, I lost all\nrecollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I\nwas helpless for a fortnight.\xe2\x80\x9d (He then described his sufferings.) \xe2\x80\x9cI saw the path clear. I did not\nsee any cart opposite defendant\xe2\x80\x99s shop.\xe2\x80\x9d Another witness said: \xe2\x80\x9cI saw a barrel falling. I don\xe2\x80\x99t\nknow how, but from defendant\xe2\x80\x99s [shop].\xe2\x80\x9d . . . It was admitted that the defendant was a dealer in\nflour.\nIt was submitted, on the part of the defendant, that there was no evidence of negligence\nfor the jury. The learned Assessor was of that opinion, and nonsuited the plaintiff, reserving leave\nto him to move the Court of Exchequer to enter the verdict for him. . . .\nLittler, in the present term, obtained a rule nisi to enter the verdict for the plaintiff, on the\nground of misdirection of the learned Assessor in ruling that there was no evidence of negligence\non the part of the defendant; against which Charles Russell now shewed cause. First, there was no\nevidence to connect the defendant or his servants with the occurrence. It is not suggested that the\n235\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ndefendant himself was present, and it will be argued that upon these pleadings it is not open to the\ndefendant to contend that his servants were not engaged in lowering the barrel of flour. But\nthe declaration alleges that the defendant, by his servants, so negligently lowered the barrel of\nflour, that by and through the negligence of the defendant, by his said servants, it fell upon the\nplaintiff. That is tantamount to an allegation that the injury was caused by the defendant\xe2\x80\x99s\nnegligence, and it is competent to him, under the plea of not guilty, to contend that his servants\nwere not concerned in the act alleged. The plaintiff could not properly plead to this declaration\nthat his servants were not guilty of negligence, or that the servants were not his servants. If it had\nbeen stated by way of inducement that at the time of the grievance the defendant\xe2\x80\x99s servants were\nengaged in lowering the barrel of flour, that would have been a traversable allegation, not in issue\nunder the plea of not guilty. Then, assuming the point is open upon these pleadings, there was no\nevidence that the defendant, or any person for whose acts he would be responsible, was engaged\nin lowering the barrel of flour. It is consistent with the evidence that the purchaser of the flour\nwas superintending the lowering of it by his servant, or it may be that a stranger was engaged to\ndo it without the knowledge or authority of the defendant. [Pollock, C. B. The presumption is that\nthe defendant\xe2\x80\x99s servants were engaged in removing the defendant\xe2\x80\x99s flour; if they were not it was\ncompetent to the defendant to prove it.] Surmise ought not to be substituted for strict proof when\nit is sought to fix a defendant with serious liability. The plaintiff should establish his case by\naffirmative evidence.\nSecondly, assuming the facts to be brought home to the defendant or his servants, these\nfacts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give\naffirmative proof of negligence. But there was not a scintilla of evidence, unless the occurrence is\nof itself evidence of negligence. There was not even evidence that the barrel was being lowered\nby a jigger-hoist as alleged in the declaration. [Pollock, C. B. There are certain cases of which it\nmay be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that\nthe mere fact of the accident having occurred is evidence of negligence, as, for instance, in the\ncase of railway collisions.] . . . [Bramwell, B. No doubt, the presumption of negligence is not\nraised in every case of injury from accident, but in some it is. We must judge of the facts in a\nreasonable way; and regarding them in that light we know that these accidents do not take place\nwithout a cause, and in general that cause is negligence.] The law will not presume that a man is\nguilty of a wrong. It is consistent with the facts proved that the defendant\xe2\x80\x99s servants were\nusing the utmost care and the best appliances to lower the barrel with safety. Then why should\nthe fact that accidents of this nature are sometimes caused by negligence raise any presumption\nagainst the defendant? There are many accidents from which no presumption of negligence can\narise. [Bramwell, B. Looking at the matter in a reasonable way it comes to this\xe2\x80\x94an injury is done\nto the plaintiff, who has no means of knowing whether it was the result of negligence; the\ndefendant, who knows how it was caused, does not think fit to tell the jury.] Unless a plaintiff\ngives some evidence which ought to be submitted to the jury, the defendant is not bound to offer\nany defence. The plaintiff cannot, by a defective proof of his case, compel the defendant to give\nevidence in explanation. [Pollock, C. B. I have frequently observed that a defendant has a right to\nremain silent unless a prima facie case is established against him. But here the question is\nwhether the plaintiff has not shewn such a case.] In a case of this nature, in which the sympathies\nof a jury are with the plaintiff, it would be dangerous to allow presumption to be substituted for\naffirmative proof of negligence.\nPOLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for\nthe plaintiff. The learned counsel was quite right in saying that there are many accidents from\nwhich no presumption of negligence can arise, but I think it would be wrong to lay down as a rule\n236\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthat in no case can presumption of negligence arise from the fact of an accident. Suppose in this\ncase the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly\nascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse\nto take care that they do not roll out, and I think that such a case would, beyond all doubt, afford\nprima facie evidence of negligence. A barrel could not roll out of a warehouse without some\nnegligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse\nto prove negligence seems to me preposterous. So in the building or repairing a house, or putting\npots on the chimneys, if a person passing along the road is injured by something falling upon him,\nI think the accident alone would be prima facie evidence of negligence. Or if an article calculated\nto cause damage is put in a wrong place and does mischief, I think that those whose duty it was to\nput it in the right place are prima facie responsible, and if there is any state of facts to rebut the\npresumption of negligence, they must prove them. The present case upon the evidence comes to\nthis, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a\nbarrel of flour. I think it apparent that the barrel was in the custody of the defendant who\noccupied the premises, and who is responsible for the acts of his servants who had the control of\nit; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff\nwho was injured by it is not bound to shew that it could not fall without negligence, but if there\nare any facts inconsistent with negligence it is for the defendant to prove them.\nBRAMWELL, B. I am of the same opinion.\nCHANNELL, B. I am of the same opinion. The first part of the rules assumes the existence\nof negligence, but takes this shape, that there was no evidence to connect the defendant with the\nnegligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied,\nand therefore prima facie he is responsible. Then the question is whether there was any evidence\nof negligence, not a mere scintilla, but such as in the absence of any evidence in answer would\nentitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a\nwarehouse by the side of a public highway, and assumes to himself the right to lower from it a\nbarrel of flour into a cart, has a duty cast upon him to take care that persons passing along the\nhighway are not injured by it. I agree that it is not every accident which will warrant the inference\nof negligence. On the other hand, I dissent from the doctrine that there is no accident which will\nin itself raise a presumption of negligence. In this case I think that there was evidence for the\njury, and that the rule ought to be absolute to enter the verdict for the plaintiff.\nPIGOTT, B. I am of the same opinion.\nRule absolute.\n\nGrajales-Romero v. American Airlines, Inc., 194 F.3d 288 (1st Cir. 1999)\nLIPEZ, J.\n. . . American Airlines, Inc. appeals from a judgment of $150,000 in favor of Ananias\nGrajales-Romero, who was injured by a collapsing check-in counter sign at an airport in St. Kitts.\n. . . American . . . claims that there was insufficient evidence of negligence to sustain the jury\nverdict in this case. . . .\nI.\n\nFactual background\n237\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nWe present the facts as a jury might have found them, consistent with the record but in the\nlight most favorable to the verdict. On July 29, 1994, Plaintiff Ananias Grajales-Romero\n(\xe2\x80\x9cGrajales\xe2\x80\x9d) was waiting in line at an American Eagle 1 check-in counter in the St. Kitts airport\nfor a return flight to San Juan, Puerto Rico. His acquaintance Terry Connor had accompanied him\nto the check-in counter. Connor attempted to load Grajales\xe2\x80\x99s luggage onto the weigh-in scale\nadjacent to the check-in counter. In doing so, he grabbed onto an ashtray built into the countertop\nto gain some leverage in lifting the luggage. The countertop was attached by a hinge to the\nvertical front facing of the counter. When Connor pulled on the ashtray, the countertop came\nloose, and pivoted forward on its hinge. A metal signpost and sign were attached to the\ncountertop, and this signpost and sign also pivoted forward with the countertop. As this was\nhappening, plaintiff Grajales was looking down at his ticket. The signpost and/or sign struck\nGrajales on the top of his head, opening up a two-inch long wound. Although he did not lose\nconsciousness or fall to the floor, he was taken to the St. Kitts hospital, where he received four\nstitches. After the accident, Grajales experienced neck pains, headaches, and forgetfulness. He\nwas diagnosed by a neurologist as suffering from post-concussion syndrome and a cervical sprain\nsecondary to the accident.\nGrajales filed a complaint against American, AMR Corp., and AMR Eagle, Inc. in the\nfederal district court for the District of Puerto Rico on July 28, 1995. . . . The court refused to give\nan instruction on the doctrine of res ipsa loquitur requested by Grajales, and refused several\ninstructions offered by American. The jury found American liable in the amount of\n$150,000. The court issued its judgment accordingly. . . . Both parties appealed. . . .\n[Part II is omitted]\nIII.\n\nSufficiency of the Evidence of Negligence\n\n(a) Res Ipsa Loquitur\nAmerican states that plaintiff produced no evidence\xe2\x80\x94either through customary airline\npractices, past practices, or expert testimony\xe2\x80\x94to establish a standard of care by which American\nshould have operated. Further, plaintiff presented no evidence regarding the inspection,\nmaintenance, and operation of the ticket counter, and made no attempt to explain in what manner\nany such conduct might have constituted negligence.\nFrom these assertions, and the fact that the court refused to give the jurors Grajales\xe2\x80\x99s\nproposed res ipsa loquitur instruction, American argues that \xe2\x80\x9cno jury could reasonably conclude\nthat American exercised less than reasonable care from the unexplained fact that an accident\noccurred.\xe2\x80\x9d\nWe agree with American that Grajales did not produce either direct or circumstantial\nevidence explaining how American violated its duty of care. Grajales offered no evidence, for\nexample, suggesting that the ticket counter had been improperly designed, installed, maintained,\nor operated. Instead, Grajales relied on the fact of an unexpected occurrence, arguing that the\ncounter top would not have fallen over and struck him unless American had violated its duty of\ncare. The Supreme Court of Puerto Rico has ruled that the fact of an unexplained occurrence\ncannot establish an inference of negligence unless the conditions of res ipsa loquitur are satisfied:\n\xe2\x80\x9c(1) the accident must be of a kind which ordinarily does not occur in the absence of someone\xe2\x80\x99s\n238\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nnegligence; (2) it must be caused by an agency or instrumentality within the exclusive control of\ndefendant; [and] (3) it must not be due to any voluntary action on the part of plaintiff.\xe2\x80\x9d Given the\nlack of direct or other circumstantial evidence on American\xe2\x80\x99s violation of its duty of care, we\nmust consider whether the conditions of res ipsa loquitur were satisfied here.\nWe conclude that they were. Indeed, the first two elements of res ipsa loquitur were\neasily established. A reasonable jury could have concluded that the accident was of a kind which\n\xe2\x80\x9cordinarily does not occur in the absence of someone\xe2\x80\x99s negligence,\xe2\x80\x9d and that the accident was\n\xe2\x80\x9ccaused by an . . . instrumentality within the exclusive control of [the] defendant.\xe2\x80\x9d\nThe res ipsa loquitur requirement that the accident not be caused by any \xe2\x80\x9cvoluntary\naction\xe2\x80\x9d on the part of the plaintiff posed a more difficult challenge for Grajales. American argues\nthat a res ipsa loquitur inference was unreasonable because the evidence indicates that plaintiff\xe2\x80\x99s\nacquaintance Connor took the \xe2\x80\x9cvoluntary action\xe2\x80\x9d of pulling on the counter-top. Even if Connor\xe2\x80\x99s\nactions could be attributed to Grajales, American\xe2\x80\x99s argument misses its mark. The test is not\nwhether the plaintiff took any voluntary action, but whether that voluntary action can be blamed\nfor the accident. . . . The evidence here was sufficient to support a finding that Grajales and his\ncolorable agent Connor were blameless, having done nothing more than \xe2\x80\x9cattempt to [use the\ninstrumentality] in the ordinary manner[.]\xe2\x80\x9d So long as the jurors could have concluded from the\nevidence that Connor\xe2\x80\x99s use of the counter for leverage constituted a normal usage of the counter\nby a customer, the jury could have inferred American\xe2\x80\x99s negligence.\nWhile there was sufficient evidence on each of the conditions of res ipsa loquitur, the\ndistrict court did not provide the jury with a res ipsa loquitur instruction, as Grajales had\nrequested. We must therefore consider an argument implicit in American\xe2\x80\x99s challenge to the\nsufficiency of the evidence of negligence\xe2\x80\x94that a jury verdict cannot be justified on the basis of\nres ipsa loquitur when the jurors were never instructed on the doctrine.\nPuerto Rico\xe2\x80\x99s statement of the three elements of res ipsa loquitur is derived from the first\nedition of a well-known treatise on evidence. See W. Page Keeton et al., Prosser and Keeton on\nTorts 244 (Lawyer\xe2\x80\x99s 5th ed. 1984). That origin confirms that a res ipsa loquitur instruction\nexplains to the jury a specific form of permissible inference from circumstantial evidence of\nnegligence. Given this purpose, jurors who can draw the inference of negligence even without a\nres ipsa loquitur instruction should be permitted to do so.\nIn this case, the jurors were adequately instructed on inference and circumstantial\nevidence, and Grajales made the specific inference contemplated by a res ipsa loquitur instruction\nthe linchpin of his theory of the case. Given that there was sufficient evidence\non each of the res ipsa loquitur requirements, the jurors were entitled to make the res ipsa loquitur\ninference even in the absence of a specific instruction. . . .\n\nAffirmed.\n\n239\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nNotes\n\n1. The elements of res ipsa. Under what conditions can plaintiffs establish res ipsa loquitur?\nAccording to many courts, the doctrine of res ipsa loquitur requires proof of \xe2\x80\x9ccasualty of a kind\n(1) that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality\nexclusively in the defendant\xe2\x80\x99s control; and (3) that was not caused by an act or omission of the\nplaintiff.\xe2\x80\x9d See, e.g., Holzhauer v. Saks & Co., 697 A.2d 89, 92-93 (Md. 1997). Courts have used\nthe second element to preclude res ipsa loquitur claims when parties other than the defendant can\ncontrol the instrumentality causing injury to the plaintiff. For example, in Holzhauer, the\nMaryland Court of Appeals precluded a res ipsa loquitur claim from a plaintiff who was injured\nwhen a mall escalator stopped abruptly. Because \xe2\x80\x9chundreds of [the defendant\xe2\x80\x99s] customers ha[d]\nunlimited access to the [escalator\xe2\x80\x99s] emergency stop buttons,\xe2\x80\x9d the court held that it was\n\xe2\x80\x9cimpossible to establish that the escalator was in [Defendant\xe2\x80\x99s] exclusive control.\xe2\x80\x9d Id. at 94.\nCourts in other jurisdictions have diverged from the Maryland Court of Appeals\xe2\x80\x99s holding in\nHolzhauer. For example, in Rose v. Port of New York Authority, the New Jersey Supreme Court\nheld that the plaintiff, who was struck by an automatic glass door at an airport, could recover\nunder the doctrine of res ipsa loquitur. Because \xe2\x80\x9cmembers of the public pass . . . through\nautomatic doors . . . without sustaining injury,\xe2\x80\x9d the court held that the plaintiff\xe2\x80\x99s injury was\n\xe2\x80\x9cunusual and not commonplace, . . . strongly suggest[ing] a malfunction, which in turn suggests\nneglect.\xe2\x80\x9d Rose v. Port of N.Y. Auth., 293 A.2d 371, 375 (N.J. 1972). But see Kmart Corp. v.\nBassett, 769 So. 2d 282, 283 (Ala. 2000) (rejecting res ipsa doctrine in automatic doors case).\n\n2. Res ipsa discriminator? A falling barrel or check-in kiosk are not the only scenarios in\nwhich the burden of production is shifted to the defendant. In the same way a person walking\ndown the street may not be able to prove what led to a barrel falling on their head, employees\noften lack the evidence to prove that they were the objects of a discriminatory adverse\nemployment action. In McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Supreme Court\ncreated a burden shifting scheme to fix this problem. When an employee can make out a prima\nfacie case of discrimination under Title VII of the Civil Rights Act, the burden of production\nshifts to the employer to provide a non-discriminatory reason for the decision. Id. at 802. Once\nthe defendant provides a reason, the burden shifts back to the plaintiff to show that this reason is\nmere pretext. Id. at 798. Even if the plaintiff can prove the employer\xe2\x80\x99s proffered decision is\npretextual, the plaintiff is not automatically entitled to summary judgement. St. Mary\xe2\x80\x99s Honor\nCenter v. Hicks, 509 U.S. 502 (1993). Rather, a jury must decide whether the pretextual rationale\nis a front for invidious discrimination or some other justification the employer would rather keep\nquiet, like a particularly petty personal dispute. Fisher v. Vassar College, 114 F. 3d 1332 (2d Cir.\n1997). In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), the Supreme Court\nclarified that when a plaintiff proves a prima facie case of discrimination and also proves that the\nemployer\xe2\x80\x99s proffered reason is pretextual, the plaintiff does not automatically gain summary\njudgment, but such a plaintiff may sometimes be entitled to summary judgment, depending on the\nfacts in the record.\nWhy not make adjudication in employment discrimination cases turn on the fate of the\nemployer\xe2\x80\x99s proffered reason? In this approach, the plaintiff would win if the jury were persuaded\nby a preponderance of the evidence that the defendant\xe2\x80\x99s proferred reason was a pretext, regardless\nwhether or not the plaintiff has also proven by a preponderance that the real reason was unlawful\n240\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\ndiscrimination. Such a plaintiff would be automatically entitled to summary judgment if after\ndiscovery no reasonable jury could find from the evidence in the record that the employer\xe2\x80\x99s\nproferred reason was the actual reason for the employment decision at issue.\n\n3. What does res ipsa do? What is the effect of successfully invoking the res ipsa doctrine?\nDoes a successful invocation of res ipsa entitle a plaintiff to a directed verdict, at least absent\nrebuttal evidence from the defendant? Does a successful invocation shift the burden of proof\n(production or persuasion) to the defendant? Or is the doctrine of res ipsa better thought of as a\ndoctrine of circumstantial evidence?\n\nYbarra v. Spangard, 154 P.2d 687 (Cal. 1944)\nGIBSON, C.J.\n. . . This is an action for damages for personal injuries alleged to have been inflicted on\nplaintiff by defendants during the course of a surgical operation. The trial court entered\njudgments of nonsuit as to all defendants and plaintiff appealed.\nOn October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment\nas appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr.\nSpangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital,\nwas given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard\nand wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an\nemployee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift,\nadjusted plaintiff for the operation, pulling his body to the head of the operating table and,\naccording to plaintiff\xe2\x80\x99s testimony, laying him back against two hard objects at the top of his\nshoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff\nlost consciousness. When he awoke early the following morning he was in his hospital room\nattended by defendant Thompson, the special nurse, and another nurse who was not made a\ndefendant.\nPlaintiff testified that prior to the operation he had never had any pain in, or injury to, his\nright arm or shoulder, but that when he awakened he felt a sharp pain about half way between the\nneck and the point of the right shoulder. . . . He was unable to rotate or lift his arm, and developed\nparalysis and atrophy of the muscles around the shoulder. . . .\nPlaintiff . . . consulted Dr. Wilfred Sterling Clark, who . . . [concluded that] plaintiff\xe2\x80\x99s\ncondition was due to trauma or injury by pressure or strain, applied between his right shoulder and\nneck.\nPlaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that\nplaintiff\xe2\x80\x99s injury was a paralysis of traumatic origin, not arising from pathological causes . . . .\nPlaintiff\xe2\x80\x99s theory is that the foregoing evidence presents a proper case for the application\nof the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes\nthe granting of a nonsuit improper. Defendants take the position that . . . there is no showing that\nthe act of any particular defendant . . . was the cause thereof. They attack plaintiff\xe2\x80\x99s action as an\n241\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nattempt to fix liability \xe2\x80\x9cen masse\xe2\x80\x9d on various defendants, some of whom were not responsible for\nthe acts of others . . . . We are satisfied, however, that these objections are not well taken in the\ncircumstances of this case.\nThe doctrine of res ipsa loquitur has three conditions: \xe2\x80\x9c(1) the accident must be of a kind\nwhich ordinarily does not occur in the absence of someone\xe2\x80\x99s negligence; (2) it must be caused by\nan agency or instrumentality within the exclusive control of the defendant; (3) it must not have\nbeen due to any voluntary action or contribution on the part of the plaintiff.\xe2\x80\x9d (Prosser, Torts, p.\n295.) . . .\nThere is, however, some uncertainty as to the extent to which res ipsa loquitur may be\ninvoked in cases of injury from medical treatment. This is in part due to the tendency, in some\ndecisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention\nto its basic underlying purpose. The result has been that a simple, understandable rule of\ncircumstantial evidence, with a sound background of common sense and human experience, has\noccasionally been transformed into a rigid legal formula, which arbitrarily precludes its\napplication in many cases where it is most important that it should be applied. If the doctrine is to\ncontinue to serve a useful purpose, we should not forget that particular force and justice of the\nrule, regarded as a presumption throwing upon the party charged the duty of producing evidence,\nconsists in the circumstance that the chief evidence of the true cause, whether culpable or\ninnocent, is practically accessible to him but inaccessible to the injured person.\xe2\x80\x9d . . .\nThe present case is of a type which comes within the reason and spirit of the doctrine\nmore fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a\ncollision, the pedestrian walking along the street and struck by a falling object or the debris of an\nexplosion, are surely not more entitled to an explanation than the unconscious patient on the\noperating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any\njustification, be so restricted in its statement as to become inapplicable to a patient who submits\nhimself to the care and custody of doctors and nurses, is rendered unconscious, and receives some\ninjury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who\nreceived permanent injuries of a serious character, obviously the result of someone\xe2\x80\x99s negligence,\nwould be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose\nto disclose the identity of the negligent person and the facts establishing liability. If this were the\nstate of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the\nprinciples of absolute liability, irrespective of negligence, in actions by persons suffering\ninjuries during the course of treatment under anesthesia. But we think this juncture has not yet\nbeen reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before\nus. . . .\n[I]t should be noted that while the assisting physicians and nurses may be employed by the\nhospital, or engaged by the patient, they normally become the temporary servants or agents of the\nsurgeon in charge while the operation is in progress, and liability may be imposed upon him for\ntheir negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable\nfor the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and\nthe fact that the duty of seeing that such mistakes do not occur is delegated to others does not\nabsolve the doctor from responsibility for their negligence.\nIt may appear at the trial that, consistent with the principles outlined above, one or more\ndefendants will be found liable and others absolved, but this should not preclude the application of\n242\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nthe rule of res ipsa loquitur. The control, at one time or another, of one or more of the various\nagencies or instrumentalities which might have harmed the plaintiff was in the hands of every\ndefendant or of his employees or temporary servants. This, we think, places upon them the\nburden of initial explanation. . . .\nThe number of those in whose care the patient is placed is not a good reason for denying\nhim all reasonable opportunity to recover for negligent harm. It is rather a good reason for reexamination of the statement of legal theories which supposedly compel such a shocking result.\nWe do not at this time undertake to state the extent to which the reasoning of this case\nmay be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We\nmerely hold that where a plaintiff receives unusual injuries while unconscious and in the course of\nmedical treatment, all those defendants who had any control over his body or the instrumentalities\nwhich might have caused the injuries may properly be called upon to meet the inference of\nnegligence by giving an explanation of their conduct.\nThe judgment is reversed.\n\n3. Federal Constitutional Constraints on the Burden of Proof\nLegislatures have sometimes sought to alter burdens of proof and persuasion. In response,\nsome courts have suggested constitutional limits on legislative alterations of the proof process.\nFor example, in Mobile, Jackson & Kansas City R.R. v. Turnipseed, 219 U.S. 35 (1910), the\npetitioner, a railroad company, challenged a Mississippi statute that provided:\nIn all actions against railroad companies for damages done to persons or property,\nproof of injury inflicted by the running of the locomotives or cars of such company\nshall be prima facie evidence of the want of reasonable skill and care on the part of\nthe servants of the company in reference to such injury. This section shall also\napply to passengers and employes of railroad companies.\nMISSISSIPPI CODE OF 1906, \xc2\xa7 1985 (1906). The petitioner claimed that the statute violated the\nEqual Protection Clause, depriving railroad companies \xe2\x80\x9cof the general rule of law which places\nupon one who sues in tort the burden of not only proving an injury, but also that the injury was the\nconsequence of some negligence in respect of a duty owed to the plaintiff.\xe2\x80\x9d Id. at 42. The Court,\nhowever, ruled against the petitioner, holding:\nLegislation providing that proof of one fact shall constitute prima facie evidence of\nthe main fact in issue is but to enact a rule of evidence, and quite within the general\npower of government. Statutes, National and state, dealing with such methods of\nproof in both civil and criminal cases abound, and the decisions upholding them are\nnumerous. . . .\nThe statute does not, therefore, deny the equal protection of the law or otherwise\nfail in due process of law, because it creates a presumption of liability, since its\noperation is only to supply an inference of liability in the absence of other evidence\ncontradicting such inference.\n243\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThat a legislative presumption of one fact from evidence of another may not\nconstitute a denial of due process of law or a denial of the equal protection of the\nlaw it is only essential that there shall be some rational connection between the fact\nproved and the ultimate fact presumed, and that the inference of one fact from proof\nof another shall not be so unreasonable as to be a purely arbitrary mandate. So, also,\nit must not, under guise of regulating the presentation of evidence, operate to\npreclude the party from the right to present his defense to the main fact thus\npresumed.\nIf a legislative provision not unreasonable in itself prescribing a rule of evidence, in\neither criminal or civil cases, does not shut out from the party affected a reasonable\nopportunity to submit to the jury in his defense all of the facts bearing upon the\nissue, there is no ground for holding that due process of law has been denied him.\nId. at 42-43. Two decades after Turnipseed, however, the Court invalidated a similar state statute\npassed by the Georgia Legislature. See W. & Atl. R.R. v. Henderson, 279 U.S. 639 (1929). The\nstatute in question in Henderson provided, in relevant part:\nA railroad company shall be liable for any damages done to persons . . . by the\nrunning of the locomotives, or cars, or other machinery of such company unless the\ncompany shall make it appear that their agents have exercised all ordinary and\nreasonable care and diligence, the presumption in all cases being against the\ncompany.\nId. at 640 (quoting \xc2\xa7 2780 of the Georgia Civil Code). The Court held that the foregoing statute\nviolated the Due Process Clause:\nLegislation declaring that proof of one fact or group of facts shall constitute prima\nfacie evidence of an ultimate fact in issue is valid if there is a rational connection\nbetween what is proved and what is to be inferred. A prima facie presumption casts\nupon the person against whom it is applied the duty of going forward with his\nevidence on the particular point to which the presumption relates. A statute creating\na presumption that is arbitrary or that operates to deny a fair opportunity to repel it\nviolates the due process clause of the Fourteenth Amendment. Legislative fiat may\nnot take the place of fact in the judicial determination of issues involving life, liberty\nor property. . . .\nAppellee relies principally upon Mobile, J. & K. C. R. R. v. Turnipseed, 219 U.S.\n35. . . . That case is essentially different from this one. Each of the state enactments\nraises a presumption from the fact of injury caused by the running of locomotives\nor cars. The Mississippi statute created merely a temporary inference of fact that\nvanished upon the introduction of opposing evidence. . . .\nThe presumption raised by \xc2\xa7 2780 is unreasonable and arbitrary and violates the due\nprocess clause of the Fourteenth Amendment. . . .\nNearly fifty years after these two decisions, the Court held that Congress could reduce plaintiffs\xe2\x80\x99\nburden of proof without violating any constitutional provisions. For example, in Usery v. Turner\n244\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nElkhorn Mining Co., 428 U.S. 1 (1976), the Court upheld the constitutionality of the Black Lung\nBenefits Act, which provided benefits to coal miners suffering from black lung disease\n(pneumoconiosis). In particular, the Act reduced certain miners\xe2\x80\x99 burden of proof that they\ncontracted pneumoconiosis from a particular operator\xe2\x80\x99s mine. The respondents challenged two\nparticular provisions of the Act:\n[T]he Operators challenge . . . . the presumptions contained in \xc2\xa7\xc2\xa7 411 (c)(1) and (2).\nSection 411 (c)(1) provides that a coal miner with 10 years\xe2\x80\x99 employment in the\nmines who suffers from pneumoconiosis will be presumed to have contracted the\ndisease from his employment. Section 411 (c)(2) provides that if a coal miner with\n10 years\xe2\x80\x99 employment in the mines dies from a respiratory disease, his death will\nbe presumed to have been due to pneumoconiosis. Each presumption is explicitly\nrebuttable, and the effect of each is simply to shift the burden of going forward with\nevidence from the claimant to the operator.\nId. at 27. In response, the Court held:\nThe Operators insist . . . that the 10-year presumptions are arbitrary, because they\nfail to account for varying degrees of exposure, some of which would pose lesser\ndangers than others. We reject this contention. In providing for a shifting of the\nburden of going forward to the operators, Congress was no more constrained to\nrequire a preliminary showing of the degree of dust concentration to which a miner\nwas exposed, a historical fact difficult for the miner to prove, than it was to require\na preliminary showing with respect to all other factors that might bear on the danger\nof infection. It is worth repeating that mine employment for 10 years does not serve\nby itself to activate any presumption of pneumoconiosis; it simply serves along with\nproof of pneumoconiosis under \xc2\xa7 411(c)(1) to presumptively establish the cause of\npneumoconiosis, and along with proof of death from a respirable disease under \xc2\xa7\n411(c)(2) to presumptively establish that death was due to pneumoconiosis. . . . We\ncertainly cannot say that the presumptions, by excluding other relevant factors,\noperate in a \xe2\x80\x9cpurely arbitrary\xe2\x80\x9d manner. . . . Mobile, J & KC R. v. Turnipseed, supra,\nat 43.\nId. at 29-30.\n\n4. A Note on Settlement Mills\nOne of the most striking features of contemporary tort practice is the rise of whole areas\nof practice in which proof almost never happens. These are the so-called \xe2\x80\x9csettlement mills\xe2\x80\x9d:\npersonal injury law firms that achieve speedy recoveries for their clients in the absence of proof,\nwithout ever going to trial. According to Professor Nora Engstrom, some plaintiffs\xe2\x80\x99-side practices\nhave become a volume business. Settlement mill attorneys handle two hundred to three hundred\nopen files per day. By getting standardized sums for their clients with virtually no lawyer-client\ninteraction, the settlement mills radically lower transaction costs. They also substantially reduce\nuncertainty for their clients.\n\n245\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nThe big question for the settlement mills is why the defendants cooperate: Why do\ndefendants enter into settlements with lawyers who never bring a case to trial? The short answer\nis that it is very hard to tell, since all these settlements happen in private without disclosure\nobligations. Lawyer-client confidentiality rules mean that there is virtually no way to pry open\nthe secrecy of the settlement world to see what is going on inside. (Lawyer-client confidentiality\nposes a number of problems for the regulation of the market in legal services in tort cases.)\nNonetheless, we can speculate and try to game out what is going on in these settlements. A\nleading possibility is that settlement mill settlements systematically undercompensate those who\nhave been most seriously injured, thus providing a benefit to defendants and inducing them to\nparticipate in the settlement system. Is this a good way to run a tort system? See generally Nora\nFreeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. REV. 805, 805 (2011).\n\n5. Aggregation and Sampling by Bellwether Trials\nSamuel Issacharoff, Commentary, \xe2\x80\x9cShocked\xe2\x80\x9d: Mass Torts and Aggregate Asbestos Litigation\nafter Amchem and Ortiz, 80 TEX. L. REV. 1925, 1927-29, 1935-36 (2001)\nThe world of mature mass torts is simply the world of evolved aggregation of claims and\ndefenses. Exposed firms enter into joint-defense agreements, coordinate negotiations with\nplaintiffs, and create centralized operations to combat the onslaught of litigation. The plaintiffs\xe2\x80\x99\nmarket operates through an elaborate referral system that concentrates cases in the hands of a\nsmall number of repeat-player firms. These firms are able to realize tremendous economies of\nscale in processing cases, developing ongoing relations with experts and trial teams across the\ncountry, and amortizing the significant costs of actually going to trial across a large portfolio of\ncases that will likely settle based on established trial outcomes. As Professor Hensler aptly sums\nup . . . , \xe2\x80\x9c[I]ndividual treatment of asbestos cases\xe2\x80\x94with individual plaintiffs controlling the course\nof their litigation and the decision to settle\xe2\x80\x94was largely a myth.\xe2\x80\x9d The private market is every bit\nas aggregated as the class actions presented for Supreme Court review, with two critical\ndifferences: there is no public scrutiny of the aggregation mechanisms established through private\nordering, and the private mechanisms do not offer the same prospect of closure as did the\nproposed class action settlements.\nOne of the consequences of a concentrated and developed market in asbestos claims is\nthat there is little dispute about the value of particular claims. While any individual case that is\npursued to trial might produce a range of outcomes, the sheer number of cases that have gone to\ntrial yields a highly evolved valuation of claims. Certainly there will be fluctuations in individual\nresults . . . but mass torts conform to the law of large numbers. In speaking to lawyers on both\nsides of the aisle . . . , one repeatedly hears that experienced participants in asbestos litigation can\nagree across a very high percentage of cases about the expected value of any particular claim. . . .\nIf neither valuation nor liability is at issue in the vast majority of asbestos claims, the\nquestion is then what role the court system plays in this process. . . . In asbestos litigation, there is\nrelatively little informational value added by the fact of any particular case going to trial. Instead,\nthe courts serve as a filtering mechanism over the pace at which claims are resolved . . . and in\ndetermining which claims are processed at what rate. . . .\nThe asbestos crisis is best approached by comparing it to what might be the ideal\n246\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nmechanism for the compensation of the injured. If we could posit a world in which there are no\ntransaction costs and no informational barriers to determining who is actually injured and what\nresources are available for payment, the process would be relatively straightforward. The ideal\nresolution would be to aggregate all the funds available for asbestos injury, calculate the value of\nall the potential claims based upon historic averages of awards, discount for the time benefit and\nlack of risk in administrative resolution (as opposed to the litigation process), and distribute the\navailable funds to the injured on that basis. Assuming accurate forecasting of future claims (in\nitself no small matter), full information would yield the total demand, the total compensation\navailable, and what pro rata discount would have to be applied should demand for compensation\nexceed available funds. In effect, this is what happens on a smaller scale in the aggregate\nsettlements that characterize the mature mass tort arena. The question is whether the settlement\nstructures that have evolved to deal with the large inventory of cases can be replicated more\nbroadly in some coordinated fashion.\nLooking back from this perspective, it is worth noting the consistency with which the\nfailed attempts at aggregate resolution of asbestos claims have conformed to the same basic\nstructure for their attempted solutions. Each relied primarily on a payout matrix defined by injury\nand exposure. Indeed, for all the controversy surrounding each asbestos resolution approach put\nforward over the past decade or so, there is almost complete silence on the question of how the\npayout matrices were (or will be) structured or how the estimated litigation value of the claims is\nto be calculated. Each of the central approaches returns to the same basic structure.\nThe starting point for the formal aggregate treatment of asbestos cases in litigation is\nCimino v. Raymark Industries. Cimino formalized the intuition that asbestos had long ceased to\nbe meaningfully addressed through case-by-case adjudication; the evidence in each case was\nlargely duplicative and the valuations of the individualized aspects of the harm incurred could be\npredicted with a fair degree of statistical certainty. Cimino attempted to create a trial mechanism\nto replicate the settlement grids that had emerged with the concentration of the plaintiffs\xe2\x80\x99 bar in\nthe 1980s. The key was to reduce each claim to a series of variables . . . that were typically used\nin settling cases, but then use those same variables to select representative cases for trial among\nthe cohort of all asbestos cases then pending in the Eastern District of Texas. Although this\napproach was unceremoniously rejected by the Fifth Circuit, the Cimino grids were soon to be\nintegrated into every subsequent aggregate settlement approach. . . .\n\nAlexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)\nAsbestos is the paradigmatic story of modern mass tort litigation. Although there are some\nunique features to the asbestos litigation, it raised for the first time many of the recurring issues in\nmass tort litigation. This story has been told at length elsewhere, but it is worth briefly reviewing\nto understand why a judge might think binding bellwether trials are the best solution to the\nseemingly intractable problems posed by mass torts. . . .\nIn 1990, Judge Robert Parker, then a federal district court judge for the Eastern District of\nTexas, had approximately 3000 wrongful death suits arising out of asbestos exposure before him.\nThe court could not have tried all these suits in a reasonable time frame, so he adopted an\ninnovative procedure: binding bellwether trials. He approved a trial plan that was to proceed in\nthree phases. The first phase provided class-wide determinations of failure to warn and punitive\ndamages. The second phase determined causation. The court intended to have a jury establish\n247\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nasbestos exposure on a craft and worksite basis during the relevant time periods, rather than on the\nbasis of individual proof. Instead, this phase was resolved by stipulation, with defendants\nreserving their right to appeal. The third phase, which is the one that concerns us here, was the\ndamages phase.\nJudge Parker selected 160 cases to be tried before two jury panels. Each jury was told that\nthe causation requirement had been met and was charged only with determining damages in each\nindividual case before it. The trials took 133 days, involving hundreds of witnesses and thousands\nof exhibits. The effort expended in the proceeding was enormous, and Judge Parker noted, \xe2\x80\x9cIf all\nthat is accomplished by this is the closing of 169 cases then it was not worth the effort and will\nnot be repeated.\xe2\x80\x9d\nOf the 160 bellwether verdicts, the court remitted 35 and 12 were awarded no damages. The\ncourt allocated the cases into five disease categories and averaged the awards, including the zero\nawards, within those categories. The average verdict in each disease category was\n\xe2\x80\x9cmesothelioma, $1,224,333; lung cancer, $545,200; other cancer, $917,785; asbestosis, $543,783;\npleural disease, $558,900.\xe2\x80\x9d After hearing expert testimony, the judge determined that these cases\nwere typical or representative of the remaining plaintiffs. The judge held a hearing in which he\nassigned the remaining cases to one of the five disease categories. He made an award in each case\naccording to the average award for that disease category. Thus, for example, each plaintiff with\nmesothelioma was awarded $1,224,333\xe2\x80\x94even those whose cases had not actually been tried.\nThe plaintiffs agreed to this procedure, likely because the alternative was an untenably long\nwait for a trial. The defendants, by contrast, objected and appealed. They argued that under\nTexas law and the Seventh Amendment they were entitled to an individual trial on causation and\ndamages for each plaintiff. The Fifth Circuit, perhaps hoping for legislative intervention, waited\neight years before reversing the district court\xe2\x80\x99s trial plan. The circuit court rejected the bellwether\ntrial procedure, reasoning that the Seventh Amendment and Texas law entitled the defendants to\nindividual trials against each plaintiff on both causation and damages. . . .\n\nNotes\n\n1. The persistence of bellwether trials. Although the Fifth Circuit rejected bellwether trials\nin Cimino, courts in other jurisdictions continue to hold such trials in recent mass tort cases:\nThe terrorist attacks on September 11, 2001, left in their wake thousands of\nbereaved families and injured individuals. Congress created the September 11th\nVictims Compensation Fund, an administrative body, to rationalize compensation\nfor these victims. By participating in this expedited, administrative process, the\nfamilies and victims of the attacks gave up their right to sue. The fund distributed\n$7.049 billion to victims of the terrorist attacks who filed claims. Ninety-seven\npercent of the victims and their families participated in the administrative procedure\ninstead of pursuing court cases. Forty-one plaintiffs, representing forty-two victims\nand their families, filed lawsuits in federal court. These forty-one cases were\nconsolidated before a single judge, the Honorable Judge Alvin K. Hellerstein, in the\nSouthern District of New York.\n248\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nSix years after the attacks, these lawsuits were still pending. As Judge Hellerstein\nobserved, the slow pace of the litigation frustrated the plaintiffs. Some of the\nvictims were adamantly against settlement because they wanted the publicity of a\ntrial. But others, the judge believed, wanted to settle, and the only obstacle to\nsettling those cases was that the parties could not agree on their monetary value. So\nhe proposed holding bellwether trials for selected plaintiffs who would volunteer to\nparticipate. The trials were to be for damages only; the jury would not consider\nquestions of liability or causation. The results were intended to be available to other\nplaintiffs and to defendants to assist them in valuing cases for settlement. As a\nresult of the decision to conduct bellwether trials using reverse bifurcation, fourteen\nof the cases have settled so far.\nThis is how the bellwether trial is used today. Cases are chosen, not quite randomly,\nfor trial on a particular issue. The results of the trials are not binding on the other\nlitigants in the group. The outcomes can be used by the parties to assist in settlement,\nbut the parties can also ignore these results and insist on an individual trial. . . .\nAlexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)\n\n2. Binding bellwethers? Note that the bellwether trials following the terrorist attacks of\nSeptember 11, 2001 were nonbinding on other litigants. How can such trials be binding on all\nplaintiffs, given that the bellwether plaintiffs are typical of the rest of the plaintiff group?\nProfessor Lahav describes one possible approach:\nIn a binding bellwether trial procedure, the court will choose a random sample of\ncases to try to a jury. The judge may then bifurcate the cases into liability and\ndamages phases, or perhaps even trifurcate them into liability, causation, and\ndamages phases. The parties will try each bellwether case before a jury that will\nrender a verdict in that case. Finally, the results of the bellwether trials will be\nextrapolated to the remaining plaintiffs. The underlying principle of such an\nextrapolation is that the bellwether plaintiffs are typical of the rest of the plaintiff\ngroup such that the results of the bellwether trials represent the likely outcome of\ntheir cases as well. What these extrapolation plaintiffs get in a bellwether trial\nprocedure is not individuated justice but rather group typical justice.\nThe following example explains how the extrapolation process might work.\nImagine that a court tries 100 sample cases and 50% of them result in plaintiff\nvictories. Of these 50, half are awarded $200 and the other half are awarded $300.\nTaking all of these results into account, and counting the defense verdicts as $0, the\naverage award would be $125. Under a simple averaging regime, every plaintiff\nwould receive $125. If this result seems too rough, the court could calculate\nseparate averages based on relevant variables.\nAlexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)\n\n249\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\n3. Mass torts? If the bellwether strategy violates the parties\xe2\x80\x99 due process rights, what is to\nbe done in mass torts cases? As U.S. District Judge Jack Weinstein observed in Schwab v. Philip\nMorris U.S.A., Inc., 449 F. Supp. 2d 992 (E.D.N.Y. 2006):\nIn mass fraud cases with hundreds of thousands or millions of injured the cost of\none-on-one procedures is insuperable and unsuitable for either a jury or a bench trial.\nThe consequence of requiring individual proof from each smoker would be to allow\na def0endant which has injured millions of people and caused billions of dollars in\ndamages to escape almost all liability.\nDoes excluding bellwether trials mean that the resolution of these cases will inevitably happen in\nsettlements outside of the courtroom\xe2\x80\x94settlements in which the party not holding the cash will be\nat a decided disadvantage?\n\nG. Negligence Puzzles\nWe end our initial treatment of the negligence standard with three puzzles in the law of\nnegligence:\n\n1. Should Wealth Matter?\nShould the defendant\xe2\x80\x99s wealth matter in setting the reasonable care standard in a\nnegligence case? Won\xe2\x80\x99t wealthy actors often be able to go ahead with risky behavior, confident\nthat the damages suffered by others will have little effect on their own relative wealth? Professors\nKen Abraham and John Jeffrey argue the contrary. Wealth, they insist, should not matter if we\nwant to achieve optimal deterrence:\n[T]he defendant\xe2\x80\x99s wealth is irrelevant to deterrence. . . . Deterrence theory is based\non the (usually and to one or another extent plausible) assumption that actors weigh\nthe expected costs and benefits of their future actions. Specifically, a potentially\nliable defendant will compare the benefits it will derive from an action that risks\ntort liability against the discounted present expected value of the liability that will\nbe imposed if the risk occurs. Whether a defendant is wealthy or poor, this costbenefit calculation is the same. If, as is likely, a wealthy defendant derives no\ngreater benefit from a given action than a poor defendant, then both will be equally\ndeterred (or equally undeterred) by the threat of tort liability. A defendant\xe2\x80\x99s existing\nassets do not increase the expected value of a given future action. Therefore they\ndo not require any adjustment in the level of sanction needed to offset that expected\nvalue. The defendant\xe2\x80\x99s wealth or lack of it is thus irrelevant to the deterrence of\nsocially undesirable conduct, and evidence on the subject is inadmissible in the\ntypical tort action claiming compensatory damages.\nKenneth Abraham & John Jeffries, Jr., Punitive Damages and the Rule of Law: The Role of\nDefendant\xe2\x80\x99s Wealth, 18 J. LEGAL STUD. 415, 417 (1989).\n\n250\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nIn response, Professor Jennifer Arlen argues that wealth must matter if we care about\nachieving optimal deterrence. Using an economic analysis assuming that individuals are riskaverse instead of risk-neutral, she finds that a defendant\xe2\x80\x99s wealth should be taken into account in a\nnegligence case, effectively calling for wealthy people to adhere to a higher standard of care than\npoor people:\nConsider a very wealthy potential defendant contemplating an additional $100\nexpenditure on care. The $100 expenditure on care will not affect the wealthy\nindividual\xe2\x80\x99s ability to purchase necessities and may little affect his ability to\npurchase other goods. The expenditure will accordingly not adversely affect his\ntotal utility. A very poor defendant, however, will probably have to pay for a $100\nexpenditure on care with money set aside for necessities such as food and shelter.\nThus, the $100 expenditure on care will have a substantial adverse effect on the poor\nindividual\xe2\x80\x99s utility. The cost to society of this $100 expenditure on care is\nminimized by allocating most of it to the wealthier individual since the wealthier\nindividual bears this expenditure at a lower cost to himself. . . . [T]he optimal duecare standard must vary with the wealth of the defendant: wealthy defendants should\nbe required to take more care than less wealthy defendants. . . . Accordingly, if\nindividuals are risk averse, current law, by which wealth differences are excluded\nfrom the assessment of due care, will not induce optimal deterrence.\nJennifer H. Arlen, Should Defendants\xe2\x80\x99 Wealth Matter?, 21 J. LEGAL STUD. 413, 422-23 (1992).\nDoes it matter that poor actors are almost never worth suing in tort because they are effectively\njudgment proof? Does it matter that liability insurance is widely available to working- and\nmiddle-class people, and required for the most common dangerous activity people engage in\n(namely driving)?\nWould a negligence standard that takes wealth into account function mainly to redistribute\nwealth? Or are there non-redistributive reasons to take wealth into account?\nDoes Arlen\xe2\x80\x99s argument resonate with a corrective justice understanding of the tort system\nor only a deterrence framework? What about a framework that focuses on expressing community\nnorms and values? How would her theory work in a case with a poor plaintiff and a poor\ndefendant\xe2\x80\x94or a rich plaintiff and a rich defendant? Whose argument\xe2\x80\x94Arlen\xe2\x80\x99s or Abraham and\nJeffries\xe2\x80\x99s \xe2\x80\x94do you find more persuasive?\n\n2. Seavey\xe2\x80\x99s Paradox\nAlmost a century ago, torts jurist Warren Seavey observed a paradox in the way tort law\nhandles intentional torts in comparison to negligent torts:\n[I]f, to save his life, A intentionally destroys ten cents worth of B\xe2\x80\x99s property, A must\npay; if, however, he takes a ten per cent chance of killing B in an effort to save his\nown life, his conduct might not be found to be wrongful, although obviously B\nwould much prefer, antecedently, to lose ten cents worth of property than to submit\nto a ten per cent chance of being killed.\n\n251\n\n\x0cWitt & Tani, TCPI 4. Negligence Standard\n\nWarren A. Seavey, Negligence\xe2\x80\x94Subjective or Objective?, 41 HARV. L. REV. 1, 8, n.7 (1927). Is\nSeavey\xe2\x80\x99s paradox evidence of some logical defect in the law of torts? Note that it is a cop-out to\ntry to resolve the paradox by reference to the idea that in the probabilistic scenario B has not been\nkilled. Seavey\xe2\x80\x99s point is that even if B is killed, B\xe2\x80\x99s estate may have no tort action against A,\nwhereas B would have had a tort action for the intentional destruction of the ten cents.\nCan the paradox be resolved by reference to a policy of promoting consensual transactions\nwhen they can be made? Is there a reason to think that intentional tort plaintiffs are identifiable in\nadvance in a way that negligence plaintiffs are not?\n\n3. The Utility Monster\nWhat if B in Seavey\xe2\x80\x99s paradox values her or his life more highly than A? What if B really\npreferred to not be killed\xe2\x80\x94so much so that the expected utility loss of B\xe2\x80\x99s being subject to a ten\npercent chance of death would be greater than the utility loss of A\xe2\x80\x99s actually dying? Should these\ndifferentials matter? It is an important question, because we might need to incorporate different\nvalues for different lives in our Hand Formula calculations.\nLibertarian philosopher Robert Nozick famously puzzled over the conundrum in\nutilitarianism of \xe2\x80\x9cutility monsters\xe2\x80\x9d: people \xe2\x80\x9cwho get enormously greater gains in utility from any\nsacrifice of others than these others lose.\xe2\x80\x9d Nozick objects that the theory of utilitarianism, taken\nseriously, \xe2\x80\x9cseems to require that we all be sacrificed in the monster\xe2\x80\x99s maw, in order to increase\ntotal utility.\xe2\x80\x9d ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 41 (1974). Does the tort system\nleave out utility monsters by using an objective negligence standard instead of a subjective one?\nOr is the subjective utility of Novick\xe2\x80\x99s monster simply an item to be factored into the Learned\nHand negligence formula? Should it be?\nIs the answer different if the value of B\xe2\x80\x99s life is high relative to that of A not because of\nB\xe2\x80\x99s subjective utility curve, but because of the high social value of B relative to A? What if A is\nan unemployed homeless man with no family, while B is a skilled mayor, a brilliant Steve Jobslike executive in a Fortune 500 corporation, a virtuoso pianist, or a national hero World Cup\nsoccer star?\n\n252\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nCHAPTER 5. PLAINTIFFS\xe2\x80\x99 CONDUCT\nA. Contributory and Comparative Negligence\n1. Contributory Negligence\nButterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809)\nThis was an action on the case for obstructing a highway, by means of which obstruction\nthe plaintiff, who was riding along the road, was thrown down with his horse, and injured, &c. At\nthe trial before Bayley J. at Derby, it appeared that the defendant, for the purpose of making some\nrepairs to his house, which was close by the road side at one end of the town, had put up a pole\nacross this part of the road, a free passage being left by another branch or street in the same\ndirection. That the plaintiff left a public house not far distant from the place in question at 8\no\xe2\x80\x99clock in the evening in August, when they were just beginning to light candles, but while there\nwas light enough left to discern the obstruction at 100 yards distance: and the witness, who proved\nthis, said that if the plaintiff had not been riding very hard he might have observed and avoided it:\nthe plaintiff however, who was riding violently, did not observe it, but rode against it, and fell\nwith his horse and was much hurt in consequence of the accident; and there was no evidence of\nhis being intoxicated at the time. On this evidence Bayley J. directed the jury, that if a person\nriding with reasonable and ordinary care could have seen and avoided the obstruction; and if they\nwere satisfied that the plaintiff was riding along the street extremely hard, and without ordinary\ncare, they should find a verdict for the defendant: which they accordingly did . . . .\nBAYLEY, J. The plaintiff was proved to be riding as fast as his horse could go, and this was\nthrough the streets of Derby. If he had used ordinary care he must have seen the obstruction; so\nthat the accident appeared to happen entirely from his own fault.\nLORD ELLENBOROUGH, C.J. A party is not to cast himself upon an obstruction which has been\nmade by the fault of another, and avail himself of it, if he do not himself use common and\nordinary caution to be in the right. In cases of persons riding upon what is considered to be the\nwrong side of the road, that would not authorise another purposely to ride up against them.\nOne person being in fault will not dispense with another\xe2\x80\x99s using ordinary care for himself.\nTwo things must concur to support this action, an obstruction in the road by the fault of the\ndefendant, and no want of ordinary care to avoid it on the part of the plaintiff.\n\nNotes\n\n1. A public policy rationale? In just a few short paragraphs, Butterfield laid out the\ncontributory negligence regime that would govern British and American tort law for over a\ncentury. Under the contributory negligence rule, a plaintiff\xe2\x80\x99s negligence acts as a complete bar to\nher recovery, even as against a negligent defendant. Why should that be so? The American jurist\nCharles Fisk Beach sought to explain the rule:\n253\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nThe reasons of the rule which denies relief to a plaintiff guilty of contributory\nnegligence have been variously stated. The common law refuses to apportion\ndamages which arise from negligence. This it does upon considerations of public\nconvenience and public policy, and upon this principle, it is said, depends also the\nrule which makes the contributory negligence of a plaintiff a complete defense. For\nthe same reason, when there is an action in tort, where injury results from the\nnegligence of two or more persons, the sufferer has a full remedy against any one\nof them, and no contribution can be enforced between the tort feasors. The policy\nof the law in this respect is founded upon the inability of human tribunals to mete\nout exact justice. A perfect code would render each man responsible for the\nunmixed consequences of his own default; but the common law, in view of the\nimpossibility of assigning all effects to their respective causes, refuses to interfere\nin those cases where negligence is the issue, at the instance of one who hands are\nnot free from the stain of contributory fault, and where accordingly the impossibility\nof apportioning the damage between the parties does not exist, the rule is held not\nto apply.\n\xe2\x80\x9cThe true ground,\xe2\x80\x9d says Dr. Wharton, \xe2\x80\x9cfor the doctrine is that, by the interposition\nof the plaintiff\xe2\x80\x99s independent will, the causal connection between the defendant\xe2\x80\x99s\nnegligence and the injury is broken.\xe2\x80\x9d. . . [But, i]n my judgment no more satisfactory\nreason for the rule in question has been assigned than that which assumes it to have\nbeen founded upon considerations of public policy. We need not seek for any better\nreason for a rule of law than that, among all the possible rules that might be adopted,\nit is plainly the best\xe2\x80\x94that indeed it is the only rule upon the subject for an instant\npracticable.\nCHARLES FISK BEACH, JR., THE LAW OF CONTRIBUTORY NEGLIGENCE 11-13 (1885).\n\n2. The public policy critique. Are Professor Beach\xe2\x80\x99s policy considerations\xe2\x80\x94when combined\nwith contributory negligence\xe2\x80\x99s real-world application\xe2\x80\x94convincing? By 1953, their luster had\ndimmed to at least some juries and state legislatures. William Prosser, a dean of the torts bar,\nwrote:\nThere has been much speculation as to why the rule thus declared found such ready\nacceptance in later decisions, both in England and in the United States. The\nexplanations given by the courts themselves never have carried much conviction.\nMost of the decisions have talked about \xe2\x80\x9cproximate cause,\xe2\x80\x9d saying that the\nplaintiff\xe2\x80\x99s negligence is an intervening, insulating cause between the defendant\xe2\x80\x99s\nnegligence and the injury. But this cannot be supported unless a meaning is\nassigned to proximate cause which is found nowhere else. If two automobiles\ncollide and injure a bystander, the negligence of one driver is not held to be a\nsuperseding cause which relieves the other of liability; and there is no visible reason\nfor any different conclusion when the action is by one driver against the other. It\nhas been said that the defense has a penal basis, and is intended to punish the\nplaintiff for his own misconduct; or that the court will not aid one who is himself at\nfault, and he must come into court with clean hands. But this is no explanation of\nthe many cases, particularly those of the last clear chance, in which a plaintiff clearly\n254\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nat fault is permitted to recover. It has been said that the rule is intended to\ndiscourage accidents, by denying recovery to those who fail to use proper care for\ntheir own safety; but the assumption that the speeding motorist is, or should be,\nmeditating on the possible failure of a lawsuit for his possible injuries lacks all\nreality, and it is quite as reasonable to say that the rule promotes accidents by\nencouraging the negligent defendant. Probably the true explanation lies merely in\nthe highly individualistic attitude of the common law of the early nineteenth\ncentury. The period of development of contributory negligence was that of the\nindustrial revolution, and there is reason to think that the courts found in this\ndefense, along with the concepts of duty and proximate cause, a convenient\ninstrument of control over the jury, by which the liabilities of rapidly growing\nindustry were curbed and kept within bounds. . . .\nNo one ever has succeeded in justifying that as a policy, and no one ever will.\nWilliam L. Prosser, Comparative Negligence, 51 MICH. L. REV. 465, 468-9 (1953). Prosser\xe2\x80\x99s\ncritique enjoyed wide acclaim in the following decades as state legislatures and state supreme\ncourts began softening and repealing their contributory negligence regimes, swapping them out\nfor various rules that allowed negligent plaintiffs to still recover some of their damages.\n\n3. Doctrinal ameliorations I: last clear chance. The most notorious of these doctrines was\nthe so-called rule of \xe2\x80\x9clast clear chance.\xe2\x80\x9d The rule achieved a wide variety of forms but is perhaps\nbest summarized as follows: \xe2\x80\x9cWhen an accident happens through the combined negligence of two\npersons, he alone is liable to the other who had the last opportunity of avoiding the accident by\nreasonable care.\xe2\x80\x9d JOHN SALMOND, LAW OF TORTS 480 (8th ed. 1934). Last clear chance was thus\nan opposite to the \xe2\x80\x9cshe started it!\xe2\x80\x9d defense in childhood squabbles; it was a \xe2\x80\x9cshe finished it!\xe2\x80\x9d\nloophole to the harshness of contributory negligence regimes. As long as a negligent defendant\nhad the \xe2\x80\x9clast clear chance\xe2\x80\x9d to stop an accident, a negligent plaintiff could still recover her\ndamages from the defendant.\nOne difficulty was that, on a practical level, determining exactly who had possessed the\nlast chance was often a tricky question. Professor Fleming James\xe2\x80\x94Yale\xe2\x80\x99s great torts scholar of\nthe first half of the twentieth century\xe2\x80\x94identified this problem nearly one hundred years ago:\n[Last clear chance] is still a matter of carefully measuring times and distances in an\neffort to find the last wrongdoer. The paths of a pedestrian and a street car cross at\nan acute angle. The pedestrian is walking with his back partly towards the car\nengrossed in thought; the motorman is counting his fares. Before either wakes to\nthe situation there is a collision. . . . [T]he pedestrian\xe2\x80\x99s right to recover will depend\non whether, after he came into its path, the motorman could have stopped or slowed\nthe car or given warning in time to prevent the accident. This calls for a\ndetermination of the relative speeds of the parties, the exact position of the car when\nplaintiff reached the crucial point, and a measurement of the efficiency of the\navailable equipment.\n\n255\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nFleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704, 718 (1938).\nOn top of such measurement difficulties came absurd implications:\nIf the car had no brakes or warning device, the defendant will not be held. Nor will\nhe be if the car was going so fast that the equipment was inadequate to prevent the\naccident after plaintiff has come into the zone of peril. . . . Under the formula, it will\nbe seen, it is sometimes true that the greater the defendant\xe2\x80\x99s negligence, the less its\nliability. The trolley company may be held for its motorman\xe2\x80\x99s failure to look. But\nif we add to this failure enough other negligence (e.g., as to speed, or equipment) so\nthat looking would not do any good, the trolley company will be let off. Similarly,\nif the motorman does look and is careful, the company cannot be held where\ndefective equipment renders his care unavailing. It is in a better position, when it\nhas supplied a bad brake but a good motorman, than when the motorman is careless\nbut the brake efficient.\nThe last clear chance doctrine faced problems of principle as well. \xe2\x80\x9cThe worst wrongdoer,\xe2\x80\x9d\nJames wrote simply but powerfully, \xe2\x80\x9cis by no means always a last wrongdoer, and there is the\ndifficulty.\xe2\x80\x9d Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 YALE L.J. 704,\n716-19 (1938) (internal quotations omitted).\n4. Doctrinal ameliorations II: subjectivizing the \xe2\x80\x9creasonable person\xe2\x80\x9d standard. In general,\ncourts describe the standard they use to evaluate a plaintiff\xe2\x80\x99s allegedly negligent conduct as the\nsame standard they use to evaluate a defendant\xe2\x80\x99s allegedly negligent conduct. In the Restatement\nformulation, it is the standard \xe2\x80\x9cof a reasonable man under like circumstances.\xe2\x80\x9d RESTATEMENT\n(SECOND) OF TORTS \xc2\xa7 464 (1965). To the extent that courts tailor this standard for particular\nplaintiffs\xe2\x80\x94for example, for children and people with physical impairments\xe2\x80\x94that tailoring\nsupposedly follows the same rules as for defendants with those characteristics. Id. The case law\nalso shows, however, that when courts apply these standards, conduct that might be deemed\nnegligent when done by a defendant is not deemed negligent when done by a plaintiff. As the\nauthors of the Restatement explain:\nThere may be circumstances in which a jury may reasonably conclude that a reasonable\nman would take more, or less, precaution for the protection of others than for his own\nsafety. Thus the risk of harm to others may be more apparent, or apparently more serious,\nthan the risk of harm to the actor himself; or the actor may have reasonable confidence in\nhis own awareness of the risk, and his ability to avoid it, where he cannot reasonably have\nsuch confidence in the awareness or ability of others. He may have undertaken a\nresponsibility toward another which requires him to exercise an amount of care for the\nprotection of the other which he would not be required to exercise for his own safety. The\nrelation of the parties, the particular circumstances, and all other relevant factors are to be\ntaken into account. In the great majority of cases it is probably true that the same conduct\nwill constitute both negligence and contributory negligence, but it does not necessarily\nfollow in all cases.\nId. at cmt. f.\nThe Restatement authors emphasize that these seemingly contradictory results are not a\nmatter of different standards, but of differences in facts, which in turn affect how the standards\n256\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\napply. But as discussed in previous notes, see supra Chapter 4, Section A, courts sometimes have\nappeared to adjust the negligence standard when confronted with particularly sympathetic\ncategories of plaintiffs. Consider, for example, plaintiffs who are mentally ill, or who have some\nother impairment that significantly affects their mental functioning. Where the plaintiff was\ncompletely incapable of apprehending the risk that the plaintiff\xe2\x80\x99s conduct created, courts have\ntypically treated contributory negligence arguments as unavailing. And when confronted with\nplaintiffs with greater but still diminished ability to apprehend dangers, some jurisdictions\nexpressly allow juries to take into account the plaintiff\xe2\x80\x99s actual mental capacities. The North\nCarolina Court of Appeals follows this approach: \xe2\x80\x9cwhere an injured plaintiff suffers from\ndiminished mental capacity not amounting to insanity or total incompetence, it is a question for\nthe trier of fact as to whether he exercised the required degree of care for his own safety, and the\neffect of his diminished mental faculties and capabilities may be taken into account in determining\nhis ability to perceive and avoid a particular risk of harm\xe2\x80\x9d; \xe2\x80\x9csuch a person should be held only to\nthe exercise of such care as he was capable of exercising, i.e., the standard of care of a person of\nlike mental capacity under similar circumstances.\xe2\x80\x9d Stacy v. Jedco Const., Inc., 457 S.E.2d 875,\n879 (N.C. Ct. App. 1995). Courts appear more likely to take this view when the defendant has\nassumed some kind of caretaking or custodial role vis-\xc3\xa0-vis the plaintiff. See, e.g., Birkner v. Salt\nLake Cty., 771 P.2d 1053 (Utah 1989) (involving a former patient in a county mental health\nfacility who alleged that the therapist at that facility sexually abused her). But even where this is\ntrue, courts have accorded less sympathetic treatment to plaintiffs who had notice of their\ncondition and had some power to reduce the risks they posed to themselves. See, e.g., Jankee v.\nClark Cty., 612 N.W.2d 297, 301-04 (Wis. 2000) (applying an objective \xe2\x80\x9creasonable person\xe2\x80\x9d\nstandard to a plaintiff patient who failed to take prescribed medication to address his manic\ndepressive illness and was injured after attempting to escape from a psychiatric facility). Should\ntort law apply the same standard of care to plaintiffs and defendants? If you think different\nstandards are appropriate, how might you articulate them?\n\n5. Contributory negligence in the jury box. Even with puzzling efforts to establish\nameliorative exceptions like last clear chance, contributory negligence seemed to be a ruthless,\ncut-and-dry rule that denied negligent plaintiffs any and all relief. But the rule often produced\ndifferent results in practice. By 1933, one observer noted that while the rule remained on the\nbooks in all states, there was more to the story:\nLiability in Torts is frequently more sentimental than rational. If anyone be shocked\nat this thesis let him cast a critical eye at what has happened to the doctrine of\ncontributory negligence. This tall timber in the legal jungle has been whittled down\nto toothpick size by the sympathetic sabotage of juries, whose inability to perceive\ncontributory negligence in suits against certain defendants is notorious; by the\nemotional antagonism of judges who have placed constrictions on the doctrine\nwhich suggest the more evident purpose to destroy it entirely, rather than to attempt\nany logical limitation; by the popular prejudices of legislators who have pulled the\nteeth of the common-law dogma or damned it outright. Little remains to be written\nabout contributory negligence save its obituary.\nCharles L. B. Lowndes, Contributory Negligence, 22. GEO. L.J. 674 (1933). Two decades later,\nProsser wrote similarly that the remedy for the defects of the contributory negligence rule \xe2\x80\x9chas\nbeen in the hands of the jury\xe2\x80\x9d:\n257\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nEvery trial lawyer is well aware that juries often do in fact allow recovery in cases\nof contributory negligence, and that the compromise in the jury room does result in\nsome diminution of the damages because of the plaintiff\xe2\x80\x99s fault. But the process is\nat best a haphazard and most unsatisfactory one. There are still juries which\nunderstand and respect the court\xe2\x80\x99s instructions on contributory negligence, just as\nthere are other juries which throw them out of the window and refuse even to reduce\nthe recovery by so much as a dime. Above all there are many directed verdict cases\nwhere the plaintiff\xe2\x80\x99s negligence, however slight it may be in comparison with that\nof the defendant, is still clear beyond dispute, and the court has no choice but to\ndeclare it as a matter of law.\nProsser, Comparative Negligence, 51 MICH. L. REV. at 469.\nMany observers in the middle of the 20th century reported that when faced with a slightly\nnegligent plaintiff and a very negligent defendant, juries were appalled by the draconian\nconsequences of the contributory negligence rule. So they just ignored it and reduced plaintiffs\xe2\x80\x99\nrecoveries by their proportional fault. See, e.g., Harry Kalven, Jr., The Jury, The Law, and the\nPersonal Injury Damage Award, 19 OHIO ST. L.J. 158, 167-68 (1958); Lewis F. Powell, Jr.,\nContributory Negligence: A Necessary Check on the American Jury, 43 A.B.A.J. 1005, 1006\n(1957). In fact, in a before-and-after study of the contributory negligence rule, Professor Maurice\nRosenberg concluded that there was no change in the size of plaintiffs\xe2\x80\x99 recoveries after the\nabolition of the rule, indicating that juries had been factoring in plaintiffs\xe2\x80\x99 negligence all along.\nMaurice Rosenberg, Comparative Negligence in Arkansas: A \xe2\x80\x9cBefore and After\xe2\x80\x9d Survey, 13 ARK.\nL. REV. 89, 103 (1959).\n\n6. Contributory negligence outside of the courtroom. Of course, even in the first half of the\ntwentieth century, when there were far more trials than there are today, relatively few cases ever\ngot to juries. The pervasiveness of settlement undermined the all-or-nothing character of the\ncontributory negligence rule. A standard outcome in the settlement process was for settlement\nvalues simply to be discounted by the probability that the jury would return, or that the judge\nwould insist on, a finding of contributory negligence. Risk-averse parties\xe2\x80\x94often the plaintiffs\xe2\x80\x94\nwould have been willing to accept especially steep discounts from their damages in return for\nescaping the possibility of a devastating contributory negligence finding.\nThe limited application of the contributory negligence rule in settlement was perhaps most\napparent in the work of the claims adjusters who settled tort claims for insurance companies. In\nhis classic sociological study of insurance claim adjusters, Settled Out of Court, Hugh Laurence\nRoss reported how they settled cases in the event of a plaintiff\xe2\x80\x99s negligence in contributory\nnegligence states:\n[A]djusters generally treat questionable liability [including situations where the\nplaintiff might be negligent] in bodily injury claims as a factor to lower their\nevaluation, but not to extinguish value. There is variation from office to office and\nfrom adjuster to adjuster in how this is done. Impressionistically, departure from\nthe formalistic [contributory negligence] approach seems greatest in the\nmetropolitan offices, and among adjusters who have been employed longest and\nwho are the most legally sophisticated. The new employees, the supervisors, and\nthe more na\xc3\xafve men seem more ready to endorse formalism in the matter. . . .\n258\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nThe facts appearing in [various data on insurance settlements] . . . indicate . . . that,\ncontrolling for liability and injury, the proportion of claimants recovering in the\ncomparative negligence states is not higher than that in contributory negligence\nstates. Although the average recovery in paid cases is somewhat higher in the\ncomparative negligence states, the difference is not significant. It is not possible to\npress this analysis further with the number of cases available, and differences in\nregion, urbanization, and other factors between the two groups of states hinder\ninterpretation of these findings. However, the comparative negligence rule is not\nshown to produce necessarily higher settlements than the contributory negligence\nrule. Moreover, the comparative rule appears to offer a time savings in settling\ndoubtful liability cases, which may benefit all parties to the negotiation.\xe2\x80\x9d\nHUGH LAWRENCE ROSS, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS\nADJUSTMENT 128, 211 (1970).\nYet for all the real-world limits on the contributory negligence rule\xe2\x80\x99s effect, or perhaps\nbecause of them, the rule gave way in virtually every state to a regime known as comparative\nnegligence. Keeping in mind the public policy problem, consider the following two cases:\n\n2. Comparative Negligence\nLi v. Yellow Cab Company of California, 532 P.2d 1226 (Cal. 1975)\nSULLIVAN, J.\nThe accident here in question occurred near the intersection of Alvarado Street and Third\nStreet in Los Angeles. At this intersection Third Street runs in a generally east-west direction\nalong the crest of a hill, and Alvarado Street, running generally north and south, rises gently to the\ncrest from either direction. At approximately 9 p.m. on November 21, 1968, plaintiff Nga Li was\nproceeding northbound on Alvarado in her 1967 Oldsmobile. She was in the inside lane, and\nabout 70 feet before she reached the Third Street intersection she stopped and then began a left\nturn across the three southbound lanes of Alvarado, intending to enter the driveway of a service\nstation. At this time defendant Robert Phillips, an employee of defendant Yellow Cab Company,\nwas driving a company-owned taxicab southbound in the middle lane on Alvarado. He came over\nthe crest of the hill, passed through the intersection, and collided with the right rear portion of\nplaintiff\xe2\x80\x99s automobile, resulting in personal injuries to plaintiff as well as considerable damage to\nthe automobile.\nThe court, sitting without a jury, found as facts that defendant Phillips was traveling at\napproximately 30 miles per hour when he entered the intersection, that such speed was unsafe at\nthat time and place, and that the traffic light controlling southbound traffic at the intersection was\nyellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff\xe2\x80\x99s\nleft turn across the southbound lanes of Alvarado \xe2\x80\x9cwas made at a time when a vehicle was\napproaching from the opposite direction so close as to constitute an immediate hazard.\xe2\x80\x9d The\ndispositive conclusion of law was as follows: \xe2\x80\x9cThat the driving of [Nga Li] was negligent, that\nsuch negligence was a proximate cause of the collision, and that she is barred from recovery by\nreason of such contributory negligence.\xe2\x80\x9d\n259\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nJudgment for defendants was entered accordingly.\nI\n\xe2\x80\x9cContributory negligence is conduct on the part of the plaintiff which falls below the\nstandard to which he should conform for his own protection, and which is a legally contributing\ncause cooperating with the negligence of the defendant in bringing about the plaintiff\xe2\x80\x99s harm.\xe2\x80\x9d\nRESTATEMENT (SECOND) TORTS, \xc2\xa7 463. Thus the American Law Institute, in its second\nrestatement of the law, describes the kind of conduct on the part of one seeking recovery for\ndamage caused by negligence which renders him subject to the doctrine of contributory\nnegligence. What the effect of such conduct will be is left to a further section, which states the\ndoctrine in its clearest essence: \xe2\x80\x98Except where the defendant has the last clear chance, the\nplaintiff\xe2\x80\x99s contributory negligence bars recovery against a defendant whose negligent conduct\nwould otherwise make him liable to the plaintiff for the harm sustained by him.\xe2\x80\x99 ([Id. \xc2\xa7] 467.)\nThis rule, rooted in the long-standing principle that one should not recover from another\nfor damages brought upon oneself . . . , has been the law of this state from its beginning. . . .\nAlthough criticized almost from the outset for the harshness of its operation, it has weathered\nnumerous attacks, in both the legislative1 and the judicial arenas, seeking its amelioration or\nrepudiation. We have undertaken a thorough reexamination of the matter, giving particular\nattention to the common law and statutory sources of the subject doctrine in this state. As we\nhave indicated, this reexamination leads us to the conclusion that the \xe2\x80\x98all-or-nothing\xe2\x80\x99 rule of\ncontributory negligence can be and ought to be superseded by a rule which assesses liability in\nproportion to fault.\nIt is unnecessary for us to catalogue the enormous amount of critical comment that has\nbeen directed over the years against the \xe2\x80\x98all-or-nothing\xe2\x80\x99 approach of the doctrine of contributory\nnegligence. The essence of that criticism has been constant and clear: the doctrine is inequitable\nin its operation . . . .\nFurthermore, practical experience with the application by juries of the doctrine of\ncontributory negligence has added its weight to analyses of its inherent shortcomings: \xe2\x80\x98Every trial\nlawyer is well aware that juries often do in fact allow recovery in cases of contributory negligence\n. . . . It is manifest that this state of affairs, viewed from the standpoint of the health and vitality\nof the legal process, can only detract from public confidence in the ability of law and legal\ninstitutions to assign liability on a just and consistent basis. . . .\nIt is in view of these theoretical and practical considerations that to this date 25 states,\nhave abrogated the \xe2\x80\x98all or nothing\xe2\x80\x99 rule of contributory negligence and have enacted in its place\ngeneral apportionment statutes calculated in one manner or another to assess liability in\nproportion to fault. In 1973 these states were joined by Florida, which effected the same result by\nJudicial decision. Hoffman v. Jones (Fla. 1973). We are likewise persuaded that logic, practical\n\n1\n\n(See, for example, Sen.Bill No. 43 (1971 Reg.Sess.); Assem.Bill No. 694 (1971 Reg.Sess.); Sen.Bill No. 132\n(1972 Reg.Sess.); Assem.Bill No. 102 (1972 Reg.Sess.); Sen.Bill No. 10 (1973 Reg.Sess.); Sen.Bill No. 557\n(1973 Reg.Sess.); Assem.Bill No. 50 (1973 Reg.Sess.); Assem.Bill No. 801 (1973 Reg.Sess.); Assem.Bill No.\n1666 (1973 Reg.Sess.); Sen.Bill No. 2021 (1974 Reg.Sess.).)\n\n260\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nexperience, and fundamental justice counsel against the retention of the doctrine rendering\ncontributory negligence a complete bar to recovery\xe2\x80\x94and that it should be replaced in this state by\na system under which liability for damage will be borne by those whose negligence caused it in\ndirect proportion to their respective fault.6a\n...\nII\nIt is urged that any change in the law of contributory negligence must be made by the\nLegislature, not by this court. Although the doctrine of contributory negligence is of judicial\norigin\xe2\x80\x94its genesis being traditionally attributed to the opinion of Lord Ellenborough in\nButterfield v. Forrester, 103 Eng.Rep. 926 (K.B. 1809)\xe2\x80\x94the enactment of section 1714 of the\nCivil Code7 in 1872 codified the doctrine as it stood at that date and, the argument continues,\nrendered it invulnerable to attack in the courts except on constitutional grounds . . . .\nWe have concluded that th[is] argument, in spite of its superficial appeal, is fundamentally\nmisguided. . . . [I]t was not the intention of the Legislature in enacting section 1714 of the Civil\nCode, as well as other sections of that code declarative of the common law, to insulate the matters\ntherein expressed from further judicial development; rather it was the intention of the Legislature\nto announce and formulate existing common law principles and definitions for purposes of orderly\nand concise presentation and with a distinct view toward continuing judicial evolution. . . .\nIII\nWe are thus brought to the second group of arguments which have been advanced by\ndefendants and the amici curiae supporting their position. Generally speaking, such arguments\nexpose considerations of a practical nature which, it is urged, counsel against the adoption of a\nrule of comparative negligence in this state even if such adoption is possible by judicial means.\nThe most serious of these considerations are those attendant upon the administration of a\nrule of comparative negligence in cases involving multiple parties. One such problem may arise\nwhen all responsible parties are not brought before the court: it may be difficult for the jury to\nevaluate relative negligence in such circumstances, and to compound this difficulty such an\nevaluation would not be res judicata in a subsequent suit against the absent wrongdoer. Problems\nof contribution and indemnity among joint tortfeasors lurk in the background. . . .\n\nIn employing the generic term \xe2\x80\x98fault\xe2\x80\x99 throughout this opinion we follow a usage common to the literature on\nthe subject of comparative negligence. In all cases, however, we intend the term to import nothing more than\n\xe2\x80\x98negligence\xe2\x80\x99 in the accepted legal sense. [Editors Note: In the advance sheets of the court\xe2\x80\x99s decision, the text at\nfootnote 6a stated that comparative negligence allocated liability \xe2\x80\x9cin direct proportion to the extent of the parties\xe2\x80\x99\ncausal responsibility.\xe2\x80\x9d Between the publication of the advance sheets and the publication of Li in the West\nPublishing Company reports, the court changed the text and added footnote 6a, which had not appeared in the\nadvance sheets at all.]\n7\nSection 1714 of the Civil Code has never been amended. It provides as follows: \xe2\x80\x98Everyone is responsible, not\nonly for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or\nskill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary\ncare, brought the injury upon himself. The extent of liability in such cases is defined by the Title on\nCompensatory Relief.\xe2\x80\x99\n6a\n\n261\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nA second and related major area of concern involves the administration of the actual\nprocess of fact-finding in a comparative negligence system. The assigning of a specific\npercentage factor to the amount of negligence attributable to a particular party, while in theory a\nmatter of little difficulty, can become a matter of perplexity in the face of hard facts. The\ntemptation for the jury to resort to a quotient verdict in such circumstances can be great. . . .\nThese inherent difficulties are not, however, insurmountable. Guidelines might be provided the\njury which will assist it in keeping focussed upon the true inquiry . . . , and the utilization of\nspecial verdicts . . . or jury interrogatories can be of invaluable assistance in assuring that the jury\nhas approached its sensitive and often complex task with proper standards and appropriate\nreverence. . . .\nFinally there is the problem of the treatment of willful misconduct under a system of\ncomparative negligence. In jurisdictions following the \xe2\x80\x98all-or-nothing\xe2\x80\x99 rule, contributory\nnegligence is no defense to an action based upon a claim of willful misconduct . . ., and this is the\npresent rule in California. A s Dean Prosser has observed, \xe2\x80\x9c(this) is in reality a rule of\ncomparative fault which is being applied, and the court is refusing to set up the lesser fault against\nthe greater.\xe2\x80\x9d PROSSER, TORTS, \xc2\xa7 65. The thought is that the difference between willful and\nwanton misconduct and ordinary negligence is one of kind rather than degree in that the former\ninvolves conduct of an entirely different order, and under this conception it might well be urged\nthat comparative negligence concepts should have no application when one of the parties has been\nguilty of willful and wanton misconduct. In has been persuasively argued, however, that the loss\nof deterrent effect that would occur upon application of comparative fault concepts to willful and\nwanton misconduct as well as ordinary negligence would be slight, and that a comprehensive\nsystem of comparative negligence should allow for the apportionment of damages in all cases\ninvolving misconduct which falls short of being intentional. . . .\nIt remains to identify the precise form of comparative negligence which we now adopt for\napplication in this state. Although there are many variants, only the two basic forms need be\nconsidered here. The first of these, the so-called \xe2\x80\x98pure\xe2\x80\x99 form of comparative negligence,\napportions liability in direct proportion to fault in all cases. This was the form adopted by the\nSupreme Court of Florida in Hoffman v. Jones, and it applies by statute in Mississippi, Rhode\nIsland, and Washington. Moreover it is the form favored by most scholars and commentators. . . .\nThe second basic form of comparative negligence, of which there are several variants,\napplies apportionment based on fault up to the point at which the plaintiff\xe2\x80\x99s negligence is equal to\nor greater than that of the defendant\xe2\x80\x94when that point is reached, plaintiff is barred from\nrecovery. Nineteen states have adopted this form or one of its variants by statute. The principal\nargument advanced in its favor is moral in nature: that it is not morally right to permit one more at\nfault in an accident to recover from one less at fault. Other arguments assert the probability of\nincreased insurance, administrative, and judicial costs if a \xe2\x80\x98pure\xe2\x80\x99 rather than a \xe2\x80\x9850 percent\xe2\x80\x99 system\nis adopted, but this has been seriously questioned. . . .\nWe have concluded that the \xe2\x80\x98pure\xe2\x80\x99 form of comparative negligence is that which should\nbe adopted in this state. In our view the \xe2\x80\x9850 percent\xe2\x80\x99 system simply shifts the lottery aspect of the\ncontributory negligence rule to a different ground. As Dean Prosser has noted, under such a\nsystem \xe2\x80\x98(i)t is obvious that a slight difference in the proportionate fault may permit a recovery;\nand there has been much justified criticism of a rule under which a plaintiff who is charged with\n49 percent of a total negligence recovers 51 percent of his damages, while one who is charged\n262\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nwith 50 percent recovers nothing at all.\xe2\x80\x9922 In effect \xe2\x80\x98such a rule distorts the very principle it\nrecognizes, i.e., that persons are responsible for their acts to the extent their fault contributes to an\ninjurious result. The partial rule simply lowers, but does not eliminate, the bar of contributory\nnegligence.\xe2\x80\x99 . . .\nWe also consider significant the experience of the State of Wisconsin, which until recently\nwas considered the leading exponent of the \xe2\x80\x9850 percent\xe2\x80\x99 system. There that system led to\nnumerous appeals on the narrow but crucial issue whether plaintiff\xe2\x80\x99s negligence was equal to\ndefendant\xe2\x80\x99s. . . . Numerous reversals have resulted on this point, leading to the development of\narcane classifications of negligence according to quality and category. . . .\nIt remains for us to determine the extent to which the rule here announced shall have\napplication to cases other than those which are commenced in the future. . . [W]e hold that the\npresent opinion shall be applicable to all cases in which trial has not begun before the date this\ndecision becomes final in this court, but that it shall not be applicable to any case in which trial\nbegan before that date (other than the instant case)\xe2\x80\x94except that if any judgment be reversed on\nappeal for other reasons, this opinion shall be applicable to any retrial. . . .\nCLARK, J., dissenting.\nI dissent. For over a century this court has consistently and unanimously held that Civil\nCode section 1714 codifies the defense of contributory negligence. Suddenly\xe2\x80\x94after 103 years\xe2\x80\x94\nthe court declares section 1714 shall provide for comparative negligence instead. In my view, this\naction constitutes a gross departure from established judicial rules and role. . . .\n\nNotes\n\n1. Courts versus legislatures. Was the California Supreme Court right to think that the\ninstitutional authority to alter the contributory negligence rule properly lay with it rather than with\nthe legislature? What are the relevant considerations in the question of institutional choice?\n\n2. The Restatement joins in. The above case describes two main kinds of comparative\nnegligence regimes: a \xe2\x80\x9cpure\xe2\x80\x9d form and a \xe2\x80\x9c50 percent\xe2\x80\x9d form. The Third Restatement recommends\nthe pure form, asserting that where a plaintiff\xe2\x80\x99s negligence is \xe2\x80\x9ca legal cause of an indivisible\ninjury,\xe2\x80\x9d courts are to reduce a plaintiff\xe2\x80\x99s recovery \xe2\x80\x9cin proportion to the share of responsibility the\nfactfinder assigns to the plaintiff. RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIABILITY \xc2\xa7\n7 (2000).\n\n3. Comparing negligence? The Li court raises an interesting question in the course of\nadopting a comparative negligence regime: how exactly do we compare one party\xe2\x80\x99s negligent act\n\n22\n\nThis problem is compounded when the injurious result is produced by the combined negligence of several\nparties. For example in a three-car collision a plaintiff whose negligence amounts to one-third or more recovers\nnothing; in a four-car collision the plaintiff is barred if his negligence is only one-quarter of the total.\n\n263\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nwith another party\xe2\x80\x99s different negligent act? Consider the facts of the Li case itself. How should\na jury apportion percentages of fault to the plaintiff, who made a negligent left turn, and the\ndefendant, who was driving over the speed limit? Is it 50-50? Or something else?\nAlternatively, try comparing two parties\xe2\x80\x99 faults when they do varying degrees of the same\nnegligent act. Consider an accident between Car P (the plaintiff car) and Car D (the defendant\ncar) on a road with a 35 mile per hour (mph) speed limit. Before the accident, Car P was driving\n45 mph and Car D was driving 60 mph. Is their comparative fault 50-50, since they were both\ndriving over the speed limit? Or should their comparative fault scale with each additional mile\nper hour they were driving over the speed limit, such that their fault split would be about 30-70?\nOr is driving 25 miles per hour over the speed limit exponentially more dangerous than driving 10\nmiles per hour over the speed limit, such that their fault split should be something more like 1090?\nConsider another wrinkle for comparative negligence regimes. In footnote 6a, the Li court\nattempted to clarify that California tort law forces judges and juries to compare parties\xe2\x80\x99 respective\nfaults rather than their respective causal responsibilities. The court modified the decision a month\nafter it was published to clarify that California\xe2\x80\x99s negligence regime would only focus on fault.\nBut what\xe2\x80\x99s the difference between a party\xe2\x80\x99s fault and a party\xe2\x80\x99s causal contribution? If the\nCalifornia Supreme Court was confused between the two, what are the chances that future courts\nand juries will understand the distinction?\nPerhaps frustrated with questions like these, some state supreme courts have passed up\ntheir opportunities to adopt comparative negligence regimes:\n\nColeman v. Soccer Ass\xe2\x80\x99n. of Columbia, 432 Md. 679 (2013)\nThirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444\n(1983), this Court issued a writ of certiorari to decide \xe2\x80\x9cwhether the common law doctrine of\ncontributory negligence should be judicially abrogated in Maryland and the doctrine of\ncomparative negligence adopted in its place as the rule governing trial of negligence actions in\nthis State.\xe2\x80\x9d In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in\nHarrison declined to abandon the doctrine of contributory negligence in favor of comparative\nnegligence, pointing out that such change \xe2\x80\x9cinvolves fundamental and basic public policy\nconsiderations properly to be addressed by the legislature.\xe2\x80\x9d\nThe petitioner in the case at bar presents the same issue that was presented in Harrison,\nnamely whether this Court should change the common law and abrogate the defense of\ncontributory negligence in certain types of tort actions. After reviewing the issue again, we shall\narrive at the same conclusion that the Court reached in Harrison.\nI\nThe petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer\nplayer who had volunteered to assist in coaching a team of young soccer players in a program of\nthe Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008,\nColeman, at the time 20 years old, was assisting the coach during the practice of a team of young\nsoccer players on the field of the Lime Kiln Middle School. While the Soccer Association of\n264\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nColumbia had fields of its own, it did not have enough to accommodate all of the program\xe2\x80\x99s\nyoung soccer players; the Association was required to use school fields for practices. At some\npoint during the practice, Coleman kicked a soccer ball into a soccer goal. As he passed under the\ngoal\xe2\x80\x99s metal top rail, or crossbar, to retrieve the ball, he jumped up and grabbed the crossbar. The\nsoccer goal was not anchored to the ground, and, as he held on to the upper crossbar, Coleman fell\nbackwards, drawing the weight of the crossbar onto his face. He suffered multiple severe facial\nfractures which required surgery and the placing of three titanium plates in his face. Coleman\ninstituted the present action by filing a complaint, in the Circuit Court for Howard County,\nalleging that he was injured by the defendants\xe2\x80\x99 negligence. The defendant and respondent, the\nSoccer Association of Columbia, asserted the defense of contributory negligence.\n...\n[T]he jury concluded that the Soccer Association of Columbia was negligent and that the\nSoccer Association\xe2\x80\x99s negligence caused Coleman\xe2\x80\x99s injuries. The jury also found that Coleman\nwas negligent, and that his negligence contributed to his own injuries. Because of the\ncontributory negligence finding, Coleman was barred from any recovery. . . .\nII\nThis Court last addressed the continuing viability of the contributory negligence doctrine\nin Harrison v. Montgomery County Bd. of Educ., [decided in 1983]. In Harrison, the Court held\nthat the contributory negligence principle remained the valid standard in Maryland negligence\ncases and that \xe2\x80\x9cany change in the established doctrine [should be made by] the Legislature.\xe2\x80\x9d 295\nMd. at 463.\nChief Judge Murphy, for the Court in Harrison, began his review of the contributory\nnegligence standard by tracing the standard\xe2\x80\x99s historical origins to Lord Chief Justice\nEllenborough\xe2\x80\x99s opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). . .\n. The Harrison opinion explained that, when the contributory negligence standard was first\njudicially adopted in the United States, the courts at the time were concerned that juries would\naward to plaintiffs sums that had the potential to stifle \xe2\x80\x9cnewly developing industry.\xe2\x80\x9d Early\nAmerican courts were also concerned that they should not adopt a policy in which \xe2\x80\x9ccourts . . .\nassist a wrongdoer who suffered an injury as a result of his own wrongdoing.\xe2\x80\x9d. . .\nThe Court in Harrison also pointed out that, as of 1983, of the thirty-nine states that had\nadopted comparative negligence, thirty-one had done so by statute, with the eight remaining states\nhaving adopted the principle by judicial action. The Court noted that it was \xe2\x80\x9cclear\xe2\x80\x9d that legal\nscholars \xe2\x80\x9cfavored\xe2\x80\x9d the comparative negligence standard . . . .\nNevertheless, the Harrison Court pointed to other considerations involved in changing the\nstandard from contributory negligence to comparative negligence (295 Md. at 454\xe2\x80\x93455):\nAlso to be considered is the effect which a comparative fault system would have on\nother fundamental areas of negligence law. The last clear chance doctrine,\nassumption of the risk, joint and several liability, contribution, setoffs and\ncounterclaims, and application of the doctrine to other fault systems, such as strict\nliability in tort, are several of the more obvious areas affected by the urged shift to\ncomparative negligence. Even that change has its complications; beside the \xe2\x80\x98pure\xe2\x80\x99\n265\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nform of comparative negligence, there are several \xe2\x80\x98modified\xe2\x80\x99 forms, so that\nabrogation of the contributory negligence doctrine will necessitate the substitution\nof an alternate doctrine. Which form to adopt presents its own questions and the\nchoice is by no means clear. . . . That a change from contributory to comparative\nnegligence involves considerably more than a simple common law adjustment is\nreadily apparent.\n. . . Harrison concluded . . . :\n[I]n considering whether a long-established common law rule\xe2\x80\x94unchanged by the\nlegislature and thus reflective of this State\xe2\x80\x99s public policy\xe2\x80\x94is unsound in the\ncircumstances of modern life, we have always recognized that declaration of the\npublic policy of Maryland is normally the function of the General Assembly; that\nbody, by Article 5 of the Maryland Declaration of Rights, is expressly empowered\nto revise the common law of Maryland by legislative enactment. The Court,\ntherefore, has been particularly reluctant to alter a common law rule in the face of\nindications that to do so would be contrary to the public policy of the State.\nIn the years immediately prior to Harrison, from 1966 to 1982, the Maryland General\nAssembly had considered twenty-one bills seeking to change the contributory negligence\nstandard. None of the bills had been enacted. The Harrison Court accorded a great deal of\nweight to the General Assembly\xe2\x80\x99s failure to enact any of these bills, stating: \xe2\x80\x9c[T]he legislature\xe2\x80\x99s\naction in rejecting the proposed change is indicative of an intention to retain the contributory\nnegligence doctrine.\xe2\x80\x9d\nThe Court further pointed out that enactment of a comparative negligence standard is be\nmade, beginning with the initial inquiry of what form of comparative negligence to adopt, \xe2\x80\x9cpure\xe2\x80\x9d\nor one \xe2\x80\x9cof the several types of modified comparative negligence.\xe2\x80\x9d If Maryland\xe2\x80\x99s common law\nwere to change, the Harrison opinion explained, the decision as to which form of comparative\nnegligence to adopt \xe2\x80\x9cplainly involves major policy considerations\xe2\x80\x9d of the sort best left to the\nGeneral Assembly.\nIII\nSince the time of Harrison, this Court has continued to recognize the standard of\ncontributory negligence as the applicable principle in Maryland negligence actions. Although the\ncontributory negligence principle has been part of this State\xe2\x80\x99s common law for over 165 years,\npetitioners and numerous amici in this case urge this Court to abolish the contributory negligence\nstandard and replace it with a form of comparative negligence. They argue contributory\nnegligence is an antiquated doctrine, that it has been roundly criticized by academic legal\nscholars, and that it has been rejected in a majority of our sister states. It is also pointed out that\ncontributory negligence works an inherent unfairness by barring plaintiffs from any recovery,\neven when it is proven, in a particular case, that a defendant\xe2\x80\x99s negligence was primarily\nresponsible for the act or omission which resulted in a plaintiff\xe2\x80\x99s injuries. It is said that\ncontributory negligence provides harsh justice to those who may have acted negligently, in minor\nways, to contribute to their injuries, and that it absolves those defendants from liability who can\nfind any minor negligence in the plaintiffs\xe2\x80\x99 behavior.\n\n266\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nPetitioners correctly contend that, because contributory negligence is a court-created\nprinciple, and has not been embodied in Maryland statutes, this Court possesses the authority to\nchange the principle. This Court has recognized that (Ireland v. State, 310 Md. 328, 331\xe2\x80\x93332\n(1987)),\n[b]ecause of the inherent dynamism of the common law, we have consistently held\nthat it is subject to judicial modification in light of modern circumstances or\nincreased knowledge. Equally well established is the principle that the common\nlaw should not be changed contrary to the public policy of this State set forth by the\nGeneral Assembly. Kelley v. R.G. Industries, Inc., 304 Md. 124, 141. In the area\nof civil common law this Court has not only modified the existing law but also\nadded to the body of law by recognizing new causes of action. Kelley (recognizing\ncause of action against manufacturers or marketers for damages caused by \xe2\x80\x98Saturday\nNight Special\xe2\x80\x99 handguns); Boblitz v. Boblitz, 296 Md. 242 (1983) (permitting\nnegligence action by one spouse against another); Moxley v. Acker, 294 Md. 47\n(1982) (deleting force as a required element of the action of forceable detainer);\nAdler v. American Standard Corp., 291 Md. 31 (1981) (recognizing tort of abusive\nor wrongful discharge); Lusby v. Lusby, 283 Md. 334 (1978) (abolishing the defense\nof interspousal immunity in the case of outrageous intentional torts); Harris v. Jones,\n281 Md. 560 (1977) (recognizing tort of intentional infliction of emotional distress).\n...\nSince the Harrison case, the General Assembly has continually considered and failed to\npass bills that would abolish or modify the contributory negligence standard. The failure of so\nmany bills, attempting to change the contributory negligence doctrine, is a clear indication of\nlegislative policy at the present time. . . . [T]he legislative policy in Maryland is to retain the\nprinciple of contributory negligence.\n\nDissenting Opinion by HARRELL, J., which BELL, C.J., joins.\nPaleontologists and geologists inform us that Earth\xe2\x80\x99s Cretaceous period (including in what\nis present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth\n(the Cretaceous\xe2\x80\x93Paleogene Extinction Event), wiping-out, in a relatively short period of geologic\ntime, most plant and animal species, including dinosaurs. As to the last premise, they are wrong.\nA dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the\nDistrict of Columbia), feeding on the claims of persons injured by the negligence of another, but\nwho contributed proximately in some way to the occasion of his or her injuries, however slight\ntheir culpability. The name of that dinosaur is the doctrine of contributory negligence. With the\nforce of a modern asteroid strike, this Court should render, in the present case, this dinosaur\nextinct. It chooses not to do so. Accordingly, I dissent. . . .\n\nNotes\n\n1. The persistence of contributory negligence? Is the Coleman court right to refrain from\naltering its long-settled rule on grounds of democratic values and institutional choice? Note that\n267\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nthe legislature could almost certainly switch the rule back to contributory negligence if the court\nhad opted to follow Li v. Yellow Cab. As a result, the choice reduces to one about proper starting\npoints and the court\xe2\x80\x99s role as an agenda-setter in the political process.\n\n2. The seat belt defense. What happens when a plaintiff takes an action that does not directly\ncause an accident, but instead only aggravates her own injuries in that accident? Courts have\nstruggled with this principle since the inception of the comparative negligence regime\xe2\x80\x94one only\nhas to look to the seat belt dilemma to grasp the problem.\nCan a defendant prove a plaintiff\xe2\x80\x99s negligence by submitting evidence that the plaintiff\nwas not wearing a seat belt during the accident? Under contributory negligence regimes, courts\nwere hesitant to deny an un-seatbelted plaintiff\xe2\x80\x99s recovery outright. This may be because\ncontributory negligence regimes were most prominent before cars were required to have seatbelts.\nOr, perhaps, the courts just found this application of contributory negligence \xe2\x80\x9ctoo harsh\xe2\x80\x9d for\nsomething that didn\xe2\x80\x99t even cause the accident. See VICTOR SCHWARTZ, COMPARATIVE\nNEGLIGENCE \xc2\xa7 4.06 (5th ed. 2013).\nPerhaps more surprisingly, the vast majority of states have also been loath to allow\ndefendants to raise a \xe2\x80\x9cseat belt defense\xe2\x80\x9d under comparative negligence regimes. For example, the\nstate legislatures in Indiana, North Dakota, and Minnesota have all passed laws prohibiting\nevidence of a plaintiff\xe2\x80\x99s un-seatbeltedness from being used to prove negligence. IND. STAT. ANN.\n\xc2\xa7 9-8-14-5; N.D. CENT. CODE \xc2\xa7 39-21-41.2(3); Cressy v. Grassman, 536 N.W.2d 39 (Minn. App.\n1995). Even Michigan\xe2\x80\x94one of the few states that does allow a version of the seat belt defense in\ntort cases\xe2\x80\x94limits damages reductions due to plaintiffs\xe2\x80\x99 seatbelt-related negligence to 5% of total\ndamages. MICH. COMP. LAWS. ANN. \xc2\xa7 257.710(e).\nIn fact, the seat belt defense has not even gained traction in \xe2\x80\x9cClick It or Ticket\xe2\x80\x9d states that\nimpose nominal criminal fines on drivers\xe2\x80\x99 failures to wear seatbelts. For example, New Mexican\ntraffic police impose twenty-five to fifty dollar fines on all individuals who fail to wear a seat belt.\nN.M. STAT. ANN. \xc2\xa766-7-370 et seq. Yet the same statute authorizing the police to impose the fine\nalso prohibits courts from finding a plaintiff negligent for failing to wear a seat belt. How could\nthis particular contradiction come to be? As Professor Schwartz suggests, \xe2\x80\x9c[t]he answer regarding\na change in public policy was clear: voters know that seat belts are a good idea, but will not accept\nsignificant legal consequences for failure to use them.\xe2\x80\x9d VICTOR SCHWARTZ, COMPARATIVE\nNEGLIGENCE \xc2\xa7 4.06 (5th ed. 2013).\n\nB. Assumption of Risk\nSometimes a plaintiff behaves in a careless and unreasonably dangerous manner, without\ntaking conscious note of the risks involved. We call such behavior contributory or comparative\nnegligence. Other times, however, a plaintiff enters into a course of conduct knowing the risks of\nthat conduct. And in some of these situations, though not all, the law treats a plaintiff\xe2\x80\x99s\nknowledge of the risks as grounds for allocating those risks to the plaintiff\xe2\x80\x94or at least to\ndistributing those risks among the negligent parties according to their relative fault. We call these\ninstances ones in which the plaintiff assumes the risk. A plaintiff may assume risks tacitly or\n\n268\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nimpliedly, on one hand, or expressly, on the other. We will take up these two categories of\nassumption of the risk in turn in the materials that follow.\nAssumption of the risk is hugely significant as a doctrine in modern tort law. Any number\nof social situations are covered by implied assumption of the risk rules, ranging from amateur and\nprofessional sporting events to amusement park rides and more. Indeed, myriad other social\nsituations might be covered by implied assumption of the risk rules. Why not say, for example,\nthat drivers assume the risk of automobile accidents on dangerous stretches of a highway? The\ncommon law of torts does not say any such thing. But why not? What is it about certain\nactivities, and not about others, that warrants the creation of an implied assumption of the risk\nrule?\n\n1. Implied Assumption of Risk\nMurphy v. Steeplechase Amusement Co., 250 N.Y. 479 (N.Y. 1929)\nCARDOZO, C.J.\nThe defendant, Steeplechase Amusement Company, maintains an amusement park at\nConey Island, N.Y. One of the supposed attractions is known as \xe2\x80\x9cthe Flopper.\xe2\x80\x9d It is a moving\nbelt, running upward on an inclined plane, on which passengers sit or stand. Many of them are\nunable to keep their feet because of the movement of the belt, and are thrown backward or aside.\nThe belt runs in a groove, with padded walls on either side to a height of four feet, and with\npadded flooring beyond the walls at the same angle as the belt. An electric motor, driven by\ncurrent furnished by the Brooklyn Edison Company, supplies the needed power.\nPlaintiff, a vigorous young man, visited the park with friends. One of them, a young\nwoman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her.\nAs he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in\nfront and also friends behind him were thrown at the same time. Something more was here, as\nevery one understood, than the slowly moving escalator that is common is shops and public\nplaces. A fall was foreseen as one of the risks of the adventure. There would have been no point\nto the whole thing, no adventure about it, if the risk had not been there. The very name, above the\ngate, \xe2\x80\x98the Flopper,\xe2\x80\x99 was warning to the timid. If the name was not enough, there was warning\nmore distinct in the experience of others. We are told by the plaintiff\xe2\x80\x99s wife that the members of\nher party stood looking at the sport before joining in it themselves. Some aboard the belt were\nable, as she viewed them, to sit down with decorum or even to stand and keep their footing; others\njumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and\nfun. \xe2\x80\x98I took a chance,\xe2\x80\x99 she said when asked whether she thought that a fall might be expected.\nPlaintiff took the chance with her, but, less lucky than his companions, suffered a fracture\nof a knee cap. He states in his complaint that the belt was dangerous to life and limb, in that it\nstopped and started violently and suddenly and was not properly equipped to prevent injuries to\npersons who were using it without knowledge of its dangers, and in a bill of particulars he adds\nthat it was operated at a fast and dangerous rate of speed and was not supplied with a proper\nrailing, guard, or other device to prevent a fall therefrom. No other negligence is charged.\n\n269\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nWe see no adequate basis for a finding that the belt was out of order. It was already in\nmotion when the plaintiff put his foot on it. He cannot help himself to a verdict in such\ncircumstances by the addition of the facile comment that it threw him with a jerk. One who steps\nupon a moving belt and finds his heels above his head is in no position to discriminate with nicety\nbetween the successive stages of the shock, between the jerk which is a cause and the jerk,\naccompanying the fall, as an instantaneous effect. There is evidence for the defendant that power\nwas transmitted smoothly, and could not be transmitted otherwise. If the movement was\nspasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal\nworkings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict,\nshould rest on something firmer than a mere descriptive epithet, a summary of the sensations of a\ntense and crowded moment. . . . But the jerk, if it were established, would add little to the case.\nWhether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This\nwas the very hazard that was invited and foreseen.\nVolenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere\nin it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his\nantagonist or a spectator at a ball game the chance of contact with the ball. . . . The antics of the\nclown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of\nthe crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was\nnot seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of\nonlookers when he made his choice to join them. He took the chance of a like fate, with whatever\ndamage to his body might ensue from such a fall. The timorous may stay at home.\nA different case would be here if the dangers inherent in the sport were obscure or\nunobserved, or so serious as to justify the belief that precautions of some kind must have been\ntaken to avert them. Nothing happened to the plaintiff except what common experience tells us\nmay happen at any time as the consequence of a sudden fall. Many a skater or a horseman can\nrehearse a tale of equal woe. A different case there would also be if the accidents had been so\nmany as to show that the game in its inherent nature was too dangerous to be continued without\nchange. The president of the amusement company says that there had never been such an\naccident before. A nurse employed at an emergency hospital maintained in connection with the\npark contradicts him to some extent. She says that on other occasions she had attended patrons of\nthe park who had been injured at the Flopper, how many she could not say. None, however, had\nbeen badly injured or had suffered broken bones. Such testimony is not enough to show that the\ngame was a trap for the unwary, too perilous to be endured. According to the defendant\xe2\x80\x99s\nestimate, 250,000 visitors were at the Flopper in a year. Some quota of accidents was to be\nlooked for in so great a mass. One might as well say that a skating rink should be abandoned\nbecause skaters sometimes fall.\nThere is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding.\nHe is strongly contradicted by the photographs and by the witnesses for the defendant, and is\nwithout corroboration in the testimony of his companions who were witnesses in his behalf. If his\nobservation was correct, there was a defect in the equipment, and one not obvious or known. The\npadding should have been kept in repair to break the force of any fall. The case did not go to the\njury, however, upon any such theory of the defendant\xe2\x80\x99s liability, nor is the defect fairly suggested\nby the plaintiff\xe2\x80\x99s bill of particulars, which limits his complaint. The case went to the jury upon\nthe theory that negligence was dependent upon a sharp and sudden jerk.\n\n270\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nThe judgment of the Appellate Division and that of the Trial Term should be reversed, and\na new trial granted, with costs to abide the event.\nPOUND, CRANE, LEHMAN, KELLOG, and HUBBS, JJ., concur.\nO\xe2\x80\x99BRIEN, J., dissents . . .\n\nNotes\n\n1. Negligence in the Flopper case? What, if anything, did the operator of the Flopper do\nwrong? If the answer is nothing, then why are we talking about the plaintiff\xe2\x80\x99s conduct? Isn\xe2\x80\x99t this\na case in which the plaintiff loses simply because he cannot show negligence on the part of the\ndefendant?\n2. Primary assumption of the risk. Flopper-like cases are often said to deal with \xe2\x80\x9cprimary\nassumption of risk.\xe2\x80\x9d As the California Supreme Court has put it,\nthese are instances in which the assumption of risk doctrine embodies a legal\nconclusion that there is \xe2\x80\x9cno duty\xe2\x80\x9d on the part of the defendant to protect the plaintiff\nfrom a particular risk\xe2\x80\x94the category of assumption of risk that the legal\ncommentators generally refer to as \xe2\x80\x9cprimary assumption of risk.\xe2\x80\x9d\nKnight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But if that is so, why craft an independent\ndoctrine for such cases? Why aren\xe2\x80\x99t these simply dealt with as cases in which the plaintiff wins\nbecause the defendant did not breach a duty of care?\n\n3. A monster flopper? Cardozo observes in the Flopper case that the outcome might be\ndifferent \xe2\x80\x9cif the accidents had been so many as to show that the game in its inherent nature was\ntoo dangerous to be continued without change.\xe2\x80\x9d One New Jersey theme park in the 1980s and\n1990s may have been such a place. Customers reported 14 broken bones and 26 head injuries in\n1984 and 1985. The park acquired its own ambulance. Six people died at the park between 1978\nand 1996. Test dummies used to simulate rides were said to come out decapitated. One teenage\ncustomer recalled driving to the park with his friends. \xe2\x80\x9cIt wasn\xe2\x80\x99t \xe2\x80\x98If someone gets hurt,\xe2\x80\x99\xe2\x80\x9d he\nrecalled, \xe2\x80\x9cit was \xe2\x80\x98Who\xe2\x80\x99s going to get hurt?\xe2\x80\x99\xe2\x80\x9d Another long-time customer remembered \xe2\x80\x9cPeople\nwere bleeding all over the place.\xe2\x80\x9d Did the notoriety and visible dangerousness of Action Park\nmean that its ordinary operation was not negligent as a matter of law? Or was Action Park so\ndangerous that people should not have been allowed to assume the risks it posed? Notably, a\nyoung New Jersey man named Cory Booker loved the place. \xe2\x80\x9cI\xe2\x80\x99ve got stories 2 tell,\xe2\x80\x9d he tweeted\nin 2014. See James Barron, People Were Bleeding All Over, N.Y. TIMES, Oct. 19, 2019.\n\n4. The fellow servant rule. Historically, many cases of primary assumption of the risk dealt\nwith workplace risks. Workers in the pre-worker\xe2\x80\x99s compensation era were regularly said to\nassume the risks of the work in which they were engaged. In Lamson v. American Ax & Tool Co.,\nfor example, the plaintiff was a painter of hatchets in the defendant\xe2\x80\x99s manufacturing\n271\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nestablishment. When the defendant installed a new axe rack, plaintiff complained to the\nsuperintendent of the factory that the new rack was dangerous. The superintendent answered that\n\xe2\x80\x9che would have to use the racks or leave.\xe2\x80\x9d Plaintiff stayed and was injured when a hatchet fell\nfrom the rack. Massachusetts Supreme Judicial Court Chief Justice Oliver Wendell Holmes, Jr.,\nsoon to be appointed to the United States Supreme Court, ruled in favor of the defendant on the\nground that Lamson had assumed the risk:\nThe plaintiff, on his own evidence, appreciated the danger more than any one else. He\nperfectly understood what was likely to happen. That likelihood did not depend upon the doing of\nsome negligent act by people in another branch of employment, but solely on the permanent\nconditions of the racks and their surroundings and the plaintiff\xe2\x80\x99s continuing to work where he did.\nHe complained, and was notified that he could go if he would not face the chance. He stayed and\ntook the risk.\nLamson v. American Ax & Tool Co., 58 N.E. 585, 585 (Mass. 1900).\nThe assumption of the risk rule in the nineteenth- and early twentieth-century workplace\nencompassed the assumption of virtually all risks arising out of the negligence of a co-worker.\nThis was the so-called \xe2\x80\x9cfellow servant rule.\xe2\x80\x9d Articulated most famously by Chief Justice Lemuel\nShaw of Massachusetts (you will recall Shaw as the author of the opinion in Brown v. Kendall),\nthe fellow servant rule was grounded in two theories. The first was that employees are better\npositioned than an employer to minimize the risks involved in the workplace:\nWhere several persons are employed in the conduct of one common enterprise or\nundertaking, and the safety of each depends much on the care and skill with which\neach other shall perform his appropriate duty, each is an observer of the conduct of\nthe others, can give notice of any misconduct, incapacity or neglect of duty, and\nleave the service . . . . By these means, the safety of each will be much more\neffectually secured, than could be done by a resort to the common employer for\nindemnity in case of loss by the negligence of each other.\nFarwell v. Boston & Worcester R. Corp., 45 Mass. 49, 59 (1842). Does Shaw\xe2\x80\x99s description of the\nworkplace hold true for modern firms? Did it hold true for railroad firms in the middle of the\nnineteenth century?\n\n5. Compensating wage premiums? A second theoretical basis for the assumption of the risk\nrule was that even if employees were not better positioned, the employees\xe2\x80\x99 wages would be higher\nex ante to reflect the allocation of the risk of work accidents to workers ex post; as Shaw put it,\neven if workers lost when they brought injury suits, their compensation was \xe2\x80\x9cadjusted\naccordingly.\xe2\x80\x9d Farwell, 45 Mass. at 57.\nContemporary economists refer to this theory as the wage premium theory: employees\nearn, or so it is said, a higher wage to reflect the risks they face in the workplace. If the\nbackground tort rules make recovery for work accidents difficult, the wage will be higher still to\nreflect the true costs of the job to the employee. Conversely, if the risk of accidents were\ntransferred to the employer (the theory goes) wages would decrease accordingly to reflect the\nemployer\xe2\x80\x99s new costs.\n272\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nEconomists have tried hard to determine empirically whether wages adjust to reflect work\naccident risk and background tort rules. The evidence is split. Some have purported to find little\nor no effect of added risk on wages, especially among non-unionized workers. See Peter Dorman\n& Paul Hagstrom, Wage Compensation for Dangerous Work Revisited, 52 Indus. & Labor\nRelations Rev. 116 (1998). Others find considerable compensating wage differentials in risky\nworkplaces. See W. Kip Viscusi & Joseph E. Aldy, The Value of a Statistical Life: A Critical\nReview of Market Estimates Throughout the World, 27 J. RISK & UNCERTAINTY 5, 23 (2003)\n(finding that workers\xe2\x80\x99 wage differentials place an implicit value of $3 to $7 million dollars on the\naverage worker life). Similarly, studies of the transition from tort to workers\xe2\x80\x99 compensation\nconclude that the shift to a more ex post compensation was accompanied by a reduction in wages,\nsuggesting that workers traded off increased after-the-fact injury compensation for decreased ex\nante risk premiums. See PRICE V. FISHBACK & SHAWN E. KANTOR, PRELUDE TO THE WELFARE\nSTATE: THE ORIGINS OF WORKERS\xe2\x80\x99 COMPENSATION (2000).\nNote that to the extent there are wage premiums, such premiums create a built-in market\nincentive for employers to improve safety conditions for their workers. Safer workplaces would\nallow employers to pay lower wages or attract better talent, since they would be more attractive\nplaces to work. One difficulty with this theory is that even if employees demand higher wages in\nreturn for the increased risks of certain industries, the evidence suggests that they usually do not\nhave good enough information about the safety records of particular firms to demand firmspecific safety premiums. Indeed, even if compensating wage premiums exist, it seems highly\nimplausible, given employees\xe2\x80\x99 limited information about the relevant risks, to think that the\nmarket wage for any given position accurately includes the risk of injury and the background tort\nrule. See Susan Rose-Ackerman, Progressive Law and Economics, 98 YALE L.J. 341, 355-57\n(1988).\n\n6. Assumption of the risk is no longer a live doctrine in most workplaces. The enactment of\nworkers\xe2\x80\x99 compensation laws has displaced most tort suits between employer and employee.\nToday the most common setting for the doctrine of primary assumption of the risk is athletic\nevents.\n\nMaddox v. City of New York, 487 N.E.2d 553 (N.Y. 1985)\nMEYER, J.\n[P]laintiff, a member of the New York Yankees team, was injured on June 13, 1975, when\nhe slipped and fell during the ninth inning of a night game with the Chicago White Sox. . . .\nPlaintiff testified that he was playing centerfield and was fielding a fly ball hit to right centerfield,\nthat he was running to his left and as he sought to stop running his left foot hit a wet spot and slid,\nbut his right foot stuck in a mud puddle, as a result of which his right knee buckled. The knee\ninjury required three separate surgical procedures and ultimately forced him to retire prematurely\nfrom professional baseball.\nPlaintiff and his wife (hereafter collectively referred to as plaintiff) sued the city, as owner\nof Shea Stadium [predecessor stadium to the New York Mets\xe2\x80\x99s Citi Field], and the Metropolitan\nBaseball Club, Inc., as lessee. In a separate action plaintiff sued the general contractor who built\nShea Stadium and the architect and the consulting engineer. Both actions charge that the drainage\n273\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nsystem was negligently designed, constructed or maintained. [The Appellate Division ruled in\nfavor of defendants\xe2\x80\x99 motion for summary judgment. Maddox appealed, arguing that \xe2\x80\x9che assumed\nthe risks of the game, not of the playing field, which was in an unreasonably dangerous condition,\nthat the risk had in any event been enhanced, that he had no choice but to continue to play, and\nthat the evidence did not establish his subjective awareness that his foot could get stuck in the\nmud.\xe2\x80\x9d]\nIn the instant case we deal not with express assumption of risk, but with assumption of\nrisk to be implied from plaintiff\xe2\x80\x99s continued participation in the game with the knowledge and\nappreciation of the risk which his deposition testimony spelled out and which established his\nimplied assumption as a matter of law. . . .\nThe risks of a game which must be played upon a field include the risks involved in the\nconstruction of the field, as has been held many times before. . . . [T]he assumption doctrine\n\xe2\x80\x9capplies to any facet of the activity inherent in it and to any open and obvious condition of the\nplace where it is carried on\xe2\x80\x9d. . . .\nThere is no question that the doctrine requires not only knowledge of the injury-causing\ndefect but also appreciation of the resultant risk, but awareness of risk is not to be determined in a\nvacuum. It is, rather, to be assessed against the background of the skill and experience of the\nparticular plaintiff, and in that assessment a higher degree of awareness will be imputed to a\nprofessional than to one with less than professional experience in the particular sport. In that\ncontext plaintiff\xe2\x80\x99s effort to separate the wetness of the field, which he testified was above the\ngrass line, from the mud beneath it in which his foot became lodged must be rejected for not only\nwas he aware that there was \xe2\x80\x9csome mud\xe2\x80\x9d in the centerfield area, but also it is a matter of common\nexperience that water of sufficient depth to cover grass may result in the earth beneath being\nturned to mud. We do not deal here . . . with a hole in the playing field hidden by grass, but with\nwater, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to\ncomplain to the grounds keepers. It is not necessary to the application of assumption of risk that\nthe injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as\nhe or she is aware of the potential for injury of the mechanism from which the injury results. Nor\ndo the enhancement cases to which plaintiff refers in arguing that the risk of water on the field\nwas enhanced by the failure to install proper drainage facilities avail plaintiff, for in each of those\ncases the enhanced risk that resulted was unknown to the particular plaintiff, whereas here the\nresulting risk (mud) was evident to plaintiff as is shown by his observation of mud and water and\nhis complaints to the grounds keepers concerning the presence of water to the grass line.\nFinally, although the assumption of risk to be implied from participation in a sport with\nawareness of the risk is generally a question of fact for a jury dismissal of a complaint as a matter\nof law is warranted when on the evidentiary materials before the court no fact issue remains for\ndecision by the trier of fact. We are satisfied that this is such a case for, on the basis of those parts\nof plaintiff\xe2\x80\x99s deposition above set forth, the defense of assumption of risk was clearly established,\nand plaintiff has not, as it was his burden to do . . . present[ed] evidence in admissible form that he\nhad no choice in the matter but to obey a superior\xe2\x80\x99s direction to continue notwithstanding the\ndanger. Indeed, nothing in plaintiff\xe2\x80\x99s affidavit or in so much of his deposition as is contained in\nthe record suggests that he acted under such an order or compulsion, nor can we agree,\nnotwithstanding the dictum in or the irascibility of some baseball owners or managers, that we\nshould infer that such an order had been given or that plaintiff acted under the compulsion of an\nunspoken order.\n274\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nAccordingly, the order of the Appellate Division should be affirmed, with costs.\nWACHTLER, C.J., and JASEN, SIMONS, KAYE and ALEXANDER, JJ., concur.\nTITONE, J., taking no part.\n\nNotes\n\n1. Elliot Maddox. Elliot Maddox was a promising young member of a struggling Yankees\nteam when he was injured. He never played effectively again. Why did Maddox not sue the\nYankees? It was the Yankees, after all, that sent him out into the wet outfield and required him to\nplay. The answer is that, as Maddox\xe2\x80\x99s employer, the Yankees were immune from suit in tort,\nthough they were responsible for any workers\xe2\x80\x99 compensation benefits. Maddox\xe2\x80\x99s action against\nthe city as owner of Shea Stadium and against the Mets as the stadium\xe2\x80\x99s lessee is emblematic of\nthe way in which employers\xe2\x80\x99 workers\xe2\x80\x99 compensation immunity has generated pressure to bring\ntort actions against more distant tort defendants.\nNote that fifteen years after the New York Court of Appeals decided his tort claim,\nMaddox was back in the news, this time for fraudulent worker\xe2\x80\x99s compensation claims. After\ngetting work as a counselor in Florida\xe2\x80\x99s Division of Children and Families, Maddox filed a\nworkers\xe2\x80\x99 compensation claim based on the knee injury he suffered in Shea Stadium in 1975. Now\n51 years old, Maddox claimed that he was \xe2\x80\x9cat home in Coral Springs and too hobbled to work.\xe2\x80\x9d\nThe Tuscaloosa News, however, reported that in fact Maddox was running baseball camps.\nInvestigators with the Florida Division of Risk Management say they videotaped\nMaddox \xe2\x80\x9cwalking, running, bending both knees, performing pitching windups and\ncarrying equipment\xe2\x80\x9d during the times he claimed to be too injured to report to\nwork.\nTuscaloosa News, Jan. 25, 2000, p. 3B. Maddox was arrested on charges of workers\xe2\x80\x99\ncompensation fraud, grand theft, and perjury in official proceedings. He was eventually acquitted\nby a jury on all charges.\n2. \xe2\x80\x9cThe Baseball Rule.\xe2\x80\x9d Primary assumption of the risk also finds application in the class of\ncases brought by spectators at professional sporting events. The Missouri Supreme Court recently\nhad occasion to set forth the so-called \xe2\x80\x9cBaseball Rule\xe2\x80\x9d:\n[A]n overwhelming majority of courts recognized that spectators at sporting events\nare exposed to certain risks that are inherent merely in watching the contest.\nAccordingly, under what is described . . . as implied primary assumption of the risk,\nthese courts held that the home team was not liable to a spectator injured as a result\nof such risks.\nThe archetypal example of this application of implied primary assumption of the\nrisk is when a baseball park owner fails to protect each and every spectator from the\n275\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nrisk of being injured by a ball or bat flying into the stands. Just as Missouri teams\nhave led (and continue to lead) professional baseball on the field, Missouri courts\nhelped lead the nation in defining this area of the law off the field. More than 50\nyears ago, this Court was one of the first to articulate the so-called \xe2\x80\x9cBaseball Rule\xe2\x80\x9d:\n[W]here a baseball game is being conducted under the customary and usual\nconditions prevailing in baseball parks, it is not negligence to fail to protect all seats\nin the park by wire netting, and that the special circumstances and specific\nnegligence pleaded did not aid plaintiff or impose upon the defendant a duty to warn\nhim against hazards which are necessarily incident to baseball and are perfectly\nobvious to a person in possession of his faculties.\n...\n[W]hen due care has been exercised to provide a reasonable number of screened\nseats, there remains a hazard that spectators in unscreened seats may be struck and\ninjured by balls which are fouled or otherwise driven into the stands. This risk is a\nnecessary and inherent part of the game and remains after ordinary care has been\nexercised to provide the spectators with seats which are reasonably safe. It is a risk\nwhich is assumed by the spectators because it remains after due care has been\nexercised and is not the result of negligence on the part of the baseball club. It is\nclearly not an unreasonable risk to spectators which imposes a duty to warn [or\nprotect].\n[M]any dozens of cases around the country hold[] that, as long as some seats directly\nbehind home plate are protected, the team owes \xe2\x80\x9cno duty\xe2\x80\x9d to spectators outside that\narea who are injured by a ball or bat while watching a baseball game.\nCoomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014).\nBut courts have been unwilling to allow the baseball rule to defeat all the tort claims that\narise in this context. For instance, in Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. 1967), an Illinois\nappellate court held that where the plaintiff was struck by an errant ball coming from the bullpen\nin Chicago\xe2\x80\x99s Wrigley Field, rather than by a ball coming from the field, the baseball rule did not\napply. Similarly, where the antics of the mascot at a minor league game distracted the plaintiff\nfrom the progress of the game, the court held that the baseball rule\xe2\x80\x99s assumption of the risk\nargument did not defeat the plaintiff\xe2\x80\x99s suit for injuries. Lowe v. Cal. League of Prof\xe2\x80\x99l Baseball,\n65 Cal. Rptr. 2d 105 (Cal. Ct. App. 1997). Most recently, the Missouri Supreme Court held that\nthe baseball rule of primary assumption of the risk did not apply where a hot dog thrown by the\nKansas City Royals\xe2\x80\x99 mascot between innings struck the plaintiff in the eye and detached his\nretina. Coomer, 437 S.W.3d at 184.\nNote also that courts are not the only institution involved in fashioning the baseball rule.\nIn Maisonave v. Newark Bears, 881 A.2d 700 (N.J. 2005), the New Jersey Supreme Court held\nthat the baseball rule did not apply in a suit by a spectator injured by a foul ball while waiting at a\nconcession stand in the stadium concourse. The next year, the New Jersey legislature passed a\nlaw limiting team liability for any \xe2\x80\x9cinjuries which result from being struck by a baseball or a\nbaseball bat anywhere on the premises during a professional baseball game.\xe2\x80\x9d N.J. STAT. ANN. \xc2\xa7\n2A53A-46 (2006).\n276\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n3. Amateur or \xe2\x80\x9cpick-up\xe2\x80\x9d sports. Primary assumption of risk is a comprehensive doctrine\nthat applies not only to spectators at professional sporting events, but also to players in amateur or\neven \xe2\x80\x9cpick-up\xe2\x80\x9d games. The Indiana Court of Appeals recently stated the doctrine as follows:\nA participant in a sporting event, including any person who is part of the sporting\nevent or practice involved such as players and coaches, does not have a duty to\nfellow participants to refrain from conduct which is inherent and foreseeable in the\nplay of the game, even though such conduct may be negligent and may result in\ninjury absent evidence that the other participant either intentionally caused injury\nor engaged in conduct so reckless as to be totally outside the range of ordinary\nactivity.\nGeiersbach v. Frieje, 807 N.E.2d 114 (Ind. Ct. App. 2004) (emphasis added).\nIn Maddox, the court reasoned that \xe2\x80\x9ca higher degree of awareness will be imputed to a\nprofessional than to one with less than professional experience in the particular sport.\xe2\x80\x9d But the\nGeiersbach court suggests that any person participating in a sporting game, regardless of its level\nof professionalism or lack thereof, is deemed to have assumed risk inherent and foreseeable in the\nparticular sport. Which is the better approach?\n\n4. So far the cases we have seen have been primary assumption of the risk cases in which the\ndoctrine of assumption of the risk is a different way of saying that the defendant did not breach a\nduty to the plaintiff. What about the next case: is this a case in which the defendant was not\nnegligent? Or is this a case about the plaintiff\xe2\x80\x99s behavior creating a defense for a defendant\nwhose conduct might have made it liable under other circumstances?\n\nLandings Association, Inc. v. Williams, 728 S.E.2d 577 (Ga. 2012)\nMELTON, J.\n[T]he Court of Appeals held that the trial court properly denied in part motions for\nsummary judgment brought by The Landings Association, Inc., . . . finding that a question of fact\nremained as to whether The Landings . . . failed, pursuant to the law of premises liability, to take\nreasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the\nplanned residential community and golf club owned and/or managed by The Landings . . . .\nAs is relevant to our holding, the facts, in the light most favorable to Williams, show that,\nat the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at\nThe Landings, a planned residential development with a golf course located on Skidaway Island\noff the Georgia coast. Before The Landings was developed, the land within and surrounding its\nboundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop\nthe property, The Landings entities installed a lagoon system which allowed enough drainage to\ncreate an area suitable for a residential development. After the project was completed in the\n1970s, the indigenous alligators subsequently began to move in and out of The Landings through\nits lagoon systems.\n277\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nAlthough alligators inhabited the area of The Landings before and after its establishment,\nno person had ever been attacked until the night of October 5, 2007, when Williams, who was 83\nat the time, went for a walk near one of the lagoons near her daughter\xe2\x80\x99s home some time after\n6:00 p.m. The following morning, Williams\xe2\x80\x99s body was found floating in the lagoon. Williams\xe2\x80\x99s\nright foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the\nsame lagoon, and, after the alligator was killed, parts of Williams\xe2\x80\x99s body were found in its\nstomach.\nThe record shows that, prior to the attack, Williams was aware that the property was\ninhabited by alligators. Williams\xe2\x80\x99s son-in-law testified that, on at least one occasion, he was\ndriving with Williams on property in The Landings when he stopped the car to allow Williams to\nlook at an alligator. Williams\xe2\x80\x99s son-in-law also testified that Williams was, in fact, aware that\nthere were alligators in the lagoons at The Landings and that he believed that Williams had a\n\xe2\x80\x9cnormal\xe2\x80\x9d respect for wild animals. When asked whether he had ever discussed how to behave\naround wild alligators with Williams, her son-in-law responded: \xe2\x80\x9cNo. There was never\xe2\x80\x94quite\nfrankly, there was never any reason to. I mean she was an intelligent person. She would\xe2\x80\x94there\nwas no question in my mind that\xe2\x80\x94I guess I have to answer that as it\xe2\x80\x99s not like talking to a five\nyear old child . . . stay away from alligators.\xe2\x80\x9d In addition, Williams\xe2\x80\x99s son recalled a similar\ninstance when he stopped the car to allow his mother to look at an alligator. At that time Williams\nmentioned that she did not like alligators and did not want to go anywhere near them.\nGenerally, in premises liability cases, . . . . \xe2\x80\x9c\xe2\x80\x98[t]he true ground of liability is the\nproprietor\xe2\x80\x99s superior knowledge of the perilous instrumentality and the danger therefrom to\npersons going upon the property. It is when the perilous instrumentality is known to the owner or\noccupant and not known to the person injured that a recovery is permitted.\xe2\x80\x99 . . .\xe2\x80\x9d\nIn this case, testimony shows that Williams was aware that wild alligators were present\naround The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings\nentities about the presence of alligators in the community. . . . Nonetheless, Williams chose to go\nfor a walk at night near a lagoon in a community in which she knew wild alligators were present.\nThis act undisputably shows that Williams either knowingly assumed the risks of walking in areas\ninhabited by wild alligators or failed to exercise ordinary care by doing so. . . .\nThe dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that\nsummary judgment for The Landings is precluded because there is no \xe2\x80\x9ccompetent evidence that\nthe decedent knew there were alligators over seven feet in size living in the community or living\nin the lagoon in which [Williams\xe2\x80\x99s] body was found.\xe2\x80\x9d While there is no doubt that Williams\xe2\x80\x99s\ndeath was a tragic event, Williams was not incompetent. A reasonable adult who is not disabled\nunderstands that small alligators have large parents and are capable of moving from one lagoon to\nanother, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that\nwild alligators are present in a community, walks near a lagoon in that community after dark.\nJudgment reversed.\nBENHAM, J., dissenting.\nI write because I respectfully disagree with the majority\xe2\x80\x99s opinion reversing the decision\nof the Court of Appeals to allow this premises liability case to go to a jury. . . .\n278\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nNotably absent from the majority\xe2\x80\x99s opinion are facts which, if construed in appellees\xe2\x80\x99\nfavor, require the denial of appellants\xe2\x80\x99 motions for summary judgment. For example, the\nLandings Association had an advertised policy that it removed from the 151 lagoons in the\ncommunity alligators which were seven feet long or larger and/or alligators which were\naggressive toward humans or pets; the appellants did not patrol or inspect the lagoons in order to\nremove large or aggressive alligators according to its policy, but rather relied on residents and\nemployees to report said animals; and appellants did not post signs near the lagoons warning\nguests about alligators. An expert opined that the over eight foot long, 130 pound alligator that\nattacked the decedent had likely been in the lagoon where the decedent\xe2\x80\x99s body was found for\nsome time because such mature alligators tend to be territorial and nest. There was also evidence\nin the record that the decedent called for help during the attack, but that appellants\xe2\x80\x99 security\nforces, which were not trained in dealing with alligators, responded to the wrong location and then\nstopped investigating, assuming that the sounds in question were bird calls. . . .\nBased on the facts presented at the time of summary judgment in this case, reasonable\nminds could differ as to the essential elements of appellees\xe2\x80\x99 premises liability claim.\n\nNotes\n\n1. Secondary assumption of the risk. In the Flopper case and in Maddox, we concluded that\nthe assumption of the risk doctrine was an alternative way to say that the defendant breached no\nduty to the plaintiff. Is it correct to say that the Landings Association breached no duty to\nGwyneth Williams? To ask this a different way: is it non-negligent as a matter of law for a\ndevelopment association to fail to take precautions against large alligators in the lagoons of a golf\ncourse and housing development? The court in Landings Association does not say so. Instead,\nthe court seems to focus on Mrs. Williams\xe2\x80\x99s own conduct as the grounds for its conclusion that\nthe defendant is not liable.\nThis feature of the decision makes Landings Association a case of what commentators call\n\xe2\x80\x9csecondary assumption of the risk.\xe2\x80\x9d As the California Supreme Court has put it, secondary\nassumption of the risk cases comprise \xe2\x80\x9cthose instances in which the defendant does owe a duty of\ncare to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the\ndefendant\xe2\x80\x99s breach of that duty.\xe2\x80\x9d Knight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But there is a\npuzzle. Recall that primary assumption of the risk cases turned out simply to be cases of no duty\nand no breach repackaged into a new doctrinal formulation. Secondary assumption of the risk\nturns out to be a repackaging of a different doctrine as well, the doctrine of comparative or\ncontributory negligence. It is no defense to show that the plaintiff encountered a reasonable risk\nand proceeded with her conduct notwithstanding that reasonable risk. People knowingly take\nreasonable risks all the time. We do it on highways every day when we take the risk of being\nstruck and injured. But since our doing so is deemed reasonable, we are not deemed\ncomparatively or contributorily negligent.\nSecondary assumption of the risk requires that the defendant show that the plaintiff\nknowingly took an unreasonable risk. In this sense, secondary assumption of the risk is simply a\nsubcategory of contributory or comparative negligence. In some comparative negligence states\nlike California, this means that \xe2\x80\x9ccases involving \xe2\x80\x98secondary assumption of risk\xe2\x80\x99\xe2\x80\x9d have simply\nbeen \xe2\x80\x9cmerged into [a] comprehensive comparative fault system.\xe2\x80\x9d Knight, 834 P.2d at 701.\n279\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nIf primary assumption of the risk and secondary assumption of the risk are both different\ndoctrines in disguise, perhaps we should not have them at all. For much of the twentieth century,\nleading jurists thought so. In a Federal Employers\xe2\x80\x99 Liability Act case from 1943, Associate\nJustice Felix Frankfurter put it this way:\nThe phrase \xe2\x80\x9cassumption of risk\xe2\x80\x9d is an excellent illustration of the extent to which\nuncritical use of words bedevils the law. A phrase begins life as a literary\nexpression; its felicity leads to its lazy repetition; and repetition soon establishes it\nas a legal formula, undiscriminatingly used to express different and sometimes\ncontrary ideas.\nTiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68 (1943) (Frankfurter, J., concurring). As\nJustice Frankfurter saw it, \xe2\x80\x9cthe phrase \xe2\x80\x98assumption of risk\xe2\x80\x99 gave judicial expression to a social\npolicy that entailed much human misery.\xe2\x80\x9d Id. at 69. Indeed, some commentators sympathetic to\nFrankfurter\xe2\x80\x99s view took him a step further and concluded that the \xe2\x80\x9cdoctrine [of implied\nassumption of risk] deserves no separate existence . . . and is simply a confusing way of stating\ncertain no-duty rules.\xe2\x80\x9d Fleming James, Jr., Assumption of Risk: Unhappy Reincarnation, 78 YALE\nL.J. 185, 187\xe2\x80\x93188 (1968); see also Francis H. Bohlen, Voluntary Assumption of Risk, 20 HARV. L.\nREV. 14 (1906).\n\n2. The durability of assumption of the risk. Notwithstanding the withering critique in the\nmiddle of the last century, the doctrinal label \xe2\x80\x9cassumption of the risk\xe2\x80\x9d has proven exceedingly\ndurable. The Restatement (Second) of Torts retained the language, despite criticism. And in\nsome jurisdictions, assumption of the risk in the secondary sense has neither been done away\nwith, nor treated as a mere subcategory of comparative negligence. That is the lesson of the\nLandings Association case: Georgia is a comparative fault state, but the Georgia Supreme Court\ntreated Mrs. Williams\xe2\x80\x99s conduct as different from ordinary unreasonable conduct. Her conscious\ndecision to take the risk in question did not get factored in on the balance alongside that of the\nLandings Association in a comparative fault analysis, as the California approach of Knight v.\nJewett would require. To the contrary, the court treated her conscious decision to walk as grounds\nfor holding the Landings Association not liable at all.\nOne observer views Landings Association and similar cases as indicating that \xe2\x80\x9c[r]eports of\nthe death of assumption of risk are slightly exaggerated.\xe2\x80\x9d Professor Simons acknowledges that\nthe majority of states have folded secondary assumption of risk into their comparative negligence\nregimes, but he suggests that the doctrine\xe2\x80\x99s legacy lives on, especially in courts\xe2\x80\x99 duty analyses:\n[T]he supposed legal irrelevance of \xe2\x80\x9cconsent\xe2\x80\x9d to a risk of harm, celebrated by the\nmodern \xe2\x80\x9cmerger\xe2\x80\x9d approach, is overstated. And the supposition that consensual\nnorms have been completely replaced by norms of reasonableness is also incorrect.\nA number of courts do continue to recognize assumption of risk as a distinct\nsubstantive doctrine (and not simply as a label for other doctrines). Moreover, even\nabolitionist courts recognize numerous no-duty doctrines that implicitly rely upon\na consensual rationale of the sort that underlies many versions of assumption of risk.\nKenneth W. Simons, Reflections on Assumption of Risk, 50 U.C.L.A. L. REV. 481, 483 (2002).\n280\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nIn one sense, secondary assumption of the risk in jurisdictions like Florida may function\nas a kind of holdover of contributory negligence doctrine in the era of comparative fault. But\nProfessor Simons offers an intriguing defense of the continued use of the assumption of the risk\ndoctrine in the secondary sense:\n[I]t is firmly established that consent to an intentional tort precludes liability, yet\nthis doctrine appears to rest, not on whether the consenting victim acted\n\xe2\x80\x9creasonably\xe2\x80\x9d or \xe2\x80\x9cunreasonably\xe2\x80\x9d in choosing to consent, but instead on precisely the\ntype of consensual rationale that many traditional courts emphasized in recognizing\nassumption of a risk of the defendant\xe2\x80\x99s negligence. Why should the reasonableness\nof the victim\xe2\x80\x99s decision be irrelevant in the intentional tort context yet (as the\nmodernists claim) critical in determining when a victim of negligence may recover?\nAdvocates of abolishing assumption of risk should find this puzzling.\nId. at 483. Is Rosenfeld\xe2\x80\x99s analogy to consent in intentional torts persuasive?\n\n2. Express Assumption of the Risk\nThe controversy over express assumption of the risk is of a different order. Most jurists\nwould see the enforcement of an express agreement to assume some risk as conceptually coherent.\nBut many believe it is a bad idea. The risk here is that the law of contracts will displace the law\nof torts, for better (as some insist) or for worse (as others worry). Consider the next case:\n\nDalury v. S-K-I, Ltd., 670 A.2d 795 (Vt. 1995)\nJOHNSON, J.\nWhile skiing at Killington Ski Area, plaintiff Robert Dalury sustained serious injuries\nwhen he collided with a metal pole that formed part of the control maze for a ski lift line. Before\nthe season started, Dalury had purchased a midweek season pass and signed a form releasing the\nski area from liability. The relevant portion reads:\nRELEASE FROM LIABILITY AND CONDITIONS OF USE\n1. I accept and understand that Alpine Skiing is a hazardous sport with many\ndangers and risks and that injuries are a common and ordinary occurrence of the\nsport. As a condition of being permitted to use the ski area premises, I freely accept\nand voluntarily assume the risks of injury or property damage and release Killington\nLtd., its employees and agents from any and all liability for personal injury or\nproperty damage resulting from negligence, conditions of the premises, operations\nof the ski area, actions or omissions of employees or agents of the ski area or from\nmy participation in skiing at the area, accepting myself the full responsibility for\nany and all such damage or injury of any kind which may result. . . .\nDalury and his wife filed a complaint against defendants, alleging negligent design,\nconstruction, and replacement of the maze pole. Defendants moved for summary judgment,\narguing that the release of liability barred the negligence action. The trial court, without\n281\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nspecifically addressing plaintiffs\xe2\x80\x99 contention that the release was contrary to public policy, found\nthat the language of the release clearly absolved defendants of liability for their own negligence . .\n..\nWe agree with defendants that the release was quite clear in its terms. Because we hold\nthe agreement is unenforceable, we proceed to a discussion of the public policy that supports our\nholding.\nI\nThis is a case of first impression in Vermont. While we have recognized the existence of\na public policy exception to the validity of exculpatory agreements, in most of our cases,\nenforceability has turned on whether the language of the agreement was sufficiently clear to\nreflect the parties\xe2\x80\x99 intent.\nEven well-drafted exculpatory agreements, however, may be void because they violate\npublic policy. According to the Restatement, an exculpatory agreement should be upheld if it is\n(1) freely and fairly made, (2) between parties who are in an equal bargaining position, and (3)\nthere is no social interest with which it interferes. The critical issue here concerns the social\ninterests that are affected . . . .\nThe leading judicial formula for determining whether an exculpatory agreement violates\npublic policy was set forth by Justice Tobriner of the California Supreme Court in [Tunkl v.\nRegents of University of California, 383 P.2d 441 (Cal. 1963)]. An agreement is invalid if it\nexhibits some or all of the following characteristics:\n[1.] It concerns a business of a type generally thought suitable for public\nregulation. [2.] The party seeking exculpation is engaged in performing a service\nof great importance to the public, which is often a matter of practical necessity for\nsome members of the public. [3.] \xe2\x80\x98The party holds [it]self out as willing to\nperform this service for any member of the public who seeks it, or at least for any\nmember coming within certain established standards. [4.] As a result of the\nessential nature of the service, in the economic setting of the transaction, the party\ninvoking exculpation possesses a decisive advantage of bargaining strength\nagainst any member of the public who seeks [the party\xe2\x80\x99s] services. [5.] In\nexercising a superior bargaining power the party confronts the public with a\nstandardized adhesion contract of exculpation, and makes no provision whereby a\npurchaser may pay additional reasonable fees and obtain protection against\nnegligence. [6.] Finally, as a result of the transaction, the person or property of\nthe purchaser is placed under the control of the seller, subject to the risk of\ncarelessness by the seller or [the seller\xe2\x80\x99s] agents.\nId. at 445-46. Applying these factors, the court concluded that a release from liability for future\nnegligence imposed as a condition for admission to a charitable research hospital was invalid.\nNumerous courts have adopted and applied the Tunkl factors.\nWe recognize that no single formula will reach the relevant public policy issues in every\nfactual context. . . . [W]e conclude that ultimately the \xe2\x80\x9cdetermination of what constitutes the\npublic interest must be made considering the totality of the circumstances of any given case\n282\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nagainst the backdrop of current societal expectations.\xe2\x80\x9d [quoting Wolf v. Ford, 644 A.2d 522, 527\n(Md. 1994)].\nII\nDefendants urge us to uphold the exculpatory agreement on the ground that ski resorts do\nnot provide an essential public service. They argue that they owe no duty to plaintiff to permit\nhim to use their private lands for skiing, and that the terms and conditions of entry ought to be left\nentirely within their control. Because skiing, like other recreational sports, is not a necessity of\nlife, defendants contend that the sale of a lift ticket is a purely private matter, implicating no\npublic interest. We disagree.\nWhether or not defendants provide an essential public service does not resolve the public\npolicy question in the recreational sports context. The defendants\xe2\x80\x99 area is a facility open to the\npublic. They advertise and invite skiers and nonskiers of every level of skiing ability to their\npremises for the price of a ticket . . . . Thousands of people ride lifts, buy services, and ski the\ntrails. Each ticket sale may be, for some purposes, a purely private transaction. But when a\nsubstantial number of such sales take place as a result of the seller\xe2\x80\x99s general invitation to the\npublic to utilize the facilities and services in question, a legitimate public interest arises. . . .\nThe policy rationale is to place responsibility for maintenance of the land on those who\nown or control it, with the ultimate goal of keeping accidents to the minimum level possible.\nDefendants, not recreational skiers, have the expertise and opportunity to foresee and control\nhazards, and to guard against the negligence of their agents and employees. They alone can\nproperly maintain and inspect their premises, and train their employees in risk management. They\nalone can insure against risks and effectively spread the cost of insurance among their thousands\nof customers. Skiers, on the other hand, are not in a position to discover and correct risks of\nharm, and they cannot insure against the ski area\xe2\x80\x99s negligence.\nIf defendants were permitted to obtain broad waivers of their liability, an important\nincentive for ski areas to manage risk would be removed with the public bearing the cost of the\nresulting injuries. It is illogical, in these circumstances, to undermine the public policy underlying\nbusiness invitee law and allow skiers to bear risks they have no ability or right to control. . . .\nDefendants argue that the public policy of the state, as expressed in the \xe2\x80\x9cAcceptance of\ninherent risks\xe2\x80\x9d statute, indicates a willingness on the part of the Legislature to limit ski area\nliability. Therefore, they contend that public policy favors the use of express releases such as the\none signed by plaintiff. On the contrary, defendants\xe2\x80\x99 allocation of responsibility for skiers\xe2\x80\x99\ninjuries is at odds with the statute. The statute places responsibility for the \xe2\x80\x9cinherent risks\xe2\x80\x9d of any\nsport on the participant, insofar as such risks are obvious and necessary. A ski area\xe2\x80\x99s own\nnegligence, however, is neither an inherent risk nor an obvious and necessary one in the sport of\nskiing. . . .\nReversed and remanded.\n\n283\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nNotes\n\n1. The Tunkl factors. Why single out the factors listed in the Tunkl case rather than others?\nHow sound is the argument that the Dalury court makes about a tipping point in the defendant\xe2\x80\x99s\nincentives to maintain a safe ski area?\n\n2. Divergent caselaw. While the broad version of the proposition at the core of Tunkl has\ngained wide acceptance, Tunkl itself has proven susceptible to a range of interpretations.\nSubstantial disagreement persists on when it is properly invoked and how it should be applied.\nTake, for instance, the issue front and center in Dalury: the enforceability of ski waivers. While\nsome courts (as in Hanks v. Powder Ridge Restaurant, 885 A.2d 734 (Conn. 2005)) have adopted\nthe Dalury analysis wholesale, others (like the court in Platzer v. Mammoth Mountain, 128 Cal.\nRptr. 2d 885 (Cal. App. 2002)) have rejected its central contention that there is a legitimate public\npolicy rationale for voiding these waivers.\nMore generally, the question of whether to permit ex ante waivers of tortfeasors\xe2\x80\x99 liability\nfor negligence is answered in widely divergent ways in different states and by different courts.\nFor instance, in Schrier v. Beltway Alarm, 553 A.2d 1316 (Md. Ct. Spec. App. 1987), a decision\nlater cited approvingly by that state\xe2\x80\x99s highest court, a Maryland appellate court held that a waiver\nsigned by a store owner limiting the liability of an alarm company was not void as against public\npolicy even where the store owner was shot in a burglary as a result of the alleged failure of the\nalarm company to contact the police. In a case nearly at the other extreme, the New Mexico\nSupreme Court held in Berlangieri v. Running Elk, 76 P.3d 1098 (N.M. 2003), that a waiver the\ndefendant sought to apply to bar recovery for injuries the plaintiff had suffered while horseback\nriding was unenforceable as against public policy.\nThe following chart conveys some sense of the state-by-state variability in this area:\n\n284\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nLikelihood to Enforce Liability Waivers\nNot\nEnforced\nLouisiana\nMontana\nVirginia\n\nStrict Standards\nAlaska\nArkansas\nConnecticut\nHawaii\nKentucky\nMississippi\nNevada\nNew Jersey\nPennsylvania\nVermont\nArizona\nCalifornia\nDelaware\nIndiana\nMaine\nMontana\nNew Hampshire\nNew York\nUtah\nWisconsin\n\nModerate\nStandards\nColorado\nFlorida\nIllinois\nMinnesota\nNorth Carolina\nOregon\nSouth Dakota\nWashington\nIowa\nD.C.\nIdaho\nNew Mexico\nOklahoma\nSouth Carolina\nTexas\nWest Virginia\n\nLenient Standards\nAlabama\nKansas\nMassachusetts\nNebraska\nOhio\nGeorgia\nMaryland\nMichigan\nNorth Dakota\nTennessee\n\nInsufficient\nInformation\nPuerto Rico\nRhode Island\n\nLikelihood to Enforce Parental Waivers\nVery unlikely\nCourts have refused\nto enforce\n\nAlaska\nArkansas\nLouisiana\nMontana\nTennessee\nVirginia\nHawaii\nMaine\nNew Jersey\nTexas\nWashington\nIllinois\nMichigan\nPennsylvania\nUtah\nWest Virginia\n\nPossible\nRulings indicate\nenforcement\npossibility\n\nArizona\nIdaho\nMississippi\n\nExcellent\nThere is a statue in\nplace* or courts have\nenforced in one or\nmore cases\n\nAlaska*\nColorado*\nFlorida\nMassachusetts\nOhio\nCalifornia\nConnecticut\nGeorgia\nIndiana\nWisconsin\n\nInsufficient\nInformation\n\nAlabama\nIowa\nMaryland\nNorth Carolina\nNew Mexico\nOklahoma\nSouth Carolina\nWyoming\nDelaware\nIndiana\nMinnesota\nNebraska\nNevada\nOregon\nSouth Dakota\nKansas\nKentucky\nMontana\nNew Hampshire\nNew York\nRhode Island\nVermont\n\nSource: DOYICE J. COTTEN & MARY B. COTTEN, WAIVERS AND RELEASES OF LIABILITY (9th ed. 2016)\n\nWhat the Tunkl court itself observed still apparently holds true: \xe2\x80\x9cNo definition of the\nconcept of public interest can be contained within the four corners of a formula. The concept,\nalways the subject of great debate, has ranged over the whole course of the common law; rather\nthan attempt to prescribe its nature, we can only designate the situations in which it has been\napplied.\xe2\x80\x9d 383 P.2d at 444.\n285\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n3. Bargaining power? One of the factors that the Restatement, the Tunkl court, and Justice\nJohnson of Vermont all seem to think important is the superior bargaining power of the party\nrequiring the waiver. But does superior bargaining power explain such waivers of liability?\nProfessor Duncan Kennedy, long one of American law\xe2\x80\x99s most outspoken critics from the left and\na leader of the Critical Legal Studies movement of the 1970s and 1980s, famously argued against\nthe invocation of the bargaining power rationale. Consider Kennedy\xe2\x80\x99s criticism of the bargaining\npower rationale.\nKennedy observes that a common criticism of consumer contracts is that \xe2\x80\x9cbuyers as a\ngroup lacked enough bargaining power to force sellers to agree\xe2\x80\x9d to the buyers\xe2\x80\x99 preferred terms.\nThe basic theory is that groups such as tenants of consumers \xe2\x80\x9clack[] the bargaining power\nnecessary to impose it on oligopolistic sellers.\xe2\x80\x9d But as Kennedy sees it, this argument cannot\nexplain the terms in any particular contract:\nAt least in the form stated, this argument is just wrong. If tenants were willing to\npay the cost to landlords of a warranty of habitability, why would landlords,\noperating in a capitalist economy in which profit is supposedly the motive of\neconomic activity, refuse to provide it? It seems clear that in the actual housing\nmarket, some tenants, in exchange for very high, luxury rents, obtain levels of\nlandlord service far in excess of those required by any nondisclaimable warranties.\nIf landlords are just perversely, or cruelly, or irrationally unwilling to provide these\nterms even though tenants will pay for them, how can the luxury rental market exist?\nI think the conclusion is inescapable that under the assumption that there are no\nproblems of information or other transaction costs, the beneficiaries of compulsory\nduties could have those duties written into contracts, if they were willing to pay the\nobligors what they cost (plus a \xe2\x80\x9cnormal\xe2\x80\x9d profit). Under these circumstances, the\ndecision maker makes the duties compulsory or non-waivable precisely because he\nbelieves that people value them so little they won\xe2\x80\x99t buy them of their own accord.\nDuncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law,\n41 MD. L. REV. 563, 608-09 (1982).\nKennedy insists that the fact of market power alters only the price term of a contract\nbetween a tenant and a landlord or a consumer and a seller; it does not alter the other substantive\nterms, such as the allocation of personal injury risks. Why? Because, as Kennedy observes,\n\xe2\x80\x9ceven a monopolist has an interest in providing contract terms if buyers will pay him their cost,\nplus as much in profit as he can make for alternate uses of his capital.\xe2\x80\x9d In the Dalury case, for\nexample, the monopolist provider of skiing services is presented with the question of whether to\nalso sell insurance for injuries incurred in the course of those services. If consumers prefer to\nsave the money that such insurance would cost\xe2\x80\x94if they prefer the cash to the insurance, despite\nthe risks entailed\xe2\x80\x94the monopolist will not go into this new line of business; it will sell lift tickets\nthat disclaim liability. If at least some consumers prefer tickets with insurance despite their higher\ncost, then we should expect to see the skiing services provider offer such tickets, all things being\nequal. But in neither case does the fact of unequal bargaining power alter the fact that the parties\nhave a shared interest in choosing the contract terms that maximize their joint welfare. The \xe2\x80\x9conly\nquestion,\xe2\x80\x9d Kennedy insists, is whether the consumer or the tenant is willing to pay for terms that\nare favorable to them.\n286\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nThe basic point is that if both sides have good information, it makes no difference\nthat consumers can\xe2\x80\x99t haggle in particular transactions, and it makes no difference\nthat the sellers\xe2\x80\x99 lawyers draft the contracts. The profit motive will induce them to\nprovide any legal duty consumers will pay for. Consumers exercise power in the\nmarket not through their conduct during individual transactions, but through the\nmechanism of demand, backed by dollars. They can control according to their\ndesires what is offered for sale even if each of them is individually powerless in\nevery single transaction. . . .\nId. It follows for Kennedy that unequal bargaining power cannot be an explanation of particular\nsubstantive terms in consumer contracts. There should thus be no need for courts to impose\ncompulsory duties in such contexts:\n[U]nder our assumptions the compulsory term must be worth less to buyers than it\ncosts sellers (or sellers would provide it without compulsion), [yet] it is also true\nthat the term will almost certainly be worth something. Buyers would, in a free\nmarket, pay more for the commodity with the duties attached than for the\ncommodity alone . . . .\nId.\n\n4. Poverty. What arguments (if any) remain against enforcing the terms of the contract\nstruck between Dalury and S-K-I? Professor Kennedy does note at least one limit on his analysis:\n[D]emand, of course, is limited by income. If buyers had a lot more income, they\nmight well demand all the duties the decision maker is now requiring them to\npurchase. Buyers as a group may regard a transaction without these duties as a\nmoral horror. They may buy only with deep regret, believing that they have a right\nto the commodity-plus-the-duty rather than just the commodity. They may believe\nthat a just society would allocate them enough purchasing power so that it was open\nto them to buy the commodity-plus-the-duty without having to sacrifice some other\ngood they regard as a necessity. In all these senses, it is true that consumers lack\nthe bargaining power to make the sellers provide the duty. Consumers are too poor,\ngiven the other things they want to do or have to do with their money, to induce\nsellers to provide something that, under the free contract model, sellers don\xe2\x80\x99t have\nto provide unless the price is right.\nKennedy, Distributive and Paternalist Motives, supra. If Kennedy is right that poverty rather\nthan unequal bargaining power explains the substantive terms of consumer contracts, what is the\nimplication for adjudication? Should pro-consumer terms be compulsory, as the Dalury court\nconcluded? Or are compulsory terms counterproductive from the perspective of the poor\nconsumer\xe2\x80\x99s welfare?\n\n5. Arbitration. One striking feature of the world of tort waivers is that consumers are\ntypically not asked to agree to arbitrate tort claims. They are more typically asked to waive those\nclaims altogether. Why would that be? Note that some medical care providers such as Kaiser\n287\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nPermanente ask their patients to agree up front to binding arbitration in the event of a medical\nmalpractice claim. In some states, the enforceability of such agreements has been called into\ndoubt. See, e.g., Hernandez v. Crespo, 211 So.3d 19 (Fla. 2016).\n6. Waivers in popular culture. Don\xe2\x80\x99t miss Donald Glover\xe2\x80\x99s Saturday Night Live send-up of\nmodern waiver practice. https://perma.cc/L36M-CT2M.\n\nWaivers in Modern Life\nReview the following waivers (some of which reflect one of the author\xe2\x80\x99s own risktaking!). Which do you think are enforceable and which are not? Note that the first waiver comes\nright on the heels of Dalury in Vermont.\n\n288\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n289\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n290\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n291\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\n292\n\n\x0cWitt & Tani, TCPI 5. Plaintiffs\xe2\x80\x99 Conduct\n\nNote\n\n1. Parental Waivers. Does your assessment of the considerations underlying the assumption\nof the risk doctrine change when the person who signed a waiver promising to assume the risk is\nnot the injured party, but a parent or guardian? Should a parent\xe2\x80\x99s assumption of the risk via\nwaiver agreement be effective when they are claiming to assume the risk for their child?\nWhen presented with these questions, most states void the agreement as being against\npublic policy\xe2\x8e\xafeither by applying the Tunkl factors laid out in Dalury, or by noting the special\ninterests of the state in protecting minors. In Cooper v. Aspen Skiing, for example, the Colorado\nSupreme Court held that a waiver signed by a parent when signing her 17-year old son up for ski\nracing instruction was void as against public policy. 48 P.3d 1229 (Colo. 2002). \xe2\x80\x9cIn the tort\ncontext especially,\xe2\x80\x9d the court said, \xe2\x80\x9ca minor should be afforded protection not only from his own\nimprovident decision to release his possible prospective claims . . . but also from unwise decisions\nmade on his behalf by parents who are routinely asked to release their child\xe2\x80\x99s claims for liability.\xe2\x80\x9d\nId. at 1234.\nA few states permit parental waivers. The Maryland Court of Appeals (that state\xe2\x80\x99s highest\ncourt), for instance, held a parent\xe2\x80\x99s waiver of their child\xe2\x80\x99s right to sue enforceable, noting that\nparents are entrusted with a wide range of decisions touching directly on their child\xe2\x80\x99s safety. BJ\xe2\x80\x99s\nWholesale Club v. Rosen, 80 A.3d 345 (Md. 2013). And in 2003\xe2\x8e\xafthe year after the Colorado\nSupreme Court had held such waivers unenforceable in Aspen Skiing\xe2\x8e\xafthe Colorado legislature\npassed a law permitting parents to waive their child\xe2\x80\x99s right to sue. COLO. REV. STAT. ANN. \xc2\xa7 1222-107.\n\n293\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nCHAPTER 6. CAUSATION\n\xe2\x80\x9cThe word \xe2\x80\x98cause\xe2\x80\x99 is . . . an altar to an unknown God.\xe2\x80\x9d\n\xe2\x80\x94William James, The Principles of Psychology (1891)\n\nThe cases and materials in this book have so far assumed an important background\nconstraint on the allocation of losses in tort law. We have limited the allocations to those parties\nwho might be characterized in some conventional way as having been causes of the injury in\nquestion.\nBut the causation requirement is famously puzzling. Why do we even have a causation\nrequirement? If our exclusive goal were compensation, for example, a causation requirement\nmight be perverse. Why not call on Jeff Bezos or Mark Zuckerberg to provide the compensation,\nregardless of any causal connection to the injury in question? Moreover, causal reasoning is\nnotoriously complex. When we label something a cause of something else, when we reason in\nterms of cause and effect, we are doing more than describing an objective state of affairs. We are\ntelling deeply value-laden stories about the world. To talk in terms of causation is very often to\nsmuggle normative premises into an inquiry ostensibly designed to help guide us toward\nnormative conclusions.\n\nA. Causation: An Introduction\nWhat do we mean when we say that someone caused injury to another? Even this simple\nformulation turns out not to be so simple after closer examination. A century ago, Justices\nMcKenna and Holmes found themselves working through some of the intricacies of this\nseemingly simple idea:\n\nLeRoy Fibre Co. v. Chicago, M. & S. P. Railway, 232 U.S. 340 (1914)\n[Plaintiff LeRoy Fibre Co. was in the business of producing tow from flax straw, a raw\nmaterial in textile manufacturing, that it stored in rows of stacks in a lot adjacent to a railroad\nright-of-way. The lot\xe2\x80\x99s fence ran parallel to the railroad tracks 50 feet from the center of the\ntracks. The first row of flax lay 25 feet from the fence; a second row lay 35 feet from the fence.\nOn a day in April, 1907, high winds blew sparks from the engine of a passing train into the stacks\nof flax, causing a fire and destroying the flax. When LeRoy Fibre sued, a jury returned a verdict\nfor the defendant railroad on the ground that plaintiff had been contributorily negligent. Plaintiff\nappealed on the grounds that it was not contributorily negligent as a matter of law. The Court\ncertified three questions for its consideration, the first of which was whether it was \xe2\x80\x9ca question for\nthe jury whether the owner was also negligent, without other evidence than that the railroad\ncompany preceded the owner in the establishment of its business, that the property was\ninflammable in character, and that it was stored near the railroad right of way and track.\xe2\x80\x9d]\nMCKENNA, J.\n294\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nThe questions certified present two facts\xe2\x80\x94(1) The negligence of the railroad was the\nimmediate cause of the destruction of the property. (2) The property was placed by its owner near\nthe right of way of the railroad, but on the owner\xe2\x80\x99s own land.\nIt will be observed, the use of the land was of itself a proper use\xe2\x80\x94it did not interfere with\nnor embarrass the rightful operation of the railroad. . . . [T]he questions certified . . . are but\nphases of the broader one, whether one is limited in the use of one\xe2\x80\x99s property by its proximity to a\nrailroad; or, to limit the proposition to the case under review, whether one is subject in its use to\nthe careless as well as to the careful operation of the road . . . . That one\xe2\x80\x99s uses of his property\nmay be subject to the servitude of the wrongful use by another of his property seems an anomaly.\nIt upsets the presumptions of law and takes from him the assumption, and the freedom which\ncomes from the assumption, that the other will obey the law, not violate it. It casts upon him the\nduty of not only using his own property so as not to injure another, but so to use his own property\nthat it may not be injured by the wrongs of another. How far can this subjection be carried? Or,\nconfining the question to railroads, what limits shall be put upon their immunity from the result of\ntheir wrongful operation? In the case at bar, the property destroyed is described as inflammable,\nbut there are degrees of that quality; and how wrongful must be the operation? In this case, large\nquantities of sparks and \xe2\x80\x9clive cinders\xe2\x80\x9d were emitted from the passing engine. Houses may be said\nto be inflammable, and may be, as they have been, set on fire by sparks and cinders from\ndefective or carelessly handled locomotives. Are they to be subject as well as stacks of flax straw,\nto such lawless operation? And is the use of farms also, the cultivation of which the building of\nthe railroad has preceded? Or is that a use which the railroad must have anticipated and to which\nit hence owes a duty, which it does not owe to other uses? And why? The question is especially\npertinent and immediately shows that the rights of one man in the use of his property cannot be\nlimited by the wrongs of another. The doctrine of contributory negligence is entirely out of place.\nDepart from the simple requirement of the law, that every one must use his property so as not to\ninjure others, and you pass to refinements and confusing considerations. . . .\nThe legal conception of property is of rights. When you attempt to limit them by wrongs,\nyou venture a solecism. If you declare a right is subject to a wrong, you confound the meaning of\nboth. It is difficult to deal with the opposing contention. There are some principles that have\naxiomatic character. The tangibility of property is in its uses, and that the uses by one owner of\nhis property may be limited by the wrongful use of another owner of his is a contradiction.\nHOLMES, J., partially concurring:\nAs a general proposition people are entitled to assume that their neighbors will conform to\nthe law; that a negligent tort is unlawful in as full a sense as a malicious one, and therefore that\nthey are entitled to assume that their neighbors will not be negligent. Nevertheless . . . if a man\nstacked his flax so near to a railroad that it obviously was likely to be set fire to by a wellmanaged train, I should say that he could not throw the loss upon the road by the oscillating result\nof an inquiry by the jury whether the [rail]road had used due care. I should say that although of\ncourse he had a right to put his flax where he liked upon his own land, the liability of the railroad\nfor a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the\ntrain. I take it that probably many, certainly some, rules of law based on less than universal\nconsiderations are made absolute and universal in order to limit those over refined speculations\nthat we all deprecate, especially where such rules are based upon or affect the continuous physical\nrelations of material things. The right that is given to inflict various inconveniences upon\n295\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nneighboring lands by building or digging, is given, I presume, because of the public interest in\nmaking improvement free, yet it generally is made absolute by the common law. It is not thought\nworth while to let the right to build or maintain a barn depend upon the speculations of a jury as to\nmotives. . . .\nHere certainly, except in a clear case, we should call in the jury. I do not suppose that any\none would call it prudent to stack flax within five feet of the engines or imprudent to do it at a\ndistance of half a mile, and it would not be absurd if the law ultimately should formulate an exact\nmeasure . . . but at present I take it that . . . we should let the jury decide whether seventy feet was\ntoo near . . . . Therefore, while the majority answer the first question, No, on the ground that the\nrailroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso\nthat it was to be answered No, in case the jury found that the flax, although near, was not near\nenough to the trains to endanger it if the engines were prudently managed, or else I should decline\nto answer the question because it fails to state the distance of the stacks.\nI do not think we need trouble ourselves with the thought that my view depends upon\ndifferences of degree. The whole law does so as soon as it is civilized. Negligence is all degree,\n\xe2\x80\x94that of the defendant here degree of the nicest sort; and between the variations according to\ndistance that I suppose to exist, and the simple universality of the rules in the Twelve Tables, or\nthe Leges Barbarorum, there lies the culture of two thousand years.\n\nNotes\n\n1. Holmes and McKenna. Justice Holmes remains one of the most well-respected jurists and\nscholars to have served on the Court. He is known, in particular, for his criticisms of legal\nreasoning based on formal concepts such as \xe2\x80\x9crights.\xe2\x80\x9d Holmes\xe2\x80\x99s opinions, including his dissent in\nLeRoy Fibre, anticipated much of the so-called \xe2\x80\x9crealist\xe2\x80\x9d jurisprudence of the twentieth century.\nJustice McKenna, on the other hand, had neither the respect of his peers, nor an overarching\njurisprudential approach to the law. When William Howard Taft became chief justice seven years\nafter the decision in LeRoy Fibre, he found McKenna to be (in his words) \xe2\x80\x9cthe worst and most\nembarrassing member of the Court,\xe2\x80\x9d often unable to draft opinions without substantial guidance\nfrom others.\nWhich jurist gets the better of the argument in LeRoy Fibre? What is the difference\nbetween McKenna\xe2\x80\x99s and Holmes\xe2\x80\x99s conception of causation in the case? Is McKenna\xe2\x80\x99s method\none that can easily be applied to other cases? Does it avoid the difficulty of \xe2\x80\x9crefinements and\nconfusing considerations\xe2\x80\x9d that Holmes seems to admit his own approach necessarily entails?\n\n2. Coase on causation. In thinking about these questions, consider Ronald Coase\xe2\x80\x99s view of\ncausation, which many commentators see as parallel to Holmes\xe2\x80\x99s view from a half-century before.\nThe question is commonly thought of as one in which A inflicts harm on B and what\nhas to be decided is: how should we restrain A? But this is wrong. We are dealing\nwith a problem of a reciprocal nature. To avoid the harm to B would inflict harm\non A. The real question that has to be decided is: should A be allowed to harm B\nor should B be allowed to harm A? The problem is to avoid the more serious harm.\n296\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n[Take, for example,] the case of a confectioner the noise and vibrations from whose\nmachinery disturbed a doctor in his work. To avoid harming the doctor would inflict\nharm on the confectioner. The problem posed by this case was essentially whether\nit was worth while, as a result of restricting the methods of production which could\nbe used by the confectioner, to secure more doctoring at the cost of a reduced supply\nof confectionery products. Another example is afforded by the problem of straying\ncattle which destroy crops on neighboring land. If it is inevitable that some cattle\nwill stray, an increase in the supply of meat can only be obtained at the expense of\na decrease in the supply of crops. The nature of the choice is clear: meat or crops.\nWhat answer should be given, of course, is not clear unless we know the value of\nwhat is obtained as well as the value of what is sacrificed to gain it. . . . In the case\nof the cattle and crops, it is true that there would be no crop damage without the\ncattle. It is equally true that there would be no crop damage without the crops. The\ndoctor\xe2\x80\x99s work would not have been disturbed if the confectioner had not worked his\nmachinery; but the machinery would have disturbed no one if the doctor had not set\nup his consulting room in that particular place. . . . If we are to discuss the problem\nin terms of causation, both parties cause the damage.\nR. H. Coase, The Problem of Social Cost, 3 J. L. & ECON 1, 2 (1960). Coase\xe2\x80\x99s criticism of causal\nreasoning as a way of allocating moral responsibility implicitly challenges Justice McKenna\xe2\x80\x99s\ndecision in LeRoy Fibre. Coase insists that it is the height of foolishness to insist that the railroad\n\xe2\x80\x9ccaused\xe2\x80\x9d the injury to the flax manufacturer. If the flax manufacturer plaintiff is able to recover\ndamages from the railroad, or obtain an order that the railroad cease its dangerous operations, then\nit would be just as true to say that the flax manufacturer \xe2\x80\x9ccaused\xe2\x80\x9d injury to the railroad.\nAs Coase and Holmes see it, the real question is not one about causation in the sense of\nwho caused harm to whom. The only real question is about what our social values are, though we\nmay articulate our tacit judgments about those social values in the form of causal language. We\nsay \xe2\x80\x9cA hit B\xe2\x80\x9d because we have decided that A is properly thought of as responsible for the\ncollision of A\xe2\x80\x99s hand with B\xe2\x80\x99s nose. It would be just as true to say that B hit A, since if it weren\xe2\x80\x99t\nfor B\xe2\x80\x99s nose being where it was at the crucial moment, A\xe2\x80\x99s fist would have passed harmlessly\nthrough the air. Of course, it sounds silly to say any such thing. But that is because our causal\nconventions embody the normative judgments we have already made about the situation in\nquestion. That being the case, Coase and Holmes seem to say, the only reasonable way to think\nabout the question is to decide which allocation of the harm best embodies a society\xe2\x80\x99s preferred\npolicy goals.\nMuch of twentieth- and twenty-first-century social policy starts from the clear-headed\nvantage point that jurists like Holmes and economists like Coase afford. But is McKenna\xe2\x80\x99s\nalternative really so misbegotten? Note, for one thing, that McKenna offers jurists a clean and\neasy way to measure causation, one pegged to crossings of real property borders. Holmes\xe2\x80\x99s\nalternative seems awfully fuzzy by contrast. Is this one of those instances in which, moving\nforward, all we really need is a clear rule that the parties can deal with as they see fit?\n\n3. Calabresi on causation. Judge Guido Calabresi agrees with Holmes and Coase that\ncausation is essentially a functional concept, one that can usually only be made sense of by\nreference to the goals we bring to it: meat or crops, cakes or medicine. But Calabresi adds an\n297\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nextra consideration that may make more sense of McKenna\xe2\x80\x99s formalist approach, though it\nundoubtedly takes that approach in directions that McKenna probably never anticipated:\n[T]he use of such concepts [as causation] has great advantages over explicit\nidentification and separation of the goals. Terms with an historical, common law\ngloss permit us to consider goals (like spreading) that we do not want to spell out or\ntoo obviously assign to judicial institutions. Because, like all moral terms, causal\nterms have to have meanings of their own that cannot be changed as a result of one\nperson\xe2\x80\x99s analysis, they enable us to resist political pressures that would, if a more\n\xe2\x80\x9cgoal conscious,\xe2\x80\x9d antiseptic language were employed, result in a mixture of goals\nthought to be less desirable. Finally, and probably most importantly, they enable\nthe introduction of goals we have not been able to spell out or to analyze, but which\nnonetheless, together with analyzed goals, form part of that set of relationships we\ncall \xe2\x80\x9cjustice.\xe2\x80\x9d\n...\nI am optimistic about our ability to use concepts, like cause, to promote analyzed\ngoals, and, like John Stuart Mill, I am skeptical of our ability to analyze all our goals\nand, in addition, to acknowledge all that we can analyze. Thus, I am inclined to\nbelieve that the requirement of causation . . . will survive . . . rather than be replaced\nby direct appeals to those clearly identified goals which, by and large, those\nrequirements seem to serve.\nGuido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U.\nCHI. L. REV. 69, 107-108 (1975).\n\n4. Hart and Honor\xc3\xa9 on causation. Some leading authorities on the common law of causation\nhave pushed back against the functionalist turn in causation. In the mid-20th century, H. L. A.\nHart and Anthony Honor\xc3\xa9 bemoaned the Legal Realists\xe2\x80\x99 \xe2\x80\x9ctransition from the exhilarating\ndiscovery that complex words like \xe2\x80\x98cause\xe2\x80\x99 cannot be simply defined and have no \xe2\x80\x98one true\nmeaning\xe2\x80\x99 to the mistaken conclusion that they have no meaning worth bothering about at all, but\nare used as a mere disguise for arbitrary decision or judicial policy.\xe2\x80\x9d H.L.A. HART & ANTHONY\nHONOR\xc3\x89, CAUSATION IN THE LAW 3 (1959). Hart and Honor\xc3\xa9 argue that courts are not\nsurreptitiously insinuating policy into their decisions, but that \xe2\x80\x9cthe plain man\xe2\x80\x99s causal notions\nfunction as a species of basic model in the light of which the courts see the issues before them,\nand to which they seek analogies . . . .\xe2\x80\x9d Id. at 1. Objecting to the legal realist view that \xe2\x80\x9cthe\ndistinction between causes and mere conditions is wholly without objective or factual warrant,\xe2\x80\x9d id.\nat 29, Hart and Honor\xc3\xa9 appeal to a shared understanding of causation, arguing that cultural\nconventions and \xe2\x80\x9ccommon sense\xe2\x80\x9d draw \xe2\x80\x9cthe line between cause and mere condition.\xe2\x80\x9d Id. at 31.\nIn addition to the appeal to common sense, Hart and Honor\xc3\xa9 stress the human element of\ncausation in the law. They present the example of someone who has died with high levels of\narsenic in his blood:\n. . . this is up to a point an explanation of his death and so the cause of it: but we\nusually press for a further and more satisfying explanation and may find that\nsomeone deliberately put arsenic in the victim\xe2\x80\x99s food. This is a fuller explanation\n298\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nin terms of human agency; and of course we speak of the poisoner\xe2\x80\x99s action as the\ncause of the death; though we do not withdraw the title of cause from the presence\nof arsenic in the body\xe2\x80\x94this is now thought of as an ancillary, the \xe2\x80\x98mere way\xe2\x80\x99 in\nwhich the poisoner produced the effect. Once we have reached this point, however,\nwe have something which has a special finality at the level of common sense . . . .\nId. at 39-40 (emphasis added).\nIn clarifying their understanding of liability-defeating coincidence, Hart and Honor\xc3\xa9 insist\nthat we can usefully rely on standards of \xe2\x80\x9ccommon knowledge\xe2\x80\x9d:\nReference to \xe2\x80\x98ordinary knowledge\xe2\x80\x99, what is \xe2\x80\x98commonly known\xe2\x80\x99, and the \xe2\x80\x98ordinary\nperson\xe2\x80\x99 is vague. It will permit any tribunal a certain leeway in applying such\nnotions; yet the principles are determinate enough not to be a simple verbal cloak\nfor a court\xe2\x80\x99s uncontrolled discretion or policy. They will certainly serve to\ndistinguish from the case of the falling tree the case (not a coincidence) where after\na fire is negligently lit the evening breeze drives the flames towards the house which\nthey destroy.\nId. at 154.\n\nB. Causation-in-Fact\nIn making a negligence claim, it is not enough to show that there is a precaution that the\ndefendant could have taken. The plaintiff typically must also show that if the defendant had taken\nthe precaution, the harm complained of would not have occurred.\n\nNew York Central R.R. Co. v. Grimstad, 264 F. 334 (2d Cir. 1920)\nWARD, J.\nThis is an action . . . to recover damages for the death of Angell Grimstad, captain of the\ncovered barge Grayton, owned by the defendant railroad company. The charge of negligence is\nfailure to equip the barge with proper life-preservers and other necessary and proper appliances,\nfor want of which the decedent, having fallen into the water, was drowned.\nThe barge was lying on the port side of the steamer Santa Clara, on the north side of Pier\n2, Erie Basin, Brooklyn, loaded with sugar in transit from Havana to St. John, N. B. The tug\nMary M, entering the slip between Piers 1 and 2, bumped against the barge. The decedent\xe2\x80\x99s wife,\nfeeling the shock, came out from the cabin, looked on one side of the barge, and saw nothing, and\nthen went across the deck to the other side, and discovered her husband in the water about 100\nfeet from the barge holding up his hands out of the water. He did not know how to swim. She\nimmediately ran back into the cabin for a small line, and when she returned with it he had\ndisappeared . . .\n\n299\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n[The jury returned a finding of negligence against the barge owner defendant for failure to\nequip the barge with life buoys. But on appeal, the Second Circuit concluded that a showing of\nnegligence was not sufficient to establish liability:]\nOn . . . whether a life buoy would have saved the decedent from drowning, we think the\njury were left to pure conjecture and speculation. A jury might well conclude that a light near an\nopen hatch or a rail on the side of a vessel\xe2\x80\x99s deck would have prevented a person\xe2\x80\x99s falling into the\nhatch or into the water, in the dark. But there is nothing whatever to show that the decedent was\nnot drowned because he did not know how to swim, nor anything to show that, if there had been a\nlife buoy on board, the decedent\xe2\x80\x99s wife would have got it in time, that is, sooner than she got the\nsmall line, or, if she had, that she would have thrown it so that her husband could have seized it,\nor, if she did, that he would have seized it, or that, if he did, it would have prevented him from\ndrowning.\nThe court erred in denying the defendant\xe2\x80\x99s motion to dismiss the complaint at the end of\nthe case.\nJudgment reversed.\n\nNotes\n\n1. Loss causation. The causation requirement in tort law typically requires that the loss\ncomplained of by the plaintiff be one that would not have happened but for the negligence of the\ndefendant. But why should we have a causation requirement? Does it advance the lossspreading, deterrence, or corrective justice goals of the law? If the burden of carrying a life buoy\nis less than its expected benefit, why does it matter that Judge Ward is skeptical that Grimstad\nwould have survived? Note that the loss causation requirement even works to exonerate a\ndefendant in negligence-per-se cases involving violations of safety statutes. A Massachusetts\nplaintiff injured while jumping out of a burning building sued his landlord for failing to provide\nstatutorily required fire-fighting appliances and moved to have the judge direct a verdict on his\nbehalf. The Massachusetts Supreme Court found that the plaintiff still needed to prove that he\nwould not have had to jump out the window if he had been able to access those fire-fighting\nappliances. Wainwright v. Jackson, 291 Mass. 100 (1935).\nLoss causation is often especially salient in failure to warn cases, where the cost of a\nwarning is particularly low compared to the possible harms. In Willett v. Baxter Int\xe2\x80\x99l, for\nexample, the Fifth Circuit found a plaintiff\xe2\x80\x99s decision to proceed with a medical procedure in the\nface of a known four percent risk strongly suggested that an additional 0.03 percent risk \xe2\x80\x9cwould\nnot have changed his decision.\xe2\x80\x9d 929 F.2d 1094, 1099 (5th Cir. 1991).\n\n2. Insurance and causation. The law of insurance deals with loss causation very differently.\nFor example, before the passage of the Patient Protection and Affordable Care Act, health\ninsurance companies could and did rescind coverage for failure to disclose a pre-existing\ncondition that had nothing to do with the source of the current claim. In other words, even if a\npolicyholder\xe2\x80\x99s failure to disclose did not cause the insurance company to pay out, the insurance\ncompany was still entitled to rescind coverage. Eleanor D. Kinney, For Profit Enterprise in\nHealth Care: Can It Contribute to Health Reform?, 36 AM. J. L. & MED. 405 (2010). In other\n300\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nareas of insurance, such as life insurance, rescission is still generally permitted as a remedy for\neven innocent misrepresentations by the policyholder. Brian Barnes, Against Insurance\nRescission, 120 YALE L.J. 328 (2010). As Judge Calabresi puts it, insurance law substitutes\n\xe2\x80\x9ctransaction causation\xe2\x80\x9d for \xe2\x80\x9closs causation.\xe2\x80\x9d Guido Calabresi, Civil Recourse Theory\xe2\x80\x99s\nReductionism, 88 IND. L.J. 449, 456 (2013).\nSo far we have proceeded as if causation is either on or off, yes or no. But what happens\nwhen causation-in-fact can only be expressed in terms of probabilities? The next case introduces\nthe problem, which subsequent sections pursue further.\n\nStubbs v. City of Rochester, 124 N.E. 137 (N.Y. 1919)\n[Plaintiff alleged that he contracted typhoid fever due to drinking contaminated water\nfrom the defendant city\xe2\x80\x99s water service. Rochester had two systems of water supply: one for\ndrinking, from Hemlock Lake, and another (the so-called \xe2\x80\x9cHolley\xe2\x80\x9d system water) for fire purposes\nin the business district. Holley water was pumped from the Genesee river near the center of the\ncity. In May 1910, the negligence of the city\xe2\x80\x99s employees caused Holley water to mix with\nHemlock water. In June, the city received \xe2\x80\x9cnumerous complaints . . . from inhabitants, consumers\nof the Hemlock water, residing or employed in the vicinity of Brown street bridge, in substance\nthat the water was roily, dirty, and had an offensive odor.\xe2\x80\x9d After a delayed response, health\nofficials notified the public in September \xe2\x80\x9cthrough the newspapers not to drink the water without\nboiling it [and] thereupon notified the water department that the Hemlock water was\ncontaminated.\xe2\x80\x9d The Health Department investigated beginning in early October, \xe2\x80\x9cupwards of\nthree months after many complaints had been made to it.\xe2\x80\x9d The Department identified the source\nof the contamination at the Brown street bridge. The plaintiff, a resident of the city of Rochester\nand a machinist, was employed by a firm whose place of business was at the corner of Allen and\nPlatt streets, about one block from the Brown street bridge. After trial, the court entered judgment\nfor the defendant on the ground that the plaintiff had failed to show that the defendant\xe2\x80\x99s conduct\nwas the cause of his injuries. Plaintiff appealed.]\nHOGAN, J. The important question in this case is, Did the plaintiff produce evidence from\nwhich inference might reasonably be drawn that the cause of his illness was due to the use of\ncontaminated water furnished by defendant. Counsel for respondent argues that, even assuming\nthat the city may be held liable to plaintiff for damages caused its negligence in furnishing\ncontaminated water for drinking purposes: (a) The evidence adduced by plaintiff fails to disclose\nthat he contracted typhoid fever by drinking contaminated water; (b) that it was incumbent upon\nthe plaintiff to establish that his illness was not due to any other cause to which typhoid fever may\nbe attributed for which defendant is not liable. The evidence does disclose several causes of\ntyphoid fever, which is a germ disease, the germ being known as the typhoid bacillus, which\ncauses may be classified as follows:\nFirst. Drinking of polluted water. Second. Raw fruits and vegetables in certain named\nlocalities where human excrement is used to fertilize the soil are sometimes sources of typhoid\ninfection. Third. The consumption of shellfish, though not a frequent cause. Fourth. The\nconsumption of infected milk and vegetables. Fifth. The housefly in certain localities. Sixth.\nPersonal contact with an infected person by one who has predilection for typhoid infection and is\nnot objectively sick with the disease. Seventh. Ice, if affected with typhoid bacilli. Eighth.\nFruits, vegetables, etc., washed in infected water. Ninth. The medical authorities recognize that\n301\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nthere are still other causes and means unknown. This fact was developed on cross-examination of\nphysicians called by plaintiff.\nTreating the suggestions of counsel in their order: (a) That the evidence fails to disclose\nthat plaintiff contracted typhoid fever by drinking contaminated water. The plaintiff, having been\nnonsuited at the close of his case, is entitled to the most favorable inference deducible from the\nevidence. That plaintiff, on or about September 6th, 1910, was taken ill, and very soon thereafter\ntyphoid fever developed, is not disputed. That he was employed in a factory located one block\ndistant from the Brown street bridge, in which Hemlock Lake water was the only supply of water\nfor potable and other purposes, and that the water drawn from faucets in that neighborhood\ndisclosed that the water was roily and of unusual appearance, is not questioned. And no doubt\nprevails that the Holley system water was confined to the main business part of the city for use for\nfire purposes and sprinkling streets, and is not furnished for domestic or drinking purposes.\nThe evidence of the superintendent of waterworks of the city is to the effect that Hemlock\nLake water is a pure wholesome water free from contamination of any sort at the lake, and\nexaminations of the same are made weekly; that the Holley water is not fit for drinking purposes,\ntaken as it is from the Genesee river. Further evidence was offered by plaintiff by several\nwitnesses, residents in the locality of Brown street bridge, who discovered the condition of the\nwater at various times during July, August, and September, and made complaint to the water\ndepartment of the condition of the same. Dr. Goler, a physician and health officer of the city, was\ncalled by plaintiff, and testified that in September, when complaint was made to him by a resident\nof the district, he went to the locality, visited houses in the immediate neighborhood, found that\nthe water drawn from the faucet of the Hemlock supply looked badly and smelled badly. He took\na sample of the water to the laboratory, and had it examined by a chemist, who found that it\ncontained an increase in solids, and very many times, that is, 20 to 30 times, as much chlorine or\ncommon salt as is found in the domestic water supply\xe2\x80\x94the presence of chlorine in excessive\nquantities indicates contamination in that quantity, bad contamination and usually sewage\ncontamination. . . . [Dr. Goler then] made an investigation as to the reported cases of typhoid\nfever in the city in the months of August, September, and October, for the purpose of determining\nthe number of cases, where the cases came from, what gave rise to it, and he stated that in his\nopinion the outbreak of typhoid was due to polluted water, contaminated as he discovered\nafterwards by sewage. In answer to a hypothetical question embracing generally the facts asserted\nby plaintiff the witness testified that he had an opinion as to the cause of the infection of plaintiff,\nand such opinion was that it was due to contaminated water.\nDr. Dodge, of the faculty of the University of Rochester, a professor of biology, also\nbacteriologist of the city of Rochester, about October 1st made an analysis of samples of water . . .\n[and found] evidence of [colon bacillus]. Dr. Brady, the physician who attended the plaintiff, and\nDr. Culkin both testified that in their opinion the plaintiff contracted typhoid fever from drinking\npolluted water.\nPlaintiff called a witness who resided on Brown street, about two minutes\xe2\x80\x99 walk from the\nbridge, and proved by her that she drank water from the Hemlock mains in the fall of 1910 and\nwas ill with typhoid fever. Thereupon counsel for defendant stipulated that 57 witnesses which\nthe plaintiff proposed to call will testify that they drank water from the Hemlock taps in the\nvicinity of the district west of the Genesee river and north of Allen street in the summer and fall of\n1910, and during said summer and fall suffered from typhoid fever, that in view of the stipulation\n302\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nsuch witnesses need not be called by plaintiff, and the stipulation shall have the same force and\neffect as though the witnesses had been called and testified to the facts.\nThe plaintiff resided with his wife some three miles distant from the factory where he was\nemployed. The water consumed by him at his house outside the infected district was Hemlock\nwater. The only water in the factory was Hemlock water, and he had there an individual cup from\nwhich he drank. He was not outside of the city during the summer of 1910. Therefore the only\nwater he drank was in the city of Rochester.\nA table of statistics as to typhoid fever in the city of Rochester for the years 1901-1910, . .\n. disclose[s] that the number of typhoid cases in the city in 1910 was 223, an excess of 50 cases of\nany year of the nine years preceding. Recalling that complaints as to water commenced in the\nsummer of 1910, and as shown by the evidence that typhoid fever does not develop until two or\nthree weeks after the bacilli have been taken into the system, in connection with the fact that the\nsource of contamination was not discovered until October, the statistics disclose that of the 223\ncases of typhoid in the city in the year 1910, 180 cases appear during the months of August,\nSeptember, October, and November as against 43 cases during the remaining eight months, 35 of\nwhich were prior to August and 8 in the month of December, two months after the source of\ncontamination of the water was discovered.\nThe evidence on the trial discloses that at least 58 witnesses, residents of the district,\ndrank the contaminated water and suffered from typhoid fever in addition to plaintiff; thus onethird of the 180 cases during the months stated were shown to exist in that district.\nCounsel for respondent asserts that there was a failure of proof on the part of plaintiff, in\nthat he did not establish that he contracted disease by drinking contaminated water, and in support\nof his argument cites a rule of law that when there are several possible causes of injury for one or\nmore of which a defendant is not responsible, plaintiff cannot recover without proving that the\ninjury was sustained wholly or in part by a cause for which defendant was responsible. He\nsubmits that it was essential for plaintiff to eliminate all other of seven causes from which the\ndisease might have been contracted. . . . I do not believe the rule stated to be as inflexible as\nclaimed for. If two or more possible cause exist, for only one of which a defendant may be liable,\nand a party injured established facts from which it can be said with reasonable certainty that the\ndirect cause of the injury was the one for which the defendant was liable, the party has complied\nwith the spirit of the rule.\nThe plaintiff was employed in the immediate locality where the water was contaminated.\nHe drank the water daily. The consumption of contaminated water is a very frequent cause of\ntyphoid fever. In the locality there were a large number of cases of typhoid fever, and near to 60\nindividuals who drank the water and had suffered from typhoid fever in that neighborhood\nappeared as witnesses on behalf of plaintiff. The plaintiff gave evidence of his habits, his home\nsurroundings, and his method of living, and the medical testimony indicated that his illness was\ncaused by drinking contaminated water. Without reiteration of the facts disclosed on the trial I do\nnot believe that the case on the part of plaintiff was so lacking in proof as matter of law that his\ncomplaint should be dismissed. On the contrary, the most favorable inferences deducible from the\nplaintiff were such as would justify a submission of the facts to a jury as to the reasonable\ninferences to be drawn therefrom, and a verdict rendered thereon for either party would rest, not in\nconjecture, but upon reasonable possibilities.\n303\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nThe judgment should be reversed, and a new trial granted, costs to abide the event.\nCARDOZO, POUND, and ANDREW, JJ., concur.\nHISCOCK, C. J., and CHASE and MCLAUGHLIN, JJ., dissent.\nJudgment reversed, etc.\n\nNotes\n\n1. Causation in Stubbs? Public health studies from the same era found that in northern\nstates, typhoid fever typically peaked in August, September, October, and November in Northern\nstates (including New York):\n\nSource: G. E. Harmon, Seasonal Distribution of Typhoid Fever\xe2\x80\x94Southern and Northern States, 20 AM. J. PUBL.\nHEALTH NATIONS 395, 398 (1930).\n\nGiven the background seasonal variation in typhoid rates, what is the likelihood that Mr.\nStubbs\xe2\x80\x99 typhoid was caused by the City\xe2\x80\x99s negligence? Would he be able to demonstrate by a\npreponderance of the evidence that his injury was caused by the City\xe2\x80\x99s negligence? Note that\neven if Stubbs cannot show causation\xe2\x80\x94indeed, even if no single plaintiff can show causation\xe2\x80\x94it\nis nearly certain that there were people in Rochester who were injured by Rochester\xe2\x80\x99s negligence,\nin the sense that they would be not have become ill but for that negligence. The difficulty is\nknowing which of the typhoid victims are in that category.\n\n304\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n2. Toxic torts. Difficulties in proving causation bedevil toxic tort cases. Epidemiological\ndata are usually admissible to prove causation, but often that data does not rise to the level of a\npreponderance of the evidence. See Shelly Brinker, Opening the Door to the Indeterminate\nPlaintiff: An Analysis of the Causation Barriers Facing Environmental Toxic Tort Plaintiffs, 46\nUCLA L. REV. 1289 (1999).\nWhile state courts are open to the use of epidemiological data, they impose a variety of\nstandards to ensure its reliability and applicability. Some states require proof of both general\ncausation (that a type of toxin is capable of increasing the risk of a certain type of harm) and\nspecific causation (that the toxin caused the harm to this plaintiff). See, e.g., King v. Burlington\nN. Santa Fe Ry. Co., 277 Neb. 203 (2009); Terry v. Caputo, 115 Ohio St. 3d 351 (2007);\nBlanchard v. Goodyear Tire & Rubber Co., 2011 Vt. 85 (2011). In Iowa, this approach has led to\ndifferent specialists providing evidence for general causation (generally epidemiologists) and\nspecific causation (typically physicians). Ranes v. Adam Labs, Inc., 778 N.W.2d 677, 690 (Iowa\n2010). Texas requires that the epidemiological studies offered to show general causation must be\nstudies of patients substantially similar to the plaintiff, which can be a high bar for plaintiffs.\nDaniels v. Lyondell-Citgo Ref. Co., 99 S.W.3d 722 (Tex. App. Houston 1st Dist. 2003).\n\n3. Martin v. Herzog redux. The decision in Martin v. Herzog, which we encountered above\nin our section on statutes and negligence per se, offers one possible solution to the problem.\nJudge Cardozo concluded his opinion in Martin with a reminder about causation and a holding\nabout the significance of breach for proof of loss causation:\nWe must be on our guard, however, against confusing the question of negligence\nwith that of the causal connection between the negligence and the injury. A\ndefendant who travels without lights is not to pay damages for his fault unless the\nabsence of lights is the cause of the disaster . . . . We think, however, that evidence\nof a collision occurring more than an hour after sundown between a car and an\nunseen buggy, proceeding without lights, is evidence from which a causal\nconnection may be inferred between the collision and the lack of signals. If nothing\nelse is shown to break the connection, we have a case, prima facie sufficient, of\nnegligence contributing to the result. There may indeed be times when the lights\non a highway are so many and so bright that lights on a wagon are superfluous. If\nthat is so, it is for the offender to go forward with the evidence, and prove the\nillumination as a kind of substituted performance. The plaintiff asserts that she did\nso here. She says that the scene of the accident was illumined by moonlight, by an\nelectric lamp, and by the lights of the approaching car. Her position is that if the\ndefendant did not see the buggy thus illumined, a jury might reasonably infer that\nhe would not have seen it anyhow. We may doubt whether there is any evidence of\nillumination sufficient to sustain the jury in drawing such an inference, but the\ndecision of the case does not make it necessary to resolve the doubt, and so we leave\nit open. It is certain that they were not required to find that lights on the wagon\nwere superfluous. They might reasonably have found the contrary. They ought,\ntherefore, to have been informed what effect they were free to give, in that event, to\nthe violation of the statute.\n\n305\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nMartin v. Herzog, 228 N.Y. 164, 170 (1920). For Cardozo, the combination of the statute\nrequiring headlights and the fact that it was nighttime creates a prima facie case of causation,\npermitting but not requiring a jury finding of causation. Given that the statute already plays a role\nin determining whether not using headlights was negligent, does it make sense for the statute to\nplay a role again in causation? Should it play a stronger or weaker role than creating a\npresumption? Three quarters of a century after Martin v. Herzog, Judge Calabresi took up this\nquestion in the context of FDA dosing guidelines.\n\nZuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)\nCALABRESI, J.\nThe defendant, the United States of America, appeals from a judgment of the United\nStates District Court for the District of Connecticut (Warren W. Eginton, Judge). This suit under\nthe Federal Tort Claims Act was originally filed by Patricia Zuchowicz, who claimed to have\ndeveloped primary pulmonary hypertension, a fatal lung condition, as a result of the defendant\xe2\x80\x99s\nnegligence in prescribing an overdose of the drug Danocrine. Following Mrs. Zuchowicz\xe2\x80\x99s death\nin 1991, her husband, Steven, continued the case on behalf of his wife\xe2\x80\x99s estate, claiming that the\ndefendant was responsible for her death. After a bench trial, the district court awarded the\nplaintiff $ 1,034,236.02 in damages.\nThere is no doubt in the case before us either as to the injury or as to the defendant\xe2\x80\x99s\nwrong; both are conceded. The only issue is causation.\nThe facts, as determined by the district court, are as follows. On February 18, 1989, Mrs.\nZuchowicz filled a prescription for the drug Danocrine [often prescribed to treat infertility\nproblems] at the Naval Hospital pharmacy in Groton, Connecticut. The prescription erroneously\ninstructed her to take 1600 milligrams of Danocrine per day, or twice the maximum recommended\ndosage. The defendant has stipulated that its doctors and/or pharmacists were negligent and\nviolated the prevailing standard of medical care by prescribing this wrong dosage.\nMrs. Zuchowicz took the 1600 milligrams of Danocrine each day for the next month.\nThereafter, from March 24 until May 30, she took 800 milligrams per day. While taking\nDanocrine she experienced abnormal weight gain, bloating, edema, hot flashes, night sweats, a\nracing heart, chest pains, dizziness, headaches, acne, and fatigue. On May 30, she was examined\nby an obstetrician/gynecologist in private practice who told her to stop taking the Danocrine.\nDuring the summer, she continued to experience severe fatigue and chest tightness and pain, and\nbegan having shortness of breath. In October 1989, she was diagnosed with primary pulmonary\nhypertension (\xe2\x80\x9cPPH\xe2\x80\x9d), a rare and fatal disease in which increased pressure in an individual\xe2\x80\x99s\npulmonary artery causes severe strain on the right side of the heart. At the time she was\ndiagnosed with the disease, the median life expectancy for PPH sufferers was 2.5 years.\nTreatments included calcium channel blockers and heart and lung transplantation.\nMrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant.\nPregnant women are not eligible for transplants, and pregnancy exacerbates PPH. Mrs. Zuchowicz\ngave birth to a son on November 21, 1991. She died one month later, on December 31, 1991. . . .\n\n306\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nIn order for the causation requirement to be met, a trier of fact must be able to determine,\nby a preponderance of the evidence, that the defendant\xe2\x80\x99s negligence was responsible for the\ninjury. In this case, defendant\xe2\x80\x99s negligence consisted in prescribing an overdose of Danocrine to\nMrs. Zuchowicz. For liability to exist, therefore, it is necessary that the fact finder be able to\nconclude, more probably than not, that the overdose was the cause of Mrs. Zuchowicz\xe2\x80\x99s illness\nand ultimate death. The mere fact that the exposure to Danocrine was likely responsible for the\ndisease does not suffice.\nThe problem of linking defendant\xe2\x80\x99s negligence to the harm that occurred is one that many\ncourts have addressed in the past. A car is speeding and an accident occurs. That the car was\ninvolved and was a cause of the crash is readily shown. The accident, moreover, is of the sort that\nrules prohibiting speeding are designed to prevent. But is this enough to support a finding of fact,\nin the individual case, that speeding was, in fact, more probably than not, the cause of the\naccident? The same question can be asked when a car that was driving in violation of a minimum\nspeed requirement on a super-highway is rear-ended. Again, it is clear that the car and its driver\nwere causes of the accident. And the accident is of the sort that minimum speeding rules are\ndesigned to prevent. But can a fact finder conclude, without more, that the driver\xe2\x80\x99s negligence in\ndriving too slowly led to the crash? To put it more precisely\xe2\x80\x94the defendant\xe2\x80\x99s negligence was\nstrongly causally linked to the accident, and the defendant was undoubtedly a but for cause of the\nharm, but does this suffice to allow a fact finder to say that the defendant\xe2\x80\x99s negligence was a but\nfor cause?\nAt one time, courts were reluctant to say in such circumstances that the wrong could be\ndeemed to be the cause. They emphasized the logical fallacy of post hoc, ergo propter hoc, and\ndemanded some direct evidence connecting the defendant\xe2\x80\x99s wrongdoing to the harm. . . .\nAll that has changed, however. And, as is so frequently the case in tort law, Chief Judge\nCardozo in New York and Chief Justice Traynor in California led the way. In various opinions,\nthey stated that: if (a) a negligent act was deemed wrongful because that act increased the chances\nthat a particular type of accident would occur, and (b) a mishap of that very sort did happen, this\nwas enough to support a finding by the trier of fact that the negligent behavior caused the harm.\nWhere such a strong causal link exists, it is up to the negligent party to bring in evidence denying\nbut for cause and suggesting that in the actual case the wrongful conduct had not been a\nsubstantial factor.\nThus, in a case involving a nighttime collision between vehicles, one of which did not\nhave the required lights, Judge Cardozo stated that lights were mandated precisely to reduce the\nrisk of such accidents occurring and that this fact sufficed to show causation unless the negligent\nparty demonstrated, for example, that in the particular instance the presence of very bright street\nlights or of a full moon rendered the lack of lights on the vehicle an unlikely cause. See Martin v.\nHerzog.\nThe case before us is a good example of the above-mentioned principles in their classic\nform. The reason the FDA does not approve the prescription of new drugs at above the dosages\nas to which extensive tests have been performed is because all drugs involve risks of untoward\nside effects in those who take them. Moreover, it is often true that the higher the dosage the\ngreater is the likelihood of such negative effects. At the approved dosages, the benefits of the\nparticular drug have presumably been deemed worth the risks it entails. At greater than approved\ndosages, not only do the risks of tragic side effects (known and unknown) increase, but there is no\n307\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nbasis on the testing that has been performed for supposing that the drug\xe2\x80\x99s benefits outweigh these\nincreased risks. It follows that when a negative side effect is demonstrated to be the result of a\ndrug, and the drug was wrongly prescribed in an unapproved and excessive dosage (i.e. a strong\ncausal link has been shown), the plaintiff who is injured has generally shown enough to permit the\nfinder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.\nIn fact, plaintiff\xe2\x80\x99s showing in the case before us, while relying on the above stated\nprinciples, is stronger. For plaintiff introduced some direct evidence of causation as well. On the\nbasis of his long experience with drug-induced pulmonary diseases, one of plaintiff\xe2\x80\x99s experts, Dr.\nMatthay, testified that the timing of Mrs. Zuchowicz\xe2\x80\x99s illness led him to conclude that the\noverdose (and not merely Danocrine) was responsible for her catastrophic reaction.\nUnder the circumstances, we hold that defendant\xe2\x80\x99s attack on the district court\xe2\x80\x99s finding of\ncausation is meritless.\n\nNotes\n\n1. Self-proving causation? Professor Kenneth Abraham at the University of Virginia calls\nZuchowicz the most notorious example of a category of causation cases he calls \xe2\x80\x9cself-proving\ncausation cases,\xe2\x80\x9d by which he means cases where the fact of the negligence alone is the only\nevidence of causation available. Abraham observes that \xe2\x80\x9cmany torts scholars are skeptical of the\ndecision in Zuchowicz.\xe2\x80\x9d But in Abraham\xe2\x80\x99s view, the case is best understood as an especially\nsalient example of a problem that is more widespread than it might otherwise seem. See Kenneth\nAbraham, Self-Proving Causation, 99 VA. L. REV. 1811 (2013).\nNote that there is some scientific justification for Judge Calabresi\xe2\x80\x99s approach in the FDA\xe2\x80\x99s\nbasic methodology. FDA approval of a particular dosage is based on a \xe2\x80\x9cdose-response curve,\xe2\x80\x9d\nwhich measures that sensitivity of the patient\xe2\x80\x99s reaction to a particular dosage. Is Judge\nCalabresi\xe2\x80\x99s ruling justified by the science, or by the uncertainty, of causation? What evidence\ncould a defendant offer to counter the plaintiff\xe2\x80\x99s evidence of causation? Will this move over-deter\nor under-deter negligence in dosing?\n\n2. Bendectin: A case study. The story of Bendectin, a morning sickness pill, reveals some of\nthe pitfalls of using the tort system to manage drug safety. Bendectin was widely used in the\n1960s and 1970s. However, some scientific studies showed an association between Bendectin\nand various types of birth defects, including musculoskeletal deformities, brain damage, and\ncancer. On the basis of these studies, hundreds of plaintiffs sued Merrell Dow, the maker of\nBendectin, and many of them won large awards. In 1983, after years of these suits, Merrell Dow\npulled Bendectin from the market, saying that the high cost of liability insurance made the drug\nno longer profitable. The American College of Obstetricians and Gynecologists objected, saying\nthat morning sickness was severe enough in some women to pose a serious health risk and the\nwithdrawal of Bendectin would leave a \xe2\x80\x9csignificant therapeutic gap.\xe2\x80\x9d Jane E. Brody, Shadow of\nDoubt Wipes Out Bendectin, N.Y. TIMES, Jun. 19, 1983. Hospitalization rates of pregnant women\nfor nausea and vomiting (symptoms Bendectin treats) doubled after the drug was removed from\nthe market. Melanie Ornstein, Adrianne Einarson & Gideon Koren, Bendectin/Diclectin for\n308\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nMorning Sickness: A Canadian Follow-Up of an American Tragedy, 9 REPROD. TOXICOLOGY 1, 23 (1995).\nDecades later, Bendectin has been vindicated. In 2013, the FDA approved Bendectin\n(under the new name Declegis) for use in the American market based on decades of experience\nwith Bendectin in Europe (where it remained available) and on new evidence discrediting earlier\nstudies. American obstetricians have long believed that Bendectin is safe, and had been\nprescribing a combination of other drugs that closely resembles Bendectin for years as an off-label\ntreatment for morning sickness. Liz Neporent, FDA Approves Morning Sickness Drug Once\nFeared Unsafe, ABC NEWS, Apr. 9, 2013.\nHow did this happen? One review of transcripts from six Bendectin trials showed that\njuries have some systematic biases in evaluating scientific evidence. Every study has\nimperfections, and cross-examination excessively highlighted those imperfections, potentially\ncausing juries to disregard the high-quality studies cited by Merrell Dow. Juries had trouble\nweighing the scientific credentials of opposing experts. Juries also appeared to have difficulty\nunderstanding the relative importance of various types of data (epidemiological studies, animal\nstudies, in vitro studies, etc.) and to have excessively discounted the epidemiological studies from\nMerrell Dow, which indicated that Bendectin did not increase the risk of birth defects at a\npopulation level. \xe2\x80\x9cIf the legal process tends to cause all experts to appear equally qualified,\xe2\x80\x9d\nconcludes one observer, \xe2\x80\x9cit also causes all science to appear equally worthy.\xe2\x80\x9d Joseph Sanders,\nFrom Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 STAN. L. REV.\n1, 47 (1993).\n\n3. Epidemiological causation and Daubert hearings. The Bendectin trials left their mark on\nthe procedures for high-stakes tort cases. The Supreme Court, in a Bendectin case, laid out a new\nstandard under the Federal Rules of Evidence for allowing expert testimony to go to the jury:\nFaced with a proffer of expert scientific testimony, then, the trial judge must\ndetermine at the outset . . . whether the expert is proposing to testify to (1) scientific\nknowledge that (2) will assist the trier of fact to understand or determine a fact in\nissue. This entails a preliminary assessment of whether the reasoning or\nmethodology underlying the testimony is scientifically valid and of whether that\nreasoning or methodology properly can be applied to the facts in issue . . . .\nWe recognize that, in practice, a gatekeeping role for the judge, no matter how\nflexible, inevitably on occasion will prevent the jury from learning of authentic\ninsights and innovations. That, nevertheless, is the balance that is struck by Rules\nof Evidence designed not for the exhaustive search for cosmic understanding but\nfor the particularized resolution of legal disputes.\nDaubert v. Merrell Dow Pharms, 509 U.S. 579, 597 (1993). So-called \xe2\x80\x9cDaubert hearings,\xe2\x80\x9d as\nthese pre-trial hearings described in Daubert have become known, have dramatically changed\nhow torts suits are litigated. Plaintiffs must get their experts through the Daubert hearing to the\njury in order to avoid being dismissed on summary judgment. Allan Kanner & M. Ryan Casey,\nDaubert and the Disappearing Jury Trial, 69 U. PITT. L. REV. 281 (2007). The percentage of civil\ntrials in products liability cases that were dismissed on summary judgment jumped from 21% for\n48% in the years after the Daubert decision. LLOYD DIXON & BRIAN GILL, RAND INST. FOR CIVIL\n309\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nJUSTICE, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES\nSINCE THE DAUBERT DECISION (2001). Overall, the percentage of torts cases in federal court\nresolved by trial has fallen from 16.5% in 1963 to 2.2% in 2002. While all subject areas have\nseen declines in the percentage of cases resolved by trial, torts have experienced a\ndisproportionate drop. Torts cases constituted 55% of all federal trials in 1962; today they make\nup only 23% of trials. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related\nMatters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 466 (2004).\n\n4. Agent Orange. The U.S. military used an herbicide called Agent Orange in the Vietnam\nWar to eliminate the foliage that provided cover to North Vietnamese forces. From 1965 to 1970,\nthousands of American soldiers and millions of Vietnamese civilians were exposed to the\nherbicide. Throughout the 1970s, evidence began to accumulate that Agent Orange was highly\ntoxic, linked to cancer and other conditions in people exposed to the substance and birth defects in\ntheir children. In 1979, veterans filed a lawsuit against the manufacturers of Agent Orange, and\ntheir cases were consolidated into a single multi-district litigation in New York. Agent Orange\nwas a classic indeterminate plaintiff case; the herbicide may well have increased the risk of some\ninjuries, but it was difficult to say exactly how much risk it added and even harder to identify\nwhich plaintiffs would not have suffered their injuries without Agent Orange. The lawsuit\ndragged on for years until Judge Jack Weinstein was assigned to the case. Brilliant and daring\n(and controversial), Judge Weinstein wielded all the tools he was allowed to use, and possibly\nsome he wasn\xe2\x80\x99t, to pressure the parties into a settlement. The $180-million compensation fund\ncreated for the plaintiffs was one of the largest and most complex mass tort settlements the\ncountry had seen. Judge Weinstein then dismissed the claims of the veterans who had opted out\nof the class on summary judgment, concluding that they had failed to establish that Agent Orange\nwas the cause of their injuries. The dismissal came despite multiple credentialed expert witnesses\nfor the plaintiffs testifying about studies contending that Agent Orange may have caused the\nharms the plaintiffs suffered. Critics have contended ever since that Weinstein delved into\nquestions of the applicability and reliability of the studies that were properly left for a jury. For a\ndetailed account, see Peter Schuck\xe2\x80\x99s classic treatment, Agent Orange on Trial (1987).\n\n5. Bisphenol A. Bisphenol A (BPA), a ubiquitous industrial chemical in plastics, food\npackaging, baby bottles, and other areas, cuts against the conventional dose-response wisdom.\nWhile standard toxicology studies indicated that Bisphenol A is safe, new studies that look at\nsignificantly lower doses of Bisphenol A show that Bisphenol A may have harmful effects in\ninfants. U.S. FOOD AND DRUG ADMIN., Bisphenol A: Use in Food Contact Application, Mar.\n2013, available at https://perma.cc/2KBA-K3QX. Unlike almost all drugs (such as Danocrine,\nthe drug in Zuchowicz), Bisphenol A is actually more likely to cause harm when consumed in\nsmall doses by infants because the hormone receptors of infants are more likely to confuse\nBisphenol A for estrogen when it is present in very low doses, but not when it is present in the\nhigher doses tested in the traditional toxicological studies. A confounding difficulty in measuring\nthe effect of Bisphenol A is that most people are exposed to low doses of Bisphenol A through\nhundreds of daily interactions with packaging, plastics, or even paper receipts. Frederick S. vom\nSaal & Claude Hughes, An Extensive New Literature Concerning Low-Dose Effects of Bisphenol\nA Shows the Need for a New Risk Assessment, 113 ENVIRON. HEALTH PERSPECT. 926 (2005). In\n2008, major manufacturers of baby bottles voluntarily removed Bisphenol A from their products,\ndue to public pressure, as the FDA continued to study the issue. Press Release, Conn. Attorney\nGen. Office, Attorney Gen. Announces Baby Bottle Makers Agree to Stop Using BPA; Calls for\n310\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nLegislative Ban (Mar. 5, 2009), available at https://perma.cc/GV98-DCB3. Does the existence of\ntoxins like Bisphenol A, which follow a different dose response curve, challenge the rationale\nbehind Judge Calabresi\xe2\x80\x99s rule in Zuchowicz?\nThe actual Bisphenol A multidistrict litigation was dismissed on summary judgment on\nthe grounds that the plaintiffs failed to state a cognizable injury; the plaintiffs attempted to claim\ndamages for their purchase of BPA-containing products, not any medical injuries that resulted\nfrom contact with BPA. In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., 687\nF. Supp. 2d 897 (W.D. Mo. 2009). If a plaintiff did present a claim for damages based on\ndevelopment disabilities caused by BPA, would you, as a judge, attempt to find creative means\n(industry liability theories, statistical causation, judicially brokered settlements) to manage to get\nrelief for the plaintiffs? Or would you dismiss the case, believing that other branches of\ngovernment are best suited to manage such complex problems?\n\nC. Lost Chances and Indeterminate Plaintiffs\nA variation on the problem of statistical evidence arises when the plaintiff suffers a harm\nthat was likely to have happened even if the defendant had not acted in such a way as to increase\nthe risk of that harm still further. How can any such plaintiff show by a preponderance of the\nevidence that, but for the defendant\xe2\x80\x99s act, the injury would not have occurred? The classic case is\nmedical malpractice on patients with severe illnesses:\n\nHerskovits v. Group Health Coop., 664 P.2d 474 (Wash. 1983)\nThis appeal raises the issue of whether an estate can maintain an action for professional\nnegligence as a result of failure to timely diagnose lung cancer, where the estate can show\nprobable reduction in statistical chance for survival but cannot show and/or prove that with timely\ndiagnosis and treatment, decedent probably would have lived to normal life expectancy.\nBoth counsel advised that for the purpose of this appeal we are to assume that the\nrespondent Group Health Cooperative of Puget Sound and its personnel negligently failed to\ndiagnose Herskovits\xe2\x80\x99 cancer on his first visit to the hospital and proximately caused a 14 percent\nreduction in his chances of survival. [The trial court granted summary judgment for the\ndefendant]. It is undisputed that Herskovits had less than a 50 percent chance of survival at all\ntimes herein . . . .\nThe complaint alleged that Herskovits came to Group Health Hospital in 1974 with\ncomplaints of pain and coughing . . . . In mid-1974, there were chest pains and coughing, which\nbecame persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records\nconfirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with\ncough medicine. . . . In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope\nthat the warm weather would help. Upon his return to the Seattle area with no improvement in his\nhealth, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion.\nWithin 3 weeks, Dr. Ostrow\xe2\x80\x99s evaluation and direction to Group Health led to the diagnosis of\ncancer. In July of 1975, Herskovits\xe2\x80\x99 lung was removed, but no radiation or chemotherapy\ntreatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60. .\n311\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n. . Dr. Ostrow testified that if the tumor was a \xe2\x80\x9cstage 1\xe2\x80\x9d tumor in December 1974, Herskovits\xe2\x80\x99\nchance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival\nwere 25 percent assuming the tumor had progressed to \xe2\x80\x9cstage 2\xe2\x80\x9d. Thus, the delay in diagnosis\nmay have reduced the chance of a 5-year survival by 14 percent. . . .\nThe ultimate question raised here is whether the relationship between the increased risk of\nharm and Herskovits\xe2\x80\x99 death is sufficient to hold Group Health responsible. Is a 36 percent (from\n39 percent to 25 percent) reduction in the decedent\xe2\x80\x99s chance for survival sufficient evidence of\ncausation to allow the jury to consider the possibility that the physician\xe2\x80\x99s failure to timely\ndiagnose the illness was the proximate cause of his death? We answer in the affirmative. To\ndecide otherwise would be a blanket release from liability for doctors and hospitals any time there\nwas less than a 50 percent chance of survival, regardless of how flagrant the negligence.\nCausing reduction of the opportunity to recover (loss of chance) by one\xe2\x80\x99s negligence,\nhowever, does not necessitate a total recovery against the negligent party for all damages caused\nby the victim\xe2\x80\x99s death. Damages should be awarded to the injured party or his family based only\non damages caused directly by premature death, such as lost earnings and additional medical\nexpenses, injury. . . . We reverse the trial court and reinstate the cause of action.\nPEARSON, J., concurring.\nWe must decide whether Dr. Ostrow\xe2\x80\x99s testimony established that the act complained of\n(the alleged delay in diagnosis) \xe2\x80\x9cprobably\xe2\x80\x9d or \xe2\x80\x9cmore likely than not\xe2\x80\x9d caused Mr. Herskovits\xe2\x80\x99\nsubsequent disability. In order to make this determination, we must first define the \xe2\x80\x9csubsequent\ndisability\xe2\x80\x9d suffered by Mr. Herskovits. Therein lies the crux of this case, for it is possible to\ndefine the injury or \xe2\x80\x9cdisability\xe2\x80\x9d to Mr. Herskovits in at least two different ways. First, and most\nobviously, the injury to Mr. Herskovits might be viewed as his death. Alternatively, however, the\ninjury or disability may be seen as the reduction of Mr. Herskovits\xe2\x80\x99 chance of surviving the cancer\nfrom which he suffered.\nTherefore, although the issue before us is primarily one of causation, resolution of that\nissue requires us to identify the nature of the injury to the decedent. Our conception of the injury\nwill substantially affect our analysis. If the injury is determined to be the death of Mr. Herskovits,\nthen under the established principles of proximate cause plaintiff has failed to make a prima facie\ncase. . . .\nIf, on the other hand, we view the injury to be the reduction of Mr. Herskovits\xe2\x80\x99 chance of\nsurvival, our analysis might well be different. Dr. Ostrow testified that the failure to diagnose\ncancer in December 1974 probably caused a substantial reduction in Mr. Herskovits\xe2\x80\x99 chance of\nsurvival. . . .\nOne approach, and that urged by defendant, is to deny recovery in wrongful death cases\nunless the plaintiff establishes that decedent would probably have survived but for defendant\xe2\x80\x99s\nnegligence. This approach is typified by Cooper v. Sisters of Charity of Cincinnati, Inc., 272\nN.E.2d 97 (Ohio 1971). The court in that case affirmed a directed verdict for defendant where the\nonly evidence of causation was that decedent had a chance \xe2\x80\x9cmaybe some place around 50%\xe2\x80\x9d of\nsurvival had defendant not been negligent. . . .\nMy review of these cases persuades me that the preferable approach to the problem before\n312\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nus is that [advanced by] the thoughtful discussion of a recent commentator. King, Causation,\nValuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future\nConsequences, 90 Yale L.J. 1353 (1981).\nKing\xe2\x80\x99s basic thesis is explained in the following passage, which is particularly pertinent to\nthe case before us.\nCausation has for the most part been treated as an all-or-nothing proposition. Either\na loss was caused by the defendant or it was injury. . . . A plaintiff ordinarily should\nbe required to prove by the applicable standard of proof that the defendant caused\nthe loss in question. What caused a loss, however, should be a separate question\nfrom what the nature and extent of the loss are. This distinction seems to have\neluded the courts, with the result that lost chances in many respects are compensated\neither as certainties or not at all.\nTo illustrate, consider the case in which a doctor negligently fails to diagnose a\npatient\xe2\x80\x99s cancerous condition until it has become inoperable. Assume further that\neven with a timely diagnosis the patient would have had only a 30% chance of\nrecovering from the disease and surviving over the long term. There are two ways\nof handling such a case. Under the traditional approach, this loss of a not-betterthan-even chance of recovering from the cancer would not be compensable because\nit did not appear more likely [than] not that the patient would have survived with\nproper care. Recoverable damages, if any, would depend on the extent to which it\nappeared that cancer killed the patient sooner than it would have with timely\ndiagnosis and treatment, and on the extent to which the delay in diagnosis\naggravated the patient\xe2\x80\x99s condition, such as by causing additional pain. A more\nrational approach, however, would allow recovery for the loss of the chance of cure\neven though the chance was not better than even. The probability of long-term\nsurvival would be reflected in the amount of damages awarded for the loss of the\nchance. While the plaintiff here could not prove by a preponderance of the evidence\nthat he was denied a cure by the defendant\xe2\x80\x99s negligence, he could show by a\npreponderance that he was deprived of a 30% chance of a cure.\n90 YALE L.J. at 1363-64.\nUnder the all or nothing approach, typified by Cooper v. Sisters of Charity, a plaintiff who\nestablishes that but for the defendant\xe2\x80\x99s negligence the decedent had a 51 percent chance of\nsurvival may maintain an action for that death. The defendant will be liable for all damages\narising from the death, even though there was a 49 percent chance it would have occurred despite\nhis negligence. On the other hand, a plaintiff who establishes that but for the defendant\xe2\x80\x99s\nnegligence the decedent had a 49 percent chance of survival recovers nothing.\n...\nThese reasons persuade me that the best resolution of the issue before us is to recognize\nthe loss of a less than even chance as an actionable injury. Therefore, I would hold that plaintiff\nhas established a prima facie issue of proximate cause by producing testimony that defendant\nprobably caused a substantial reduction in Mr. Herskovits\xe2\x80\x99 chance of survival.\n313\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n...\nFinally, it is necessary to consider the amount of damages recoverable in the event that a\nloss of a chance of recovery is established. Once again, King\xe2\x80\x99s discussion provides a useful\nillustration of the principles which should be applied.\nTo illustrate, consider a patient who suffers a heart attack and dies as a result.\nAssume that the defendant-physician negligently misdiagnosed the patient\xe2\x80\x99s\ncondition, but that the patient would have had only a 40% chance of survival even\nwith a timely diagnosis and proper care. Regardless of whether it could be said that\nthe defendant caused the decedent\xe2\x80\x99s death, he caused the loss of a chance, and that\nchance-interest should be completely redressed in its own right. Under the proposed\nrule, the plaintiff\xe2\x80\x99s compensation for the loss of the victim\xe2\x80\x99s chance of surviving the\nheart attack would be 40% of the compensable value of the victim\xe2\x80\x99s life had he\nsurvived (including what his earning capacity would otherwise have been in the\nyears following death). The value placed on the patient\xe2\x80\x99s life would reflect such\nfactors as his age, health, and earning potential, including the fact that he had\nsuffered the heart attack and the assumption that he had survived it. The 40%\ncomputation would be applied to that base figure.\n(Footnote omitted.) 90 YALE L.J. at 1382. I would remand to the trial court for proceedings\nconsistent with this opinion.\n\nNotes\n\n1. The end of preponderance of the evidence? The majority and the concurrence disagree\ndeeply on how to proceed in the face of the so-called \xe2\x80\x9clost chance\xe2\x80\x9d problem. Does the Herskovits\nmajority opinion give up the preponderance of the evidence standard in order to provide a remedy\nfor plaintiffs with low probabilities of survival?\n\n2. Lost chance confusion. On the other hand, what does the lost chance approach of Judge\nPearson entail? For one thing, how do we measure the chance that has been lost? Note that the\nmajority opinion offers us at least two different approaches: an absolute reduction in the chance of\nliving, calculated using simple subtraction (39 \xe2\x80\x93 25 = 14), and also a proportional reduction\nexpressing the reduction as a percentage of the total preexisting chance (39 \xe2\x80\x93 25 / 39 = 36). Still\nanother way to express the lost chance would be as an estimate of the probability that Herskovits\xe2\x80\x99s\ndeath was caused by the defendant\xe2\x80\x99s negligent nondiagnosis (14 / 75 = 19). Which of these three\napproaches is the right way to express the chance that has been lost by the plaintiff? The court in\nHerskovits barely grasped the difference between them, but it matters which approach we choose.\n\n3. A probabilistic approach to causation\xe2\x80\x94or recognition of a novel injury? What exactly\nare courts doing when they apply the lost chance doctrine? The probabilistic view holds that the\nlost chance doctrine is a kind of statistical technique for overcoming the limits on our capacity to\nknow the key causation question: whether the plaintiff\xe2\x80\x99s death would not have happened but for\nthe defendant\xe2\x80\x99s negligent act. When individualized causal reasoning fails, this view holds, the\n314\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nlost chance doctrine provides an actuarial alternative that preserves some of the public policy\ngoals of tort law. In particular, under this approach, the lost chance doctrine seems to satisfy the\ndeterrence goal by pushing back onto negligent defendant doctors (in the aggregate) precisely the\namount of social harm they caused in the world. A different way of saying the same thing is that\nthis view of lost chance achieves an ex ante expected cost of medical malpractice identical to that\nwhich would be achieved by perfect knowledge about causation.\nIn 2008, the Massachusetts Supreme Judicial Court adopted a different view of what the\nlost chance doctrine means. According to the Court, the lost chance doctrine is not an alteration\nof the traditional proof of causation. Instead, it is a doctrine that recognizes a new tort-lawprotected entitlement: a right in the chance of survival. The Court explained its view as follows:\n\xe2\x80\x9c[I]njury\xe2\x80\x9d need not mean a patient\xe2\x80\x99s death. Although there are few certainties in\nmedicine or in life, progress in medical science now makes it possible, at least with\nregard to certain medical conditions, to estimate a patient\xe2\x80\x99s probability of survival\nto a reasonable degree of medical certainty. That probability of survival is part of\nthe patient\xe2\x80\x99s condition. When a physician\xe2\x80\x99s negligence diminishes or destroys a\npatient\xe2\x80\x99s chance of survival, the patient has suffered real injury. The patient has lost\nsomething of great value: a chance to survive, to be cured, or otherwise to achieve\na more favorable medical outcome. Thus we recognize loss of chance not as a\ntheory of causation, but as a theory of injury.\nMatsuyama v. Birnbaum, 452 Mass. 1, 16 (2008). Among other things, the Court added, this\nconception of the lost chance doctrine is more \xe2\x80\x9cconsistent with our law of causation, which\nrequires that plaintiffs establish causation by a preponderance of the evidence.\xe2\x80\x9d Here, \xe2\x80\x9cthe\nplaintiff must prove by a preponderance of the evidence that the physician\'s negligence caused the\nplaintiff\'s injury, where the injury consists of the diminished likelihood of achieving a more\nfavorable medical outcome.\xe2\x80\x9d Id. at 17.\nAs for how to value the lost chance of a better outcome, the Court shed some light on this\nin the part of the decision upholding the \xe2\x80\x9cproportional damages\xe2\x80\x9d approach used at trial: the jury\ndetermined damages flowing from the death to have been $875,000, but then discounted the\ndamages to 37.5% of that amount, on the basis of the plaintiff\xe2\x80\x99s 37.5% chance of survival at the\ntime of the negligent treatment (and, effectively, 0% chance of survival after the negligent\ntreatment). Such an approach \xe2\x80\x9caims to ensure that a defendant is liable in damages only for the\nmonetary value of the portion of the decedent\'s prospects that the defendant\'s negligence\ndestroyed,\xe2\x80\x9d the Court explained. Id. at 26.\nMany states have chosen to allow plaintiffs to recover damages for \xe2\x80\x9closs of chance,\xe2\x80\x9d with\nsome following the Herskovits approach, e.g., Aasheim v. Humberger, 695 P.2d 824 (Mont.\n1985), and others adopting the variation on display in Matsuyama, e.g., Perez v. Las Vegas\nMedical Ctr., 805 P.2d 589 (Nev. 1991). Some states have rejected \xe2\x80\x9closs of chance\xe2\x80\x9d entirely,\nreasoning that it is basically incompatible with tort theory. Kramer v. Lewisville Memorial Hosp.,\n858 S.W.2d 397, 405 (Tex. 1993) (\xe2\x80\x9cThe true harm remains Ms. Kramer\xe2\x80\x99s ultimate death. Unless\ncourts are going to compensate patients who \xe2\x80\x9cbeat the odds\xe2\x80\x9d and make full recovery, the lost\nchance cannot be proven unless and until the ultimate harm occurs.\xe2\x80\x9d). Still other states have\nfollowed a middle path. In Oklahoma, for example, there is a lower standard to get past summary\njudgment in loss-of-chance cases, but the plaintiff still must prove to the jury that it was more\n315\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nlikely than not that the defendant\xe2\x80\x99s negligence caused the harm. McKellips v. St. Francis Hosp.,\nInc., 741 P.2d 467 (Okla. 1987).\nNotably, these cases all involved allegedly negligent medical treatment. Does the lostchance approach have a place outside medical malpractice?\n\n4. The statistical revolution in tort causation. Causation cases from Stubbs to Matsuyama\nand beyond have raised deep questions about the place of statistical knowledge in American law.\nWhat role should statistics play in our judicial system? Laurence Tribe expresses hesitancy about\nthe reliance on statistics in trials:\nIt would be a terrible mistake to forget that a typical lawsuit, whether civil or\ncriminal, is only in part an objective search for historical truth. It is also, and no\nless importantly, a ritual\xe2\x80\x94a complex pattern of gestures comprising what Henry\nHart and John McNaughton once called \xe2\x80\x9csociety\xe2\x80\x99s last line of defense in the\nindispensable effort to secure the peaceful settlement of social conflicts.\xe2\x80\x9d One\nelement, at least, of that ritual of conflict-settlement is the presence and functioning\nof the jury\xe2\x80\x94a cumbersome and imperfect institution, to be sure, but an institution\nwell calculated, at least potentially, to mediate between \xe2\x80\x9cthe law\xe2\x80\x9d in the abstract and\nthe human needs of those affected by it. Guided and perhaps intimidated by the\nseeming inexorability of numbers, induced by the persuasive force of formulas and\nthe precision of decimal points to perceive themselves as performing a largely\nmechanical and automatic role, few jurors\xe2\x80\x94whether in criminal cases or in civil\xe2\x80\x94\ncould be relied upon to recall, let alone to perform, this humanizing function, to\nemploy their intuition and their sense of community values to shape their ultimate\nconclusions.\nLaurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L.\nREV. 1329, 1376 (1971). On the other hand, Daniel Shaviro argues that the use of statistics allows\nsociety to reduce the problem of systematic errors. Daniel Shaviro, Statistical Probability\nEvidence and the Appearance of Justice, 103 HARV. L. REV. 530 (1989).\n\nD. The Problem of Multiple Tortfeasors\nWhen multiple tortfeasors are responsible for an injury to a plaintiff, the usual rule for\napportioning liability among them is \xe2\x80\x9cjoint and several liability.\xe2\x80\x9d Under joint liability, each\ndefendant may be held individually liable for the whole amount of the injury. Under several\nliability, each defendant bears only her or his share of the damages. \xe2\x80\x9cJoint and several\xe2\x80\x9d liability,\ntherefore, means that the plaintiff can choose to sue any or all defendants for the full amount and\nthat any defendants held liable by the plaintiff may apportion the damages among themselves and\nbring in any further parties who ought to bear a share of the damages. The principal effect of joint\nand several liability, as compared to several liability, is to allocate to the defendants the risk that\nany one of them will become insolvent on the defendants, not on the plaintiff. See RESTATEMENT\n(THIRD) OF TORTS: APPORTIONMENT OF LIAB. \xc2\xa7 17. Is that the right policy decision in torts?\n\n316\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nIn recent years, tort reform statutes have often adopted variations on joint and several\nliability. Utah abolished joint and several liability altogether, creating by statute the rule that all\nlosses can be apportioned, even if they would have been considered indivisible at common law.\nUTAH CODE ANN. \xc2\xa7 78B-5-818; see Egbert v. Nissan Motor Co., 228 P.3d 737 (Utah 2010).\nWisconsin took a slightly narrower approach and only abolished joint liability in cases in which\nthe plaintiffs were contributorily negligent. WIS. STAT. \xc2\xa7 895.045. New Hampshire abolished\njoint and several liability for any defendants who were less than 50% at fault, but held that nonparties to the suit would be included in the fault calculation. This put the plaintiff in the strange\nposition of defending non-parties against defendants, who would attempt to pin the blame on\nabsent actors. DeBenedetto v. CLD Consulting Eng\xe2\x80\x99rs, Inc., 153 N.H. 793, 803 (2006). Illinois\nsimilarly removed joint and several liability for parties less than 25% responsible but included\nimmune parties in the apportionment of fault. This is particularly damaging to workers pursuing\nclaims against parties other than their employer for workplace-related injuries, because the\nemployer (who is immunized from tort suits by worker\xe2\x80\x99s compensation laws) is often held to be\nthe primary party at fault and other parties (such as product manufacturers with deep pockets) are\nonly required to pay a small portion of the total damages. See Unzicker v. Kraft Food Ingredients\nCorp., 783 N.E.2d 1024, 1032 (Ill. 2002).\nApportionment questions, of course, presume more than one defendant who is liable for\nsomething. Sometimes, however, multiple defendant cases can raise the question of whether\nanyone may be held liable at all.\n\nKingston v. Chicago & N. W. R. Co., 191 Wis. 610, 613 (1926)\nWe therefore have this situation: The northeast fire was set by sparks emitted from\ndefendant\xe2\x80\x99s locomotive. This fire, according to the finding of the jury, constituted a proximate\ncause of the destruction of plaintiff\xe2\x80\x99s property. This finding we find to be well supported by the\nevidence. We have the northwest fire, of unknown origin. This fire, according to the finding of\nthe jury, also constituted a proximate cause of the destruction of the plaintiff\xe2\x80\x99s property. This\nfinding we also find to be well supported by the evidence. We have a union of these two fires 940\nfeet north of plaintiff\xe2\x80\x99s property, from which point the united fire bore down upon and destroyed\nthe property. We therefore have two separate, independent, and distinct agencies, each of which\nconstituted the proximate cause of plaintiff\xe2\x80\x99s damage, and either of which, in the absence of the\nother, would have accomplished such result.\nIt is settled in the law of negligence that any one of two or more joint tortfeasors, or one of\ntwo or more wrongdoers whose concurring acts of negligence result in injury, are each\nindividually responsible for the entire damage resulting from their joint or concurrent acts of\nnegligence. . . .\n[The court observed, however, that in some circumstances, a defendant who wrongfully\nset a fire might not be responsible for tort damages]. From our present consideration of the\nsubject we are not disposed to criticise the doctrine which exempts from liability a wrongdoer\nwho sets a fire which unites with a fire originating from natural causes, such as lightning, not\nattributable to any human agency, resulting in damage. It is also conceivable that a fire so set\nmight unite with a fire of so much greater proportions, such as a raging forest fire, as to be\nenveloped or swallowed up by the greater holocaust, and its identity destroyed, so that the greater\nfire could be said to be an intervening or superseding cause.\n317\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nBut we have no such situation here. These fires were of comparatively equal rank. If\nthere was any difference in their magnitude or threatening aspect, the record indicates that the\nnortheast fire was the larger fire and was really regarded as the menacing agency. At any rate\nthere is no intimation or suggestion that the northeast fire was enveloped and swallowed up by the\nnorthwest fire. We will err on the side of the defendant if we regard the two fires as of equal rank.\nAccording to well settled principles of negligence, it is undoubted that if the proof\ndisclosed the origin of the northwest fire, even though its origin be attributed to a third person, the\nrailroad company, as the originator of the northeast fire, would be liable for the entire damage.\nThere is no reason to believe that the northwest fire originated from any other than human agency.\nIt was a small fire. It had traveled over a limited area. It had been in existence but for a day. For\na time it was thought to have been extinguished. It was not in the nature of a raging forest fire.\nThe record discloses nothing of natural phenomena which could have given rise to the fire. It is\nmorally certain that it was set by some human agency.\nNow the question is whether the railroad company, which is found to have been\nresponsible for the origin of the northeast fire, escapes liability because the origin of the northwest\nfire is not identified, although there is no reason to believe that it had any other than human origin.\nAn affirmative answer to that question would certainly make a wrongdoer a favorite of the law at\nthe expense of an innocent sufferer . . . . Granting that the union of that fire with another of natural\norigin, or with another of much greater proportions, is available as a defense, the burden is on the\ndefendant to show that by reason of such union with a fire of such character the fire set by him\nwas not the proximate cause of the damage . . . .\nThe fact that the northeast fire was set by the railroad company, which fire was a\nproximate cause of plaintiff\xe2\x80\x99s damage, is sufficient to affirm the judgment.\n\nNotes\n\n1. Doctrinal puzzles. In deciding whether to hold the railroad company liable for damage to\nthe plaintiff\xe2\x80\x99s property, why should it matter whether the northwest fire was caused by human or\nnatural forces? Should it matter which fire was larger, if each fire was sufficient to destroy the\nproperty? The court accepted that it would be a viable defense for the railroad company to prove\neither that the northeast fire had natural causes or that the northeast fire was larger, but simply\nshifted the burden of proof to the defendant to establish those facts. What is the rationale behind\nthis? What if one of the two fires reached the plaintiff\xe2\x80\x99s property before the other? One hour\nbefore the other? One minute?\n\n2. Multiple sufficient causes and the substantial factor test. The Kingston case is a classic\nexample of the problem of multiple sufficient causes. If each fire would have destroyed the\nplaintiff\xe2\x80\x99s property regardless of the other, then neither fire can be said to be a necessary or \xe2\x80\x9cbutfor\xe2\x80\x9d cause of the plaintiff\xe2\x80\x99s loss. But to let wrongdoers off the hook because there was more than\none of them hardly seems fair. One way courts handle the question of multiple sufficient\ncausation is by asking whether the defendant\xe2\x80\x99s actions were a \xe2\x80\x9csubstantial factor\xe2\x80\x9d in causing the\nharm to the plaintiff. One of the first uses of the substantial factor test was in a classic \xe2\x80\x9ctwo fires\xe2\x80\x9d\n318\n\n\x0cWitt & Tani, TCPI 6. Causation\n\ncase by the Minnesota Supreme Court. The Court upheld jury instructions that laid out the\nfollowing contingency: \xe2\x80\x9cAssume that defendant\xe2\x80\x99s engine did set the bog fire, but that some\ngreater fire swept over it before it reached plaintiff\xe2\x80\x99s land, then and in that event defendant is not\nliable, unless the bog fire was a substantial factor in causing plaintiff\xe2\x80\x99s damage.\xe2\x80\x9d Anderson v.\nMinneapolis, S. P. & S. S. M. R. Co., 179 N.W. 45, 46 (Minn. 1920). The Restatement (Second)\nof Torts, published in the 1960s, explicitly addressed the question of multiple sufficient causes,\nstating that if the defendant\xe2\x80\x99s conduct is one of multiple sufficient causes, it is a \xe2\x80\x9csubstantial\nfactor.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS, \xc2\xa7 432(2). As we will see in subsequent chapters, the\n\xe2\x80\x9csubstantial factor\xe2\x80\x9d language has also been applied outside of the situation of multiple sufficient\ncauses.\n\nE. Alternative Liability and Indeterminate Defendants\nSome multiple-defendant cases present a problem of uncertainty about the identity of the\nplaintiff\xe2\x80\x99s injurer.\n\nSummers v. Tice, 33 Cal. 2d 80 (1948)\n[Plaintiff sued two defendants, his hunting companions, for injuries resulting from being\nstruck in the face by bird shot. The plaintiff prevailed at trial and the defendants appealed.] The\nplaintiff and the two defendants were hunting quail on the open range. . . . In the course of hunting\nplaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of\ndefendants with reference to plaintiff was unobstructed and they knew his location. Defendant\nTice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and\ndefendants. Both defendants shot at the quail, shooting in plaintiff\xe2\x80\x99s direction. At that time\ndefendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his\nupper lip. . . .\nThe problem presented in this case is whether the judgment against both defendants may\nstand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally\nliable, as they were not acting in concert, and that there is not sufficient evidence to show which\ndefendant was guilty of the negligence which caused the injuries\xe2\x80\x94the shooting by Tice or that by\nSimonson.\nWhen we consider the relative position of the parties and the results that would flow if\nplaintiff was required to pin the injury on one of the defendants only, a requirement that the\nburden of proof on that subject be shifted to defendants becomes manifest. They are both\nwrongdoers\xe2\x80\x94both negligent toward plaintiff. They brought about a situation where the\nnegligence of one of them injured the plaintiff, hence it should rest with them each to absolve\nhimself if he can. The injured party has been placed by defendants in the unfair position of\npointing to which defendant caused the harm. If one can escape the other may also and plaintiff is\nremediless. Ordinarily defendants are in a far better position to offer evidence to determine which\none caused the injury.\nThis reasoning has recently found favor in this court. In a quite analogous situation this\ncourt held that a patient injured while unconscious on an operating table in a hospital could hold\n319\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nall or any of the persons who had any connection with the operation even though he could not\nselect the particular acts by the particular person which led to his disability. (Ybarra v.\nSpangard). There the court was considering whether the patient could avail himself of res ipsa\nloquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff\nhas made out a case when he has produced evidence which gives rise to an inference of\nnegligence which was the proximate cause of the injury. It is up to defendants to explain the\ncause of the injury . . . . The judgment is affirmed.\n\nNote\n\n1. The Summers court uses a shift in the burden of persuasion which solves the evidentiary\nproblem in a case between two defendants governed by a preponderance standard. But is shifting\nthe burden of persuasion sufficient in a case with more than two possible defendants? The\npharmaceutical disaster known as DES raised this problem.\n\nSindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)\nMOSK, J.\nThis case involves a complex problem both timely and significant: may a plaintiff, injured\nas the result of a drug administered to her mother during pregnancy, who knows the type of drug\ninvolved but cannot identify the manufacturer of the precise product, hold liable for her injuries a\nmaker of a drug produced from an identical formula?\n...\nBetween 1941 and 1971, defendants were engaged in the business of manufacturing,\npromoting, and marketing diethylstilbesterol (DES), a drug which is a synthetic compound of the\nfemale hormone estrogen. The drug was administered to plaintiff\xe2\x80\x99s mother . . . for the purpose of\npreventing miscarriage. . . .\nIn 1971, the Food and Drug Administration ordered defendants to cease marketing and\npromoting DES for the purpose of preventing miscarriages, and to warn physicians and the public\nthat the drug should not be used by pregnant women because of the danger to their unborn\nchildren. [In particular, DES causes adenosis (\xe2\x80\x9cprecancerous vaginal and cervical growths which\nmay spread to other areas of the body\xe2\x80\x9d) as well as cancerous vaginal and cervical growths known\nas adenocarcinoma, a \xe2\x80\x9cfast-spreading and deadly disease.\xe2\x80\x9d)\n...\nPlaintiff [who developed a malignant bladder tumor and who suffered from adenosis, for\nwhich she underwent regular and painful monitoring] seeks compensatory damages of $1 million\nand punitive damages of $10 million for herself. For the members of her class, she prays for\nequitable relief in the form of an order that defendants warn physicians and others of the danger of\nDES and the necessity of performing certain tests to determine the presence of disease caused by\nthe drug, and that they establish free clinics in California to perform such tests.\n320\n\n\x0cWitt & Tani, TCPI 6. Causation\n\n[The trial court dismissed plaintiff\xe2\x80\x99s complaint on the ground that plaintiff could not\nidentify which defendant had manufactured the drug that caused her injuries.] . . .\nThis case is but one of a number filed throughout the country seeking to hold drug\nmanufacturers liable for injuries allegedly resulting from DES prescribed to the plaintiffs\xe2\x80\x99 mothers\nsince 1947. According to a note in the Fordham Law Review, estimates of the number of women\nwho took the drug during pregnancy range from 1 \xc2\xbd million to 3 million. Hundreds, perhaps\nthousands, of the daughters of these women suffer from adenocarcinoma, and the incidence of\nvaginal adenosis among them is 30 to 90 percent. (Comment, DES and a Proposed Theory of\nEnterprise Liability (1978) 46 Fordham L. Rev. 963, 964-967 (hereafter Fordham Comment).) . . .\nWe begin with the proposition that, as a general rule, the imposition of liability depends\nupon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or\nby an instrumentality under the defendant\xe2\x80\x99s control. The rule applies whether the injury resulted\nfrom an accidental event . . . or from the use of a defective product. . . .\nThere are, however, exceptions to this rule. . . .\nI\n[The Court first rejected plaintiffs\xe2\x80\x99 contention that the \xe2\x80\x9calternative liability\xe2\x80\x9d theory of\nYbarra v. Spangard and Summers v. Tice applied. The Court asserted that Summers\xe2\x80\x99s alternative\nliability theory did not require the plaintiff to show that the defendants had better access to\ninformation on the causation question. Nonetheless, the Court reasoned that there was \xe2\x80\x9can\nimportant difference between the situation involved in Summers and the present case\xe2\x80\x9d:]\nThere, all the parties who were or could have been responsible for the harm to the plaintiff\nwere joined as defendants. Here, by contrast, there are approximately 200 drug companies which\nmade DES, any of which might have manufactured the injury-producing drug.\nDefendants maintain that, while in Summers there was a 50 percent chance that one of the\ntwo defendants was responsible for the plaintiff\xe2\x80\x99s injuries, here since any one of 200 companies\nwhich manufactured DES might have made the product which harmed plaintiff, there is no\nrational basis upon which to infer that any defendant in this action caused plaintiff\xe2\x80\x99s injuries, nor\neven a reasonable possibility that they were responsible.\nThese arguments are persuasive if we measure the chance that any one of the defendants\nsupplied the injury-causing drug by the number of possible tortfeasors. In such a context, the\npossibility that any of the five defendants supplied the DES to plaintiff\xe2\x80\x99s mother is so remote that\nit would be unfair to require each defendant to exonerate itself. [T]he rule in Summers . . . , as\npreviously applied, cannot relieve plaintiff of the burden of proving the identity of the\nmanufacturer which made the drug causing her injuries.\nII\nThe second principle upon which plaintiff relies is the so-called \xe2\x80\x9cconcert of action\xe2\x80\x9d\ntheory. . . . The elements of this doctrine are prescribed in section 876 of the Restatement of\nTorts. The section provides, \xe2\x80\x9cFor harm resulting to a third person from the tortious conduct of\n321\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nanother, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant\nto a common design with him, or (b) knows that the other\xe2\x80\x99s conduct constitutes a breach of duty\nand gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives\nsubstantial assistance to the other in accomplishing a tortious result and his own conduct,\nseparately considered, constitutes a breach of duty to the third person.\xe2\x80\x9d . . .\n[The Court, however, concluded that the allegations in the complaint] do not amount to a\ncharge that there was a tacit understanding or a common plan among defendants to fail to conduct\nadequate tests or give sufficient warnings, and that they substantially aided and encouraged one\nanother in these omissions. . . .\nThere is no allegation here that each defendant knew the other defendants\xe2\x80\x99 conduct was\ntortious toward plaintiff, and that they assisted and encouraged one another to inadequately test\nDES and to provide inadequate warnings. Indeed, it seems dubious whether liability on the\nconcert of action theory can be predicated upon substantial assistance and encouragement given\nby one alleged tortfeasor to another pursuant to a tacit understanding to fail to perform an act.\nThus, there was no concert of action among defendants within the meaning of that doctrine.\nIII\nA third theory upon which plaintiff relies is the concept of industry-wide liability, or\naccording to the terminology of the parties, \xe2\x80\x9centerprise liability.\xe2\x80\x9d This theory was suggested in\nHall v. E. I. Du Pont de Nemours & Co., Inc. (E.D.N.Y.1972) 345 F.Supp. 353. In that case,\nplaintiffs were 13 children injured by the explosion of blasting caps in 12 separate incidents which\noccurred in 10 different states between 1955 and 1959. The defendants were six blasting cap\nmanufacturers, comprising virtually the entire blasting cap industry in the United States, and their\ntrade association. . . . The gravamen of the complaint was that the practice of the industry of\nomitting a warning on individual blasting caps and of failing to take other safety measures created\nan unreasonable risk of harm, resulting in the plaintiffs\xe2\x80\x99 injuries. The complaint did not identify a\nparticular manufacturer of a cap which caused a particular injury.\nThe [Hall] court reasoned as follows: there was evidence that defendants, acting\nindependently, had adhered to an industry-wide standard with regard to the safety features of\nblasting caps, that they had in effect delegated some functions of safety investigation and design,\nsuch as labelling, to their trade association, and that there was industry-wide cooperation in the\nmanufacture and design of blasting caps. In these circumstances, the evidence supported a\nconclusion that all the defendants jointly controlled the risk. Thus, if plaintiffs could establish by\na preponderance of the evidence that the caps were manufactured by one of the defendants, the\nburden of proof as to causation would shift to all the defendants. The court noted that this theory\nof liability applied to industries composed of a small number of units, and that what would be fair\nand reasonable with regard to an industry of five or ten producers might be manifestly\nunreasonable if applied to a decentralized industry composed of countless small producers.\n...\nWe decline to apply this theory in the present case. At least 200 manufacturers produced\nDES; Hall, which involved 6 manufacturers representing the entire blasting cap industry in the\nUnited States, cautioned against application of the doctrine espoused therein to a large number of\nproducers. Moreover, in Hall, the conclusion that the defendants jointly controlled the risk was\n322\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nbased upon allegations that they had delegated some functions relating to safety to a trade\nassociation. There are no such allegations here, and we have concluded above that plaintiff has\nfailed to allege liability on a concert of action theory.\nEqually important, the drug industry is closely regulated by the Food and Drug\nAdministration, which actively controls the testing and manufacture of drugs and the method by\nwhich they are marketed, including the contents of warning labels. To a considerable degree,\ntherefore, the standards followed by drug manufacturers are suggested or compelled by the\ngovernment. . . .\n[S]ince the government plays such a pervasive role in formulating the criteria for the\ntesting and marketing of drugs, it would be unfair to impose upon a manufacturer liability for\ninjuries resulting from the use of a drug which it did not supply simply because it followed the\nstandards of the industry.\nIV\nIf we were confined to the theories of Summers and Hall, we would be constrained to hold\nthat the judgment must be sustained. Should we require that plaintiff identify the manufacturer\nwhich supplied the DES used by her mother or that all DES manufacturers be joined in the action,\nshe would effectively be precluded from any recovery. As defendants candidly admit, there is\nlittle likelihood that all the manufacturers who made DES at the time in question are still in\nbusiness or that they are subject to the jurisdiction of the California courts. There are, however,\nforceful arguments in favor of holding that plaintiff has a cause of action.\nIn our contemporary complex industrialized society, advances in science and technology\ncreate fungible goods which may harm consumers and which cannot be traced to any specific\nproducer. The response of the courts can be either to adhere rigidly to prior doctrine, denying\nrecovery to those injured by such products, or to fashion remedies to meet these changing needs.\nJust as Justice Traynor in his landmark concurring opinion in Escola v. Coca Cola Bottling\nCompany (1944), 150 P.2d 436 [we will read Escola in our materials on products liability later in\nthis book], recognized that in an era of mass production and complex marketing methods the\ntraditional standard of negligence was insufficient to govern the obligations of manufacturer to\nconsumer, so should we acknowledge that some adaptation of the rules of causation and liability\nmay be appropriate in these recurring circumstances. . . .\nThe most persuasive reason for finding plaintiff states a cause of action is that advanced in\nSummers: as between an innocent plaintiff and negligent defendants, the latter should bear the\ncost of the injury. Here, as in Summers, plaintiff is not at fault in failing to provide evidence of\ncausation, and although the absence of such evidence is not attributable to the defendants either,\ntheir conduct in marketing a drug the effects of which are delayed for many years played a\nsignificant role in creating the unavailability of proof.\nFrom a broader policy standpoint, defendants are better able to bear the cost of injury\nresulting from the manufacture of a defective product. As was said by Justice Traynor in Escola,\n\xe2\x80\x9c(t)he cost of an injury and the loss of time or health may be an overwhelming misfortune to the\nperson injured, and a needless one, for the risk of injury can be insured by the manufacturer and\ndistributed among the public as a cost of doing business.\xe2\x80\x9d The manufacturer is in the best position\nto discover and guard against defects in its products and to warn of harmful effects; thus, holding\n323\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nit liable for defects and failure to warn of harmful effects will provide an incentive to product\nsafety. . . . These considerations are particularly significant where medication is involved, for the\nconsumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes\nfatal, injuries caused by deleterious drugs.\nWhere, as here, all defendants produced a drug from an identical formula and the\nmanufacturer of the DES which caused plaintiff\xe2\x80\x99s injuries cannot be identified through no fault of\nplaintiff, a modification of the rule of Summers is warranted. . . .\n[W]e hold it to be reasonable in the present context to measure the likelihood that any of\nthe defendants supplied the product which allegedly injured plaintiff by the percentage which the\nDES sold by each of them for the purpose of preventing miscarriage bears to the entire production\nof the drug sold by all for that purpose. Plaintiff asserts in her briefs that Eli Lilly and Company\nand 5 or 6 other companies produced 90 percent of the DES marketed. If at trial this is\nestablished to be the fact, then there is a corresponding likelihood that this comparative handful of\nproducers manufactured the DES which caused plaintiff\xe2\x80\x99s injuries, and only a 10 percent\nlikelihood that the offending producer would escape liability.28\nIf plaintiff joins in the action the manufacturers of a substantial share of the DES which\nher mother might have taken, the injustice of shifting the burden of proof to defendants to\ndemonstrate that they could not have made the substance which injured plaintiff is significantly\ndiminished. . . .\nThe presence in the action of a substantial share of the appropriate market also provides a\nready means to apportion damages among the defendants. Each defendant will be held liable for\nthe proportion of the judgment represented by its share of that market unless it demonstrates that it\ncould not have made the product which caused plaintiff\xe2\x80\x99s injuries.\nUnder this approach, each manufacturer\xe2\x80\x99s liability would approximate its responsibility\nfor the injuries caused by its own products. . . . It is probably impossible, with the passage of\ntime, to determine market share with mathematical exactitude. But just as a jury cannot be\nexpected to determine the precise relationship between fault and liability in applying the doctrine\nof comparative fault or partial indemnity, the difficulty of apportioning damages among the\ndefendant producers in exact relation to their market share does not seriously militate against the\nrule we adopt. . . .\nWe are not unmindful of the practical problems involved in defining the market and\ndetermining market share, but these are largely matters of proof which properly cannot be\ndetermined at the pleading stage of these proceedings. Defendants urge that it would be both\nunfair and contrary to public policy to hold them liable for plaintiff\xe2\x80\x99s injuries in the absence of\n\n28\n\nThe Fordham Comment explains the connection between percentage of market share and liability as follows:\n\xe2\x80\x9c(I)f X Manufacturer sold one-fifth of all the DES prescribed for pregnancy and identification could be made in\nall cases, X would be the sole defendant in approximately one-fifth of all cases and liable for all the damages in\nthose cases. Under alternative liability, X would be joined in all cases in which identification could not be made,\nbut liable for only one-fifth of the total damages in these cases. X would pay the same amount either way.\nAlthough the correlation is not, in practice, perfect (footnote omitted), it is close enough so that defendants\xe2\x80\x99\nobjections on the ground of fairness lose their value.\xe2\x80\x9d\n\n324\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nproof that one of them supplied the drug responsible for the damage. Most of their arguments,\nhowever, are based upon the assumption that one manufacturer would be held responsible for the\nproducts of another or for those of all other manufacturers if plaintiff ultimately prevails. But\nunder the rule we adopt, each manufacturer\xe2\x80\x99s liability for an injury would be approximately\nequivalent to the damages caused by the DES it manufactured.30\nThe judgments are reversed.\nBIRD, C.J., and NEWMAN and WHITE, JJ., concur.\nRICHARDSON, J., dissenting.\nAlthough the majority purports to change only the required burden of proof by shifting it\nfrom plaintiffs to defendants, the effect of its holding is to guarantee that plaintiffs will prevail on\nthe causation issue because defendants are no more capable of disproving factual causation than\nplaintiffs are of proving it. \xe2\x80\x9cMarket share\xe2\x80\x9d liability thus represents a new high water mark in tort\nlaw. The ramifications seem almost limitless . . . .The majority now expressly abandons the . . .\ntraditional requirement of some causal connection between defendants\xe2\x80\x99 act and plaintiffs\xe2\x80\x99 injury\nin the creation of its new modified industry-wide tort. . . .\n[Among other things, Justice Richardson observed that] it is readily apparent that \xe2\x80\x9cmarket\nshare\xe2\x80\x9d liability will fall unevenly and disproportionately upon those manufacturers who are\namenable to suit in California. On the assumption that no other state will adopt so radical a\ndeparture from traditional tort principles, it may be concluded that under the majority\xe2\x80\x99s reasoning\nthose defendants who are brought to trial in this state will bear effective joint responsibility for\n100 percent of plaintiffs\xe2\x80\x99 injuries despite the fact that their \xe2\x80\x9csubstantial\xe2\x80\x9d aggregate market share\nmay be considerably less. . . .\n[Suggesting that the DES case might be the \xe2\x80\x9conly the tip of the iceberg,\xe2\x80\x9d Justice\nRichardson argued that the majority had crafted an illegitimately redistributive rule:]\nThe majority attempts to justify its new liability on the ground that defendants herein are\n\xe2\x80\x9cbetter able to bear the cost of injury resulting from the manufacture of a defective product.\xe2\x80\x9d This\n\xe2\x80\x9cdeep pocket\xe2\x80\x9d theory of liability, fastening liability on defendants presumably because they are\nrich, has understandable popular appeal and might be tolerable in a case disclosing substantially\nstronger evidence of causation than herein appears. But as a general proposition, a defendant\xe2\x80\x99s\nwealth is an unreliable indicator of fault, and should play no part, at least consciously, in the legal\nanalysis of the problem. . . . A system priding itself on \xe2\x80\x9cequal justice under law\xe2\x80\x9d does not flower\nwhen the liability as well as the damage aspect of a tort action is determined by a defendant\xe2\x80\x99s\nwealth. . . .\n[Quoting from a recent dismissal of a DES case by another court, Justice Richardson\ncontended that] \xe2\x80\x9c\xe2\x80\x98[T]he social and economic benefits from mobilizing the industry\xe2\x80\x99s resources in\n\nThe dissent concludes by implying the problem will disappear [if] the Legislature appropriates funds \xe2\x80\x9cfor the\neducation, identification, and screening of persons exposed to DES.\xe2\x80\x9d While such a measure may arguably be\nhelpful in the abstract, it does not address the issue involved here: damages for injuries which have been or will\nbe suffered. Nor, as a principle, do we see any justification for shifting the financial burden for such damages\nfrom drug manufacturers to the taxpayers of California.\n30\n\n325\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nthe war against disease and in reducing the costs of medical care are potentially enormous. The\ndevelopment of new drugs in the last three decades has already resulted in great social benefits.\nThe potential gains from further advances remain large. To risk such gains is unwise. Our major\nobjective should be to encourage a continued high level of industry investment in pharmaceutical\nR & D.\xe2\x80\x99\xe2\x80\x9d]\nCLARK and MANUEL, JJ., concur.\n\nNotes\n\n1. From Summers to Sindell? Does the holding in Sindell necessarily follow from Summers\nv. Tice? What would be the rationale for treating this case differently?\n\n2. A New York variation. Other states dealing with the same DES problem adopted different\napproaches than the California Supreme Court did in Sindell. Consider New York, for example:\nWe choose to apportion liability so as to correspond to the over-all culpability of\neach defendant, measured by the amount of risk of injury each defendant created to\nthe public-at-large. Use of a national market is a fair method, we believe, of\napportioning defendants\xe2\x80\x99 liabilities according to their total culpability in marketing\nDES for use during pregnancy. Under the circumstances, this is an equitable way\nto provide plaintiffs with the relief they deserve, while also rationally distributing\nthe responsibility for plaintiffs\xe2\x80\x99 injuries among defendants.\nTo be sure, a defendant cannot be held liable if it did not participate in the marketing\nof DES for pregnancy use; if a DES producer satisfies its burden of proof of showing\nthat it was not a member of the market of DES sold for pregnancy use, disallowing\nexculpation would be unfair and unjust. Nevertheless, because liability here is\nbased on the over-all risk produced, and not causation in a single case, there should\nbe no exculpation of a defendant who, although a member of the market producing\nDES for pregnancy use, appears not to have caused a particular plaintiff\xe2\x80\x99s injury. It\nis merely a windfall for a producer to escape liability solely because it manufactured\na more identifiable pill, or sold only to certain drugstores. These fortuities in no\nway diminish the culpability of a defendant for marketing the product, which is the\nbasis of liability here.\nFinally, we hold that the liability of DES producers is several only, and should not\nbe inflated when all participants in the market are not before the court in a particular\ncase. We understand that, as a practical matter, this will prevent some plaintiffs\nfrom recovering 100% of their damages. However, we eschewed exculpation to\nprevent the fortuitous avoidance of liability, and thus, equitably, we decline to\nunleash the same forces to increase a defendant\xe2\x80\x99s liability beyond its fair share of\nresponsibility.\nHymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 509-11 (N.Y. 1989). Sindell attempted to\nincorporate the idea that market share approximates the probability that the defendant\xe2\x80\x99s product\n326\n\n\x0cWitt & Tani, TCPI 6. Causation\n\ncaused the plaintiff\xe2\x80\x99s harm. Hymowitz, by contrast, explicitly severed the causal connection\nbetween the injured plaintiff and the liable defendant. Is this a justifiable evolution of the\ncommon law to deal with a unique type of problem? Or is this an example of courts trying to\nsolve a problem that they are not institutionally suited to handle?\nNo other forum adopted Hymowitz\xe2\x80\x99s national market share liability. This created the\nstrange consequence that DES manufacturers whose market share in New York was higher than\ntheir national market share benefitted relative to manufacturers whose market share in New York\nwas lower than their national market share, due to the different rules in each jurisdiction.\nWisconsin and Washington both chose approaches where defendants were liable based on some\nprobability that they caused the injury, which was measured by a combination of market share and\nother facts in each trial. Defendants in those states were exculpated if they could prove that the\nplaintiff did not ingest their product. Collins v. Lilly & Co., 116 Wis. 2d 166 (1984); Martin v.\nAbbott Labs., 102 Wash. 2d 581 (1984). Are the conflicting effects of different rules in each state\na reason why state tort law may be ill-suited to handle this type of national problem? Or can the\nongoing dialogue between state courts we saw in Hymowitz create reasonable accommodation of\nother states\xe2\x80\x99 approaches?\n\n3. Lead poisoning and market share. When is market share liability an appropriate solution?\nPennsylvania distinguished the DES cases to deny recovery on a market share theory in suits\nbrought by minor victims of lead poisoning suffered in homes painted over decades with paint\nfrom unidentified paint manufacturers:\n[T]he relevant time period in question is far more extensive than the relevant time\nperiod in a DES case. In this case, [plaintiff Skipworth] cannot identify any\nparticular application, or applications, of lead paint which have caused Skipworth\xe2\x80\x99s\nhealth problems. Thus, they \xe2\x80\x9cpinpoint\xe2\x80\x9d a more than one hundred year period from\nthe date the house was built until the lead paint ceased being sold for residential\npurposes as the relevant time period. In contrast, the relevant time period in a DES\ncase is necessarily limited to the nine months that the patient ingesting the product\nwas pregnant.\nThe difficulty . . . is that entities who could not have been the producers of the lead\npaint which injured [plaintiff Skipworth] would almost assuredly be held liable.\nOver the one hundred year period at issue, several of the pigment manufacturers\nentered and left the lead paint market.\nSkipworth v. Lead Inds. Ass\xe2\x80\x99n, 690 A.2d 169, 233-34 (Pa. 1997). The court further noted that:\n[L]ead paint, as opposed to DES, is not a fungible product. All DES used for\ntreatment of pregnant women was manufactured according to an identical formula\nand presented an identical risk of harm. In contrast, it is undisputed that lead\npigments had different chemical formulations, contained different amounts of lead,\nand differed in potential toxicity. . . . [I]n this case, apportioning liability based\nupon a manufacturer defendant\xe2\x80\x99s share of the market (even if it were possible to\nobtain an accurate statistic considering the lengthy relevant time period at question)\nwould not serve to approximate that defendant\xe2\x80\x99s responsibility for injuries caused\nby its lead paint. For example, a manufacturer whose lead product had a lower\n327\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nbioavailability than average would have caused less damage than its market share\nwould indicate.\nId. at 233. Are either of these distinctions persuasive?\n\n4. Commingled products. After cases like Skipworth, some observers thought that market\nshare liability had no future. The giant litigation over a gasoline additive in the Southern District\nof New York, however, suggested otherwise. Methyl tertiary butyl ether (\xe2\x80\x9cMTBE\xe2\x80\x9d) is a gasoline\nadditive that has been found leaking from underground storage tanks around the United States and\nthat has contaminated the water supply in many communities. Plaintiffs in a litigation before\nJudge Shira Scheindlin could not identify the manufacturers of the MTBE responsible for the\nchemical that had ended up in the Suffolk County, Long Island water supply. But Judge Sheindlin\nallowed the plaintiffs to go ahead on what she called a \xe2\x80\x9ccommingled product theory\xe2\x80\x9d that closely\nresembles the market share theory:\n[T]he commingled product theory, while still an alternative means of proving\ncausation, is closer to traditional causation than to market share liability. Under this\ntheory, a reasonable jury could conclude, based on the evidence in the record, that\nall defendants contributed to the commingled gasoline that caused contamination in\nplaintiffs\xe2\x80\x99 wells. Defendants may still exculpate themselves by showing that their\nproduct could not have been part of the commingled gasoline spilled in Suffolk\nCounty, but the burden shifts to them to do so. . . .\nA reasonable jury could conclude that most defendants\xe2\x80\x99 gasoline contributed to\ncontamination in at least some of the wells at some point. To exempt defendants\nfrom liability, when plaintiffs have proven the other elements of their claims, simply\nbecause plaintiffs are unable to deconstruct the molecules of the commingled\ngasoline to identify the manufacturers of each gallon of spilled gasoline is unjust.\nTo avoid such a result, New York courts have often \xe2\x80\x9cmodif[ied] the rules of personal\ninjury liability, in order \xe2\x80\x98to achieve the ends of justice in a more modern context\xe2\x80\x99\nand . . . to overcome \xe2\x80\x98the inordinately difficult problems of proof caused by\ncontemporary products and marketing techniques.\xe2\x80\x99\xe2\x80\x9d . . .\nThe commingled product theory lies somewhere between market share and\nconcurrent wrongdoing. It is similar to concurrent wrongdoing\xe2\x80\x94a theory that\nallows multiple tortfeasors to be held jointly and severally liable when each\ntortfeasor\xe2\x80\x99s independent actions combine to produce the same wrong\xe2\x80\x94because it\naddresses a situation in which multiple defendants have contributed to an indivisible\ninjury. It is similar to market share in that it shifts the burden to defendants to\nexculpate themselves from liability.\nThe theory is different from market share liability, however, in an important way.\nMarket share liability was developed in the context of plaintiffs\xe2\x80\x99 inability to identify\nwhich manufacturer had produced the defective product-diethylstilbestrol (\xe2\x80\x9cDES\xe2\x80\x9d)\npills. Each plaintiff in the DES cases had ingested pills that were manufactured by\nonly one defendant, but no one could determine which of a small number of\nmanufacturers made those exact pills. When holding all manufacturers of the\ngeneric pill liable under market share, courts recognized that all but one of them did\n328\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nnot cause the plaintiff\xe2\x80\x99s injury.\nHere, by contrast, because the gasoline that has contaminated plaintiffs\xe2\x80\x99 wells was\nundeniably the commingled product of numerous manufacturers, there is a good\nchance that many of the defendants held liable, if not the majority, actually did cause\nplaintiffs\xe2\x80\x99 injury. In this sense, the commingled product theory is closer to\ntraditional causation than market share liability.\nIn re MTBE Prods. Liab. Litig., 91 F. Supp. 2d 259 (S.D.N.Y. 2008). While Judge Scheindlin\npurports to distinguish between the MTBE cases and the DES cases, it seems that many of the\nsame practical problems in apportioning fault are still involved. These include the practical\nproblems identified by Skipworth as a reason not to use market share liability in the lead\npoisoning cases. At trial the jury found for the plaintiffs, but did so on grounds that did not\nrequire it to make a decision on the commingled product theory. See In re MTBE Prods. Liab.\nLitig., 725 F.3d 65, 117 n. 39 (2d Cir. 2013).\n\nThe Substantial Factor Test Revisited\nBy the 1970s and 1980s, the substantial factor test began to appear outside two-fires type\ncases such as Kingston. In 1973, the Fifth Circuit used the substantial factor language to resolve\nan indeterminate defendant issue in an asbestos case. The plaintiff had clearly suffered injuries\nfrom his exposure to asbestos, but could not prove by a preponderance of the evidence that any\nparticular defendant had supplied the asbestos. The Court found that because each defendant had\nsome role in the cumulative asbestos exposure, each was a \xe2\x80\x9csubstantial factor\xe2\x80\x9d in the injury and\ncould be held liable. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1094 (5th Cir.\n1973). This application of the substantial factor test was adopted by most states and covered toxic\nexposure cases including diethylstilbestrol (DES) and environmental damages. See, e.g., Queen\nCity Terminals v. General Am. Transp. Corp., 73 Ohio St. 3d 609 (1995); Sindell v. Abbott Labs.,\n26 Cal. 3d 588 (Cal. 1980). For more, see John D. Rue, Returning to the Roots of the Bramble\nBush: The \xe2\x80\x9cBut For\xe2\x80\x9d Test Regains Primacy in Causal Analysis in the American Law Institute\xe2\x80\x99s\nProposed Restatement (Third) of Torts, 71 FORDHAM L. REV. 2679, 2695 (2003).\nThe substantial factor test\xe2\x80\x99s role in lowering the plaintiff\xe2\x80\x99s burden of proving causation\nhas come under significant criticism due to the inherent vagueness of the language and because of\nclaims that it has imposed additional liability on defendants disproportionate to their actual\ncontribution to the plaintiff\xe2\x80\x99s injury. Joseph Sanders, Michael D. Williams & William C. Powers,\nJr., Symposium: A Tribute to Professor David Fischer: The Insubstantiality of the \xe2\x80\x9cSubstantial\nFactor\xe2\x80\x9d Test for Causation, 73 MO. L. REV. 399 (2008); Gerald W. Boston, Toxic Apportionment:\nA Causation and Risk Contribution Model, 25 ENVTL. L.J. 549 (1995).\nThe Third Restatement of Torts, published in 2003, returned to but-for causation and\nremoved the substantial factor language, with a separate section imposing liability on defendants\nwhere their conduct was one of multiple sufficient causes. The comments stated that the\n\xe2\x80\x9csubstantial factor\xe2\x80\x9d test had not \xe2\x80\x9cwithstood the test of time, as it has proved confusing and been\nmisused.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. AND EMOT. HARM, \xc2\xa7 26, cmt. J. The\ncomment backed away from using the substantial factor language to limit liability where the\ndefendant\xe2\x80\x99s action was not a \xe2\x80\x9csubstantial\xe2\x80\x9d enough cause. It also rejected the use of the substantial\nfactor language to impose liability where the defendant\xe2\x80\x99s conduct was not a but-for cause, but\n329\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nsimultaneously recognized the difficulty of uncertain defendant cases. However, it gives courts\nthe flexibility to \xe2\x80\x9cdecide, based on the availability of evidence and on policy grounds, to modify\nor shift the burden of proof for factual cause\xe2\x80\x9d in order to cope with these challenging cases. Id.\nThe Third Restatement\xe2\x80\x99s approach has had a mixed reception. Federal courts have\napplied it in interpreting causation in federal statutes. See, e.g., June v. Union Carbide Corp., 577\nF.3d 1234, 1239 (10th Cir. 2009) (interpreting causation in Price-Anderson Act). Several states\nhave cited it generally for the proposition that but-for causality is the default standard of causality.\nSee, e.g., Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). However, many states still\nuse the \xe2\x80\x9csubstantial factor\xe2\x80\x9d analysis in toxic tort cases, without even commenting on the Third\nRestatement\xe2\x80\x99s rejection of that language. See, e.g., Betz v. Pneumo Abex LLC, 615 Pa. 504, 524\n(2012); Dixon v. Ford Motor Co., 433 Md. 137, 150 (2013).\nJudge Calabresi has criticized the Third Restatement approach as being potentially \xe2\x80\x9ctoo\ncertain.\xe2\x80\x9d He asks whether the market share liability doctrine or other creative solutions to recent\nproblems in tort doctrine would have evolved under the strict but-for test. See Rue, Returning to\nthe Roots of the Bramble Bush, supra, at 2732. Is the flexibility provided by the inherent\nvagueness of the substantial factor test a tool of judicial economy, by giving judges flexibility to\nstructure new doctrine? Or is it a confusing phrase that leads the law to solve problems best left\nto other branches of government?\n\nF. Causation Beyond Torts\nCausation is not an issue in torts alone, of course. Courts and legislatures have drawn\nheavily on torts principles in developing causation standards in a wide range of fields.\n\n1. The Criminal Law\nThe paradigmatic example of multiple sufficient causes is captured eloquently by Justice\nAntonin Scalia in Burrage v. United States, 134 S. Ct. 881, 890 (2014):\n[C]ourts have not always required strict but-for causality, even where criminal\nliability is at issue. The most common (though still rare) instance of this occurs\nwhen multiple sufficient causes independently, but concurrently, produce a\nresult. . . . To illustrate, if \xe2\x80\x9cA stabs B, inflicting a fatal wound; while at the same\nmoment X, acting independently, shoots B in the head . . . also inflicting [a fatal]\nwound; and B dies from the combined effects of the two wounds,\xe2\x80\x9d A will generally\nbe liable for homicide even though his conduct was not a but-for cause of B\xe2\x80\x99s death\n(since B would have died from X\xe2\x80\x99s actions in any event).\nHowever, the Court does not always deviate from the but-for approach in multiple sufficient\ncausation cases. Justice Scalia\xe2\x80\x99s opinion in Burrage proceeded to apply the but-for causation test\nto a sentencing statute that provided for a higher penalty for drug distribution crimes where death\n\xe2\x80\x9cresults from\xe2\x80\x9d the crime. The Court found that the phrase \xe2\x80\x9cresults from\xe2\x80\x9d in the statute required\nthat the drug offense be a necessary cause of the death and that a defendant convicted of drug\n\n330\n\n\x0cWitt & Tani, TCPI 6. Causation\n\ndistribution crimes could not be subjected to the heightened penalty where there were multiple\nsufficient causes of the death of the purchaser.\nThe Court\xe2\x80\x99s Burrage decision seems to recognize the substantial factor approach for\nliability purposes but not for sentencing purposes. Does this make sense? More generally, why\nconstrue Congress\xe2\x80\x99s use of the phrase \xe2\x80\x9cresults from\xe2\x80\x9d as applying only to deaths that would not\nhave happened but-for the relevant crime, rather than as applying to deaths that fall within one of\nthe causation doctrines that we find in the ordinary law of torts? Justice Scalia cited the \xe2\x80\x9crule of\nlenity,\xe2\x80\x9d which favors interpreting ambiguous statutes in favor of a criminal defendant.\n\n2. Employment Discrimination\nOne way courts can mitigate the problem of multiple sufficient causes is to shift the\nburden of proof. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that once a\nplaintiff is able to show that discrimination was a motivating factor, the burden shifts to the\ndefendant to show that the discrimination was not a but-for cause of the employment decision.\nTwo years later, Congress amended the Civil Rights Act of 1991 such that an employee has to\nprove only that discrimination was a \xe2\x80\x9cmotivating factor\xe2\x80\x9d in the discharge decision, a standard that\nallows plaintiffs to prevail even if the discriminatory conduct is neither necessary nor sufficient to\nthe employment decision (Congress limited damages for plaintiffs who could not prove\ndiscrimination was a but-for cause to declaratory judgment, attorney\xe2\x80\x99s fees, and some types of\ninjunctive relief). Recently, the Court declined to extend either the logic of Price Waterhouse or\nof the Civil Rights Act of 1991 to age discrimination claims, ruling that age discrimination\nclaimants must show that age discrimination was a necessary cause of the adverse employment\ndecision. Gross v. FBL Fin. Servs., 557 U.S. 161, 167 (2009). Most recently, the Court also\ninsisted on but-for causation in retaliation claims, which arise when an employee alleges that an\nemployer has retaliated against an employee due to the filing of a race or gender discrimination\nclaim. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).\nWhat is it about race and gender employment discrimination claims that justifies deviation\nfrom the but-for causation standard? Is it the difficulty of determining the reasons behind a\ndecision, the evidentiary advantage an employer has over an employee, the public policy\nimportance of discouraging discrimination, or something else? Do any of these characteristics\nchange for age discrimination or retaliation claims?\n\n3. Environmental Law\nIn United States v. NCR Corp, 688 F.3d 833 (7th Cir. 2012), the Environmental Protection\nAgency (EPA) required NCR Corporation, one of several polluters, to undertake cleanup efforts.\nNCR did so for some time and then stopped, alleging that it had already completed its fair\napportionment of the cleanup effort. The Seventh Circuit held that because each tortfeasor\xe2\x80\x99s acts\nwere sufficient causes, and because apportionment of blame was therefore impossible, the EPA\nhad the discretion to command NCR to undertake up to all of the cleanup efforts. In parallel cases\nwhere NCR attempted to recover from the other polluting companies, it failed because other\ncompanies successfully pleaded that NCR was exclusively aware of the significant risks of the\ntoxic product.\n331\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nHowever, where apportionment is possible, courts may use creative means to arrive at a\nnumerical division of fault. In Burlington Northern & Santa Fe Ry. v. United States, 556 U.S.\n599 (2009), a distributor of a toxic pesticide and a railroad transporting that pesticide were both\nfound liable for spills in a particular site. The district court apportioned the liability of the railroad\nby multiplying together the percentage of land owned by the railroad (19%), the percentage of\ntime period that the railroad was operating on the site (45%), the percentage of the chemicals\nreleased by the railroad that led to the cleanup effort (66%), and an allowance for calculation\nerrors (50%), arriving at 9% liability for the railroad. The Ninth Circuit overturned the district\ncourt, finding that because there was no evidence that the size of the land owned or the duration of\npollution were a reliable measure of the harm caused by the parties, the district court did not have\na \xe2\x80\x9creasonable basis\xe2\x80\x9d for apportionment. The Supreme Court overturned the Ninth Circuit to hold\nthat the district court did have a \xe2\x80\x9creasonable basis\xe2\x80\x9d for apportionment because its 50% \xe2\x80\x9callowance\nfor calculation errors\xe2\x80\x9d was sufficient to compensate for any underlying errors in the methodology.\nFrom a deterrence perspective, how does agency discretion in spreading cleanup costs\naffect the incentives of polluters and the EPA? Is judicial intervention to apportion costs a\nreasonable alternative to joint and several liability?\n\n4. Securities Litigation\nSecurities fraud cases include a requirement of \xe2\x80\x9creliance,\xe2\x80\x9d a showing that the fraudulent\nstatement was the necessary cause of the investor\xe2\x80\x99s purchase of the security. In Basic Inc. v.\nLevinson, 485 U.S. 224 (1988), the Court created a rebuttable presumption that any investor relies\non a material fraudulent statement, because investors all buy and sell at a market price which\nreflects publicly available information, including the fraudulent statement. Notably, most\nsecurities litigation takes place in class actions. Under Basic\xe2\x80\x99s causation presumption, the\nplaintiffs can simply show that the fraudulent statement materially impacted the market price,\nwhich all members in the class were affected by, rather than having to show that each individual\nin the class relied on the fraudulent statement. This is a way of making the focus of the case rest\non issues that are common to the class (whether the market price was influenced by the fraudulent\nstatement) rather than issues specific to each individual within the class. See Amgen Inc. v. Conn.\nRet. Plans & Trust Funds, 133 S. Ct. 1184 (2013).\nWhy create a presumption of causation in securities fraud cases?\nIn the different substantive areas discussed above, courts and Congress used different\nconceptions of causation. Were there unique features of each substantive area that shaped the\napproach to dealing with the general problem of causation?\n\n5. Psychological Conventions around Causation\nOur perceptions of causation are shaped by some systematic and surprising quirks of\npsychology. For example, people tend to attribute causation to wishes, even when there is no\npossible mechanism for causal interaction. One study showed that subjects asked to visualize a\nbasketball player successfully make a shot before he took it felt that they had caused the player to\n332\n\n\x0cWitt & Tani, TCPI 6. Causation\n\nmake his shot\xe2\x80\x94even though they had no interaction with the player at any time. Even spectators\nwatching the person visualize the successful shot agreed that the visualization had caused the\nsuccessful shot. This works with harm as well; people believe that if they poke a doll symbolic of\na victim with a needle while wishing ill on the victim, and that victim subsequently reported a\nheadache, they are the cause of the headache. Emily Pronin, Sylvia Rodriguez, Daniel M. Wegner\n& Kimberly McCarthy, Everyday Magical Powers: The Role of Apparent Mental Causation in the\nOverestimation of Personal Influence, 91 J. PERSONALITY & SOC. PSYCHOL. 218 (2006). In the\ntorts context, this means that jurors\xe2\x80\x99 perceptions of the defendant\xe2\x80\x99s wishes for the plaintiff may\ninfluence their perception of whether the defendant caused harm to the plaintiff. People are also\nmore likely to attribute cause to people they are more focused on. For example, when viewing a\nfilmed conversation between two people, viewers are more likely to find a particular party caused\nthe outcome of the conversation if the camera was focused on that party\xe2\x80\x99s face. G. Daniel\nLassiter et al., Illusory Causation: Why It Occurs, 13 PSYCHOL. SCI. 299 (2002). This may mean\nthat a jury will be more likely to find causation from parties that the jury sees more. Do these\npsychological biases make you feel differently about the ability of the torts system to determine\nquestions of causation? Do you think judges or juries are more likely to commit these kinds of\nerrors?\n\n333\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nCHAPTER 7. PROXIMATE (\xe2\x80\x9cLEGAL\xe2\x80\x9d) CAUSE\nA. Introduction\nIn order to recover damages in a negligence suit, the plaintiff must show not only factual\ncausation, but also something more: what lawyers call \xe2\x80\x9cproximate cause\xe2\x80\x9d or \xe2\x80\x9clegal cause.\xe2\x80\x9d The\ndoctrine of proximate cause stands for the idea that the plaintiff should not be able to recover if\nthe plaintiff has not shown an appropriate relationship between the negligent act and the harm\ncomplained of, even if the defendant\xe2\x80\x99s negligence has\xe2\x8e\xafin fact\xe2\x8e\xafcaused the plaintiff\xe2\x80\x99s injury.\nSome injuries, courts say, are too remote from the negligence in question to be properly charged\nto the defendant\xe2\x80\x99s conduct. Other injuries are not unduly remote, and so are properly attached to\nthe defendant\xe2\x80\x99s conduct. As you read the following cases, ask yourself how courts distinguish\nremote from proximate harms. Is the doctrine of proximate cause different from the foreseeability\ndimension that we studied in the negligence analysis in Chapter 4? Given that these are all cases\nin which the defendant\xe2\x80\x99s conduct was necessary in producing the plaintiff\xe2\x80\x99s injury, is it\nappropriate to call this doctrine a type of \xe2\x80\x9ccausation\xe2\x80\x9d at all? Many jurists have answered no to\nboth questions. There is no denying that the doctrine of proximate causation has played a\nprominent role in torts cases since nearly the beginning of modern tort law. But a lurking\nquestion remains: Why do we have it?\nThe next case is an old classic. Its outcome no longer reflects current law. Keep that in\nmind! But the basic factual set-up offers a crisp illustration of the basic conundrum dealt with by\nthe doctrine of proximate cause: how far down a chain of cascading harms does a tortfeasor\xe2\x80\x99s\nliability extend?\n\nRyan v. New York Central R.R., 35 N.Y. 210, 215 (1866)\nHUNT, J.\nOn the 15th day of July, 1854, in the city of Syracuse, the defendant, by the careless\nmanagement, or through the insufficient condition, of one of its engines, set fire to its woodshed,\nand a large quantity of wood therein. The plaintiff\xe2\x80\x99s house, situated at a distance of one hundred\nand thirty feet from the shed, soon took fire from the heat and sparks, and was entirely consumed,\nnotwithstanding diligent efforts were made to save it.\nA number of other houses were also burned by the spreading of the fire. The plaintiff\nbrings this action to recover from the railroad company the value of his building thus destroyed.\nThe judge at the Circuit nonsuited the plaintiff, and the General Term of the fifth district affirmed\nthe judgment.\nThe question may be thus stated: A house in a populous city takes fire, through the\nnegligence of the owner or his servant; the flames extend to and destroy an adjacent building: Is\nthe owner of the first building liable to the second owner for the damage sustained by such\nburning?\n\n334\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nIt is a general principle that every person is liable for the consequences of his own acts.\nHe is thus liable in damages for the proximate results of his own acts, but not for remote damages.\nIt is not easy at all times to determine what are proximate and what are remote damages. . . . So if\nan engineer upon a steamboat or locomotive, in passing the house of A., so carelessly manages its\nmachinery that the coals and sparks from its fires fall upon and consume the house of A., the\nrailroad company or the steamboat proprietors are liable to pay the value of the property thus\ndestroyed. Thus far the law is settled and the principle is apparent. If, however, the fire\ncommunicates from the house of A. to that of B., and that is destroyed, is the negligent party\nliable for his loss? And if it spreads thence to the house of C., and thence to the house of D., and\nthence consecutively through the other houses, until it reaches and consumes the house of Z., is\nthe party liable to pay the damages sustained by these twenty-four sufferers? The counsel for the\nplaintiff does not distinctly claim this, and I think it would not be seriously insisted that the\nsufferers could recover in such case. Where, then, is the principle upon which A. recovers and Z.\nfails? . . .\nI . . . place my opinion upon the ground that, in the one case, to wit, the destruction of the\nbuilding upon which the sparks were thrown by the negligent act of the party sought to be\ncharged, the result was to have been anticipated the moment the fire was communicated to the\nbuilding; that its destruction was the ordinary and natural result of its being fired. In the second,\nthird or twenty-fourth case, as supposed, the destruction of the building was not a natural and\nexpected result of the first firing. That a building upon which sparks and cinders fall should be\ndestroyed or seriously injured must be expected, but that the fire should spread and other\nbuildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not\nunfrequent, cannot be denied. The result, however, depends, not upon any necessity of a further\ncommunication of the fire, but upon a concurrence of accidental circumstances, such as the degree\nof the heat, the state of the atmosphere, the condition and materials of the adjoining structures and\nthe direction of the wind. These are accidental and varying circumstances. The party has no\ncontrol over them, and is not responsible for their effects.\nMy opinion, therefore, is, that this action cannot be sustained, for the reason that the\ndamages incurred are not the immediate but the remote result of the negligence of the defendants.\nThe immediate result was the destruction of their own wood and sheds; beyond that, it was\nremote. . . .\nTo sustain such a claim as the present, and to follow the same to its legitimate\nconsequences, would subject to a liability against which no prudence could guard, and to meet\nwhich no private fortune would be adequate. Nearly all fires are caused by negligence, in its\nextended sense. In a country where wood, coal, gas and oils are universally used, where men are\ncrowded into cities and villages, where servants are employed, and where children find their home\nin all houses, it is impossible that the most vigilant prudence should guard against the occurrence\nof accidental or negligent fires. A man may insure his own house or his own furniture, but he\ncannot insure his neighbor\xe2\x80\x99s building or furniture, for the reason that he has no interest in them.\nTo hold that the owner must not only meet his own loss by fire, but that he must guarantee the\nsecurity of his neighbors on both sides, and to an unlimited extent, would be to create a liability\nwhich would be the destruction of all civilized society. No community could long exist, under the\noperation of such a principle. In a commercial country, each man, to some extent, runs the hazard\nof his neighbor\xe2\x80\x99s conduct, and each, by insurance against such hazards, is enabled to obtain a\nreasonable security against loss. To neglect such precaution, and to call upon his neighbor, on\nwhose premises a fire originated, to indemnify him instead, would be to award a punishment quite\n335\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nbeyond the offense committed. It is to be considered, also, that if the negligent party is liable to\nthe owner of a remote building thus consumed, he would also be liable to the insurance companies\nwho should pay losses to such remote owners. The principle of subrogation would entitle the\ncompanies to the benefit of every claim held by the party to whom a loss should be paid. . . .\nThe remoteness of the damage, in my judgment, forms the true rule on which the question\nshould be decided, and which prohibits a recovery by the plaintiff in this case.\nJudgment should be affirmed.\n\nNotes\n\n1. Rationales for Ryan. Few tort jurists today think that liability ought to be cut off as\nsharply as the Ryan court believed. But virtually all observers agree that at some point, where\nsome point is represented by the letter N, there ought to be a distinction between the first house\nand the \xe2\x80\x9cNth\xe2\x80\x9d house. But where do we draw the line between proximate and remote damages?\nJudge Hunt\xe2\x80\x99s opinion in Ryan offers up a whole laundry list of possible ways to articulate the key\ndistinction. He talks about ordinariness, nature, expectations, accident, and immediacy. Which of\nthese rationales, if any, explains the location of the line as the Ryan court sees it?\n\n2. An insurance explanation? One explanation articulated in the Ryan decision for cutting\noff liability is that even if none of these doctrinal formulations hold, the plaintiff could have\ninsured his property against fire. The defendant, by contrast, could not take out a policy on the\nplaintiff\xe2\x80\x99s property because in 1866 liability insurance was unavailable on the theory that it was\nagainst public policy. For a long time, liability insurance had been thought to create dangerous\nincentives for careless conduct. Some say it still does! Yet not long after Ryan was decided, the\nlaw in most states began to permit liability insurance. Today, it is pervasive.\nToday, the law permits people and firms to purchase liability insurance protecting the\npolicy-holder\xe2\x80\x99s interest in insuring against tort damages judgments. Sometimes, as in automobile\ninsurance regulations, the law now requires liability insurance. If you have owned a car, you have\nalmost certainly bought a liability insurance policy yourself. Some of you will have bought\nliability insurance as part of an apartment renter\xe2\x80\x99s insurance policy, or perhaps a homeowners\xe2\x80\x99\npolicy.\nIf liability insurance had been widespread in 1866, would Ryan have come out the other\nway?\nNote that today, Ryan is almost certainly not a good statement of the law: Courts today\nvirtually always draw the line between proximate injuries and remote ones more broadly than\nJudge Hunt did. Although never explicitly overruled, Ryan was soon distinguished into oblivion.\nIn 1872, the New York Court of Appeals held that there was proximate cause where a railroad\nnegligently started a fire that spread from its own property to the property of others. Webb v.\nRome, W. & O. R. Co., 49 N.Y. 420, 428 (1872) (\xe2\x80\x9cWe are not to be controlled by the authority\n[Ryan] more than we are by that of the long line of cases which preceded it . . .\xe2\x80\x9d). Later\ninterpretations of these two contrary cases in subsequent railroad fire cases have landed firmly on\n336\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nthe side of Webb, not Ryan. E.g., Frace v. New York, L. E. & W. R. Co., 143 N.Y. 182, 189 (1894)\n(\xe2\x80\x9cThe Ryan case should not be extended beyond the precise facts which appear therein. Even if\ncorrectly applied in that case, the principle ought not to be applied to other facts. See Webb v.\nRailroad Co. . . .\xe2\x80\x9d).\nOne further puzzle to consider in conjunction with Ryan is this: If plaintiffs have property\ninsurance against fire damages, and if defendants have liability insurance against tort damages,\nwho ought to pay for damages that could be covered by both? Should tort law be involved at all\nonce there is first-party property insurance? Tort liability in such cases essentially becomes a\nbattle between or among insurers over which insurer will register the loss. At the extreme, in a\nfully insured world, we could imagine tort law becoming a field exclusively occupied by insurers\nduking it out over whose bottom line takes a hit when losses from fire spread through a town like\nSyracuse. We will take up this insurance question at greater length in Chapter 10 when we look at\nthe law of damages in torts. For now, suffice it to say that the relevant doctrines here are: (a) the\nso-called \xe2\x80\x9ccollateral source rule,\xe2\x80\x9d which holds that the damages owed by a tortfeasor to a plaintiff\nare not affected by compensation received by that plaintiff from a third (or \xe2\x80\x9ccollateral\xe2\x80\x9d) source,\nand (b) the doctrine of subrogation, which allows an insurer to step into the shoes of its insured\nand prosecute a tort claim against a defendant who breached a duty to the insurer\xe2\x80\x99s insured. Does\nit make sense to allow tort suits under these conditions? What if it means that tort law\xe2\x80\x99s\nadministrative expenses are spent on battles among insurers?\n3. PG&E and the New Fire Cases. In November 2018, the deadliest wildfire in California\xe2\x80\x99s\nhistory, the \xe2\x80\x9cCamp Fire,\xe2\x80\x9d killed eighty-six people and destroyed approximately fourteen thousand\nbuildings. Lawsuits currently proceeding against utility company Pacific Gas and Electric\n(PG&E) identify PG&E power lines as the origin of the fire. PG&E, facing the possibility of\nbillions of dollars in liability, filed for bankruptcy in January 2019. See Ariel Cohen, Part I:\nPG&E Gets Burned for California Wildfires, Forbes (Feb. 7, 2019). If California operated under\nthe Ryan rule, the issue of proximate causation would prevent such extended liability. California\ncourts, however, have expressly declined to follow the decision in Ryan, leaving it to the jury to\ndraw the line for proximate causation on a case-by-case basis. See Butcher v. Vaca Val. R. Co., 8\nP. 174, 175 (Cal. 1885) (quoting Henry v. S. Pac. R. Co., 50 Cal. 176, 183 (1875))\n(\xe2\x80\x9c[C]onsidering the long dry season of California and the prevalence of certain winds in our\nvalleys, . . . it may be left to a jury to determine whether the spreading of a fire from one field to\nanother is not the natural, direct, or proximate consequence of the original firing.\xe2\x80\x9d).\nNote that it is possible PG&E will be held liable for the wildfire even if it was not\nnegligent due to California\xe2\x80\x99s \xe2\x80\x9cinverse condemnation\xe2\x80\x9d theory. Under the inverse condemnation\ntheory, a privately-owned public utility company may be held strictly liable for wildfire injuries\ncaused by its power lines, essentially on the grounds that such injuries are a kind of taking by an\nofficial body for which just compensation is required. See, e.g., Barham v. S. Cal. Edison Co., 88\nCal. Rptr. 2d 424 (Ct. App. 1999). This is true regardless of whether the injury was foreseeable,\nso long as it constitutes an \xe2\x80\x9cactual physical injury to real property proximately caused by [a\npublic] improvement as deliberately designed and constructed.\xe2\x80\x9d Id. at 429 (quoting Albers v. Los\nAngeles Cty., 398 P.2d 129 (Cal. 1965) (en banc)). Note that the court in this sentence seems to\nsuggesting that there could be unforeseeable injuries that are nonetheless proximately caused.\nInverse condemnation principles might not be needed for PG&E to be held liable in this\ncase. It seems likely that PG&E could have foreseen a devastating fire caused by its power lines\n337\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\ngiven its role in five out of ten of California\xe2\x80\x99s most destructive fires since 2015. Commentators\nhave suggested moreover that PG&E may have had a lax attitude toward fire safety in comparison\nwith other public utility companies such as San Diego Gas & Electric. See Ivan Penn et al., How\nPG&E Ignored Fire Risks in Favor of Profits, N.Y. TIMES, Mar. 18, 2019. Non-compliance with\nstatutes regulating the amount of space between vegetation and powerlines could also provide\nevidence of negligence. See, e.g., CAL. PUB. RES. CODE \xc2\xa7 4292 (requiring the removal of tree\nlimbs within a ten-foot radius of a utility pole); Id. \xc2\xa7 4293 (requiring a different radius of\nclearance depending on the voltage running through the power lines).\nMeanwhile, PG&E\xe2\x80\x99s liability is expected to increase the price of electricity for consumers\nand hamper the long-term climate change agenda of California by reducing PG&E investments in\ncleaner energy. See Sammy Roth, PG&E Files for Bankruptcy: Here\xe2\x80\x99s Why that Could Mean\nBigger Electricity Bills, L.A. TIMES, Jan. 29, 2019. Bankruptcy proceedings may also reduce the\nrecovery of plaintiffs as they compete with other creditors for PG&E\xe2\x80\x99s assets.\nNeedless to say, the law has come a long way since Ryan cut off liability at the first house.\nNonetheless, Ryan still stands for the proposition that in some cases, negligence and causation-infact will not be enough to justify liability. The next case offers another, quite different example of\nthis general point.\n\nBerry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899)\nThe plaintiff was a motorman in the employ of the Wilkesbarre & Wyoming Valley\nTraction Company, on its line running from Wilkesbarre to the borough of Sugar Notch. The\nordinance by virtue of which the company was permitted to lay its track and operate its cars in the\nborough of Sugar Notch contained a provision that the speed of the cars while on the streets of the\nborough should not exceed eight miles an hour. On the line of the road, and within the borough\nlimits, there was a large chestnut tree, as to the condition of which there was some dispute at the\ntrial. . . . On the day of the accident the plaintiff was running his car on the borough street in a\nviolent windstorm, and as he passed under the tree it was blown down, crushing the roof of the\ncar, and causing the plaintiff\xe2\x80\x99s injury. There is some conflict of testimony as to the speed at\nwhich the car was running, but it seems to be fairly well established that it was considerably in\nexcess of the rate permitted by the borough ordinance. We do not think that the fact that the\nplaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to\nrecover. It may be that in doing so he violated the ordinance by virtue of which the company was\npermitted to operate its cars in the streets of the borough, but he certainly was not, for that reason,\nwithout rights upon the streets. Nor can it be said that the speed was the cause of the accident, or\ncontributed to it. It might have been otherwise if the tree had fallen before the car reached it, for\nin that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a\ncollision which he either foresaw or should have foreseen. . . . The testimony, however, shows\nthat the tree fell upon the car as it passed beneath. With this phase of the case in view, it was\nurged on behalf of the appellant that the speed was the immediate cause of the plaintiff\xe2\x80\x99s injury,\ninasmuch as it was the particular speed at which he was running which brought the car to the\nplace of the accident at the moment when the tree blew down. This argument, while we cannot\ndeny its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed\nbrought him to the place of the accident at the moment of the accident was the merest chance, and\na thing which no foresight could have predicted. . . .\n338\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe judgment is affirmed.\n\nNote\n\n1. What principle does Berry v. Borough of Sugar Notch stand for? Guido Calabresi calls it\nthe principle of \xe2\x80\x9ccausal link\xe2\x80\x9d: negligent conduct is only linked to the harm at issue in the relevant\nway, Calabresi argues, if it increases the risk of that harm. Tort actions, in other words, do not lie\nin cases of pure coincidence.\n\nB. Unexpected Harm\nBenn v. Thomas, 512 N.W.2d 537 (Iowa 1994)\nOn February 15, 1989, on an icy road in Missouri, a semi-tractor and trailer rear-ended a\nvan in which Loras J. Benn was a passenger. In the accident, Loras suffered a bruised chest and a\nfractured ankle. Six days later he died of a heart attack. . . .\nAt trial, the estate\xe2\x80\x99s medical expert, Dr. James E. Davia, testified that Loras had a history\nof coronary disease and insulin-dependent diabetes. Loras had a heart attack in 1985 and was at\nrisk of having another. Dr. Davia testified that he viewed \xe2\x80\x9cthe accident that [Loras] was in and\nthe attendant problems that it cause[d] in the body as the straw that broke the camel\xe2\x80\x99s back\xe2\x80\x9d and\nthe cause of Loras\xe2\x80\x99s death. Other medical evidence indicated the accident did not cause his death.\nBased on Dr. Davia\xe2\x80\x99s testimony, the estate requested an instruction to the jury based on\nthe \xe2\x80\x9ceggshell plaintiff\xe2\x80\x9d rule, which requires the defendant to take his plaintiff as he finds him,\neven if that means that the defendant must compensate the plaintiff for harm an ordinary person\nwould not have suffered. . . . The district court denied this request.\nThe jury returned a verdict for the estate in the amount of $17,000 for Loras\xe2\x80\x99s injuries but\nnothing for his death. In the special verdict, the jury determined the defendant\xe2\x80\x99s negligence in\nconnection with the accident did not proximately cause Loras\xe2\x80\x99s death. . . .\nThe estate claims that the court erred in failing to include, in addition to its proximate\ncause instruction to the jury, a requested instruction on the eggshell plaintiff rule. Such an\ninstruction would advise the jury that it could find that the accident aggravated Loras\xe2\x80\x99s heart\ncondition and caused his fatal heart attack. . . .\nA tortfeasor whose act, superimposed upon a prior latent condition, results in an injury\nmay be liable in damages for the full disability. . . . This rule deems the injury, and not the\ndormant condition, the proximate cause of the plaintiff\xe2\x80\x99s harm. . . . This precept is often referred\nto as the \xe2\x80\x9ceggshell plaintiff\xe2\x80\x9d rule, which has its roots in cases such as Dulieu v. White & Sons,\n[1901] 2 K.B. 669, 679, where the court observed:\nIf a man is negligently run over or otherwise negligently injured in his body, it is no\nanswer to the sufferer\xe2\x80\x99s claim for damages that he would have suffered less injury,\n339\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nor no injury at all, if he had not had an unusually thin skull or an unusually weak\nheart.\n...\nThe eggshell plaintiff rule rejects the limit of foreseeability that courts ordinarily require\nin the determination of proximate cause. PROSSER & KEETON \xc2\xa7 43, at 291 (\xe2\x80\x9cThe defendant is held\nliable for unusual results of personal injuries which are regarded as unforeseeable. . . .\xe2\x80\x9d). Once\nthe plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes\nliability for the full extent of those injuries, not merely those that were foreseeable to the\ndefendant. RESTATEMENT (SECOND) OF TORTS \xc2\xa7 461 (1965) (\xe2\x80\x9cThe negligent actor is subject to\nliability for harm to another although a physical condition of the other . . . makes the injury\ngreater than that which the actor as a reasonable man should have foreseen as a probable result of\nhis conduct.\xe2\x80\x9d).\n[The court reversed the judgment of the trial court and remanded the case for a new trial.]\n\nNotes\n\n1. Eggshell skulls. Why not treat Mr. Benn like the plaintiff in Ryan? There are strong\narguments for doing so. Among other things, note that the so-called \xe2\x80\x9ceggshell plaintiff\xe2\x80\x9d rule,\nwhich holds that the defendant takes the plaintiff as she finds him, means that unforeseeably\nvaluable limbs or lives will produce unexpectedly large damages. Driving negligently in such a\nway as to break tennis champion Venus Williams\xe2\x80\x99s right arm, or to injure one of virtuoso cellist\nYo Yo Ma\xe2\x80\x99s hands, for example, will produce far greater damages than, say, running into law\nprofessor John Witt\xe2\x80\x99s shoulder. But the rule of Benn v. Thomas holds the defendant liable for the\ndamages to the plaintiff the defendant happens to find\xe2\x8e\xafeven if there was no notice of the special\nrisks in question. Should people with special vulnerabilities be required to insure themselves\nagainst losses\xe2\x8e\xafor perhaps to take special precautions against those losses? Should it matter if the\nunusual vulnerability is the result of an unusually valuable asset (Williams\xe2\x80\x99s arm, Ma\xe2\x80\x99s hand, etc.)\nas opposed to an unusual liability like an eggshell skull?\nArguments in favor of the eggshell plaintiff rule do exist. Consider what would happen if\nthe law put the burden of unexpected harm on plaintiffs like Mr. Benn, rather than on defendants\nlike Thomas. What would the measure of damages be? Note that the risk of unexpectedly high\ndamages in eggshell skull plaintiff cases is matched by opportunities for unexpectedly low\ndamages when defendants turn out to be unforeseeably robust or when their damages turn out, for\nwhatever reason, to be unusually low.\n\n2. Whence the vulnerability? Does it make a difference whether Mr. Benn had an underlying\nheart condition because of a congenital defect, because of poor health habits of his own, or\nbecause of prior conduct by a third party? What about prior negligent conduct by a third party?\n\n340\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\n3. The bounds of eggshell liability. How far in time does the eggshell skull plaintiff rule\nextend? In Hannebaum v. Direnzo & Bomier, a woman slipped and fell in the defendant\xe2\x80\x99s\nbuilding. Four years later, she was diagnosed with multiple sclerosis and sued the defendant\nclaiming that her fall was a precipitating factor of the M.S. The court held that the defendants\nwere entitled to argue to the jury that the plaintiff would have acquired multiple sclerosis even in\nthe absence of the fall, but that the plaintiff was also entitled to argue to the jury that that the fall\nprecipitated the onset of the disease. Hannebaum v. Direnzo & Bomier, 162 Wis. 2d 488, 493 (Ct.\nApp. 1991). Is there a time lag so large that such cases should not go to the jury? Is it four years,\nfourteen years, or forty years?\n\n4. Eggshell property? Should the eggshell rule apply to property damage as well as personal\ninjury cases? On the one hand, the logic of the personal injury cases plausibly translates to cases\nof property damage. Just as defendants get the benefit of unforeseeably sturdy properties, we\nmight conclude that they ought to be required to pay full damages for unforeseeably delicate\nproperties. On the other hand, the eggshell rule sometimes shifts costs away from lowest cost\navoiders. This is true for personal injury cases, too, but in general prospective plaintiffs may be\nbetter able to cure underlying vulnerabilities in their property than in their bodies. Moreover,\nproperty liability is unbounded in a way that liability for personal injury is not. Damages for\ndestruction of, say, the tower at One World Trade Center because of some structural vulnerability\nwould produce damages in the billions. (It cost $4 billion to build.)\nWhatever the merits of the question, the eggshell plaintiff rule has been held to apply not\nonly to bodies but also to property. The Third Restatement provides that \xe2\x80\x9cWhen harm to property\nis of a greater magnitude or different type than might be expected because of a characteristic of\nthe property, the harm is within the scope of the actor\xe2\x80\x99s liability.\xe2\x80\x9d RESTATEMENT (THIRD) OF\nTORTS: LIAB. FOR PHYS. AND EMOT. HARM, \xc2\xa7 31 cmt. d (2010). One case illustrating this principle\ninvolved a defendant who drove his car into the plaintiff\xe2\x80\x99s motel and, in so doing, dented an air\nconditioning unit in such a way as to cause a gas leak and ultimately an explosion. The court held\nthe defendant liable for all damages resulting from the building\xe2\x80\x99s having exploded and invoked\nthe eggshell plaintiff rule in its explanation. Colonial Inn Motor Lodge, Inc. v. Gay, 680 N.E.2d\n407, 416 (Ill. App. Ct. 1997) (\xe2\x80\x9c[T]he evidence suggests that a building rather than a person may\nhave had an \xe2\x80\x98eggshell skull.\xe2\x80\x99\xe2\x80\x9d). The Supreme Court of New South Wales in Australia similarly\napplies the eggshell rule to property, holding \xe2\x80\x9cthere is no justification\xe2\x80\x9d for distinguishing between\npersonal injury and property damage and any such distinction would generate \xe2\x80\x9cimmense practical\ndifficulty.\xe2\x80\x9d McColl v Dionisatos, [2002] NSWSC 276.\nApplying the eggshell plaintiff rule to property opens up the prospect of radically\nunforeseeable damages. Note that this problem will often be ameliorated by findings of\ncomparative or contributory negligence. Any skyscraper that collapses because of a negligently\ndented air conditioner is likely to have been negligently maintained or constructed. At least one\ncommentator suggests that the thin skull rule does not apply to damage to property in part because\nit tends to conflict with the doctrine of foreseeability. See P. J. Rowe, Demise of the Thin Skull\nRule, 40 MODERN L. REV. 377, 381-82 (1977). The substantial weight of the authority is to the\ncontrary, but one wonders. We\xe2\x80\x99ll return to this question below in our discussion of the opinions\nin The Wagon Mound Cases.\nIs the next case simply an eggshell property case?\n341\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nIn re Polemis, 3. K.B. 560 (1921)\n[Plaintiffs, the owners of a ship, chartered a ship to defendants, the charterers, by contract.\nThe contract stated that the charterers would not be liable for damages caused by \xe2\x80\x9c[an] act of God,\nthe King\xe2\x80\x99s enemies, [or] loss or damage from fire on board in hulk of craft, or on shore . . . .\xe2\x80\x9d\nUnder the control of the charterers, the ship docked in Casablanca and was unloaded by local\nstevedores. The ship was carrying large quantities of petrol and benzene in the lower hold. As\nstevedores were unloading the ship, one stevedore accidentally dropped a plank into the hold.\nThe plank struck the hold and created a spark, which in turn ignited the petrol and benzene, and\nset the ship ablaze. Plaintiffs sued the defendants for the value of the vessel. After arbitration,\nwhere the plaintiffs prevailed, a lower court upheld the arbitration award. Defendants appealed.]\nBANKES, L.J.\nIn the present case the arbitrators have found as a fact that the falling of the plank was due\nto the negligence of the defendants\xe2\x80\x99 servants. The fire appears to me to have been directly caused\nby the falling of the plank. Under these circumstances I consider that it is immaterial that the\ncausing of the spark by the falling of the plank could not have been reasonably anticipated. The\nappellants\xe2\x80\x99 junior counsel sought to draw a distinction between the anticipation of the extent of\ndamage resulting from a negligent act, and the anticipation of the type of damage resulting from\nsuch an act. He admitted that it could not lie in the mouth of a person whose negligent act had\ncaused damage to say that he could not reasonably have foreseen the extent of the damage, but he\ncontended that the negligent person was entitled to rely upon the fact that he could not reasonably\nhave anticipated the type of damage which resulted from his negligent act. I do not think that the\ndistinction can be admitted. Given the breach of duty which constitutes the negligence, and given\nthe damage as a direct result of that negligence, the anticipations of the person whose negligent\nact has produced the damage appear to me to be irrelevant. I consider that the damages claimed\nare not too remote.\nThe other point relied upon by the appellants was that the damage having been caused by\nfire they were protected by clause 21 of the charterparty [governing loss by fire]. To this it was\nreplied that the clause had no application in the case of a fire caused by the negligence of the\ncharterers\xe2\x80\x99 servants. I see no reason why a different rule of construction of this exception\ncontained in the charterparty should be adopted in the case of the charterer than would\nundoubtedly be adopted in the case of the shipowner. In the case of the latter clear words would\nbe required excluding negligence. No such words are found in this clause. Neither shipowner nor\ncharterer can, in my opinion, under this clause claim to be protected against the consequences of\nhis own negligence.\nFor these reasons I think that the appeal fails, and must be dismissed with costs.\nWARRINGTON, L.J.\n[I]t is contended that \xe2\x80\x9ca person guilty of negligence is not responsible in respect of\nmischief which could by no possibility have been foreseen and which no reasonable person would\nhave anticipated.\xe2\x80\x9d . . .\nThe result may be summarised as follows: The presence or absence of reasonable\nanticipation of damage determines the legal quality of the act as negligent or innocent. If it be\n342\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nthus determined to be negligent, then the question whether particular damages are recoverable\ndepends only on the answer to the question whether they are the direct consequence of the act. . . .\n[B]ut when it has been once determined that there is evidence of negligence, the person guilty of it\nis equally liable for its consequences, whether he could have foreseen them or not.\xe2\x80\x9d . . . In the\npresent case it is clear that the act causing the plank to fall was in law a negligent act, because\nsome damage to the ship might reasonably be anticipated. If this is so then the appellants are\nliable for the actual loss, that being on the findings of the arbitrators the direct result of the falling\nboard. . . . On the whole in my opinion the appeal fails and must be dismissed with costs.\nSCRUTTON, L.J.\n. . . I cannot think it useful to say the damage must be the natural and probable result.\nThis suggests that there are results which are natural but not probable, and other results which are\nprobable but not natural. I am not sure what either adjective means in this connection; if they\nmean the same thing, two need not be used; if they mean different things, the difference between\nthem should be defined. . . . In this case, however, the problem is simpler. To determine whether\nan act is negligent, it is relevant to determine whether any reasonable person would foresee that\nthe act would cause damage; if he would not, the act is not negligent. But if the act would or\nmight probably cause damage, the fact that the damage it in fact causes is not the exact kind of\ndamage one would expect is immaterial, so long as the damage is in fact directly traceable to the\nnegligent act, and not due to the operation of independent causes having no connection with the\nnegligent act, except that they could not avoid its results. . . . In the present case it was negligent\nin discharging cargo to knock down the planks of the temporary staging, for they might easily\ncause some damage either to workmen, or cargo, or the ship. The fact that they did directly\nproduce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does\nnot relieve the person who was negligent from the damage which his negligent act directly caused.\nFor these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to\na correct decision, and the appeal must be dismissed with costs.\n\nNotes\n\n1. Directness? All three judges agree that the foreseeability of harm affects only the\nassessment of negligence, not whether the defendant is liable for the full extent of damages\xe2\x80\x94at\nleast of damages that are \xe2\x80\x9cdirect\xe2\x80\x9d consequences.\nDoes this \xe2\x80\x9cdirectness\xe2\x80\x9d language actually clarify the standard? We can add directness to\nthe list of formulations offered in the Ryan case. Does it help clarify matters in Scott v. Shepherd\na hundred and fifty years earlier?\n\n2. Unexpected types? What about the suggestion of appellant\xe2\x80\x99s junior counsel? The\nargument, as recounted and then rejected in the opinion, was that when the damages are of a\ndifferent type than might reasonably have been expected, such damages are remote. Is this a\nsound distinction?\n\n343\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe Wagon Mound Cases\nThe Polemis rule soon ran aground off the coast of Australia in the Wagon Mound Cases.\nThese were two independent lawsuits arising out of the same incident in a port near Sydney,\nAustralia. The incident began when a ship, the Wagon Mound, took on furnace oil as cargo in\nMort Bay. One of the hatches to the Wagon Mound\xe2\x80\x99s tank was left open as the tank was filling\nwith furnace oil, causing oil to spill out of the ship and float on the surface of Mort Bay. After\ntaking on the furnace oil, the Wagon Mound left the bay. At the same time in another part of the\nbay, two other ships, the Corrimal and the Audrey D., were being refitted by Mort\xe2\x80\x99s Dock and\nEngineering Company. The refitting involved significant welding by the Mort\xe2\x80\x99s Dock engineers.\nUpon seeing the spill, the works manager of Mort\xe2\x80\x99s Dock, Mr. Parkin, telephoned an agent of the\nWagon Mound, Mr. Durack. Mr. Durack assured Mr. Parkin that normal work could safely\ncontinue. Two and a half days later, the welding work ignited the oil, causing a large fire. The\nfire damaged the Mort Dock and both ships being refitted. In Wagon Mound (No. 1), Mort\xe2\x80\x99s\nDock sued the Wagon Mound for damage to the dock. In Wagon Mound (No. 2), the owners of\nthe Corrimal and the Audrey D. sued the Wagon Mound for damage to their ships.\n\nWagon Mound (No. 1)\nOverseas Tankship (U.K.) Ltd. v. Morts Dock & Eng. Co., [1961] A.C. 454\n[Plaintiff brings suit for damage to the dock caused by a fire from the ignition of oil\nnegligently discharged by Defendant\xe2\x80\x99s ship, the Wagon Mound. Plaintiff prevailed at trial, and\nDefendants appealed.]\n[The lower court judge] made the all important finding, which must be set out in his own\nwords. \xe2\x80\x9cThe raison d\xe2\x80\x99\xc3\xaatre of furnace oil is, of course, that it shall burn, but I find the defendant\ndid not know and could not reasonably be expected to have known that it was capable of being set\nafire when spread on water.\xe2\x80\x9d . . .\nThe learned Judge held that apart from damage by fire the respondents had suffered some\ndamage from the spillage of oil in that it had got upon their slipways and congealed upon them\nand interfered with their use of the slips. He said \xe2\x80\x9cThe evidence of this damage is slight and no\nclaim for compensation is made in respect of it. Nevertheless it does establish some damage\nwhich may be insignificant in comparison with the magnitude of the damage by fire, but which\nnevertheless is damage which beyond question was a direct result of the escape of the oil.\xe2\x80\x9d It is\nupon this footing that their Lordships will consider the question whether the appellants are liable\nfor the fire damage.\n. . . It is inevitable that first consideration should be given to the case of In re Polemis . . .\n. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that\nfollowed it that [lower court] was constrained to decide the present case in favour of the\nrespondents. . . .\nThere can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts\nthat, if the defendant is guilty of negligence, he is responsible for all the consequences whether\nreasonably foreseeable or not. The generality of the proposition is perhaps qualified by the fact\nthat each of the Lords Justices refers to the outbreak of fire as the direct result of the negligent act.\n344\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThere is thus introduced the conception that the negligent actor is not responsible for\nconsequences which are not \xe2\x80\x9cdirect\xe2\x80\x9d whatever that may mean. . . .\n[A review of the subsequent history of the Polemis rule shows that the] authority of\nPolemis has been severely shaken though lip-service has from time to time been paid to it. In\ntheir Lordships\xe2\x80\x99 opinion it should no longer be regarded as good law. . . . For it does not seem\nconsonant with current ideas of justice or morality that for an act of negligence, however slight or\nvenial, which results in some trivial foreseeable damage the actor should be liable for all\nconsequences however unforeseeable and however grave, so long as they can be said to be\n\xe2\x80\x9cdirect.\xe2\x80\x9d It is a principle of civil liability, subject only to qualifications which have no present\nrelevance, that a man must be considered to be responsible for the probable consequences of his\nact. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order\nrequires the observance of a minimum standard of behaviour. . . .\nAfter the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight\nof the reasonable man which alone can determine responsibility. The Polemis rule by substituting\n\xe2\x80\x9cdirect\xe2\x80\x9d for \xe2\x80\x9creasonably foreseeable\xe2\x80\x9d consequence leads to a conclusion equally illogical and\nunjust. . . .\n[I]f it would be wrong that a man should be held liable for damage unpredictable by a\nreasonable man because it was \xe2\x80\x9cdirect\xe2\x80\x9d or \xe2\x80\x9cnatural,\xe2\x80\x9d equally it would be wrong that he should\nescape liability, however \xe2\x80\x9cindirect\xe2\x80\x9d the damage, if he foresaw or could reasonably foresee the\nintervening events which led to its being done. Thus foreseeability becomes the effective test. In\nreasserting this principle their Lordships conceive that they do not depart from, but follow and\ndevelop, the law of negligence . . . .\nTheir Lordships will humbly advise Her Majesty that this appeal should be allowed and\nthe respondents\xe2\x80\x99 action so far as it related to damage caused by the negligence of the appellants be\ndismissed with costs . . .\n\nWagon Mound (No. 2)\nOverseas Tankship (U.K.) Ltd. v. Miller Steamship Co., [1966] 1 A.C. 617\n[Plaintiff, owner of vessels undergoing repair in the Mort Bay, brings suit against\nDefendant, owner of the Wagon Mound, for damage caused to vessels in the same fire at issue in\nWagon Mound No. 1. The lower court found that Defendant was not liable under negligence\nclaims, but was liable under nuisance claims. Defendants appealed.]\nIn The Wagon Mound (No. 1) the finding on which the Board proceeded was that of the\ntrial judge: \xe2\x80\x9cthe defendant did not know and could not reasonably be expected to have known that\n[the oil] was capable of being set afire when spread on water.\xe2\x80\x9d In the present case the evidence\nled was substantially different from the evidence led in The Wagon Mound (No. 1) and the\nfindings of Walsh J. are significantly different. That is not due to there having been any failure by\nthe plaintiffs in The Wagon Mound (No. 1) in preparing and presenting their case. The plaintiffs\nthere were no doubt embarrassed by a difficulty which does not affect the present plaintiffs. The\noutbreak of the fire was consequent on the act of the manager of the plaintiffs in The Wagon\nMound (No. 1) in resuming oxy-acetylene welding and cutting while the wharf was surrounded by\nthis oil. So if the plaintiffs in the former case had set out to prove that it was foreseeable by the\n345\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nengineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in\nparrying the reply that this must also have been foreseeable by their manager. Then there would\nhave been contributory negligence and at that time contributory negligence was a complete\ndefence in New South Wales. . . .\n[H]ere the findings show that some risk of fire would have been present to the mind of a\nreasonable man in the shoes of the ship\xe2\x80\x99s chief engineer. . . .\n[A] properly qualified and alert chief engineer would have realised there was a real risk\nhere . . . . If a real risk is one which would occur to the mind of a reasonable man in the position\nof the defendant\xe2\x80\x99s servant and which he would not brush aside as far-fetched, and if the criterion\nis to be what that reasonable man would have done in the circumstances, then surely he would not\nneglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and\nrequired no expense.\nIn the present case the evidence shows that the discharge of so much oil onto the water\nmust have taken a considerable time, and a vigilant ship\xe2\x80\x99s engineer would have noticed the\ndischarge at an early stage. The findings show that he ought to have known that it is possible to\nignite this kind of oil on water, and that the ship\xe2\x80\x99s engineer probably ought to have known that\nthis had in fact happened before. . . .\nAccordingly, their Lordships will humbly advise Her Majesty that the appeal and the\ncross-appeal should be allowed and that the judgment for the respondents in the sums of \xc2\xa380,000\nand \xc2\xa31,000 should be affirmed.\n\nNotes\n1. Foreseeability? The Wagon Mound Cases adds \xe2\x80\x9cforeseeability\xe2\x80\x9d as an alternative\ndoctrinal formula in our now quickly growing catalog of doctrinal formulations for the proximate\ncause inquiry. Does foreseeability compare favorably with the directness test of Polemis? Does it\nclarify the doctrine? The fact that the lower courts in the Wagon Mound Cases disagree on the\nreasonable foreseeability of the fire is not promising.\nOne problem is that the foreseeability standard does not specify anything about the level\nof generality at which the foreseeability inquiry is to be pitched. If the question is pitched\nabstractly as whether harm to the vessel in the Polemis case, for example, is a reasonably\nforeseeable result of the dropping of the board into the hull, the answer is obviously yes. But if\nthe question is more particular\xe2\x80\x94if instead we ask whether the destruction by fire of the vessel is a\nreasonably foreseeable result of dropping the board into the hull\xe2\x80\x94the answer may be no. The\nentire foreseeability inquiry turns on the level of generality of the analysis.\nStunningly, there is very little law on the question of the appropriate level of generality. It\nis commonly said that the particularities of the harm in question need not be reasonably\nforeseeable; nor does the law require that the particular manner in which it came about be\nreasonably foreseeable. See, e.g., Kirlin v. Halerson, 758 N.W.2d 436, 451 (S.D. 2008) (\xe2\x80\x9c[T]he\nexact harm need not be foreseeable. Rather, the harm need only be within the class of reasonably\nforeseeable hazards that the duty exists to prevent.\xe2\x80\x9d). Thus, in California \xe2\x80\x9cit is settled that what is\n346\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nrequired to be foreseeable is the general character of the event or harm\xe2\x80\x94e.g., being struck by a\ncar while standing in a phone booth\xe2\x80\x94not its precise nature or manner of occurrence.\xe2\x80\x9d Bigbee v.\nPacific Tel. & Telegraph Co., 665 P.2d 947, 952 (Cal. 1983). But courts dismissing tort claims\nfor lack of foreseeability often seem to characterize the inquiry in much more particularized\nfashion. Thus, for example, in Mussivand v. David, 544 N.E.2d 265, 272 (Ohio 1989), the Ohio\nSupreme Court explained that foreseeability in that case turned on whether it was reasonably\nforeseeable to the defendant paramour not that his venereal disease might cause harm to another,\nnor even that his lover might pass on the defendant\xe2\x80\x99s undisclosed venereal disease to a third party,\nbut that she might pass on the disease to her spouse in particular. In California, the state Supreme\nCourt has suggested that even though foreseeability need only be general, foreseeability in the\nproximate causation inquiry nonetheless requires a \xe2\x80\x9cfocused, fact-specific inquiry.\xe2\x80\x9d Ballard v.\nUribe, 715 P.2d 624, 628 n.6 (Cal., 1986). In Laabs v. S. Cal. Edison Co., 97 Cal. Rptr. 3d 241,\n251 (Ct. App. 2009), the California Court of Appeal conceded that the foreseeability inquiry\nought to take place at some sort of a general level, but concluded nonetheless that the question\nbefore it was whether it was reasonably foreseeable to the defendant when it erected its roadside\ntelephone pole that vehicles might leave \xe2\x80\x9ca roadway where vehicle speeds commonly reach 62\nmiles per hour or more and strik[e] a fixed concrete light pole placed 18 inches away from the\ncurb.\xe2\x80\x9d\nOn the oscillation in levels of generality in the caselaw, see generally Jonathan Cardi, The\nHidden Legacy of Palsgraf: Modern Duty Law in Microcosm, 91 B.U. L. REV. 1873, 1885-86\n(2011).\n\n2. Functional considerations. One of the puzzles of the two Wagon Mound cases is to figure\nout why the trial courts came to different conclusions about the foreseeability of fire from the\nfurnace oil on the water.\nFormer dean of the University of Chicago Law School and torts scholar Saul Levmore\nattempts to resolve the tension between the two Wagon Mound cases by looking at pragmatic\nreasons to treat the cases differently:\n[T]he first Wagon Mound case concerns a plaintiff that is contributorily negligent\n[at a time before courts in Australia recognized comparative negligence]\xe2\x8e\xafbut also\na defendant that is posed to escape the scene with no liability at all. In such a\nsituation, the moral might be, clever courts will nevertheless allow contributory\nnegligence to apply so long as they see other cases on the horizon with which to\ndeter the first wrongdoer. Mort\xe2\x80\x99s Dock fails to recover because it was likely\ncareless, and the Wagon Mound is made to pay in No. 2 in order to prevent it from\ngoing completely free. But the important thing is to see that the Wagon Mound\ncases involve multiple parties, multiple losses, and very likely, an informed and\nsophisticated court that was able to make the entire story\xe2\x8e\xafspread out over multiple\ncases including one that might be filed later on\xe2\x8e\xafcome out right. Taken one at a\ntime, the cases seem inconsistent, but viewed as a whole and in the context of the\noverall goals of the tort system, the results are quite elegant.\nSaul Levmore, The Wagon Mound Cases: Foreseeability, Causation, and Mrs. Palsgraf, in TORTS\nSTORIES, 129, 146-47 (Robert L. Rabin & Stephen D. Sugarman eds., 2003).\n347\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nLevmore\xe2\x80\x99s explanation is striking for its disavowal of the significance of doctrine, at least\nin the proximate causation area. What matters, Levmore suggests, is not the verbal formulation\nadopted (direct, foreseeable, etc.) but the purposes and functions of tort liability in the particular\ncontext at issue. If the formal doctrine is not helpful in resolving cases, then do judges have any\nalternative but to rely on functional or practical considerations in making decisions? What should\nthose functional considerations be? Note that if Levmore is correct, this is an example of a\nsituation where judges made their decisions based on considerations not openly discussed in their\nopinion. Writing when he was a professor, Judge Calabresi suggested in the last chapter that this\nwas commonplace and not necessarily a bad thing. Was he right?\n\n3. Unexpected types of harm? Some cases involve harm to the plaintiff that was in some\nway different than the harm that might have been expected to be caused by the defendant\xe2\x80\x99s\nnegligence. In Doughty v. Turner Manufacturing Co., an employee was injured when an asbestos\ncement cover inadvertently slid into a cauldron of boiling sodium cyanide. The cement cover\nsunk into the cauldron, submerged, and then exploded out the cauldron due to an unexpected\nchemical reaction, shooting shards of asbestos cement across the room and injuring the plaintiff.\nThe trial judge ruled for the plaintiff on the grounds that it was negligent for the employer to let\nthe cement cover fall into the cauldron because it might have splashed the employee and that the\nemployer was liable for all the consequences of his negligent act (including the unexpected\nexplosion). The appellate court reversed, holding that splashes are in \xe2\x80\x9cquite a different category\xe2\x80\x9d\nthan the unforeseeable explosion. Doughty v. Turner Manufacturing Co., [1964] 1 Q.B. 518.\nThe courts reached a different conclusion in Hughes v. Lord Advocate. In that case,\nworkers repairing underground wires left an open manhole unattended. They covered the\nmanhole with a tent and left lighted lamps around the tent as a warning. A boy entered the tent\nand knocked one of the lamps into the hole. The lamp exploded, causing serious burns. The\ndefendant argued that it should only be held liable for the damage that might have been expected\nfrom the negligent act\xe2\x80\x94burning from the lamps, not an unforeseeable explosion. The court\ndisagreed, holding that \xe2\x80\x9cthe distinction drawn between burning and explosion is too fine to\nwarrant acceptance.\xe2\x80\x9d Hughes v. Lord Advocate, [1963] A.C. 837. Should the \xe2\x80\x9ctype\xe2\x80\x9d of harm\nmatter?\nOther cases deal with unexpected harms where the surprise comes not from a new\nchemical reaction but rather from an unexpected vulnerability of the plaintiff. In Smith v. Brain\nLeech & Co., the plaintiff was injured in a workplace accident when a fleck of molten metal hit\nhim on the lip. The injury ultimately became cancerous, likely because the plaintiff had worked\nin the gas industry for many years and was thus prone to cancer (by the court\xe2\x80\x99s reasoning). The\ndefendant argued that it should be liable only for the burn, and not the cancer, because it was not\nthe true cause of the cancer. The court held otherwise:\nThe test is not whether these employers could reasonably have foreseen that a burn\nwould cause cancer and that he would die. The question is whether these employers\ncould reasonably foresee the type of injury he suffered, namely, the burn. What, in\nthe particular case, is the amount of damage which he suffers as a result of that burn,\ndepends upon the characteristics and constitution of the victim. . . . Accordingly, I\nfind that the [full damages of the plaintiff\xe2\x80\x99s death] are damages for which the\ndefendants are liable.\n348\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nSmith v. Brain Leech & Co., [1962] Q.B. 405.\nJudge Henry Friendly reached a slightly different conclusion when faced with a similar\nvulnerable plaintiff case. In Steinhauser v. Hertz Corp., the plaintiff was injured in a car accident.\nShortly after the accident, she became schizophrenic. At trial, the expert testimony indicated that\nwhile the plaintiff had pre-psychotic tendencies before the accident, the accident was the\ntriggering event that pushed her into full-blown schizophrenia. Judge Friendly held that while the\nplaintiffs were allowed to recover based on a triggering event theory of causation, that argument\nwould in fact affect the damages they could receive. He wrote, \xe2\x80\x9cif a defendant \xe2\x80\x98succeeds in\nestablishing that the plaintiff\xe2\x80\x99s pre-existing condition was bound to worsen an appropriate\ndiscount should be made for the damages that would have been suffered even in the absence of\nthe defendant\xe2\x80\x99s negligence.\xe2\x80\x99\xe2\x80\x9d Steinhauser v. Hertz Corp., 421 F.2d 1169, 1173\xe2\x80\x9374 (2d Cir. 1970).\nIf we agree that eggshell skull plaintiffs should be able to recover, what is the appropriate\nmeasure of damages? Should courts attempt to calculate the probability that some other event\nmight have triggered the plaintiff\xe2\x80\x99s underlying vulnerability? Over what time horizon should the\ncourt run this calculation?\n\n4. Eggshell Property Revisited. Does the decision in Wagon Mound I cut against the\napplicability of the eggshell plaintiff rule to property damages? At least in cases with two\ndifferent \xe2\x80\x9ctypes\xe2\x80\x9d of property damage? One commentator thought the decision in Wagon Mound I\nmight prompt a narrower eggshell plaintiff rule:\nWhether the special sensitivity rule must be discarded since The Wagon Mound, or\nwhether it survives that decision, will have to be judicially determined. If it survives,\nwhat are its limits? Is it a rule relating only to special sensitivity of the person, or does it\nextend to special sensitivity of property? . . .\nIt seems obvious that . . . the thin skull rule must either be denied or carefully restricted.\nThe most obvious way of restricting it would be to confine it to injury to the person . . . .\nGlanville Williams, The Risk Principle,77 L. Q. REV. 179, 194-95 (1961). Note that the\nSteinhauser decision suggests that there may be limits on the eggshell plaintiff rule in personal\ninjury cases, too, at least where the injuries in question are sufficiently unusual.\n5. The \xe2\x80\x9charm within the risk\xe2\x80\x9d test. Imagine that an exterminator leaves a container of rat\npoison unlabeled near a stove. Imagine further that it was wrongful or negligent to have done so\nbecause the poison might find its way into food. Then, when the stove is lit, the container of rat\npoison explodes. Is the defendant liable for the burns suffered by the chef? See Larrimore v.\nAmerican National Ins. Co., 89 P.2d 340 (Okla. 1939). The conventional answer is no: the\nnegligence in question inhered in the risk of poisoning, not the risk of exploding.\nOne way to explain this is to say that the harm of which the plaintiff complains must be\nwithin the risk the defendant\xe2\x80\x99s wrongful conduct produced. Indeed, for a century leading jurists\nhave offered this \xe2\x80\x9charm within the risk\xe2\x80\x9d principle as a way to explain the limits of liability. See\nJoseph Bingham, Some Suggestions Concerning \xe2\x80\x9cLegal Cause\xe2\x80\x9d at Common Law (Pt. 1), 9\n349\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nCOLUM. L. REV. 16 (1909). Given the awkwardness of alternative tests such as directness and\nforeseeability, many have hoped that harm-within-the-risk might offer a substitute test for\nproximate causation. The Third Restatement asks \xe2\x80\x9cwhether there is an intuitive relationship\nbetween the act(s) alleged and the damages at issue (that is, whether the conduct was wrongful\nbecause that type of damage might result).\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS.\nAND EMOT. HARM, \xc2\xa7 29 (2010).\nNot everyone is persuaded that the harm within the risk approach is a useful alternative to\nother proximate causation tests. For example, does the harm within the risk test solve the problem\nof the choice of specificity with which to define the relevant harm and risk? Imagine that\nsomeone attempts to eat the rat poison, but chokes on it and dies of asphyxiation rather than\npoisoning. Should we characterize the risk of leaving the unlabeled poison broadly, by calling it a\nrisk of physical injury or death? Or should we define the risk narrowly, by treating it as a risk of\npoisoning? Likewise, we can characterize the harm to the plaintiff broadly as \xe2\x80\x9cphysical injury\xe2\x80\x9d or\nnarrowly as \xe2\x80\x9cchoking\xe2\x80\x9d?\nAnother difficulty with the harm within the risk test might be that it has difficulty\nexplaining some of the cases. Is the eggshell skull plaintiff rule from Benn v. Thomas\nreconcilable with the harm within the risk principle? How about the Polemis case? For criticism\nof the harm within the risk principle, see Heidi M. Hurd & Michael S. Moore, Negligence in the\nAir, 3 THEORETICAL INQ. L. 33 (2002).\n\nC. Unexpected Manner\nInjuries sometimes happen in the darndest ways, and when they do, proximate causation\nquestions often arise. A recurring problem arises when intervening actors contribute to,\naggravate, or are otherwise involved in the harm about which the plaintiff complains. Consider\nthe following classic example:\n\nBrower v. New York Cent. & H.R.R. Co., 103 A. 166, 168 (N.J. 1918)\nThis is a case of a grade crossing collision. . . . The complaint avers that the horse was\nkilled, and the wagon and harness and the cider and barrels with which the wagon was loaded\nwere destroyed. What happened was that as a result of the collision, aside from the death of the\nhorse and the destruction of the wagon, the contents of the wagon, consisting of empty barrels and\na keg of cider, were scattered, and probably stolen by people at the scene of the accident. The\ndriver, who was alone in charge for the plaintiff, was so stunned that one of the railroad detectives\nfound him immediately after the collision in a fit. There were two railroad detectives on the\nfreight train to protect the property it was carrying against thieves, but they did nothing to protect\nthe plaintiff\xe2\x80\x99s property. The controversy on the question of damages is as to the right of the\nplaintiff to recover the value of the barrels, cider, and blanket. . . . It is . . . argued that the\ndefendant\xe2\x80\x99s negligence was not in any event the proximate cause of the loss of this property, since\nthe act of the thieves intervened. The rule of law exempting the one guilty of the original\nnegligence from damage due to an intervening cause is well settled. The difficulty lies in the\napplication. . . .\n\n350\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe negligence which caused the collision resulted immediately in such a condition of the\ndriver of the wagon that he was no longer able to protect his employer\xe2\x80\x99s property; the natural and\nprobable result of his enforced abandonment of it in the street of a large city was its\ndisappearance; and the wrongdoer cannot escape making reparation for the loss caused by\ndepriving the plaintiff of the protection which the presence of the driver in his right senses would\nhave afforded. . . .\nA railroad company which found it necessary or desirable to have its freight train guarded\nby two detectives against thieves is surely chargeable with knowledge that portable property left\nwithout a guard was likely to be made off with. Again, strictly speaking, the act of the thieves did\nnot intervene between defendant\xe2\x80\x99s negligence and the plaintiff\xe2\x80\x99s loss; the two causes were to all\npractical intent simultaneous and concurrent; it is rather a case of a joint tort than an intervening\ncause. . . .\nThe judgment is affirmed, with costs.\nGARRISON, J., dissenting.\nThe collision afforded an opportunity for theft of which a thief took advantage, but I\ncannot agree that the collision was therefore the proximate cause of loss of the stolen articles.\nProximate cause imports unbroken continuity between cause and effect, which, both in law and in\nlogic, is broken by the active intervention of an independent criminal actor. This established rule\nof law is defeated if proximate cause is confounded with mere opportunity for crime. A\nmaladjusted switch may be the proximate cause of the death of a passenger who was killed by the\nderailment of the train or by the fire or collision that ensued, but it is not the proximate cause of\nthe death of a passenger who was murdered by a bandit who boarded the train because of the\nopportunity afforded by its derailment. This clear distinction is not met by saying that criminal\nintervention should be foreseen, for this implies that crime is to be presumed, and the law is\ndirectly otherwise. . . .\n\nNotes\n\n1. A rationale? What is the court\xe2\x80\x99s rationale for extending the damages to the loss of the\ncider? Does it matter that the driver was stunned?\n\n2. Bealism to the rescue? One attempt to refine or clarify the doctrine of proximate\ncausation has been to adopt formal distinctions between remote and non-remote damages. In\nPittsburg Reduction Co. v. Horton, 113 S.W. 647 (Ark. 1908), the defendant left a dynamite cap\non its unenclosed premises that one school boy, Charlie Copple (age 10), picked up and traded to\nanother school boy, the plaintiff, Jack Horton (age 13). While Horton was cleaning it, the cap\nexploded, maiming his hand so badly that doctors had to amputate the plaintiff\xe2\x80\x99s hand. The court\nfound that there was an insufficient connection between the defendant and the plaintiff because\nCharlie Copple\xe2\x80\x99s mother knew that the caps were for some kind of explosive, even if she didn\xe2\x80\x99t\nknow they contained combustible material, and nevertheless still allowed her son to carry the caps\nto school. The court reasoned that Copple\xe2\x80\x99s mother\xe2\x80\x99s conduct\n351\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nbroke the causal connection between the original negligent act of appellant and the\nsubsequent injury of the plaintiff. It established a new agency, and the possession\nof Charlie Copple of the caps or shells was thereafter referable to the permission of\nhis parents and not to the original taking. Charlie Copple\xe2\x80\x99s parents having permitted\nhim to retain possession of the caps, his further acts in regard to them must be\nattributable to their permission, and were wholly independent of the original\nnegligence of appellants.\nId. at 649. Some scholars at the time, notably Joseph Henry Beale, embraced the formalism of\ndiscrete causal connections and agencies that could be newly established or cleanly broken by the\nparties\xe2\x80\x99 actions. Beale even introduced the quasi-Newtonian language of active force and coming\nto rest to explain proximate cause:\nIf the defendant\xe2\x80\x99s active force has come to rest, but in a dangerous position, creating\na new or increasing an existing risk of loss, and the foreseen danger comes to pass,\noperating harmfully on the condition created by defendant and causing the risked\nloss, we say that the injury thereby created is a proximate consequence of the\ndefendant\xe2\x80\x99s act . . . .\nOn the other hand, where defendant\xe2\x80\x99s active force has come to rest in a position of\napparent safety, the court will follow it no longer; if some new force later combines\nwith this condition to create harm, the result is remote from the defendant\xe2\x80\x99s act.\nBeale, The Proximate Consequences of An Act, 33 HARV. L. REV. 633, 650, 651, 656 (1920).\nObjecting that Beale\xe2\x80\x99s approach was a retreat into meaningless abstractions, the legal\nrealist scholar and later judge Jerome Frank wasted no time in attacking what he pejoratively\ntermed \xe2\x80\x9cBealism.\xe2\x80\x9d The \xe2\x80\x9cBealist,\xe2\x80\x9d Frank objected,\ndematerializes the fact he purports to describe; the vagueness of his vocabulary aids\nhim to avoid recognizing contradictions and absurdities which his assertions\ninvolve. Contentless words supply \xe2\x80\x9ca stable verbal support for inexact, nebulous\nand fluctuating conceptions.\xe2\x80\x9d Such dematerialized but sonorous terms as\nUniformity, Continuity, Universality, when applied to law by the legal Absolutist,\nhave the same capacity for emotional satisfaction that terms like Oneness, Eternity,\nor The True, have when applied by the metaphysician to the Absolute.\nJEROME FRANK, LAW AND THE MODERN MIND 67 (1930). In Scott v. Shepherd, which we read in\nChapter 3, Blackstone sought to resolve the distinction between proximate and remote damages\nwith the concepts of directness and indirectness. Does Blackstone\xe2\x80\x99s effort give you confidence\nthat courts might be able to resolve questions of proximate causation with metaphysical concepts\nlike the ones Beale offers?\n\n3. All things considered judgments. The dissenter in Brower forcefully protests against\nextending the causal chain when an intervening criminal act occurs. The majority, however,\ninsists that there is no general rule for proximate cause and intervening criminal acts. Instead, in\nthe majority\xe2\x80\x99s approach, what the field of proximate causation consists of is highly contextual, all352\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nthings-considered judgments about the particular damages in question. Consider the next case,\nwhich takes up an intervening act of gross negligence:\n\nMcLaughlin v. Mine Safety Appliances Co., 181 N.E.2d 430 (N.Y. 1962)\nFOSTER, J.\nFrances Ann McLaughlin, an infant six years of age, was visiting her uncle and aunt in\nWest Deering, New Hampshire, during the Summer of 1952. While bathing in Whittemore Lake,\nshe almost drowned and was carried from the lake in an unconscious condition. The local\nlifeguard administered first aid, and the Bennington Volunteer Fire Department was summoned.\nA fire department truck arrived shortly thereafter, and two men removed a resuscitator and some\nblankets from the truck. The resuscitator was placed over the infant\xe2\x80\x99s mouth, and she was\nwrapped in blankets by a woman who identified herself as a nurse.\nMore heat was needed to revive the child, so the firemen returned to the truck and\nobtained some boxes containing \xe2\x80\x98heat blocks\xe2\x80\x99. The blocks were removed from their containers by\nthe firemen who activated them and turned them over to the nurse. The nurse proceeded to apply\nseveral of them directly to the child\xe2\x80\x99s body under the blankets. Subsequently, the child began to\nheave about and moan. At this point, the infant was taken, still wrapped in the blankets, to a\ndoctor\xe2\x80\x99s car and placed on the back seat. The heat blocks had fallen out from under the blankets.\nAfter a short stay at the doctor\xe2\x80\x99s office, the infant was taken home, and that evening blisters were\nobserved about her body. It was soon ascertained that she was suffering from third degree burns,\nand she was taken to the Peterborough Hospital where she underwent extensive treatment.\nThe \xe2\x80\x98M-S-A Redi-Heat Blocks\xe2\x80\x99, which were applied to the infant\xe2\x80\x99s body and caused the\nburns, were manufactured by Catalyst Research Corporation for defendant and packaged in\ndefendant\xe2\x80\x99s cardboard container at defendant\xe2\x80\x99s plant and were sold and distributed by defendant\nto industrial houses, government agencies and departments for use in emergency. . . . The block\nwas covered in its entirety by a red woolen insulating material called \xe2\x80\x98flocking\xe2\x80\x99 which appeared\nand felt like a \xe2\x80\x98blanket\xe2\x80\x99 or \xe2\x80\x98flannel\xe2\x80\x99 covering or just ordinary \xe2\x80\x9cwool.\xe2\x80\x9d Tests made upon the device\nindicated that the block attained a high surface temperature of 204 degrees Fahrenheit within two\nminutes after triggering. . . .\nAffixed to each block on top of the \xe2\x80\x98flocking\xe2\x80\x99 was an oval-like label containing the trade\nname of the block, and the name and design of the defendant. The blocks and two cartridges were\nsold in cardboard containers. . . . On the opposite face of the container, three small diagrams were\nprinted, demonstrating how to activate the blocks, and alongside the diagrams in small print were\nthe \xe2\x80\x98Instructions for use\xe2\x80\x99 [included]: . . . \xe2\x80\x98Wrap in insulating medium, such as pouch, towel,\nblanket or folded cloth.\xe2\x80\x99\nThe particular heat blocks involved were sold by defendant for use by the Bennington Fire\nDepartment in 1947 or 1948. At the time of the sale, defendant\xe2\x80\x99s representative demonstrated the\nproper mode of use in the Town Hall. Several firemen were present. The representative warned\neveryone that the heat block was to be covered with a towel or some other material to keep the\nblock from coming into contact with the skin.\nAmong the firemen who were present at the scene of the accident herein was Paul Traxler.\n353\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nHe testified that he had been present when defendant\xe2\x80\x99s representative demonstrated the blocks;\nthat he recalled being told not to use the blocks without further insulating them; that, furthermore,\ninstructional classes had been held as to proper use of the blocks prior to the accident; that he was\nfully aware that the blocks were to be wrapped in a towel or blanket before they were used; and\nthat he had told the \xe2\x80\x98nurse\xe2\x80\x99 at the scene to wrap up the blocks before using. Nevertheless, the\nblocks were applied directly to the infant\xe2\x80\x99s person under the blankets, while the fireman, Traxler,\nwho had activated the blocks, stood next to her and watched. The infant\xe2\x80\x99s aunt could recall no\nwarning given by the firemen to the nurse as to the danger in applying the unwrapped blocks to\nthe infant\xe2\x80\x99s body.\nThis action was commenced by the infant and her father for loss of services against the\ndefendant, the exclusive distributor of the heat blocks, upon the theory that it had failed\nadequately to warn the public of the danger involved in the use of the blocks and to properly\n\xe2\x80\x98instruct\xe2\x80\x99 ultimate users as to the \xe2\x80\x98proper application of the said blocks\xe2\x80\x99.\nAfter a jury trial in Supreme Court, Nassau County, a verdict was returned in favor of the\ninfant plaintiff, and in favor of her father. . . .\nBut the true problem presented in this case is one of proximate causation, and not one\nconcerning the general duty to warn or negligence of the distributor. . . . [A]fter the jury retired,\nthey returned and asked this question: \xe2\x80\x98Your Honor, if we, the jury, find that the M. S. A.\nCompany was negligent in not making any warning of danger on the heat block itself, but has\ngiven proper instructions in its use up to the point of an intervening circumstance (the nurse who\nwas not properly instructed), is the M. S. A. Company liable?\xe2\x80\x99\nThe trial court answered as follows:\nLadies and gentlemen of the jury, if you find from the evidence that the defendant,\nas a reasonably prudent person under all of the circumstances should have expected\nuse of the block by some person other than those to whom instruction as to its use\nhad been given, either by the wording on the container or otherwise, and that under\nthose circumstances a reasonably prudent person would have placed warning words\non the heat block itself, . . . then the defendant would be liable.\nCounsel for the defendant excepted to that statement. The jury then returned its verdict for the\nplaintiffs.\nFrom the jury\xe2\x80\x99s question, it is obvious that they were concerned with the effect of the\nfireman\xe2\x80\x99s knowledge that the blocks should have been wrapped, and his apparent failure to so\nadvise the nurse who applied the blocks in his presence. The court in answering the jury\xe2\x80\x99s\nquestion instructed, in essence, that the defendant could still be liable, even though the fireman\nhad knowledge of the need for further insulation, if it was reasonably foreseeable that the blocks,\nabsent the containers, would find their way from the firemen to unwarned third persons. . . .\nIn the case before us, the jury obviously believed that the fireman, Traxler, had actual\nknowledge of the need for further insulation, and the jury was preoccupied with the effect of his\nfailure to warn the nurse as she applied the blocks to the plaintiff\xe2\x80\x99s person. The jury also could\nhave believed that Traxler removed the blocks from the containers, thereby depriving the nurse of\nany opportunity she might have had to read the instructions printed on the containers, and that\n354\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nTraxler actually activated the blocks, turned them over, uninsulated, to the nurse for her use, and\nstood idly by as they were placed directly on the plaintiff\xe2\x80\x99s wet skin.\nUnder the circumstances, we think the court should have charged that if the fireman did so\nconduct himself, without warning the nurse, his negligence was so gross as to supersede the\nnegligence of the defendant and to insulate it from liability. . . .\nIt short, whether or not the distributor furnished ample warning on his product to third\npersons in general was not important here, if the jury believed that Traxler had actual notice of the\ndanger by virtue of his presence at demonstration classes or otherwise, and that he deprived the\nnurse of her opportunity to read the instructions prior to applying the blocks. While the\ndistributor might have been liable if the blocks had found their way into the hands of the nurse in\na more innocent fashion, the distributor could not be expected to foresee that its demonstrations to\nthe firemen would callously be disregarded by a member of the department. . . .\nThe judgment should be reversed and a new trial granted, with costs to abide the event.\nVAN VOORHIS, J., dissenting [DYE, J., concurring in the dissent].\nThe recovery by plaintiff should not, as it seems to us, be reversed on account of lack of\nforeseeability or a break in the chain of causation due to any intervening act of negligence on the\npart of a volunteer fireman. These heat blocks were dangerous instrumentalities unless wrapped\nin \xe2\x80\x9cinsulating\xe2\x80\x9d media, \xe2\x80\x9csuch as pouch, towel, blanket or folded cloth\xe2\x80\x9d as the instructions on the\ncontainer directed. What happened here was that the container, with the instructions on it, was\nthrown away, and the nurse who applied the heat block was unaware of this safety requirement.\nIn our minds the circumstance that the fireman who knew of the danger failed to warn the nurse,\neven if negligent, did not affect the fact, as the jury found it, that this was a risk which the\nmanufacturer of the heat block ought to have anticipated in the exercise of reasonable care, nor\nintercept the chain of causation. . . .\n\nNote\n\n1. What\xe2\x80\x94if anything\xe2\x80\x94makes the behavior of Traxler, the bystanding firefighter, so\ndifferent from the bystanders in Brower? Do you think the court is right in assuming that the jury,\nin asking a question to the trial judge, was actually concerned with Traxler\xe2\x80\x99s behavior?\nHow much of McLaughlin survived the next case?\n\nNallan v. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 1980)\nAt about 7:15 P.M. on the evening of September 30, 1969, plaintiff William Nallan was\nshot in the back by an unknown assailant as he leaned over to sign a guest register that had been\nplaced on a desk located in the lobby of a midtown Manhattan office building owned and operated\nby defendants. It is assumed by all parties that the assailant, who has never been caught, was a\nwould-be assassin whose purpose was to retaliate against Nallan for his efforts to uncover certain\ncorrupt practices in the labor union in which Nallan was an active member. Nallan ultimately\n355\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nrecovered from his wounds, and, some time thereafter, he and his wife commenced the instant\nnegligence action against the building owner and manager, seeking recompense for his personal\ninjuries and her loss of services. On this appeal from an order of the Appellate Division, which\naffirmed a judgment in favor of defendants, the sole question presented is whether the facts\nadduced at the trial were sufficient to establish a prima facie case of negligence against the two\ndefendants. . . .\n[Plaintiffs] contended that, by employing an attendant to keep an eye on the building\nlobby, defendant Helmsley-Spear had, in effect, assumed an obligation to provide at least minimal\nprotection from criminal intruders for visitors who entered the building after business hours. The\nlobby attendant\xe2\x80\x99s absence from his assigned post, according to plaintiffs, represented a lack of due\ncare in the performance of this assumed obligation. Hence, plaintiffs argued, Helmsley-Spear was\nliable for plaintiff Nallan\xe2\x80\x99s injuries to the extent that the injuries were a foreseeable and proximate\nconsequence of its negligence. . . .\n[W]e turn our attention to the question whether there was evidence on the record from\nwhich the jury could have concluded that defendants\xe2\x80\x99 omission was the legal or proximate cause\nof plaintiff Nallan\xe2\x80\x99s injury. In this regard, it was plaintiffs\xe2\x80\x99 burden to show that defendants\xe2\x80\x99\nconduct was a substantial causative factor in the sequence of events that led to Nallan\xe2\x80\x99s injury. Of\ncourse, the fact that the \xe2\x80\x9cinstrumentality\xe2\x80\x9d which produced the injury was the criminal conduct of a\nthird person would not preclude a finding of \xe2\x80\x9cproximate cause\xe2\x80\x9d if the intervening agency was\nitself a foreseeable hazard.\nHere, there was expert testimony in the record that the mere presence of an official\nattendant, even if unarmed, would have had the effect of deterring criminal activity in the\nbuilding\xe2\x80\x99s lobby. This was so, according to plaintiffs\xe2\x80\x99 expert, whether the crime in question was\none of random violence or was a deliberate, planned \xe2\x80\x9cassassination\xe2\x80\x9d attempt such as apparently\noccurred in this case. The clear implication of the expert testimony was that a would-be assailant\nof any type would be hesitant to act if he knew he was being watched by a representative of the\nbuilding\xe2\x80\x99s security staff. Contrary to the reasoning of the majority at the Appellate Division, it\nwould seem to us that the deterrent effect described by plaintiffs\xe2\x80\x99 expert witness would exist\nwhether the lobby guard was a \xe2\x80\x9ctrained observer\xe2\x80\x9d or, as here, was an ordinary attendant with no\nspecial expertise in the area of building security, since that fact would make no difference from\nthe potential assailant\xe2\x80\x99s point of view. Thus, the jury in this case might well have inferred from\nthe available evidence that the absence of an attendant in the lobby at the moment plaintiff Nallan\narrived was a \xe2\x80\x9cproximate\xe2\x80\x9d cause of Nallan\xe2\x80\x99s injury. Accordingly, it cannot be said that plaintiffs\nfailed to introduce evidence sufficient to make out a prima facie case. For all of the foregoing\nreasons, the order of the Appellate Division should be reversed. . . .\n\nNotes\n\n1. Nallan versus McLaughlin. Does it make sense that the criminal conduct in Nallan\ndoesn\xe2\x80\x99t cut off liability, but the grossly negligent conduct in McLaughlin does? Or does Nallan\noverrule McLaughlin?\n\n2. The Restatement approach. Both the Second and Third Restatements address the question\n356\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nof intervening actors, but in slightly different ways. The Second Restatement uses the language of\n\xe2\x80\x9csuperseding causes\xe2\x80\x9d that cut off liability, but specifically excludes criminal or negligent acts\nfrom being a superseding cause if those acts were a foreseeable consequence of the defendant\xe2\x80\x99s\nnegligence or if the likelihood of those acts was the reason why the defendant\xe2\x80\x99s conduct was\nnegligent. RESTATEMENT (SECOND) OF TORTS, \xc2\xa7\xc2\xa7 448, 449. The Third Restatement abandons the\n\xe2\x80\x9csuperseding\xe2\x80\x9d language from the Second Restatement, but it arrives at much the same\nconclusions. The Third Restatement holds that defendants will be liable, despite intervening\nactors, for all damages that \xe2\x80\x9cresult from the risks that made the [defendant\xe2\x80\x99s] conduct tortious.\xe2\x80\x9d\nRESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. AND EMOT. HARM, \xc2\xa7 34 (2010). The Third\nRestatement explicitly states that this extends to harm that befalls rescuers. Id., \xc2\xa7 32.\nThe Restatement (Second) of Torts offers this principle to try to make sense of the cases:\nThe happening of the very event the likelihood of which makes the actor\xe2\x80\x99s\nconduct negligent and so subjects the actor to liability cannot relieve him from\nliability. The duty to refrain from the act committed or to do the act omitted is\nimposed to protect the other from this very danger. To deny recovery because\nthe other\xe2\x80\x99s exposure to the very risk from which it was the purpose of the duty\nto protect him resulted in harm to him, would be to deprive the other of all\nprotection and to make the duty a nullity.\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 449 cmt. b. The Restatement approach evokes the harmwithin-the-risk principle. Is it susceptible to the same difficulties?\n\n3. Proximate Cause in Iraq. In recent litigation arising in the Fifth Circuit, drivers working\nas independent contractors for Halliburton/KBR in Iraq sought to recover damages for injuries\nthey received in the so-called \xe2\x80\x9cGood Friday Massacre,\xe2\x80\x9d a 2004 attack on a convoy in which\nseveral drivers were killed and others injured. Halliburton/KBR responded by citing the\nintervening actions of the Army, which chose the convoy\xe2\x80\x99s route, and of the Iraqi insurgents, who\nfired on the convoy. The Fifth Circuit rejected the Halliburton argument and allowed the suit to\nproceed:\nKBR [the defendant] argues that no determination as to causation can be made\nwithout examining whether the Army fulfilled its contractual duty to provide force\nprotection for the KBR convoys. Assuming that Plaintiffs could establish all other\nelements of their claims, they must still demonstrate that the acts or omissions of\nKBR\xe2\x80\x94as opposed to those of the Army or Iraqi insurgents\xe2\x80\x94proximately caused\ntheir injuries. KBR has made clear that, were a trial to be held, its defense would\ninvolve the alleged inadequacy of the Army\xe2\x80\x99s intelligence gathering, route selection\nand defensive response to the attacks that actually occurred. In other words, KBR\nwould make the case that Plaintiffs\xe2\x80\x99 injuries were not caused by KBR\xe2\x80\x99s actions or\ninactions, but by the insurgents\xe2\x80\x99 attack and the Army\xe2\x80\x99s failure to provide adequate\nprotection of the convoy.\nThe Plaintiffs counter KBR\xe2\x80\x99s argument by pointing to a familiar theory of tort law\nthat permits recovery even though another actor or cause intervenes to be the direct\ncause of injury. . . . According to the Restatement, \xe2\x80\x9c[i]f the likelihood that a third\nperson may act in a particular manner is the hazard or one of the hazards which\n357\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nmakes the actor negligent, such an act whether innocent, negligent, intentionally\ntortious, or criminal does not prevent the actor from being liable for harm caused\nthereby.\xe2\x80\x9d . . . Texas courts have applied this theory of liability in previous cases. .\n..\nLane v. Halliburton, 529 F.3d 548 (5th Cir. 2008).\nThe Lane litigation was one of several suits arising out of the same accident. After the\nplaintiffs survived Halliburton / KBR\xe2\x80\x99s motion to dismiss at the Fifth Circuit in 2008, the\ndefendants filed a separate motion for summary judgment. The defendants successfully argued\nthat the plaintiffs\xe2\x80\x99 claim was precluded by the Defense Base Act, a federal law that includes a\nworkers\xe2\x80\x99 compensation program applicable to civilian employees of American contractors\nworking on or around overseas military bases. Fisher v. Halliburton, 667 F.3d 602 (5th Cir.\n2012). The Lane plaintiffs had already settled before the 2012 decision of the Fifth Circuit, but\nthe Fisher plaintiffs had refused to settle and found themselves out of luck.\nAnother example of proximate causation at work in Iraq arises out of the Foreign Claims\nAct, 10 U.S.C. \xc2\xa7 2734, which authorizes the United States military to offer compensation to\noverseas civilian victims of injury suffered because of U.S. military operations so long as the\ninjury in question did not arise out of combat. In an effort to preserve good will and win hearts\nand minds, U.S. judge advocates at the Bagram Air Force Base in Kabul compensated a number\nof civilian Afghan victims after a firefight in Kabul itself between coalition forces and the\nTaliban. How did the judge advocates circumvent the statutory prohibition on compensating\nvictims injured in combat? They went further back the causal chain to a \xe2\x80\x9cskidding, out-of-control,\nno-brakes descent\xe2\x80\x9d of a U.S. armored truck down the mountain road into Kabul that had preceded\nthe firefight.\nThe difficulty here (as any torts lawyer worth her boots will observe) is that the\ndecision to make the Kabul claims into motor vehicle claims stretches the chain of\ncausation dangerously close to its breaking point. Tort principles generally require\nthat the injuries complained of be the proximate or reasonably foreseeable outcome\nof the negligent act in question. In the Kabul case, this required the claims\ncommissioners to conclude that the shooting deaths of the Afghan claimants in\nKabul were the reasonably foreseeable result of something like negligent brake\nmaintenance at the Bagram Air Force base.\nJohn Fabian Witt, Form and Substance in the Law of Counterinsurgency Damages, 41 LOYOLA\nL.A. L. REV. 1455, 1479 (2008).\n\nA Proximate Cause Case Study: Subsequent Negligent Medical Care\nFor the most part, the law deals with unexpected intervening causes in an ad hoc, allthings-considered style. But now and then, a particular type of fact sequence recurs with\nsufficient frequency that the law crystalizes its contextual standards (\xe2\x80\x9cforeseeability\xe2\x80\x9d or\n\xe2\x80\x9cdirectness,\xe2\x80\x9d for example) into hard-edged rules. The eggshell skull plaintiff rule is one such\ndoctrine. The effort of the New York Court of Appeals in McLaughlin to establish a hard rule\nagainst liability in instances of intervening gross negligence might be another failed attempt at\n358\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nsuch a rule. A further example arises out of the phenomenon of negligent medical care that\nexacerbates the initial harm caused by a tortfeasor.\nIn Stoleson v. United States, Judge Posner reviewed the claim of Helen Stoleson\xe2\x80\x94the\nwoman with the \xe2\x80\x9cdynamite heart\xe2\x80\x9d as Time Magazine described her in 1971. Stoleson developed a\nheart condition caused by exposure to nitroglycerine in the munitions plant at which she worked.\nAfter bringing a tort claim against the federal government for negligently failing to protect\nemployees at the plant from overexposure to nitroglycerine, Stoleson was awarded $53,000 in\ncompensatory damages for her heart condition. However, the federal district judge rejected her\nclaim for damages arising out of the hypochondriacal symptoms that ensued. Although Judge\nPosner upheld the district judge, he noted that Stoleson would have had a good claim if she could\nhave shown the hypochondriacal symptoms to have been caused by \xe2\x80\x9cthe treatment\xe2\x80\x94even the\nnegligent treatment\xe2\x80\x94of the injury\xe2\x80\x9d by a third party such as a treating physician:\nIf a pedestrian who has been run down by a car is taken to a hospital and because of\nthe hospital\xe2\x80\x99s negligence incurs greater medical expenses or suffers more pain and\nsuffering than he would have if the hospital had not been negligent, he can collect\nhis incremental as well as his original damages from the person who ran him down,\nsince they would have been avoided if that person had used due care. So here, if the\ngovernment had been careful Mrs. Stoleson would have had no occasion to consult\nDr. Lange and might therefore not have become a hypochondriac.\nStoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983).\nThe principle described by Posner in Stoleson is well-established in the common law of\ntorts, and it has been widely applied not just to downstream injuries arising out of negligent\nmedical treatment, but also to downstream injuries arising out of negligent transportation.\nConsider Pridham v. Cash & Carry Building Center, a wrongful death case. In Pridham,\nthe decedent was shopping at a retail building supplies store when paneling fell on him, knocking\nhim down and covering his body. As the court described, it, \xe2\x80\x9cWhen the panels were removed,\n[decedent] lay flat on his back on the floor, his head in a pool of blood.\xe2\x80\x9d Decedent \xe2\x80\x9cwas placed\non an orthopedic stretcher which was in turn placed upon the ambulance cot and carried into the\nvehicle.\xe2\x80\x9d En route to the hospital, however, the driver suffered a heart attack, causing the\nambulance \xe2\x80\x9cto swerve from the road and strike a tree. The cot was pushed forward through the\nglass partition separating the driver compartment from the rear of the ambulance.\xe2\x80\x9d The decedent\ndied later that same day.\nThe trial court in Pridham charged the jury that \xe2\x80\x9cif the defendant is liable to the plaintiffdecedent in this case, he is also liable for any additional bodily harm resulting from normal efforts\nof third persons in rendering aid . . . which the other\xe2\x80\x99s injury reasonably requires irrespective of\nwhether such acts are done in a proper or in a negligent manner. . . . [I]f you . . . find the injuries\nsuffered in the ambulance crash were as a result of a normal effort of third persons in rendering\naid which the decedent Pridham required, then the defendant would be liable to the plaintiff for\nthose [injuries].\xe2\x80\x9d The New Hampshire Supreme Court upheld the instruction:\nThe instruction given by the trial court is based on the principle that if a tortfeasor\xe2\x80\x99s\nnegligence causes harm to another which requires the victim to receive medical,\nsurgical or hospital services and additional bodily harm results from a normal effort\n359\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nof persons rendering such services, whether done in a proper or negligent manner,\nthe original tortfeasor\xe2\x80\x99s negligence is a legal cause of the injuries received because\nof the injury party\xe2\x80\x99s involuntary submission to such services. . . . It is to be noted\nthat the rule enunciated applies even if the services rendered were not negligent. . .\n. If the services are rendered negligently, the rule based on questions of policy makes\nthe negligence of the original tortfeasor a proximate cause of the subsequent injuries\nsuffered by the victim. . . . In such a case there is no need to charge the jury about\nthe different types of causes which may come into play. . . . Medical services\nnecessitated by the negligence of a tortfeasor are in most cases administered in a\nhospital. The conveyance of Pridham by ambulance to a hospital was a necessary\nstep in securing medical services required by the accident at Cash & Carry.\nTherefore the rule holding the original tortfeasor liable for additional harm from\nmedical care rendered because of the original injury should be extended to, and\ninclude, injuries sustained while being transported to a hospital where medical\nservices can be obtained.\n359 A.2d 193, 197-98 (N.H. 1976).\nPridham was cited and followed recently in Anaya v. Superior Court, in which a wrongful\ndeath claim against the City of Los Angeles was upheld against a motion to dismiss for\nremoteness grounds. The decedent was injured in an automobile accident involving a city\ngarbage truck and then killed when the helicopter transporting her to the hospital crashed. 93 Cal.\nRptr. 2d 228 (Cal. App. 2000).\nWhat about other kinds of injury aggravations? In Wagner v. Mittendorf, 134 N.E. 539\n(N.Y. 1922), plaintiff broke his leg because of defendant\xe2\x80\x99s negligence. After the plaster cast was\nremoved, plaintiff\xe2\x80\x99s physicians encouraged him to walk to strengthen his leg muscles. Plaintiff\xe2\x80\x99s\ncrutches slipped and he fell, rebreaking the leg at the same point at which it had first been broken\nby defendant\xe2\x80\x99s negligence. The New York Court of Appeals upheld the award to the plaintiff of\nthe incremental damages arising out of the second break.\nTorts commentators have often wondered whether Wagner allows for a stopping point.\n\xe2\x80\x9cWhat if the plaintiff must use crutches permanently and is killed ten years later in a fire because\nof his inability to run away?\xe2\x80\x9d Does the defendant become an insurer for all foreseeable\ndownstream injuries that would not have happened but for the defendant\xe2\x80\x99s negligent act? See\nMARK FRANKLIN & ROBERT RABIN, TORT LAW AND ALTERNATIVES 404 (7th ed. 2001).\n\nRule of Thumb for No Proximate Cause?\nIn Ohio, the common law embraces a \xe2\x80\x9cno proximate cause\xe2\x80\x9d rule for police officers\ninvolved in police chases that injure third parties. The rule states that \xe2\x80\x9cwhen a law enforcement\nofficer pursues a fleeing violator and the violator injures a third party as a result of the chase, the\nofficer\xe2\x80\x99s pursuit is not the proximate cause of those injuries,\xe2\x80\x9d unless the officer acts in an\n\xe2\x80\x9cextreme or outrageous\xe2\x80\x9d manner. Whitfield v. Dayton, 167 Ohio App.3d 172 (2d Dist. 2006).\nThe \xe2\x80\x9cno proximate cause\xe2\x80\x9d rule allows Ohio courts to supplant a fact-intensive proximate\ncause inquiry with a general rule of thumb that police are not liable for these kinds of injuries.\n360\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe Ohio police chase rule is the inverse of the rule in many states for subsequent negligent\nmedical care.\nShould courts use the doctrine of proximate cause to grant immunity to police officers in\nchase cases, or ought they use some other doctrine? Does it matter what doctrinal hook courts use\nto deliver these kinds of outcomes?\n\nD. Unexpected Person\nJust as accidents can happen in the darndest of ways, they can happen to the darndest of\npeople as well.\n\nPalsgraf v. Long Island R. Co., 248 N.Y. 339 (N.Y. 1928)\nCARDOZO J:\nPlaintiff was standing on a platform of defendant\xe2\x80\x99s railroad after buying a ticket to go to\nRockaway Beach. A train stopped at the station, bound for another place. Two men ran forward\nto catch it. One of the men reached the platform of the car without mishap, though the train was\nalready moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady\nas if about to fall. A guard on the car, who had held the door open, reached forward to help him\nin, and another guard on the platform pushed him from behind. In this act, the package was\ndislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and\nwas covered by a newspaper. In fact it contained fireworks, but there was nothing in its\nappearance to give notice of its contents. The fireworks when they fell exploded. The shock of\nthe explosion threw down some scales at the other end of the platform, many feet away. The\nscales struck the plaintiff, causing injuries for which she sues.\nThe conduct of the defendant\xe2\x80\x99s guard, if a wrong in its relation to the holder of the\npackage, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it\nwas not negligence at all. Nothing in the situation gave notice that the falling package had in it\nthe potency of peril to persons thus removed. Negligence is not actionable unless it involves the\ninvasion of a legally protected interest, the violation of a right. \xe2\x80\x9cProof of negligence in the air, so\nto speak, will not do.\xe2\x80\x9d FREDERICK POLLOCK, THE LAW OF TORTS 455 (11th ed. 1920) . . . . The\nplaintiff as she stood upon the platform of the station might claim to be protected against\nintentional invasion of her bodily security. Such invasion is not charged. She might claim to be\nprotected against unintentional invasion by conduct involving in the thought of reasonable men an\nunreasonable hazard that such invasion would ensue. These, from the point of view of the law,\nwere the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part\nof ancient forms of liability, where conduct is held to be at the peril of the actor. If no hazard was\napparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward\nseeming, with reference to her, did not take to itself the quality of a tort because it happened to be\na wrong, though apparently not one involving the risk of bodily insecurity, with reference to some\none else. \xe2\x80\x9cIn every instance, before negligence can be predicated of a given act, back of the act\nmust be sought and found a duty to the individual complaining, the observance of which would\n\n361\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nhave averted or avoided the injury\xe2\x80\x9d . . . . The plaintiff sues in her own right for a wrong personal\nto her, and not as the vicarious beneficiary of a breach of duty to another.\nA different conclusion will involve us, and swiftly too, in a maze of contradictions. A\nguard stumbles over a package which has been left upon a platform. It seems to be a bundle of\nnewspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is\nabandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end\nof the platform protected by the law against the unsuspected hazard concealed beneath the waste?\nIf not, is the result to be any different, so far as the distant passenger is concerned, when the guard\nstumbles over a valise which a truckman or a porter has left upon the walk? The passenger far\naway, if the victim of a wrong at all, has a cause of action, not derivative, but original and\nprimary. His claim to be protected against invasion of his bodily security is neither greater nor\nless because the act resulting in the invasion is a wrong to another far removed. In this case, the\nrights that are said to have been violated, the interests said to have been invaded, are not even of\nthe same order. The man was not injured in his person nor even put in danger. The purpose of\nthe act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which\nmay very well be doubted, it was a wrong to a property interest only, the safety of his package.\nOut of this wrong to property, which threatened injury to nothing else, there has passed, we are\ntold, to the plaintiff by derivation or succession a right of action for the invasion of an interest of\nanother order, the right to bodily security. The diversity of interests emphasizes the futility of the\neffort to build the plaintiff\xe2\x80\x99s right upon the basis of a wrong to some one else. . . . [T]he orbit of\nthe danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who\njostles one\xe2\x80\x99s neighbor in a crowd does not invade the rights of others standing at the outer fringe\nwhen the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man\nwho carries the bomb, not the one who explodes it without suspicion of the danger. Life will have\nto be made over, and human nature transformed, before prevision so extravagant can be accepted\nas the norm of conduct, the customary standard to which behavior must conform.\nThe argument for the plaintiff is built upon the shifting meanings of such words as\n\xe2\x80\x9cwrong\xe2\x80\x9d and \xe2\x80\x9cwrongful,\xe2\x80\x9d and shares their instability. What the plaintiff must show is \xe2\x80\x9ca wrong\xe2\x80\x9d\nto herself, i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct\n\xe2\x80\x9cwrongful\xe2\x80\x9d because unsocial, but not \xe2\x80\x9ca wrong\xe2\x80\x9d to any one. We are told that one who drives at\nreckless speed through a crowded city street is guilty of a negligent act and, therefore, of a\nwrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense\nthat it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of\nvigilance perceives the risk of damage. If the same act were to be committed on a speedway or a\nrace course, it would lose its wrongful quality. The risk reasonably to be perceived defines the\nduty to be obeyed, and risk imports relation; it is risk to another or to others within the range of\napprehension. This does not mean, of course, that one who launches a destructive force is always\nrelieved of liability if the force, though known to be destructive, pursues an unexpected path. . . .\nIt was not necessary that the defendant should have had notice of the particular method in which\nan accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye. .\n. . Some acts, such as shooting, are so imminently dangerous to any one who may come within\nreach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of\nan insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one\xe2\x80\x99s\nperil. Under this head, it may be, fall certain cases of what is known as transferred intent, an act\nwillfully dangerous to A resulting by misadventure in injury to B. These cases aside, wrong is\ndefined in terms of the natural or probable, at least when unintentional. The range of reasonable\napprehension is at times a question for the court, and at times, if varying inferences are possible, a\n362\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nquestion for the jury. Here, by concession, there was nothing in the situation to suggest to the\nmost cautious mind that the parcel wrapped in newspaper would spread wreckage through the\nstation. If the guard had thrown it down knowingly and willfully, he would not have threatened\nthe plaintiff\xe2\x80\x99s safety, so far as appearances could warn him. His conduct would not have\ninvolved, even then, an unreasonable probability of invasion of her bodily security. Liability can\nbe no greater where the act is inadvertent.\nNegligence, like risk, is thus a term of relation. Negligence in the abstract, apart from\nthings related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort\nunless it results in the commission of a wrong, and the commission of a wrong imports the\nviolation of a right, in this case, we are told, the right to be protected against interference with\none\xe2\x80\x99s bodily security. But bodily security is protected, not against all forms of interference or\naggression, but only against some. One who seeks redress at law does not make out a cause of\naction by showing without more that there has been damage to his person. If the harm was not\nwillful, he must show that the act as to him had possibilities of danger so many and apparent as to\nentitle him to be protected against the doing of it though the harm was unintended. Affront to\npersonality is still the keynote of the wrong. . . . The victim does not sue derivatively, or by right\nof subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause\nof action is to ignore the fundamental difference between tort and crime. He sues for breach of a\nduty owing to himself.\nThe law of causation, remote or proximate, is thus foreign to the case before us. The\nquestion of liability is always anterior to the question of the measure of the consequences that go\nwith liability. If there is no tort to be redressed, there is no occasion to consider what damage\nmight be recovered if there were a finding of a tort. We may assume, without deciding, that\nnegligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for\nany and all consequences, however novel or extraordinary. There is room for argument that a\ndistinction is to be drawn according to the diversity of interests invaded by the act, as where\nconduct negligent in that it threatens an insignificant invasion of an interest in property results in\nan unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps\nother distinctions may be necessary. We do not go into the question now. The consequences to\nbe followed must first be rooted in a wrong.\nThe judgment of the Appellate Division and that of the Trial Term should be reversed, and\nthe complaint dismissed, with costs in all courts.\nANDREWS, J., dissenting.\n. . . Upon these facts may [the plaintiff] recover the damages she has suffered in an action\nbrought against the master? The result we shall reach depends upon our theory as to the nature of\nnegligence. Is it a relative concept\xe2\x80\x94the breach of some duty owing to a particular person or to\nparticular persons? Or where there is an act which unreasonably threatens the safety of others, is\nthe doer liable for all its proximate consequences, even where they result in injury to one who\nwould generally be thought to be outside the radius of danger? This is not a mere dispute as to\nwords. We might not believe that to the average mind the dropping of the bundle would seem to\ninvolve the probability of harm to the plaintiff standing many feet away whatever might be the\ncase as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt\nthe second hypothesis we have to inquire only as to the relation between cause and effect. We\ndeal in terms of proximate cause, not of negligence. . . .\n363\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nBut we are told that \xe2\x80\x9cthere is no negligence unless there is in the particular case a legal\nduty to take care, and this duty must be one which is owed to the plaintiff himself and not merely\nto others.\xe2\x80\x9d This, I think too narrow a conception. Where there is the unreasonable act, and some\nright that may be affected there is negligence whether damage does or does not result. That is\nimmaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we\nstrike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only\nto those who happen to be within the radius of danger but to all who might have been there\xe2\x80\x94a\nwrong to the public at large. Such is the language of the street. Such is the language of the courts\nwhen speaking of contributory negligence. . . . As was said by Mr. Justice Holmes many years\nago, \xe2\x80\x9cthe measure of the defendant\xe2\x80\x99s duty in determining whether a wrong has been committed is\none thing, the measure of liability when a wrong has been committed is another.\xe2\x80\x9d Due care is a\nduty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or\nC alone.\nIt may well be that there is no such thing as negligence in the abstract. \xe2\x80\x9cProof of\nnegligence in the air, so to speak, will not do.\xe2\x80\x9d In an empty world negligence would not exist. It\ndoes involve a relationship between man and his fellows. But not merely a relationship between\nman and those whom he might reasonably expect his act would injure. Rather, a relationship\nbetween him and those whom he does in fact injure. If his act has a tendency to harm some one, it\nharms him a mile away as surely as it does those on the scene. We now permit children to recover\nfor the negligent killing of the father. It was never prevented on the theory that no duty was\nowing to them. A husband may be compensated for the loss of his wife\xe2\x80\x99s services. To say that\nthe wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit\nfacts to theory. An insurance company paying a fire loss recovers its payment of the negligent\nincendiary. We speak of subrogation\xe2\x80\x94of suing in the right of the insured. Behind the cloud of\nwords is the fact they hide, that the act, wrongful as to the insured, has also injured the company.\nEven if it be true that the fault of father, wife or insured will prevent recovery, it is because we\nconsider the original negligence not the proximate cause of the injury.\nIn the well-known Polemis Case, Scrutton, L. J., said that the dropping of a plank was\nnegligent for it might injure \xe2\x80\x9cworkman or cargo or ship.\xe2\x80\x9d Because of either possibility the owner\nof the vessel was to be made good for his loss. The act being wrongful the doer was liable for its\nproximate results. Criticized and explained as this statement may have been, I think it states the\nlaw as it should be and as it is.\nThe proposition is this. Every one owes to the world at large the duty of refraining from\nthose acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he\nwronged to whom harm might reasonably be expected to result, but he also who is in fact injured,\neven if he be outside what would generally be thought the danger zone. There needs be duty due\nthe one complaining but this is not a duty to a particular individual because as to him harm might\nbe expected. Harm to some one being the natural result of the act, not only that one alone, but all\nthose in fact injured may complain. We have never, I think, held otherwise.\nIf this be so, we do not have a plaintiff suing by \xe2\x80\x9cderivation or succession.\xe2\x80\x9d Her action is\noriginal and primary. Her claim is for a breach of duty to herself\xe2\x80\x94not that she is subrogated to\nany right of action of the owner of the parcel or of a passenger standing at the scene of the\nexplosion.\n364\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe right to recover damages rests on additional considerations. The plaintiff\xe2\x80\x99s rights\nmust be injured, and this injury must be caused by the negligence. We build a dam, but are\nnegligent as to its foundations. Breaking, it injures property down stream. We are not liable if all\nthis happened because of some reason other than the insecure foundation. But when injuries do\nresult from our unlawful act we are liable for the consequences. It does not matter that they are\nunusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages\nmust be so connected with the negligence that the latter may be said to be the proximate cause of\nthe former. . . .\nWhat we do mean by the word \xe2\x80\x9cproximate\xe2\x80\x9d is, that because of convenience, of public\npolicy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a\ncertain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my\nburning haystack set on fire my house and my neighbor\xe2\x80\x99s. I may recover from a negligent\nrailroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may\nregret that the line was drawn just where it was, but drawn somewhere it had to be. We said the\nact of the railroad was not the proximate cause of our neighbor\xe2\x80\x99s fire. Cause it surely was. The\nwords we used were simply indicative of our notions of public policy. Other courts think\ndifferently. . . .\nIt is all a question of expediency. There are no fixed rules to govern our judgment. There\nare simply matters of which we may take account. . . . This is rather rhetoric than law. There is in\ntruth little to guide us other than common sense.\nThere are some hints that may help us. The proximate cause, involved as it may be with\nmany other causes, must be, at the least, something without which the event would not happen.\nThe court must ask itself whether there was a natural and continuous sequence between cause and\neffect. Was the one a substantial factor in producing the other? Was there a direct connection\nbetween them, without too many intervening causes? Is the effect of cause on result not too\nattenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by\nthe exercise of prudent foresight could the result be foreseen? Is the result too remote from the\ncause, and here we consider remoteness in time and space. Clearly we must so consider, for the\ngreater the distance either in time or space, the more surely do other causes intervene to affect the\nresult. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many\nthings contribute to the spread of the conflagration\xe2\x80\x94the force of the wind, the direction and width\nof streets, the character of intervening structures, other factors. We draw an uncertain and\nwavering line, but draw it we must as best we can.\nOnce again, it is all a question of fair judgment, always keeping in mind the fact that we\nendeavor to make a rule in each case that will be practical and in keeping with the general\nunderstanding of mankind. . . .\nMrs. Palsgraf was standing some distance away. How far cannot be told from the\nrecord\xe2\x80\x94apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would\nnot have been injured. We are told by the appellant in his brief \xe2\x80\x9cit cannot be denied that the\nexplosion was the direct cause of the plaintiff\xe2\x80\x99s injuries.\xe2\x80\x9d So it was a substantial factor in\nproducing the result\xe2\x80\x94there was here a natural and continuous sequence\xe2\x80\x94direct connection. The\nonly intervening cause was that instead of blowing her to the ground the concussion smashed the\nweighing machine which in turn fell upon her. There was no remoteness in time, little in space.\nAnd surely, given such an explosion as here it needed no great foresight to predict that the natural\n365\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nresult would be to injure one on the platform at no greater distance from its scene than was the\nplaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken\nglass, by wreckage of machines or structures no one could say. But injury in some form was most\nprobable.\nUnder these circumstances I cannot say as a matter of law that the plaintiff\xe2\x80\x99s injuries were\nnot the proximate result of the negligence. That is all we have before us. The court refused to so\ncharge. No request was made to submit the matter to the jury as a question of fact, even would\nthat have been proper upon the record before us.\nThe judgment appealed from should be affirmed, with costs.\n\nNotes\n\n1. Cardozo versus Andrews. Are Judges Cardozo and Andrews debating how to define\nproximate cause or whether this is a case about proximate cause? What is it, precisely, that\ndivides them?\n\n2. Where\xe2\x80\x99s the negligence? Was the guard\xe2\x80\x99s act in pushing the passenger negligent in the\nfirst place if he could not have possibly known that the package contained explosives, as both\nJustices Cardozo and Andrews concede? Would Cardozo vote differently if the package had been\nlabeled \xe2\x80\x9cWARNING: CONTAINS EXPLOSIVES\xe2\x80\x9d?\n\n3. Cardozo\xe2\x80\x99s inconsistency? Judge Cardozo, the author of the majority opinion in Palsgraf,\nreached a different conclusion when asked whether a defendant is liable for harm that befalls the\nrescuer of someone the defendant injured. What, if anything, distinguishes Palsgraf from the next\ncase?\n\nWagner v. International R. Co., 232 N.Y. 176, 178-182 (N.Y. 1921)\nCARDOZO, J.\nThe defendant operates an electric railway between Buffalo and Niagara Falls. There is a\npoint on its line where an overhead crossing carries its tracks above those of the New York\nCentral and the Erie. A gradual incline upwards over a trestle [a supporting structure for a bridge]\nraises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from\nsixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, which is\nabout one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to\nthe right at about the same angle down the same kind of an incline to grade. Above the trestles,\nthe tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is\naccentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the\nline of overhang there are tie rods and a protecting rail.\n\n366\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nPlaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the\ntrestles. Other passengers, entering at the same time, filled the platform, and blocked admission\nto the aisle. The platform was provided with doors, but the conductor did not close them.\nMoving at from six to eight miles an hour, the car, without slackening, turned the curve. There\nwas a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes\nto a bridge. The cry was raised, \xe2\x80\x9cMan overboard.\xe2\x80\x9d The car went on across the bridge, and\nstopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the\ntrestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he\nthought to find his cousin\xe2\x80\x99s body. He says that he was asked to go there by the conductor. He\nsays, too, that the conductor followed with a lantern. Both these statements the conductor denies.\nSeveral other persons, instead of ascending the trestle, went beneath it, and discovered under the\nbridge the body they were seeking. As they stood there, the plaintiff\xe2\x80\x99s body struck the ground\nbeside them. Reaching the bridge, he had found upon a beam his cousin\xe2\x80\x99s hat, but nothing else.\nAbout him, there was darkness. He missed his footing, and fell.\nThe trial judge held that negligence toward Herbert Wagner would not charge the\ndefendant with liability for injuries suffered by the plaintiff unless two other facts were found:\nFirst, that the plaintiff had been invited by the conductor to go upon the bridge; and second, that\nthe conductor had followed with a light. Thus limited, the jury found in favor of the defendant.\nWhether the limitation may be upheld, is the question to be answered.\nDanger invites rescue. The cry of distress is the summons to relief. The law does not\nignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as\nnormal. It places their effects within the range of the natural and probable. The wrong that\nimperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. . . . The risk of\nrescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The\nwrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.\nThe defendant says that we must stop, in following the chain of causes, when action\nceases to be \xe2\x80\x9cinstinctive.\xe2\x80\x9d By this, is meant, it seems, that rescue is at the peril of the rescuer,\nunless spontaneous and immediate. If there has been time to deliberate, if impulse has given way\nto judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the\nplaintiff walked more than four hundred feet in going to Herbert\xe2\x80\x99s aid. He had time to reflect and\nweigh; impulse had been followed by choice; and choice, in the defendant\xe2\x80\x99s view, intercepts and\nbreaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may\nassume, though we are not required to decide, that peril and rescue must be in substance one\ntransaction; that the sight of the one must have aroused the impulse to the other; in short, that\nthere must be unbroken continuity between the commission of the wrong and the effort to avert its\nconsequences. If all this be assumed, the defendant is not aided. Continuity in such\ncircumstances is not broken by the exercise of volition. So sweeping an exception, if recognized,\nwould leave little of the rule. \xe2\x80\x9cThe human mind,\xe2\x80\x9d as we have said, \xe2\x80\x9cacts with celerity which it is\nsometimes impossible to measure.\xe2\x80\x9d The law does not discriminate between the rescuer oblivious\nof peril and the one who counts the cost. It is enough that the act, whether impulsive or\ndeliberate, is the child of the occasion.\nThe defendant finds another obstacle, however, in the futility of the plaintiff\xe2\x80\x99s sacrifice.\nHe should have gone, it is said, below the trestle with the others; he should have known, in view\nof the overhang of the cars, that the body would not be found above; his conduct was not\nresponsive to the call of the emergency; it was a wanton exposure to a danger that was useless.\n367\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nWe think the quality of his acts in the situation that confronted him was to be determined by the\njury. Certainly he believed that good would come of his search upon the bridge. . . . Indeed, his\njudgment was confirmed by the finding of the hat. . . . \xe2\x80\x9cErrors of judgment,\xe2\x80\x9d however, would not\ncount against him, if they resulted \xe2\x80\x9cfrom the excitement and confusion of the moment\xe2\x80\x9d. The\nreason that was exacted of him was not the reason of the morrow. It was reason fitted and\nproportioned to the time and the event.\nWhether Herbert Wagner\xe2\x80\x99s fall was due to the defendant\xe2\x80\x99s negligence, and whether\nplaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the\nemergency confronting him, were questions for the jury.\nThe judgment of the Appellate Division and that of the Trial Term should be reversed, and\na new trial granted, with costs to abide the event.\n\nNotes\n\n1. Rules versus standards. In this opinion, Cardozo asserts that a defendant should always\nforesee harm to a rescuer, because \xe2\x80\x9cdanger invites rescue.\xe2\x80\x9d Cardozo\xe2\x80\x99s rescue rule is thus\nsomething like the rule for subsequent negligent medical care: it is a rule of thumb that cuts\nthrough the case-by-case contextual inquiries into considerations such as foreseeability. Of\ncourse, there may be some situations where rescue is more or less likely, depending on whether\nthe person can call for help, whether there are other people around to respond, etc. Why would\nCardozo impose a categorical rule that rescue is foreseeable? Why not allow juries to decide the\nforeseeability of rescue on a case-by-case basis?\n\n2. Reconciling Palsgraf and Wagner? In Palsgraf, Cardozo was concerned that the tortious\nact, pushing by the guard, was not a wrong with respect to Mrs. Palsgraf. Yet in Wagner, he\nmaintains that any tortious act is a wrong with respect to a rescuer. What explains the different\ntreatment of two people who were in fact injured by the tortious act?\n\nE. Completely Unexpected?\nLate in the winter of 1959, each of the strands of proximate causation came together in a\nspectacular, and thankfully not catastrophic, accident on the Buffalo River in upstate New York.\n\nPetition of Kinsman Transit Co. (Kinsman Transit I), 338 F.2d 708 (2d Cir. 1964)\nFRIENDLY, J.\nWe have here six [interlocutory] appeals . . . . The litigation, in the District Court for the\nWestern District of New York, arose out of a series of misadventures on a navigable portion of the\nBuffalo River during the night of January 21, 1959. . . . We shall summarize the facts as found by\n[Judge Burke, the District Court Judge]:\n368\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe Buffalo River flows through Buffalo from east to west, with many turns and bends,\nuntil it empties into Lake Erie. Its navigable western portion is lined with docks, grain elevators,\nand industrial installations; during the winter, lake vessels tie up there pending resumption of\nnavigation on the Great Lakes, without power and with only a shipkeeper aboard. About a mile\nfrom the mouth, the City of Buffalo maintains a lift bridge at Michigan Avenue. Thaws and rain\nfrequently cause freshets to develop in the upper part of the river and its tributary, Cazenovia\nCreek; currents then range up to fifteen miles an hour and propel broken ice down the river, which\nsometimes overflows its banks.\nOn January 21, 1959, rain and thaw followed a period of freezing weather. The United\nStates Weather Bureau issued appropriate warnings which were published and broadcast. Around\n6 P.M. an ice jam that had formed in Cazenovia Creek disintegrated. Another ice jam formed just\nwest of the junction of the creek and the river; it broke loose around 9 P.M.\nThe MacGilvray Shiras, owned by The Kinsman Transit Company, was moored at the\ndock of the Concrete Elevator, operated by Continental Grain Company, on the south side of the\nriver about three miles upstream of the Michigan Avenue Bridge. She was loaded with grain\nowned by Continental. [The Shiras was negligently positioned such that ice floats accumulated\nagainst it, eventually causing the boat to separate from the dock and drift downstream. The\nshipkeeper negligently misfired the anchor, causing a jam and preventing the anchors from\nstopping the downstream movement of the ship.] . . .\nCareening stern first down the S-shaped river, the Shiras, at about 11 P.M., struck the bow\nof the Michael K. Tewksbury, owned by Midland Steamship Line, Inc. . . . The collision caused\nthe Tewksbury\xe2\x80\x99s mooring lines to part; she too drifted stern first down the river, followed by the\nShiras. The collision caused damage to the Steamer Drucken-miller which was moored opposite\nthe Tewksbury.\n[A]t about 10:43 P.M., Goetz, the superintendent of the Concrete Elevator, telephoned\nKruptavich, another employee of Continental, that the Shiras was adrift; Kruptavich called the\nCoast Guard, which called the city fire station on the river, which in turn warned the crew\n[employed by the City of Buffalo] on the Michigan Avenue Bridge, this last call being made\nabout 10:48 P.M. Not quite twenty minutes later the watchman at the elevator where the\nTewksbury had been moored phoned the bridge crew to raise the bridge. Although not more than\ntwo minutes and ten seconds were needed to elevate the bridge to full height after traffic was\nstopped, assuming that the motor started promptly, the bridge was just being raised when, at 11:17\nP.M., the Tewksbury crashed into its center. The bridge crew consisted of an operator and two\ntenders; a change of shift was scheduled for 11 P.M.\nThe inference is rather strong, despite contrary testimony, that the operator on the earlier\nshift had not yet returned from a tavern when the telephone call from the fire station was received;\nthat the operator on the second shift did not arrive until shortly before the call from the elevator\nwhere the Tewksbury had been moored; and that in consequence the bridge was not raised until\ntoo late.\nThe first crash was followed by a second, when the south tower of the bridge fell. The\nTewksbury grounded and stopped in the wreckage with her forward end resting against the stern\nof the Steamer Farr, which was moored on the south side of the river just above the bridge. The\n369\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nShiras ended her journey with her stern against the Tewksbury and her bow against the north side\nof the river. So wedged, the two vessels substantially dammed the flow, causing water and ice to\nback up and flood installations on the banks with consequent damage as far as the Concrete\nElevator, nearly three miles upstream. Two of the bridge crew suffered injuries. Later the north\ntower of the bridge collapsed, damaging adjacent property. . . .\n[After finding that the intermediate ships in the accident did not act negligently, that the\ncity was not negligent in maintaining the river, and that the owners of the Shiras could not be held\nliable beyond the value of the vessel itself under an old admiralty law doctrine limiting vessel\nowner liability in the absence of personal negligence by the owner, Judge Friendly concluded (i)\nthat the City of Buffalo was at fault as a matter of negligence per se under a federal statute\nrequiring that drawbridges be staffed at all times; and (ii) that the last clear chance doctrine did\nnot make the City the exclusive party bearing the liability. He then turned to the case\xe2\x80\x99s difficult\nproximate cause issue: \xe2\x80\x9c(iii) the effect of the allegedly unexpectable character of the events\nleading to much of the damage\xe2\x80\x94and here of the Palsgraf case.\xe2\x80\x9d]\nThe very statement of the case suggests the need for considering Palsgraf v. Long Island\nR., 162 N.E. 99 (N.Y. 1928), and the closely related problem of liability for unforeseeable\nconsequences.\nCertainly there is no general principle that a railroad owes no duty to persons on station\nplatforms not in immediate proximity to the tracks, as would have been quickly demonstrated if\nMrs. Palsgraf had been injured by the fall of improperly loaded objects from a passing train. . . .\nNeither is there any principle that railroad guards who jostle a package-carrying passenger owe a\nduty only to him; if the package had contained bottles, the Long Island would surely have been\nliable for injury caused to close bystanders by flying glass or spurting liquid. The reason why the\nLong Island was thought to owe no duty to Mrs. Palsgraf was the lack of any notice that the\npackage contained a substance demanding the exercise of any care toward anyone so far away;\nMrs. Palsgraf was not considered to be within the area of apparent hazard created by whatever\nlack of care the guard had displayed to the anonymous carrier of the unknown fireworks. The key\nsentences in Chief Judge Cardozo\xe2\x80\x99s opinion are these:\nHere, by concession, there was nothing in the situation to suggest to the most\ncautious mind that the parcel wrapped in newspaper would spread wreckage through\nthe station. If the guard had thrown it down knowingly and willfully, he would not\nhave threatened the plaintiff\xe2\x80\x99s safety, so far as appearances could warn him.\nLiability can be no greater where the act is inadvertent.\n162 N.E. at 101.\nWe see little similarity between the Palsgraf case and the situation before us. The point of\nPalsgraf was that the appearance of the newspaper-wrapped package gave no notice that its\ndislodgement could do any harm save to itself and those nearby, and this by impact, perhaps with\nconsequent breakage, and not by explosion. In contrast, a ship insecurely moored in a fast\nflowing river is a known danger not only to herself but to the owners of all other ships and\nstructures down-river, and to persons upon them. No one would dream of saying that a shipowner\nwho \xe2\x80\x9cknowingly and willfully\xe2\x80\x9d failed to secure his ship at a pier on such a river \xe2\x80\x9cwould not have\nthreatened\xe2\x80\x9d persons and owners of property downstream in some manner. The shipowner and the\nwharfinger in this case having thus owed a duty of care to all within the reach of the ship\xe2\x80\x99s known\n370\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\ndestructive power, the impossibility of advance identification of the particular person who would\nbe hurt is without legal consequence. . . . Similarly the foreseeable consequences of the City\xe2\x80\x99s\nfailure to raise the bridge were not limited to the Shiras and the Tewksbury. Collision plainly\ncreated a danger that the bridge towers might fall onto adjoining property, and the crash of two\nuncontrolled lake vessels, one 425 feet and the other 525 feet long, into a bridge over a swift iceridden stream, with a channel only 177 feet wide, could well result in a partial damming that\nwould flood property upstream. As to the City also, it is useful to consider, by way of contrast,\nChief Judge Cardozo\xe2\x80\x99s statement that the Long Island would not have been liable to Mrs. Palsgraf\nhad the guard wilfully thrown the package down. If the City had deliberately kept the bridge\nclosed in the face of the onrushing vessels, taking the risk that they might not come so far, no one\nwould give house-room to a claim that it \xe2\x80\x9cowed no duty\xe2\x80\x9d to those who later suffered from the\nflooding. Unlike Mrs. Palsgraf, they were within the area of hazard.\nSince all the claimants here met the Palsgraf requirement of being persons to whom the\nactors owed a \xe2\x80\x9cduty of care,\xe2\x80\x9d we are not obliged to reconsider whether that case furnishes as\nuseful a standard for determining the boundaries of liability in admiralty for negligent conduct . . .\n. But this does not dispose of the alternative argument that the manner in which several of the\nclaimants were harmed, particularly by flood damage, was unforeseeable and that recovery for\nthis may not be had\xe2\x80\x94whether the argument is put in the forthright form that unforeseeable\ndamages are not recoverable or is concealed under a formula of lack of \xe2\x80\x9cproximate cause.\xe2\x80\x9d\nSo far as concerns the City, the argument lacks factual support. Although the obvious\nrisks from not raising the bridge were damage to itself and to the vessels, the danger of a fall of\nthe bridge and of flooding would not have been unforeseeable under the circumstances to anyone\nwho gave them thought. And the same can be said as to the failure of Kinsman\xe2\x80\x99s shipkeeper to\nready the anchors after the danger had become apparent. The exhibits indicate that the width of\nthe channel between the Concrete Elevator and the bridge is at most points less than two hundred\nfifty feet. If the Shiras caught up on a dock or vessel moored along the shore, the current might\nwell swing her bow across the channel so as to block the ice floes, as indeed could easily have\noccurred at the Standard Elevator dock where the stern of the Shiras struck the Tewksbury\xe2\x80\x99s bow.\nAt this point the channel . . . was further narrowed by the presence of the Druckenmiller moored\non the opposite bank. Had the Tewksbury\xe2\x80\x99s mooring held, it is thus by no means unlikely that\nthese three ships would have dammed the river. Nor was it unforeseeable that the drawbridge\nwould not be raised since, apart from any other reason, there was no assurance of timely warning.\nWhat may have been less foreseeable was that the Shiras would get that far down the twisting\nriver, but this is somewhat negated both by the known speed of the current when freshets\ndeveloped . . . .\nContinental\xe2\x80\x99s position on the facts is stronger. It was indeed foreseeable that the improper\nconstruction and lack of inspection of the [mooring] might cause a ship to break loose and damage\npersons and property on or near the river\xe2\x80\x94that was what made Continental\xe2\x80\x99s conduct negligent.\nWith the aid of hindsight one can also say that a prudent man, carefully pondering the problem,\nwould have realized that the danger of this would be greatest under such water conditions as\ndeveloped during the night of January 21, 1959, and that if a vessel should break loose under\nthose circumstances, events might transpire as they did. But such post hoc step by step analysis\nwould render \xe2\x80\x98foreseeable\xe2\x80\x99 almost anything that has in fact occurred; if the argument relied upon\nhas legal validity, it ought not be circumvented by characterizing as foreseeable what almost no\none would in fact have foreseen at the time.\n371\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nThe effect of unforeseeability of damage upon liability for negligence has recently been\nconsidered by the Judicial Committee of the Privy Council, Overseas Tankship (U.K.) Ltd. v.\nMorts Dock & Engineering Co. (The Wagon Mound), (1961) 1 All E.R. 404. The Committee\nthere disapproved the proposition, thought to be supported by In Re Polemis and Furness, Withy\n& Co. Ltd., (1921) 3 K.B. 560 (C.A.), \xe2\x80\x9cthat unforeseeability is irrelevant if damage is \xe2\x80\x98direct.\xe2\x80\x99\xe2\x80\x9d\nWe have no difficulty with the result of The Wagon Mound, in view of the finding, 1 All E.R. at\n407, that the appellant had no reason to believe that the floating furnace oil would burn, see also\nthe extended discussion in Miller S.S. Co. v. Overseas Tankship (U.K.) Ltd., The Wagon Mound\nNo. 2, (1963) 1 Lloyd\xe2\x80\x99s Law List Rep. 402 (Sup. Ct. N.S.W.). On that view the decision simply\napplies the principle which excludes liability where the injury sprang from a hazard different from\nthat which was improperly risked, see fn. 9. Although some language in the judgment goes\nbeyond this, we would find it difficult to understand why one who had failed to use the care\nrequired to protect others in the light of expectable forces should be exonerated when the very\nrisks that rendered his conduct negligent produced other and more serious consequences to such\npersons than were fairly foreseeable when he fell short of what the law demanded. Foreseeability\nof danger is necessary to render conduct negligent; where as here the damage was caused by just\nthose forces whose existence required the exercise of greater care than was taken\xe2\x80\x94the current, the\nice, and the physical mass of the Shiras, the incurring of consequences other and greater than\nforeseen does not make the conduct less culpable or provide a reasoned basis for insulation. The\noft encountered argument that failure to limit liability to foreseeable consequences may subject\nthe defendant to a loss wholly out of proportion to his fault seems scarcely consistent with the\nuniversally accepted rule that the defendant takes the plaintiff as he finds him and will be\nresponsible for the full extent of the injury even though a latent susceptibility of the plaintiff\nrenders this far more serious than could reasonably have been anticipated.\nThe weight of authority in this country rejects the limitation of damages to consequences\nforeseeable at the time of the negligent conduct when the consequences are \xe2\x80\x98direct,\xe2\x80\x99 and the\ndamage, although other and greater than expectable, is of the same general sort that was risked. . .\n. Other American courts, purporting to apply a test of foreseeability to damages, extend that\nconcept to such unforeseen lengths as to raise serious doubt whether the concept is meaningful;\nindeed, we wonder whether the British courts are not finding it necessary to limit the language of\nThe Wagon Mound as we have indicated.\nWe see no reason why an actor engaging in conduct which entails a large risk of small\ndamage and a small risk of other and greater damage, of the same general sort, from the same\nforces, and to the same class of persons, should be relieved of responsibility for the latter simply\nbecause the chance of its occurrence, if viewed alone, may not have been large enough to require\nthe exercise of care. By hypothesis, the risk of the lesser harm was sufficient to render his\ndisregard of it actionable; the existence of a less likely additional risk that the very forces against\nwhose action he was required to guard would produce other and greater damage than could have\nbeen reasonably anticipated should inculpate him further rather than limit his liability. This does\nnot mean that the careless actor will always be held for all damages for which the forces that he\nrisked were a cause in fact. Somewhere a point will be reached when courts will agree that the\nlink has become too tenuous\xe2\x80\x94that what is claimed to be consequence is only fortuity. Thus, if\nthe destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor, with\nconsequent loss of a patient\xe2\x80\x99s life, few judges would impose liability on any of the parties here,\nalthough the agreement in result might not be paralleled by similar unanimity in reasoning;\nperhaps in the long run one returns to Judge Andrews\xe2\x80\x99 statement in Palsgraf, 162 N.E. at 104\n(dissenting opinion). \xe2\x80\x9cIt is all a question of expediency, . . . of fair judgment, always keeping in\n372\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nmind the fact that we endeavor to make a rule in each case that will be practical and in keeping\nwith the general understanding of mankind.\xe2\x80\x9d It would be pleasant if greater certainty were\npossible, see PROSSER, TORTS 262, but the many efforts that have been made at defining the locus\nof the \xe2\x80\x9c[u]ncertain and wavering line,\xe2\x80\x9d 162 N.E. 99, are not very promising; what courts do in\nsuch cases makes better sense than what they, or others, say. Where the line will be drawn will\nvary from age to age; as society has come to rely increasingly on insurance and other methods of\nloss-sharing, the point may lie further off than a century ago. Here it is surely more equitable that\nthe losses from the operators\xe2\x80\x99 negligent failure to raise the Michigan Avenue Bridge should be\nratably borne by Buffalo\xe2\x80\x99s taxpayers than left with the innocent victims of the flooding; yet the\nmind is also repelled by a solution that would impose liability solely on the City and exonerate the\npersons whose negligent acts of commission and omission were the precipitating force of the\ncollision with the bridge and its sequelae. We go only so far as to hold that where, as here, the\ndamages resulted from the same physical forces whose existence required the exercise of greater\ncare than was displayed and were of the same general sort that was expectable, unforeseeability of\nthe exact developments and of the extent of the loss will not limit liability. Other fact situations\ncan be dealt with when they arise.\nMOORE, J., concurring and dissenting.\nI do not hesitate to concur with Judge Friendly\xe2\x80\x99s well-reasoned and well-expressed\nopinion as to limitation of Kinsman\xe2\x80\x99s liability, the extent of the liability of the City of Buffalo,\nContinental and Kinsman for the damages suffered by the City, the Shiras, the Tewksbury, the\nDruckenmiller and the Farr and the division of damages.\nI cannot agree, however, merely because \xe2\x80\x9csociety has come to rely increasingly on\ninsurance and other methods of loss-sharing\xe2\x80\x9d that the courts should, or have the power to, create a\nvast judicial insurance company which will adequately compensate all who have suffered\ndamages. Equally disturbing is the suggestion that \xe2\x80\x9cHere it is surely more equitable that the\nlosses from the operators\xe2\x80\x99 negligent failure to raise the Michigan Avenue Bridge should be ratably\nborne by Buffalo\xe2\x80\x99s taxpayers than left with the innocent victims of the flooding.\xe2\x80\x9d . . .\nMy dissent is limited to that portion of the opinion which approves the awarding of\ndamages suffered as a result of the flooding of various properties upstream. I am not satisfied\nwith reliance on hindsight or on the assumption that since flooding occurred, therefore, it must\nhave been foreseeable. In fact, the majority hold that the danger \xe2\x80\x9cof flooding would not have\nbeen unforeseeable under the circumstances to anyone who gave them thought.\xe2\x80\x9d But believing\nthat \xe2\x80\x9canyone\xe2\x80\x9d might be too broad, they resort to that most famous of all legal mythological\ncharacters, the reasonably \xe2\x80\x9cprudent man.\xe2\x80\x9d Even he, however, \xe2\x80\x9ccarefully pondering the problem,\xe2\x80\x9d\nis not to be relied upon because they permit him to become prudent \xe2\x80\x9cWith the aid of hindsight.\xe2\x80\x9d\nThe majority, in effect, would remove from the law of negligence the concept of\nforeseeability because, as they say, \xe2\x80\x9cThe weight of authority in this country rejects the limitation\nof damages to consequences foreseeable at the time of the negligent conduct when the\nconsequences are \xe2\x80\x98direct.\xe2\x80\x99\xe2\x80\x9d Yet lingering thoughts of recognized legal principles create for them\nlingering doubts because they say: \xe2\x80\x9cThis does not mean that the careless actor will always be held\nfor all damages for which the forces that he risked were a cause in fact. Somewhere a point will\nbe reached when courts will agree that the link has become too tenuous\xe2\x80\x94that what is claimed to\nbe consequence is only fortuity.\xe2\x80\x9d The very example given, namely, the patient who dies because\nthe doctor is delayed by the destruction of the bridge, certainly presents a direct consequence as a\n373\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nfactual matter yet the majority opinion states that \xe2\x80\x9cfew judges would impose liability on any of the\nparties here,\xe2\x80\x9d under these circumstances.\n\nNotes\n\n1. The Palsgraf requirement. In his opinion in Kinsman Transit (I), Judge Henry Friendly\nruled that \xe2\x80\x9call the claimants here met the Palsgraf requirement of being persons to whom the\nactors owed a duty.\xe2\x80\x9d 338 F.2d at 722. In making this determination, the court placed\nconsiderable weight on the fact that all the claimants were riparian property owners located\ndownstream of the Shiras\xe2\x80\x99s mooring. An insecurely moored ship, Judge Friendly reasoned, posed\n\xe2\x80\x9ca known danger not only to herself but to the owners of all other ships and structures downriver.\xe2\x80\x9d The court observed in a footnote that \xe2\x80\x9cThe facts here do not oblige us to decide whether\nthe [parties liable for negligently mooring the Shiras] could successfully invoke Palsgraf against\nclaims of owners of shore-side property upstream from the [site at which the Shiras had been\nmoored].\xe2\x80\x9d What result if an upstream owner brought claims against Kinsman Transit and the City\nof Buffalo?\n\n2. Deep pockets? Judge Moore\xe2\x80\x99s dissent specifically criticizes Friendly\xe2\x80\x99s opinion for\nplacing losses, however unforeseeable, on the party with the best ability to absorb losses\xe2\x80\x94the\nCity. What are his reasons for advocating not taking into account the ability of the parties to bear\nlosses? Do you think there\xe2\x80\x99s an easy line to draw between the potential plaintiffs who are\nupstream property owners and the potential plaintiff who suffered due to the delayed doctor?\n\n3. Kinsman Transit and the future of baseball. The ship that touched off the events leading\nto the Kinsman Transit case was the MacGilvray Shiras. The Shiras was owned by the Kinsman\nTransit Company, which in turn was owned by Henry Steinbrenner. Its vice president and\ntreasurer was George Steinbrenner, Henry\xe2\x80\x99s son. What Judge Friendly could not have guessed\nwas that his decision in the Kinsman Transit case would powerfully shape the modern history of\nthe greatest game and the greatest team known to mankind. Some years after the incident in\nquestion, George purchased the New York Yankees.\nThe Buffalo River accident took place in January 1959. On December 8, 1958, George\nSteinbrenner visited Buffalo to work out the plans for the mooring of the Shiras. Steinbrenner left\nBuffalo four days later and went on vacation to Florida. He did not return to Buffalo until after\nthe accident.\nIn the litigation leading up to Kinsman Transit, a central question (mostly omitted above)\nwas whether the Kinsman Transit Company could make use of a safe haven in the law of\nadmiralty that limits the liability of a ship owner to the value of the ship unless the owner had\nknowledge of, or was in privity with, the act giving rise to the ship\xe2\x80\x99s liability. Judge Friendly\ndetermined that neither Henry nor George knew of the negligent mooring of the Shiras.\nMoreover, Judge Friendly ruled that\nthere is every indication that nothing different would have been done if George\nSteinbrenner had been on the scene during the final mooring as he had entrusted\n374\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nthe operation to one admittedly more competent to oversee it than he was.\nKinsman Transit I, 338 F.2d at 715.\nJudge Friendly\xe2\x80\x99s conclusion was therefore that the liability of the Kinsman Transit\nCompany was limited to the value of the Shiras. (This is very likely why the court did not need to\nresolve the question of Kinsman Transit\xe2\x80\x99s liability to upstream riparian property owners.) One\nresult was that the taxpayers of the City of Buffalo bore the lion\xe2\x80\x99s share of the damages from the\nflooding.\nA far more important result was that George Steinbrenner went on to purchase and\ntransform the then-moribund New York Yankees with money he had been able to keep by virtue\nof the fact that he was less competent than his employees. Steinbrenner\xe2\x80\x99s sons own the Yankees\nto this day.\n\n4. Kinsman Transit II. In Kinsman Transit II, decided a little more than three years after\nKinsman Transit I, the Second Circuit upheld the dismissal of claims brought by plaintiff Cargill,\nwhich owned grain being stored in a ship downstream of the drawbridge, and Cargo Carriers,\nwhich was contractually obligated to unload corn from a ship moored upstream of the drawbridge.\nAfter the accident, which blocked Cargill\xe2\x80\x99s grain from getting to the grain elevators located\nupstream of the drawbridge, Cargill was forced to purchase replacement grain to meet contractual\nobligations it had to deliver grain. Cargo Carriers, in turn, was required to rent expensive\nequipment to complete the job of unloading the corn because an ice jam caused by the flooding\nhad formed between the dock and the ship from which Cargo Carriers was unloading the corn.\nThe tug boats and icebreakers that would ordinarily have cleared the ice jam were located\ndownstream of the drawbridge and unable to get past the drawbridge after the accident.\nJudge Irving Kauffman wrote the opinion for the Second Circuit, affirming the dismissal\nof Cargill\xe2\x80\x99s and Cargo Carriers\xe2\x80\x99 claims:\nWhen the instant case was last here, we held\xe2\x80\x94although without discussion of the\nCargill and Cargo Carriers claims\xe2\x80\x94that it was a foreseeable consequence of the\nnegligence of the City of Buffalo and Kinsman Transit Company that the river\nwould be dammed. . . . It would seem to follow from this that it was foreseeable that\ntransportation on the river would be disrupted and that some would incur expenses\nbecause of the need to find alternative routes of transportation or substitutes for\ngoods delayed by the disaster.5 It may be that the specific manner was not\nforeseeable in which the damages to Cargill and Cargo Carriers would be incurred\nbut such strict foreseeability\xe2\x80\x94which in practice would rarely exist except in\n\n5\n\nIn a claim not before us on this appeal, Judge Burke denied recovery to the Buffalo Transit Company for its\nexpenses in rerouting its buses until a new bridge became available . . . . He found that the defendants did not\nknow that the transit company had a right to use the bridge. It would certainly not stretch the concept of\nforeseeability as it is developed in the cases to hold that it is \xe2\x80\x9creasonably foreseeable\xe2\x80\x9d that buses use major river\nbridges. . . .\n\n375\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nhindsight\xe2\x80\x94has not been required.6\nWe need not decide which, if any, defendants owed Cargill a duty of care with\nrespect to its unrelated claims based on the Gillies\xe2\x80\x99 [the Gillies was the ship in which\nCargill\xe2\x80\x99s grain was located] immobility, since even if Palsgraf is satisfied,\ncompensation may be precluded where\xe2\x80\x94as here\xe2\x80\x94the relationship between the\nnegligence and the injury becomes too tenuous. . . . We recognize that frequently\nidentical questions are involved whether we speak in terms of \xe2\x80\x9cduty\xe2\x80\x9d or some other\nstandard for determining where recovery should be denied. [citing Prosser at 283]\nOn the previous appeal we stated aptly: \xe2\x80\x9csomewhere a point will be reached when\ncourts will agree that the link has become too tenuous\xe2\x80\x94that what is claimed to be\nconsequence is only fortuity.\xe2\x80\x9d . . . We believe that this point has been reached with\nthe Cargill and Cargo Carriers claims. Neither the Gillies nor the [boat on which\nthe Cargo Carrier corn was stored] suffered any direct or immediate damage for\nwhich recovery is sought. The instant claims occurred only because the downed\nbridge made it impossible to move traffic along the river.7 Under all the\ncircumstances of this case, we hold that the connection between the defendants\xe2\x80\x99\nnegligence and the claimants\xe2\x80\x99 damages is too tenuous and remote to permit\nrecovery. \xe2\x80\x9cThe law does not spread its protection so far.\xe2\x80\x9d [quoting Justice Holmes\nin Robins Dry Dock.]8\nIn the final analysis, the circumlocution whether posed in terms of \xe2\x80\x9cforeseeability,\xe2\x80\x9d\n\xe2\x80\x9cduty,\xe2\x80\x9d \xe2\x80\x9cproximate cause,\xe2\x80\x9d \xe2\x80\x9cremoteness,\xe2\x80\x9d etc. seems unavoidable. As we have\npreviously noted,[] we return to Judge Andrews\xe2\x80\x99 frequently quoted statement in\nPalsgraf: \xe2\x80\x9cIt is all a question of expediency . . . of fair judgment, always keeping in\nmind the fact that we endeavor to make a rule in each case that will be practical and\nin keeping with the general understanding of mankind.\xe2\x80\x9d\nKinsman Transit II, 388 F.2d at 824\xe2\x80\x9325.\n\n5. An insurance rationale? In deliberating over the Kinsman Transit case, Judge Friendly\nWe previously held that \xe2\x80\x9call the claimants here met the Palsgraf . . . requirement of being persons to whom the\nactor owed a \xe2\x80\x98duty of care.\xe2\x80\x99\xe2\x80\x9d . . .\n7\nThe claim of Cargo Carriers is the more troublesome of the two because [the boat on which the corn was\nstored] was struck by either the Shiras or the [second boat] and where there is physical damage to a vessel the\nowner can recover for the loss of its use until repairs are completed. . . . But apparently Cargo Carriers has not\nsought recovery for physical damage to the Farr. And, as we understand the facts, the Farr could have been\nunloaded without additional expense were it not for the fact that the tugs which ordinarily are used to break up\nice jams were caught below the Michigan Avenue Bridge.\n8\nAlthough to reason by example is often merely to restate the problem, the following illustration may be an aid\nin explaining our result. To anyone familiar with N.Y. traffic there can be no doubt that a foreseeable result of an\naccident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver\nwho negligently caused such an accident would certainly be held accountable to those physically injured in the\ncrash. But we doubt that damages would be recoverable against the negligent driver in favor of truckers or\ncontract carriers who suffered provable losses because of the delay or to the wage earner who was forced to\n\xe2\x80\x98clock in\xe2\x80\x99 an hour late. And yet it was surely foreseeable that among the many who would be delayed would be\ntruckers and wage earners.\n6\n\n376\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nrecommended to his colleagues that insurance should play a role in the case\xe2\x80\x99s resolution. \xe2\x80\x9cIf there\nwere any way in which the doctrine could be manipulated so as to correspond with probable\ninsurance that would be fine,\xe2\x80\x9d he wrote, \xe2\x80\x9cand in our case one may guess there to be more\nlikelihood that the property owners were insured against flood damages than that Continental\xe2\x80\x99s\nliability insurance would be equal to the strain.\xe2\x80\x9d DAVID M. DORSEN, HENRY FRIENDLY: GREATEST\nJUDGE OF HIS ERA 309 (2012). Did Judge Friendly\xe2\x80\x99s decision succeed in placing losses with the\nbetter insured parties?\n\nF. Proximate Cause Beyond Torts\n1. Proximate Cause and Criminal Law\nProximate causation is an issue that courts wrestle with in contexts outside of torts. For\nexample, the \xe2\x80\x9cexclusionary rule\xe2\x80\x9d in criminal law generally holds that evidence obtained in\nviolation of the Fourth Amendment is inadmissible. For example, in Hudson v. Michigan, 547\nU.S. 586 (2006), a criminal defendant was convicted based on a search of his house that revealed\nlarge quantities of guns and firearms. However, the police violated the \xe2\x80\x9cknock and announce\xe2\x80\x9d\nrule for executing the search warrant. The Supreme Court ruled that evidence obtained in\nviolation of that rule was still admissible because the Fourth Amendment violation was not\nsufficiently related to the evidence obtained in the search to have the \xe2\x80\x9ctaint\xe2\x80\x9d of illegality. Justice\nScalia, writing for the Court, explained that \xe2\x80\x9cbut-for causality is only a necessary, not sufficient,\ncondition for suppression . . . [because it] can be too attenuated to justify exclusion.\xe2\x80\x9d He dictated\na balancing test to determine whether the exclusion\xe2\x80\x99s \xe2\x80\x9cdeterrence benefits outweigh its substantial\nsocial costs\xe2\x80\x9d of potentially letting guilty defendants avoid conviction to limit excessive exclusion.\nThere are similar proximate cause devices in statutory regimes, including limiting damages in\nRICO (Racketeer Influenced and Corrupt Organizations Act) cases, Holmes v. Sec. Investor Prot.\nCorp., 503 U.S. 258 (1992), and antitrust cases, Associated General Contractors v. Cal. State\nCouncil of Carpenters, 459 U.S. 519 (1983). For a broader discussion of proximate cause in other\ncontexts, see Sandra Sperino, Statutory Proximate Cause, 88 NOTRE DAME L. REV. 1199 (2013).\n\n2. Proximate Cause and Consequential Damages\nThe famous contracts case, Hadley v. Baxendale, is commonly cited for the proposition\nthat a breaching party in a contract is only liable for those damages that arise naturally from the\nbreach, or which might \xe2\x80\x9creasonably be supposed to have been in the contemplation of both\nparties, at the time they made the contract, as the probable result of the breach of it.\xe2\x80\x9d These\nformulations (\xe2\x80\x9carising naturally,\xe2\x80\x9d \xe2\x80\x9creasonably . . . in the contemplation,\xe2\x80\x9d and \xe2\x80\x9cprobable result\xe2\x80\x9d)\nsound quite similar to cases on proximate cause that used language like ordinary and natural,\ndirect consequences, foreseeability, etc. The conventional wisdom, however, is that the concept\nof proximate cause in torts is much more expansive than consequential damages in contract.\nThere is, for example, widespread agreement that damages are recoverable in tort under an\neggshell skull theory that would not be recoverable under Hadley v. Baxendale. See Banks\nMcDowell, Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness,\n26 CASE W. RES. L. REV. 286 (1985).\n\n377\n\n\x0cWitt & Tani, TCPI 7. Proximate Cause\n\nDoes it make sense to have different foreseeability standards for different causes of\naction\xe2\x80\x94sometimes causes of action (as in products liability cases) that may appear in the same\ncomplaint? Why should contracts have a stricter foreseeability standard than torts?\n\n378\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nCHAPTER 8. THE DUTY PROBLEM\nWe have now walked through the basic steps of the tort cause of action in most\nunintentional torts case. It turns out, however, that there is still one more hurdle for the\nenterprising plaintiff\xe2\x80\x99s lawyer and her client. For even when a defendant has acted negligently,\nand even when that negligent action was a necessary antecedent and a legal cause of the plaintiff\xe2\x80\x99s\ninjury, and even when the plaintiff has not acted negligently or assumed the risk herself,\nsometimes she still cannot recover. The principal reason for this doctrinally is the doctrine of\nduty. For in tort, the obligation of reasonable care is not a general duty owed to all the world. It\nis a domain-specific duty, owed to many third parties under many circumstances, to be sure, but\nnot to all people at all times.\nThe question of whether legal duty is properly an independent component of the inquiry in\na torts case has been hotly contested for nearly a century now. Critics argue that to conclude that\nthere was or was not a legal duty in a particular case is inevitably question begging and circular.\nCritics point out further that the kinds of factors that courts consider in determining whether a\nlegal duty exists are precisely the kinds of factors the judge and jury are to consider at other stages\nof the inquiry. Defenders, by contrast, argue that the duty stage of the analysis is critical for\nunderstanding the relational character of tort law\xe2\x80\x99s corrective justice project.\nOne thing that the defenders\xe2\x80\x99 argument has going for it is that historically, there have\nbeen an extraordinary array of areas in our social life to which the common law of torts attaches a\nspecial limited tort duty of care\xe2\x80\x94or simply no duty of care at all. Having built up the negligence\naction in the past five chapters, the common law (at least in its traditional structure) sometimes\nseemed to dismantle the negligence action in virtually every significant domain of social life.\nIn this chapter, we run through the principal social situations in which the law of torts\nrecognizes no duty of reasonable care. Areas of limited or no duty abound. Historically, they\nhave virtually covered the field of tort law, so much so (as the torts scholar Robert Rabin has\nobserved) that the negligence cause of action barely existed until the middle of the nineteenth\ncentury. See Robert L. Rabin, The Historical Development of the Fault Principle: A\nReinterpretation, 15 GA. L. REV. 925 (1981).\nThe second half of the twentieth century witnessed the gradual erosion of these domains\nof limited or no duty of care and the concomitant expansion of the negligence action. The first\nexample of a limited duty rule we take up below, however, is the classic rule holding that there is\ngenerally no duty to rescue. This rule is still running strong today. The nonexistence of such a\nduty to rescue, many say, is a powerful piece of evidence for the centrality of duty in our basic\nideas about tort law.\n\nA. Is There a Duty to Rescue?\nIt is well settled\xe2\x80\x94and yet enduringly controversial\xe2\x80\x94that the common law of torts\nimposes no general duty to rescue. The person who encounters an unconscious stranger face\ndown in a puddle on the sidewalk has no tort duty to turn the stranger\xe2\x80\x99s head, even if the person\nknows the stranger to be in imminent danger of death by drowning, and even if the person knows\nthat the costs to herself of rescuing the stranger would be minimal.\n379\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nWhy should tort law adopt such a morally startling proposition? We have no doubt that\nthe person who declines to assist in such a situation has behaved in a shocking and morally\ndeplorable fashion. But despite the moral obligation to assist in such a case, the law declines to\nattach a legal obligation.\n\n1. Cases\nFarwell v. Keaton, 240 N.W.2d 217 (Mich. 1976)\nLEVIN, J.\nOn the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to\nreturn an automobile which Siegrist had borrowed from a friend who worked there. While\nwaiting for the friend to finish work, Siegrist and Farwell consumed some beer.\nTwo girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage\nthem in conversation; they left Farwell\xe2\x80\x99s car and followed the girls to a drive-in restaurant down\nthe street.\nThe girls complained to their friends in the restaurant that they were being followed. Six\nboys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was\nseverely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to\nFarwell\xe2\x80\x99s head. Siegrist then drove Farwell around for approximately two hours, stopping at a\nnumber of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around\nmidnight Siegrist drove the car to the home of Farwell\xe2\x80\x99s grandparents, parked it in the driveway,\nunsuccessfully attempted to rouse Farwell, and left. Farwell\xe2\x80\x99s grandparents discovered him in the\ncar the next morning and took him to the hospital. He died three days later of an epidural\nhematoma.\nAt trial, plaintiff [the father of the decedent] contended that had Siegrist taken Farwell to\nthe hospital, or had he notified someone of Farwell\xe2\x80\x99s condition and whereabouts, Farwell would\nnot have died. A neurosurgeon testified that if a person in Farwell\xe2\x80\x99s condition is taken to a doctor\nbefore, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of\nsurvival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that\nhe should have done something.\nThe jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of\nAppeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and\nthat he neither knew nor should have known of the need for medical treatment.\n....\n\xe2\x80\x9cA duty, in negligence cases, may be defined as an obligation, to which the law will give\nrecognition and effect, to conform to a particular standard of conduct toward another.\xe2\x80\x9d Prosser,\nTorts (4th ed.), \xc2\xa7 53, p 324. . . .\n\n380\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nSiegrist contends that he is not liable for failure to obtain medical assistance for Farwell\nbecause he had no duty to do so.\nCourts have been slow to recognize a duty to render aid to a person in peril. Where such a\nduty has been found, it has been predicated upon the existence of a special relationship between\nthe parties; in such a case, if defendant knew or should have known of the other person\xe2\x80\x99s peril,\nhe is required to render reasonable care under all the circumstances. . . .\nFarwell and Siegrist were companions on a social venture. Implicit in such a common\nundertaking is the understanding that one will render assistance to the other when he is in peril if\nhe can do so without endangering himself. Siegrist knew or should have known when he left\nFarwell, who was badly beaten and unconscious, in the back seat of his car that no one would find\nhim before morning. Under these circumstances, to say that Siegrist had no duty to obtain\nmedical assistance or at least to notify someone of Farwell\xe2\x80\x99s condition and whereabouts would be\n\xe2\x80\x9cshocking to humanitarian considerations\xe2\x80\x9d and fly in the face of \xe2\x80\x9cthe commonly accepted code of\nsocial conduct.\xe2\x80\x9d Hutchinson v. Dickie, 162 F.2d 103, 106 (6th Cir. 1947) [(finding that a host had\nan affirmative duty to try to rescue a guest who had fallen off the host\xe2\x80\x99s yacht)]. \xe2\x80\x9c[C]ourts will\nfind a duty where, in general, reasonable men would recognize it and agree that it\nexists.\xe2\x80\x9d Prosser, supra, \xc2\xa7 53, at 327.\nFarwell and Siegrist were companions engaged in a common undertaking; there was a\nspecial relationship between the parties. Because Siegrist knew or should have known of the peril\nFarwell was in and could render assistance without endangering himself he had an affirmative\nduty to come to Farwell\xe2\x80\x99s aid.\nThe Court of Appeals is reversed and the verdict of the jury reinstated.\n\nHarper v. Herman, 499 N.W.2d 472 (Minn. 1993)\nThis case arises upon a reversal by the court of appeals of summary judgment in favor of\nthe defendant. The court of appeals held that defendant, the owner and operator of a private boat\non Lake Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the\nboat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.\nThe facts are undisputed for the purpose of this appeal. On Sunday, August 9, 1986,\nJeffrey Harper (\xe2\x80\x9cHarper\xe2\x80\x9d) was one of four guests on Theodor Herman\xe2\x80\x99s (\xe2\x80\x9cHerman\xe2\x80\x9d) 26-foot boat,\nsailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer,\nanother guest on Herman\xe2\x80\x99s boat. Herman and Harper did not know each other prior to this boat\nouting. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an\nexperienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka\nsimilar to the one involved in this action. As owner of the boat, Herman considered himself to be\nin charge of the boat and his passengers. Harper had some experience swimming in lakes and\nrivers, but had no formal training in diving.\nAfter a few hours of boating, the group decided to go swimming and, at Herman\xe2\x80\x99s\nsuggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island,\nand he was aware that the water remains shallow for a good distance away from its shore. Harper\nhad been to Big Island on one previous occasion. Herman positioned the boat somewhere\n381\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nbetween 100 to 200 yards from the island with the bow facing away from the island in an area\nshallow enough for his guests to use the boat ladder to enter the water, but still deep enough so\nthey could swim. The bottom of the lake was not visible from the boat. After positioning the boat\nHerman proceeded to set the anchor and lower the boat\xe2\x80\x99s ladder which was at its stern.\nWhile Herman was lowering the ladder, Harper asked him if he was \xe2\x80\x9cgoing in.\xe2\x80\x9d When\nHerman responded yes, Harper, without warning, stepped onto the side of the middle of the boat\nand dove into approximately two or three feet of water. As a result of the dive, Harper struck the\nbottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.\nHarper then brought suit, alleging that Herman owed him a duty of care to warn him that\nthe water was too shallow for diving. On October 23, 1991, the trial court granted Herman\xe2\x80\x99s\nmotion for summary judgment, ruling that the law does not impose such a duty. In reversing the\ntrial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise\nreasonable care when he allowed Harper onto his boat, and that the duty of care included warning\nHarper not to dive because he knew that the water was \xe2\x80\x9cdangerously shallow.\xe2\x80\x9d . . .\nThe sole issue on appeal is whether a boat owner who is a social host owes a duty of care\nto warn a guest on the boat that the water is too shallow for diving.\nHarper alleges that Herman owed him a duty to warn of the shallowness of the water\nbecause he was an inexperienced swimmer and diver, whereas Herman was a veteran boater.\nUnder those circumstances, Harper argues, Herman should have realized that Harper needed his\nprotection.\nWe have previously stated that an affirmative duty to act only arises when a special\nrelationship exists between the parties. \xe2\x80\x9cThe fact that an actor realizes or should realize that\naction on his part is necessary for another\xe2\x80\x99s aid or protection does not of itself impose upon him a\nduty to take such action . . . unless a special relationship exists . . . between the actor and the other\nwhich gives the other the right to protection.\xe2\x80\x9d . . .\nHarper argues that a special relationship requiring Herman to act for his protection was\ncreated when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a\nspecial relationship giving rise to a duty to warn is only found on the part of common carriers,\ninnkeepers, possessors of land who hold it open to the public, and persons who have custody of\nanother person under circumstances in which that other person is deprived of normal opportunities\nof self-protection. Restatement (Second) of Torts \xc2\xa7 314A (1965). Under this rule, a special\nrelationship could be found to exist between the parties only if Herman had custody of Harper\nunder circumstances in which Harper was deprived of normal opportunities to protect himself.2\n\n2\n\nProsser describes a circumstance in which one party would be liable in negligence because another party was\ndeprived of normal opportunities for self-protection as occurring when\nthe plaintiff is typically in some respect particularly vulnerable and dependent upon the\ndefendant who, correspondingly, holds considerable power over the plaintiff\xe2\x80\x99s welfare. . .\n. [S]uch relations have often involved some existing or potential economic advantage to\nthe defendant. Fairness in such cases thus may require the defendant to use his power to\nhelp the plaintiff, based upon the plaintiff\xe2\x80\x99s expectation of protection, which itself may be\n\n382\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThese elements are not present here.\nThe record before this court does not establish that Harper was either particularly\nvulnerable or that he lacked the ability to protect himself. Further, the record does not establish\nthat Herman held considerable power over Harper\xe2\x80\x99s welfare, or that Herman was receiving a\nfinancial gain by hosting Harper on his boat. Finally, there is nothing in the record which would\nsuggest that Harper expected any protection from Herman; indeed, no such allegation has been\nmade.\nThe court of appeals found that Herman owed Harper a duty to warn him of the\nshallowness of the water because Herman knew that it was \xe2\x80\x9cdangerously shallow.\xe2\x80\x9d We have\npreviously stated that \xe2\x80\x9c[a]ctual knowledge of a dangerous condition tends to impose a special duty\nto do something about that condition.\xe2\x80\x9d . . . . However, superior knowledge of a dangerous\ncondition by itself, in the absence of a duty to provide protection, is insufficient to establish\nliability in negligence. Thus, Herman\xe2\x80\x99s knowledge that the water was \xe2\x80\x9cdangerously shallow\xe2\x80\x9d\nwithout more does not create liability. . . . In this case, Harper was not deprived of opportunities\nto protect himself, and Herman was not expected to provide protection.\n\xe2\x80\x9cThere are many dangers, such as those of fire and water, . . . which under ordinary\nconditions may reasonably be expected to be fully understood and appreciated by any child . . . .\xe2\x80\x9d\nRestatement (Second) of Torts \xc2\xa7 339 cmt. j (1965). If a child is expected to understand the\ninherent dangers of water, so should a 20-year-old adult. Harper had no reasonable expectation to\nlook to Herman for protection, and we hold that Herman had no duty to warn Harper that the\nwater was shallow.\nReversed and judgment in favor of defendant reinstated.\n\nNotes\n\n1. A stark no duty rule. It is worthwhile recalling precisely what the Harper v. Herman court\nmeans when it holds that Herman had no special relationship with Harper and thus was not\nobligated to warn Harper. Even if Herman knew that Harper was about to dive into dangerously\nshallow water, even if Harper announced his intention, and even if Herman foresaw with perfect\nforesight the devastating effects Harper\xe2\x80\x99s dive would have and knew that he could save Harper\nwith a simple word at virtually no cost to himself, the court\xe2\x80\x99s analysis would remain the same. No\nlegal obligation to assist means no liability, no matter how clear the costlessness of the rescue and\nthe costs of the likely injury.\n\n2. Can Farwell and Harper be reconciled? The Farwell court treats the defendant\xe2\x80\x99s\nknowledge of the plaintiff\xe2\x80\x99s risky position as grounds for recognizing a special relationship. The\nHarper court, by contrast, seems to suggest that the fact of the defendant\xe2\x80\x99s knowledge is not a\n\nbased upon the defendant\xe2\x80\x99s expectation of financial gain.\nW. Page Keeton et al., Prosser and Keeton on the Laws of Torts \xc2\xa7 56, at 374 (5th ed. 1984).\n\n383\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nreason to recognize a duty to render assistance, but rather merely a reason to think that the\ndefendant may have breached such a duty when a special relationship establishing such a duty can\nbe said to exist for independent reasons. What is at stake in these two different approaches, as is\nso often the case in the duty inquiry, is the allocation of decisionmaking authority between judge\nand jury. If the existence of a duty turns on factual questions such as the defendant\xe2\x80\x99s knowledge\nof the risks, then the jury will have considerable influence on the duty determination. But if the\nduty determination, as in Harper, is made independent of the particular facts in a particular case,\nthen courts will be able to make those judgments on their own. Each approach creates its own\ndilemmas. The fact-intensive approach of Farwell begs the question of why the very same factors\nthat help decide the existence of a duty\xe2\x80\x94a defendant\xe2\x80\x99s knowledge of the risks, the costs of\nprecautions, etc.\xe2\x80\x94then reappear at the breach stage of the analysis to help decide whether the\ndefendant breached the duty. By contrast, the Harper court approach leaves one wondering what\nthe relevant considerations would be for recognizing a special relationship between the parties; is\nthe special relationship category exhausted by the short list of historical special relations?\n\n3. Acts and omissions. The no-duty rule posits that there is no general duty to act, merely a\nduty in acting to behave reasonably in the actions one does undertake. Omissions, as opposed to\nactions, do not give rise to legal responsibility.\nBut why are either of these cases properly characterized as cases in which the defendant\nomitted to act rather than as cases in which the defendant was engaged in a course of conduct.\nWhy, in other words, are they treated as omission cases rather than action cases?\nThere is little doubt that a driver who fails, either negligently or intentionally, to apply the\nbrake when he sees a pedestrian cross dangerously in front of him has driven in a wrongful\nmanner. Of course we could characterize the driver as having omitted to act\xe2\x80\x94as having omitted\nto apply the brake. But we don\xe2\x80\x99t. Note that one important feature of this hypothetical is that the\ndriver is causally connected to the risk in which the pedestrian finds himself. Yet the same is true\nin both Farwell and Harper. Why don\xe2\x80\x99t we see the drinking buddy as having engaged in a\nnegligent course of action in setting out on an adventure in the dangerous parking lots of the\nAmerican suburban wilderness? Didn\xe2\x80\x99t Farwell engage in a course of conduct much like the\ndriver who omits to brake? Herman could be said to have engaged in a kind of negligent boating.\nProfessors Kenneth Abraham and Leslie Kendrick contend that \xe2\x80\x9cmost of the so-called affirmative\nduty cases actually are conventional negligence cases of a particular sort: those in which the\ndefendant is not exclusively responsible for creating the danger to the plaintiff.\xe2\x80\x9d Kenneth S.\nAbraham & Leslie Kendrick, There\xe2\x80\x99s No Such Thing as Affirmative Duty, 104 IOWA L. REV. 1649\n(2019).\nOne view is that there are no bedrock principles on which the act / omission distinction\nrests, but that there are merely social conventions and intuitions about when a person can be said\nto be in some way responsible for another\xe2\x80\x99s loss. The difficulty, of course, is that to say this is not\nvery helpful, since the aim of tort law is precisely to identify who should bear a given loss,\nespecially in cases where the social conventions become controversial.\n\n4. The utilitarian critique. What principle explains the rule of no duty to rescue? A century\nago, legal scholar James Barr Ames suggested that the general no-duty rule was a kind of failure\nof imagination that prevented adoption of a more targeted and nuanced rule that would more\n384\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nclosely produce utilitarian outcomes:\nThe law does not compel active benevolence between man and man. It is left to\none\xe2\x80\x99s conscience whether he shall be the good Samaritan or not. But ought the law\nto remain in this condition? Of course any statutory duty to be benevolent would\nhave to be exceptional. The practical difficulty in such legislation would be in\ndrawing the line. But that difficulty has continually to be faced in the law. We\nshould all be better satisfied if the man who refuses to throw a rope to a drowning\nman or to save a helpless child on the railroad track could be punished and be made\nto compensate the widow of the man drowned and the wounded child. . . . These\nillustrations suggest a possible working rule. One who fails to interfere to save\nanother from impending death or great bodily harm, when he might do so with little\nor no inconvenience to himself, and the death of great bodily harm follows as a\nconsequence of his inaction, shall . . . make compensation to the party injured or to\nhis widow and children in case of death.\nJames Barr Ames, The Law and Morals, 22 HARV. L. REV. 97. 109-10, 112-13 (1908).\nMore recently, those with a utilitarian streak have tried to find welfare-based reasons to\nexplain the general rule. They aim further to characterize the traditional hard-and-fast rule as\nslowly giving way to a legal framework that recognizes a duty to rescue, at least in some domains.\nJudge Posner depicted the situation thus:\nVarious rationales have been offered for the seemingly hardhearted common law\nrule: people should not count on nonprofessionals for rescue; the circle of\npotentially liable nonrescuers would be difficult to draw (suppose a person is\ndrowning and no one on the crowded beach makes an effort to save him\xe2\x80\x94should\nall be liable?); altruism makes the problem a small one and liability might actually\nreduce the number of altruistic rescues by depriving people of credit for altruism\n(how would they prove they hadn\xe2\x80\x99t acted under threat of legal liability?); people\nwould be deterred by threat of liability from putting themselves in a position where\nthey might be called upon to attempt a rescue, especially since a failed rescue might\nunder settled common law principles give rise to liability, on the theory that a\nclumsy rescue attempt may have interfered with a competent rescue by someone\nelse. . . .\nWhatever the validity of these explanations for the common law rule, they have\nbeen held to be overborne in three types of case. The three types are typically said\nto involve a \xe2\x80\x9cspecial relationship\xe2\x80\x9d between rescuer and victim. . . .\nThe first type of case is where the rescuer had either assumed, explicitly or\nimplicitly, a contractual duty to rescue the victim. . . .\nIn the second type of case, the victim was in the rescuer\xe2\x80\x99s custody and thus without\naccess to alternative rescuers. . . . These cases are readily assimilated to cases of the\nfirst type . . . .\nThe third class consists of cases in which the victim\xe2\x80\x99s peril had been caused by the\nputative rescuer himself\xe2\x80\x94even if he had caused it nonnegligently. . . .\n385\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nIn short . . . when the rescuer either has assumed explicitly or implicitly a duty of\nrescue, or has caused the injury, the reasons behind the common law rule fall away\nand the rule is bent.\nStockberger v. United States, 332 F.3d 479 (7th Cir. 2003) (Posner, J.).\n\n5. A rights-based answer. The more common observation has been to insist that the rule of\nno duty to rescue reveals something deeply anti-utilitarian underlying the law of torts. Professor\nRichard Epstein made the argument especially energetically four decades ago, insisting that the\nrule against a duty to rescue was fundamental to human freedom:\nUnder Ames\xe2\x80\x99 good Samaritan rule, a defendant in cases of affirmative acts would\nbe required to take only those steps that can be done \xe2\x80\x9cwith little or no inconvenience.\xe2\x80\x9d\nBut if the distinction between causing harm and not preventing harm is to be\ndisregarded, why should the difference in standards between the two cases survive\nthe reform of the law? The only explanation is that the two situations are regarded\nat bottom as raising totally different issues, even for those who insist upon the\nimmateriality of this distinction. Even those who argue, as Ames does, that the law\nis utilitarian must in the end find some special place for the claims of egoism which\nare an inseparable byproduct of the belief that individual autonomy\xe2\x80\x94individual\nliberty\xe2\x80\x94a good in itself not explainable in terms of its purported social worth. . . .\nRichard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 197\xe2\x80\x93200 (1973).\nEpstein goes on to ask whether a middle class resident of a western market\neconomy might be legally obligated under Ames\xe2\x80\x99s rule to say yes when asked to provide\n$10 to a private charity to save the life of a starving child. What about the second time?\nThe third? Epstein attacks the idea of a duty to rescue on the grounds that \xe2\x80\x9cit becomes\nimpossible to tell where liberty ends and obligation begins; where contract ends, and tort\nbegins.\xe2\x80\x9d Moreover, and perhaps more interestingly, Epstein observes that compulsory\nassistance threatens the very existence of the domain of charity.\nJudge Posner responds that a duty to rescue, properly understood, would vindicate the\ncontractual liberty that Epstein seeks to achieve, not defeat it:\nSuppose that if all of the members of society could somehow be assembled they\nwould agree unanimously that, as a reasonable measure of mutual protection,\nanyone who can warn or rescue someone in distress at negligible cost to himself (in\ntime, danger, or whatever) should be required to do so. These mutual promises of\nassistance would create a contract that Epstein would presumably enforce since he\nconsiders the right to make binding contracts a fundamental one. However, there\nare technical obstacles\xe2\x80\x94in this case insurmountable ones\xe2\x80\x94to the formation of an\nactual contract among so many people. Transaction costs are prohibitive. If, moved\nby these circumstances, a court were to impose tort liability on a bystander who\nfailed to assist a person in distress, such liability would be a means of carrying out\nthe original desires of the parties just as if it were an express contract that was being\nenforced.\n386\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nRichard A. Posner, Epstein\xe2\x80\x99s Tort Theory: A Critique, 8 J. LEGAL STUD. 457, 460-61 (1979).\nOthers have argued that taking a potential rescuer\xe2\x80\x99s previous contributions into account would\nsupply the principled stopping point that Epstein worries does not exist. See T. M. SCANLON,\nWHAT WE OWE EACH Other 224 (1998).\n\n6. Moral heuristics? Still another view\xe2\x80\x94one rooted deep in the nineteenth-century\nintellectual history of utilitarianism\xe2\x80\x94is that the rule against a duty to rescue is the kind of moral\nmistake that \xe2\x80\x9ccommon sense morality\xe2\x80\x9d (in philosopher Henry Sidgwick\xe2\x80\x99s phrase from his The\nMethods of Ethics 425 (1907)) or the \xe2\x80\x9cmorality of the multitude\xe2\x80\x9d (in John Stuart Mill\xe2\x80\x99s cutting\nformulation from his Utilitarianism (1879)) makes when it encounters unusual situations in which\nthe conventional moral norms fail to advance the general happiness. Cass Sunstein has recently\nadvanced this argument in an updated form:\nIt is worth considering the possibility that the act-omission distinction operates as a\nheuristic . . . . From the moral point of view, harmful acts are generally worse than\nharmful omissions, in terms of both the state of mind of the wrongdoer and the likely\nconsequences of the wrong. A murderer is typically more malicious than a\nbystander who refuses to come to the aid of someone who is drowning; the murderer\nwants his victim to die, whereas the bystander need have no such desire. In addition,\na murderer typically guarantees death, whereas a bystander may do no such thing.\n(I put to one side some complexities about causation.) But in terms of either the\nwrongdoer\xe2\x80\x99s state of mind or the consequences, harmful acts are not always worse\nthan harmful omissions. The moral puzzles arise when life, or a clever interlocutor,\ncomes up with a case in which there is no morally relevant distinction between acts\nand omissions, but when moral intuitions . . . strongly suggest that there must be\nsuch a difference. . . .\nIn such cases, we might hypothesize that moral intuitions reflect an\novergeneralization of principles that usually make sense\xe2\x80\x94but that fail to make\nsense in the particular case . . . .\nCass Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531 (2005).\nIf Mill, Sidgwick, and Sunstein are correct\xe2\x80\x94if the confusion around the no-duty rule is\nthe result of what Sidgwick called the \xe2\x80\x9cUnconscious Utilitarianism\xe2\x80\x9d of everyday moral\ndistinctions such as act and omission\xe2\x80\x94what should the law do? On the one hand, Mill urged us\nto see such situations as ones of moral confusion to be corrected by an explicit utilitarian calculus\nsuch as the one contained in Ames\xe2\x80\x99s proposal. On the other hand, common sense morality\xe2\x80\x99s value\nas a proxy or heuristic for complex utilitarian calculations might be undermined if the law\ndropped the pretense of common sense morality in hard cases. The use of everyday morality as a\nproxy for utilitarianism might, as Sidgwick observed, require the rule makers to mislead the\npublic about the real basis of the moral rules. HENRY SIDGWICK, THE METHODS OF ETHICS 447\n(7th ed. 1981).\n\n387\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n7. Unconscious utilitarianism or unconscious altruism? Sunstein suggests that many moral\njudgments are the product of automatic, prereflective intuitions. But will conscious reflection\nproduce happier results in the low-cost easy rescue cases?\nReflection may not lead people to act in the ways we might like. Psychologists David\nRand and Ziv Epstein surveyed dozens of anecdotal reports from people who undertook heroic\nrescues of strangers, such as saving an elderly woman from drowning in her car. They found that\nthese altruistic individuals overwhelmingly reported their decision-making processes as\ndominated by instinct, not a deliberative weighing of pros and cons. David G. Rand & Ziv G.\nEpstein, Risking Your Life Without a Second Thought: Intuitive Decision-Making and Extreme\nAltruism, 9 PLOS ONE, 1 (2014).\nRand and numerous other researchers find that players in economic games tend to make\nmore selfish choices the more time they are given to deliberate. Pressuring players to decide\nquickly, by putting them under time constraints or cognitive load, leads them to behave more\ncooperatively. It is as if deliberation promotes selfishness and intuition favors altruism. David G.\nRand, Cooperation, Fast and Slow: Meta-Analytic Evidence for a Theory of Social Heuristics and\nSelf-Interested Deliberation, 27 PSYCHOL. SCI. 1192 (2016). Rand concludes that each of us is\nprone, for evolutionary reasons, to be an unthinking altruist and a calculating homo economicus.\n\n8. Conceptual thickets and the limited duty rules. One way to avoid the conceptual thickets\nof the utilitarian approach would be to insist (as Epstein insisted) that the rule of no duty to rescue\nis not utilitarianism in disguise at all. The rule of no duty to rescue seems much more plausibly\ndefended as a recognition of the moral impoverishment of the utilitarian view. The rule embodies\nthe nuanced relational character of moral obligation and tort liability in liberal societies. We don\xe2\x80\x99t\nhave generalized duties to all comers. We have only more particular duties, including sometimes\nparticular duties to aid particular people from particular risks. The tort law rule on the duty to\nrescue, in this view, simply embodies the basic structure of morality.\nIn this sense, the duty to rescue is a perfect introduction to the limited-duty and no-duty\nrules that follow in the rest of this chapter. Ever since beginning to study the negligence cause of\naction, we have assumed a duty of reasonable care. But in many different domains of social life\nthere is no such duty; at the very least, the duty that inheres in such domains is different from the\ngeneric duty of reasonable care. Some influential torts jurists, as we shall see, believe that the\ndomain-specific character of tort law is a mistake that ought to be suppressed in favor of a generic\nreasonableness test. Relevant relational considerations, they say, need not be ignored, since they\ncan be and are brought out in the analysis of the reasonableness of the parties\xe2\x80\x99 actions. Others\nequally prominent in the field object and insist that the domain specificity and relational character\nof our moral and legal obligations do and ought to appear in the formal doctrine of duties of care.\n\n2. Liability for Good Samaritans?\nNo matter what the basis for the limits on the common law duty to rescue, some states\nhave altered the common law rule by statute and created limited duties to rescue along the lines of\nthe proposal advanced by Ames a century ago. The statutes often address a further question that\n\n388\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\narises when someone has chosen to act as a Good Samaritan and provided help to someone in\nneed. What happens when the rescue goes awry?\n\nSwenson v. Waseca Mutual Insurance Co., 653 N.W.2d 794 (Minn. 2002)\nANDERSON, J.\nOn January 19, 1998, Kelly Swenson, 13 years old, injured her leg when the snowmobile\nshe was driving struck a drainage culvert in the north ditch. . . . Swenson apparently dislocated her\nknee during the accident. With Swenson at the time of the accident were her sister and three\nfriends.\nLillian Tiegs, a passing motorist, in response to waving from Swenson\xe2\x80\x99s companions,\nstopped her vehicle on the shoulder of Highway 19 and asked if any assistance was necessary.\nTiegs first attempted to summon help by calling 911, but she was unable to raise a signal on her\ncell phone. Tiegs then agreed to drive Swenson to the hospital in New Prague. The rest of\nSwenson\xe2\x80\x99s group decided to drive their snowmobiles to the home of Tiegs, less than a quarter of a\nmile away from the scene of the accident. The plan was to leave the snowmobiles at the Tiegs\nresidence and then ride in the Tiegs\xe2\x80\x99 van to the hospital.\nAfter Swenson was placed in the van, Tiegs attempted to make a U-turn from the\nwestbound side of the highway to the eastbound lane. Before Tiegs had completed the U-turn, a\ntractor-trailer exceeding the posted speed limit and traveling in the eastbound lane struck the\npassenger side of the Tiegs\xe2\x80\x99 van. Kelly Swenson died as a result of injuries she sustained in this\naccident.\nThe Swenson family brought a wrongful-death action against both the tractor-trailer driver\nand Tiegs. The Swensons settled with the driver of the tractor-trailer and then brought an under\ninsured-motorist claim against Waseca Mutual, the insurer for Tiegs. Waseca Mutual moved for\nsummary judgment, alleging that under Minnesota\xe2\x80\x99s Good Samaritan law, Tiegs was immune\nfrom liability. . . . The district court . . . concluded that Tiegs . . . was entitled to immunity. . . .\nMinnesota\xe2\x80\x99s Good Samaritan law has two main components. The statute imposes a duty\nto help on anyone present \xe2\x80\x9cat the scene of an emergency\xe2\x80\x9d who \xe2\x80\x9cknows another person is exposed\nto or has suffered grave physical harm,\xe2\x80\x9d provided that the person can lend assistance without\ndanger or peril to themselves. . . . The second component of the statute, in dispute here, provides\nimmunity to any person who: without compensation or the expectation of compensation, renders\nemergency care, advice, or assistance at the scene of an emergency or during transit to a\nlocation where professional medical care can be rendered, . . . unless the person acts in a willful\nand wanton or reckless manner in providing the care, advice, or assistance. (Emphasis added).\nAppellant contends that the Good Samaritan law\xe2\x80\x99s \xe2\x80\x9cduring transit\xe2\x80\x9d provision does not\napply to the mere act of driving an injured party from the scene of an accident to a hospital.\nInstead appellant argues that the \xe2\x80\x9cduring transit\xe2\x80\x9d provision only protects those who provide some\nsort of emergency care while the person is being transported to a health-care facility. . . .\nIn light of the fact that professional emergency medical technicians are already under a\nduty to provide competent care, appellant\xe2\x80\x99s interpretation would only protect those laypersons\n389\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nproviding emergency care in a vehicle and in transit to a health-care facility while a third person\ndrives the vehicle. Such a narrow interpretation of the law offers little protection. Nor does it\noffer much encouragement to a layperson to help others in peril. . . .\nTo hold, as appellant urges, that transportation is not a protected activity and not eligible\nfor immunity under the provisions of the Good Samaritan law would have the perverse effect of\ndiscouraging an entire class of responses to emergency circumstances. Absent a clear legislative\ndirection that transportation is not a covered activity under the immunity statute, we are not\nwilling to adopt appellant\xe2\x80\x99s argument. We hold that transportation of an injured person by nonemergency personnel is a protected activity under the immunity provisions of the Good Samaritan\nlaw. . . .\n[W]e affirm the district court\xe2\x80\x99s grant of summary judgment.\n\nB. Landowners and Occupiers\nThe traditional common law rule held that the owners and occupiers of land owed no\nobligation of reasonable care to trespassers upon that land, and further that they owed only a\nlimited duty toward social guests to warn such guests of known latent hazards.\n\nUnited Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922)\nHOLMES, J.\nThis is a suit brought by the respondents against the petitioner to recover for the death of\ntwo children, sons of the respondents. The facts that for the purposes of decision we shall assume\nto have been proved are these. The petitioner owned a tract of about twenty acres in the outskirts\nof the town of Iola, Kansas. Formerly it had there a plant for the making of sulphuric acid and\nzinc spelter. In 1910 it tore the buildings down but left a basement and cellar, in which in July,\n1916, water was accumulated, clear in appearance but in fact dangerously poisoned by sulphuric\nacid and zinc sulphate that had come in one way or another from the petitioner\xe2\x80\x99s works, as the\npetitioner knew. The respondents had been travelling and encamped at some distance from this\nplace. A travelled way passed within 120 or 100 feet of it. On July 27, 1916, the children, who\nwere eight and eleven years old, came upon the petitioner\xe2\x80\x99s land, went into the water, were\npoisoned and died. . . . At the trial the Judge instructed the jury that if the water looked clear but\nin fact was poisonous and thus the children were allured to it the petitioner was liable. The\nrespondents got a verdict and judgment, which was affirmed by the Circuit Court of Appeals.\n. . . If the children had been adults they would have had no case. They would have been\ntrespassers and the owner of the land would have owed no duty to remove even hidden danger; it\nwould have been entitled to assume that they would obey the law and not trespass. . . . On the\nother hand the duty of one who invites another upon his land not to lead him into a trap is well\nsettled, and while it is very plain that temptation is not invitation, it may be held that knowingly to\nestablish and expose, unfenced, to children of an age when they follow a bait as mechanically as a\nfish, something that is certain to attract them, has the legal effect of an invitation to them although\nnot to an adult. But the principle if accepted must be very cautiously applied.\n390\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nIn Railroad Co. v. Stout, the well-known case of a boy injured on a turntable, it appeared\nthat children had played there before to the knowledge of employees of the railroad, and in view\nof that fact and the situation of the turntable near a road without visible separation, it seems to\nhave been assumed . . . that the railroad owed a duty to the boy. Perhaps this was as strong a case\nas would be likely to occur of maintaining a known temptation, where temptation takes the place\nof invitation. A license was implied . . . .\nIn the case at bar it is at least doubtful whether the water could be seen from any place\nwhere the children lawfully were and there is no evidence that it was what led them to enter the\nland. But that is necessary to start the supposed duty. There can be no general duty on the part of\na land-owner to keep his land safe for children, or even free from hidden dangers, if he has not\ndirectly or by implication invited or licensed them to come there. . . .\n[T]he petitioner is [not] liable for poisoned water not bordering a road, not shown to have\nbeen the inducement that led the children to trespass . . . and not shown to have been the indirect\ninducement because known to the children to be frequented by others. It is suggested that the\nroads across the place were invitations. A road is not an invitation to leave it elsewhere than at its\nend.\nJudgment reversed.\n\nNotes\n\n1. The common law rules. At common law, the standard of care owed a visitor depended on\nwhether the visitor was an \xe2\x80\x9cinvitee,\xe2\x80\x9d a \xe2\x80\x9clicensee,\xe2\x80\x9d or a \xe2\x80\x9ctrespasser.\xe2\x80\x9d\nAn invitee is someone whom the landowner has invited onto his property in the\nexpectation that he will benefit from the invitee\xe2\x80\x99s presence. A business guest, for example, is an\ninvitee. See, e.g., Corley v. Evans, 835 So. 2d 30 (2003) (a person who was shot at a crawfish boil\nthat charged admission is an invitee); Mann v. Safeway Stores, Inc., 95 Idaho 732 (1974) (a\nsupermarket patron is an invitee); and Triangle Motors of Dallas v. Richmond et al., 152 Tex. 354\n(1953) (a plumber who was injured while trying to repair the landowner\xe2\x80\x99s drain is an invitee). But\nnot all invitees are business guests. See Thomas v. St. Mary\xe2\x80\x99s Roman Catholic Church, 283\nN.W.2d 254 (1979) (a member of a visiting basketball team playing in the school\xe2\x80\x99s gym is an\ninvitee). Traditionally, landowners owed invitees a duty of reasonable care.\nA licensee is someone who the landowner has allowed\xe2\x80\x94but not necessarily invited\xe2\x80\x94onto\nhis property. The key difference between licensees and invitees is that the former do not bestow\nany tangible benefits on the landowner. So, for example, the West Virginia Supreme Court has\nheld that a person who is injured taking a shortcut across a property with the owner\xe2\x80\x99s permission\nis a licensee. Hamilton v. Brown, 157 W.Va. 910 (1974). In most states, social guests are\nconsidered licensees. See Cobb v. Clark, 265 N.C. 194 (1965) (a social guest who fell down the\nlandowners\xe2\x80\x99 stairs is a licensee). This is true regardless of whether the social guest and the\nlandowner are family members. Wolfson v. Chelist, 284 S.W.2d 447 (Mo. 1955) (holding that a\nsocial guest who was injured on her sister\xe2\x80\x99s property is a licensee). Traditionally, landowners had\ntwo basic duties to licensees: to warn them of hidden dangers (but typically only those hidden\n391\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ndangers of which the landowners were aware) and to refrain from willfully, wantonly, or\nrecklessly injuring them.\nA trespasser is someone who enters or remains on a property without the landowner\xe2\x80\x99s\npermission. See Buch v. Amory MFG. Co., 69 N.H. 257 (1898) (a child who entered a factory\nwithout the owner\xe2\x80\x99s permission and then got his hand caught in a machine is a trespasser).\nTraditionally, landowners\xe2\x80\x99 only duty to trespassers was to refrain from willfully, wantonly, or\nrecklessly harming them.\n\n2. The expansion of the invitee class. Over the past century and a half, courts have expanded\nthe definition of \xe2\x80\x9cinvitee\xe2\x80\x9d to include people who once would have been considered licensees. The\ninvitee class has been expanded to include children injured in stores where their parents are\nshopping (Hecht Co. v. Jacobsen, 180 F.2d 13 (D.C. Cir. 1950)), swimmers who drown in pools\nthat are open to the public (Rovegno v. San Jose Knights of Columbus Hall Assn., 108 Cal. App.\n591 (1930)), and even alumni on campus for their college reunions (Guilford v. Yale Univ., 128\nConn. 449 (1942)).\nPublic employees have been some of the biggest beneficiaries of this trend. Public\nemployees fit awkwardly into the traditional tripartite scheme: Many have jobs that require them\nto legally enter private property for reasons that benefit the public but directly benefit neither\nthemselves nor the landowners. This has created problems for courts attempting to apply the\ntraditional rule\xe2\x80\x94especially as the reach of the regulatory state has expanded into new areas. For\nthe most part, courts have resolved these classification questions in favor of public employees,\nextending invitee status to census takers (Glassbrook v. Manhi Realty Corp., 108 N.Y.S.2d 652\n(1951)), letter carriers (Sutton v. Penn, 238 Ill. App. 182 (1925)), municipal garbage collectors\n(Toomey v. Sanborn, 146 Mass. 28 (1888)), revenue inspectors (Anderson & Nelson Distilleries\nCo. v. Hair, 103 Ky. 196 (1898)), meat inspectors (Swift & Co. v. Schuster, 192 F.2d 615 (10th\nCir. 1951)), building inspectors (Fred Howland, Inc. v. Morris, 143 Fla. 189 (1940)), health\ninspectors (Jennings v. Industrial Paper Stock Co., 248 S.W.2d 43 (Mo. Ct. App. 1952)), and so\non. Police officers and firefighters, however, continue to be classified as licensees in most\njurisdictions where the traditional rule is still applied. See, e.g., Furstein v. Hill, 218 Conn. 610\n(1991).\nThe traditional common law rule often led to outcomes that seemed shocking, at least to\nmany, if not to the hardened sensibilities of Justice Holmes. This was especially so where the\ncircumstances seemed to indicate that the defendant\xe2\x80\x99s negligence was especially apparent. In\nsuch cases, cutting off the negligence inquiry by imposing the common law\xe2\x80\x99s limited duty for the\noccupiers and owners of land seemed particularly galling. Consider the next case.\n\nBanker v. McLaughlin, 146 Tex. 434 (1948)\nTAYLOR, J.\nJames McLaughlin brought this suit against H. F. Banker to recover damages for the death\nof his minor son (five years and ten months old). The trial court awarded judgment in plaintiff\xe2\x80\x99s\nfavor on the jury\xe2\x80\x99s verdict for $15,200. The Court of Civil Appeals, under the view that the award\n392\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nwas excessive, caused a remittitur to be filed which reduced the judgment to $6,000. The case is\nhere on Mr. Banker\xe2\x80\x99s application for the writ.\nThe child met his death on June 19, 1945, by drowning in a large hole, or pit, of water on\nForest Park Subdivision, a homesite addition which Mr. Banker, the owner, at that time and since,\nwas in the process of developing and marketing . . . .\nPlaintiff brought the suit, alleging the ownership of the subdivision by Mr. Banker, the\ndigging of the hole by the owner which, as plaintiff alleged, made the spot (when the hole filed\nwith water) especially attractive to children, and dangerous; and that it attracted to it the child,\nJames McLaughlin, Jr. He alleged the owner\xe2\x80\x99s negligence in creating on his premises (without\nwarning devices or protective measures of any character) such dangerous condition where he\nknew or should have known that children played.\nThe owner answered by general denial, and further by special answer that the child was\nneither a licensee nor an invitee but was a trespasser, and that the drowning was an accident\noccasioned by no fault of his. . . .\nAt the time the child was drowned about 50 families (40 of which had small children)\nwere living in Forest Park Subdivision; and numerous children were living in contiguous group\nsettlements. . . . The pool is located on the east side of Lot 10 of Block 7.\nMr. McLaughlin\xe2\x80\x99s home (about 200 yards distant) is west of the pit on the back of Lots 15\nand 16, Block 1, a small two-room house, the second purchased after Mr. Banker began marketing\nthe homesites. The general surroundings about the pool from the standpoint of the record are\ndescribed by the following bits of testimony of witnesses who saw them: As indicated by the\nname (Forest Park) the addition was a wooded area. One could \xe2\x80\x9cget to it (the pool) without any\ntrouble\xe2\x80\x9d; about the pit \xe2\x80\x9cthere was quite a bit of . . . vegetation, and quite a bit of grass\xe2\x80\x9d; that there\nwas a truck \xe2\x80\x9croad or trail\xe2\x80\x9d out there; people went \xe2\x80\x9cback in there to have picnics\xe2\x80\x9d; it was \xe2\x80\x9copen\xe2\x80\x9d\nthere, \xe2\x80\x9call except some small bushes and grass\xe2\x80\x9d; about \xe2\x80\x9cthe scene of this pit\xe2\x80\x9d there were \xe2\x80\x9csmall\nbushes, where the trucks ran over them and beat them down\xe2\x80\x9d; there were \xe2\x80\x9cno trees\xe2\x80\x9d right at the\nhole or \xe2\x80\x9caround it\xe2\x80\x9d; in the \xe2\x80\x9cspring and summer\xe2\x80\x9d there would be \xe2\x80\x9cwild flowers and things like that\ngrowing there.\xe2\x80\x9d Defendant himself testified that the pool was accessible to those located where\nplaintiff was \xe2\x80\x9cif they wanted to wade through grass and weeds and brush.\xe2\x80\x9d\nThe waterhole itself is designated on the plat. The bank \xe2\x80\x9cdown to the water . . . was\nstraight off, then it had a sharp incline to the bottom\xe2\x80\x9d; the bank \xe2\x80\x9cwas pretty slanting, and\nwhenever I stepped off in there I slid on to the bottom; it (the water) came up to my chin\xe2\x80\x9d; the\nwater was \xe2\x80\x9cwell over the head of a child five or six years old\xe2\x80\x9d; when I (one of the searchers for\nthe child) \xe2\x80\x9cgot there it (the pool) was full of water\xe2\x80\x9d; were no outlets to it, however; \xe2\x80\x9cthe banks\nwere a straight off drop.\xe2\x80\x9d\nThe utility of the pool to the owner was negligible after he ceased excavating there for dirt\nfor street grading purposes. . . . Mr. Banker\xe2\x80\x99s own testimony indicates also that the expense\nnecessary to be incurred, if any, to eliminate the danger would have been small, if not trivial.\nThe excavation was from 5 to 8 feet deep \xe2\x80\x9cat the very shallowest place.\xe2\x80\x9d It appears that\nsoon after its use as a dirt supply had been discontinued it filled up with water so that its depth\nwould not be ascertained by children unless (contrary to the nature of children) they are of such\n393\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nmature years and experience that they would measure the depth (as the average adult who could\nnot swim would do) before entering the water.\nThe jury found not only that the pit, or pool, was attractive to children, but that it was\ndangerous, and did attract to it the McLaughlin child. It was found in answer to one special issue\nthat the pit was unusually attractive and in answer to a separate issue that it was dangerous to\nchildren. That it was dangerous to children is not open to question under the record. . . .\nThe following features of the facts and circumstances of the case are determinative of the\ncorrectness of the action of the Court of Civil Appeals in affirming the trial court\xe2\x80\x99s judgment: (a)\nthe place where the condition was maintained was one upon which the possessor knew or should\nhave known that small children would likely frequent the place and play about it; (b) the condition\nwas one of which the possessor knew, or should have known involved an unreasonable risk of\ndeath or serious bodily harm to such children; (c) the child, because of its tender years, did not\nrealize the risk involved in going into the pool; and (d) the utility, if any, to Mr. Banker of\neliminating the danger was slight as compared to the probability of injury resulting therefrom. . . .\nWe overrule all of the points of error presented in the application of petitioner and affirm\nthe judgment of the Court of Civil Appeals which affirms that of the trial court. It is so ordered.\n\nNote\n\n1. Attractive nuisances. As originally formulated, the traditional rule sharply limited the\nability of injured non-invitees to recover from the occupiers and owners of land. Over time courts\ncarved out exceptions to the traditional rule\xe2\x80\x99s rigid formula. Perhaps the biggest exception is the\none the courts have created for child trespassers. Under the so-called \xe2\x80\x9cattractive nuisance\xe2\x80\x9d\ndoctrine, a landowner can be held liable for injuries to a child trespasser if those injuries were\ncaused by an \xe2\x80\x9cattractive\xe2\x80\x9d artificial hazard on the landowner\xe2\x80\x99s property. The theory is that when a\nlandowner maintains a hazard on his premises that he knows some children will find alluring, he\nimpliedly invites those children to trespass. The child trespassers, then, become the equivalent of\ninvitees, and so the landowner owes them a duty of reasonable care.\nMany jurisdictions have adopted the definition of attractive nuisance laid out in Section\n339 of the Restatement (Second) of Torts (1965). To satisfy the Restatement\xe2\x80\x99s definition of an\nattractive nuisance, the following five conditions must be met: (1) the hazard must be located in\nan area where the landowner knows or should know that children are likely to trespass; (2) the\nlandowner must know (or have reason to know) that the hazard poses a serious risk of death or\nbodily harm to such children; (3) the child trespassers must not appreciate the danger posed by the\nhazard; (4) the risk that the hazard poses to child trespassers must outweigh the hazard\xe2\x80\x99s utility to\nthe landowner and the burden of eliminating the hazard; and (5) the landowner must fail to\nexercise reasonable care to eliminate or mitigate the hazard. In addition, the hazard must be an\nartificial condition; a natural condition such as a stream typically cannot be an attractive nuisance.\nSee, e.g., Fitch v. Selwyn Village, 234 N.C. 632 (1951) (holding that a stream is not an attractive\nnuisance).\nCourts have found a wide array of hazards to be attractive nuisances. Some of the earliest\nattractive nuisance cases involved unsecured railroad turntables. In Barrett v. Southern Pacific\n394\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nRailroad, 91 Cal. 296 (1891), for example, the California Supreme Court held that a railroad was\nliable for the injuries that an eight-year-old boy sustained playing on one of its turntables, which\nthe railroad had left unguarded and accessible to the public. In Afton Electric Co. v. Harris, 49\nWyo. 367 (1936), the Wyoming Supreme Court held that an easily climbable light pole with\nuninsulated electric wires at the top constituted an attractive nuisance. In Kopczynski v. Barger,\n887 N.E.2d 928 (2008), the Indiana Supreme Court held that a trampoline may constitute an\nattractive nuisance.\nOver time, however, some courts came to think that managing the exceptions to the\ncommon law rule for entrants onto land was more cumbersome than it was worth.\n\nRowland v. Christian, 443 P.2d 561 (Cal. 1968)\nPETERS, J.\nPlaintiff appeals from a summary judgment for defendant Nancy Christian in this personal\ninjury action. . . .\n[In November, 1963, plaintiff Rowland was injured while using the bathroom fixtures in\nNancy Christian\xe2\x80\x99s apartment. Rowland was a social guest in the apartment when the porcelain\nhandle of one of the water faucets broke in his hand, severing tendons and nerves of his right\nhand. The parties agreed that Christian knew of the dangerous condition of the faucet and that she\nhad requested her landlord to fix it several weeks earlier. Rowland\xe2\x80\x99s depositions offered evidence\nthat he did not know of the condition of the faucet and that it was concealed; Christian testified in\nan affidavit that Rowland knew of the defect in the faucet and that the defect was obvious from\nordinary inspection. Plaintiff sought recovery of his medical and hospital expenses, loss of\nwages, damage to his clothing, and $100,000 general damages.]\nSection 1714 of the Civil Code provides: \xe2\x80\x9cEvery one is responsible, not only for the result\nof his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill\nin the management of his property or person, except so far as the latter has, willfully or by want of\nordinary care, brought the injury upon himself.\xe2\x80\x9d . . .\n...\nA departure from this fundamental principle involves the balancing of a number of\nconsiderations; the major ones are the foreseeability of harm to the plaintiff, the degree of\ncertainty that the plaintiff suffered injury, the closeness of the connection between the defendant\'s\nconduct and the injury suffered, the moral blame attached to the defendant\'s conduct, the policy of\npreventing future harm, the extent of the burden to the defendant and consequences to the\ncommunity of imposing a duty to exercise care with resulting liability for breach, and the\navailability, cost, and prevalence of insurance for the risk involved.\nOne of the areas where this court and other courts have departed from the fundamental\nconcept that a man is liable for injuries caused by his carelessness is with regard to the liability of\na possessor of land for injuries to persons who have entered upon that land. It has been suggested\nthat the special rules regarding liability of the possessor of land are due to historical\nconsiderations stemming from the high place which land has traditionally held in English and\n395\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nAmerican thought, the dominance and prestige of the landowning class in England during the\nformative period of the rules governing the possessor\xe2\x80\x99s liability, and the heritage of feudalism.\nThe departure from the fundamental rule of liability for negligence has been accomplished\nby classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special\nrules as to the duty owed by the possessor to each of the classifications. Generally speaking a\ntrespasser is a person who enters or remains upon land of another without a privilege to do so; a\nlicensee is a person like a social guest who is not an invitee and who is privileged to enter or\nremain upon land by virtue of the possessor\xe2\x80\x99s consent, and an invitee is a business visitor who is\ninvited or permitted to enter or remain on the land for a purpose directly or indirectly connected\nwith business dealings between them.\nAlthough the invitor owes the invitee a duty to exercise ordinary care to avoid injuring\nhim, the general rule is that a trespasser and licensee or social guest are obliged to take the\npremises as they find them insofar as any alleged defective condition thereon may exist, and that\nthe possessor of the land owes them only the duty of refraining from wanton or willful injury.\nThe ordinary justification for the general rule severely restricting the occupier\xe2\x80\x99s liability to social\nguests is based on the theory that the guest should not expect special precautions to be made on\nhis account and that if the host does not inspect and maintain his property the guest should not\nexpect this to be done on his account.\nAn increasing regard for human safety has led to a retreat from this position, and an\nexception to the general rule limiting liability has been made . . . for the protection of the licensee\nhas been imposed . . . in cases involving dangers known to the occupier. . . .\nAnother exception to the general rule limiting liability has been recognized for cases\nwhere the occupier is aware of the dangerous condition, the condition amounts to a concealed\ntrap, and the guest is unaware of the trap. . . .\nThe cases dealing with the active negligence and the trap exceptions are indicative of the\nsubtleties and confusion which have resulted from application of the common law principles\ngoverning the liability of the possessor of land. Similar confusion and complexity exist as to the\ndefinitions of trespasser, licensee, and invitee.\nIn refusing to adopt the rules relating to the liability of a possessor of land for the law of\nadmiralty, the United States Supreme Court stated:\nThe distinctions which the common law draws between licensee and invitee were\ninherited from a culture deeply rooted to the land, a culture which traced many of\nits standards to a heritage of feudalism. In an effort to do justice in an industrialized\nurban society, with its complex economic and individual relationships, modern\ncommon-law courts have found it necessary to formulate increasingly subtle verbal\nrefinements, to create subclassifications among traditional common-law categories,\nand to delineate fine gradations in the standards of care which the landowner owes\nto each.\nYet even within a single jurisdiction, the classifications and\nsubclassifications bred by the common law have produced confusion and conflict.\nAs new distinctions have been spawned, older ones have become obscured.\nThrough this semantic morass the common law has moved, unevenly and with\nhesitation, towards \xe2\x80\x9cimposing on owners and occupiers a single duty of reasonable\n396\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ncare in all circumstances.\xe2\x80\x9d\nKermarec v. Compagnie Generale, 358 U.S. 625, 630\xe2\x80\x9331 [(1959) (Stewart, J.)].\nThe courts of this state have also recognized the failings of the common law rules relating\nto the liability of the owner and occupier of land. In refusing to apply the law of invitees,\nlicensees, and trespassers to determine the liability of an independent contractor hired by the\noccupier, we pointed out that application of those rules was difficult and often arbitrary. In\nrefusing to apply the common law rules to a known trespasser on an automobile, the common law\nrules were characterized as \xe2\x80\x9cunrealistic, arbitrary, and inelastic,\xe2\x80\x9d and it was pointed out that\nexceedingly fine distinctions had been developed resulting in confusion and that many recent\ncases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil\nCode rather than the rigid common law categories test. . . .\nWhatever may have been the historical justifications for the common law distinctions, it is\nclear that those distinctions are not justified in the light of our modern society and that the\ncomplexity and confusion which has arisen is not due to difficulty in applying the original\ncommon law rules\xe2\x80\x94they are all too easy to apply in their original formulation\xe2\x80\x94but is due to the\nattempts to apply just rules in our modern society within the ancient terminology.\nWithout attempting to labor all of the rules relating to the possessor\xe2\x80\x99s liability, it is\napparent that the classifications of trespasser, licensee, and invitee, the immunities from liability\npredicated upon those classifications, and the exceptions to those immunities, often do not reflect\nthe major factors which should determine whether immunity should be conferred upon the\npossessor of land. Some of those factors, including the closeness of the connection between the\ninjury and the defendant\xe2\x80\x99s conduct, the moral blame attached to the defendant\xe2\x80\x99s conduct, the\npolicy of preventing future harm, and the prevalence and availability of insurance, bear little, if\nany, relationship to the classifications of trespasser, licensee and invitee and the existing rules\nconferring immunity.\nAlthough in general there may be a relationship between the remaining factors and the\nclassifications of trespasser, licensee, and invitee, there are many cases in which no such\nrelationship may exist. Thus, although the foreseeability of harm to an invitee would ordinarily\nseem greater than the foreseeability of harm to a trespasser, in a particular case the opposite may\nbe true. The same may be said of the issue of certainty of injury. The burden to the defendant\nand consequences to the community of imposing a duty to exercise care with resulting liability for\nbreach may often be greater with respect to trespassers than with respect to invitees, but it by no\nmeans follows that this is true in every case. In many situations, the burden will be the same, i.e.,\nthe conduct necessary upon the defendant\xe2\x80\x99s part to meet the burden of exercising due care as to\ninvitees will also meet his burden with respect to licensees and trespassers. The last of the major\nfactors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted,\nbut there is no persuasive evidence that applying ordinary principles of negligence law to the land\noccupier\xe2\x80\x99s liability will materially reduce the prevalence of insurance due to increased cost or\neven substantially increase the cost.\n...\nA man\xe2\x80\x99s life or limb does not become less worthy of protection by the law nor a loss less\nworthy of compensation under the law because he has come upon the land of another without\n397\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\npermission or with permission but without a business purpose. Reasonable people do not\nordinarily vary their conduct depending upon such matters, and to focus upon the status of the\ninjured party as a trespasser, licensee, or invitee in order to determine the question whether the\nlandowner has a duty of care, is contrary to our modern social mores and humanitarian values.\nThe common law rules obscure rather than illuminate the proper considerations which should\ngovern determination of the question of duty.\n. . . The proper test to be applied to the liability of the possessor of land in accordance\nwith section 1714 of the Civil Code is whether in the management of his property he has acted as\na reasonable man in view of the probability of injury to others, and, although the plaintiff\xe2\x80\x99s status\nas a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have\nsome bearing on the question of liability, the status is not determinative.\nOnce the ancient concepts as to the liability of the occupier of land are stripped away, the\nstatus of the plaintiff relegated to its proper place in determining such liability, and ordinary\nprinciples of negligence applied, the result in the instant case presents no substantial difficulties.\n[W]e must assume defendant Miss Christian was aware that the faucet handle was defective and\ndangerous, that the defect was not obvious, and that plaintiff was about to come in contact with\nthe defective condition, and under the undisputed facts she neither remedied the condition nor\nwarned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in\nthe absence of precautions an unreasonable risk of harm to those coming in contact with it and is\naware that a person on the premises is about to come in contact with it, the trier of fact can\nreasonably conclude that a failure to warn or to repair the condition constitutes negligence.\nWhether or not a guest has a right to expect that his host will remedy dangerous conditions on his\naccount, he should reasonably be entitled to rely upon a warning of the dangerous condition so\nthat he, like the host, will be in a position to take special precautions when he comes in contact\nwith it. . . .\nThe judgment is reversed.\n\nNotes\n\n1. The state of premises liability law. The decision in Rowland v. Christian ushered in a new\nera in premises liability law. By 1977, nine years after Rowland was decided, seven states had\nfollowed California\xe2\x80\x99s lead, abolishing the traditional status-based distinctions, while another five\nhad abolished the invitee-licensee distinction but retained the distinction between trespassers and\nnon-trespassers.\nIn more recent decades, though, the Rowland standard has met with significant opposition,\nslowing its advance. In 1971, the Colorado Supreme Court adopted the Rowland standard in Mile\nHigh Fence Co. v. Radovich, 489 P.2d 308 (Colo. 1971), but the state legislature reinstated the\ntraditional status-based distinctions in 1990. In 1975, the Rhode Island Supreme Court adopted\nthe Rowland standard in Mariorenzi v. DiPonte, Inc., 333 A.2d 127 (R.I. 1975), but the court\npartially overturned Mariorenzi 19 years later, holding that although landowners owe both\nlicensees and invitees a duty of reasonable care, they have a limited duty to trespassers\n(see Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994)). Even California,\nthe birthplace of the Rowland standard, has backtracked: a 1985 state statute shields landowners\n398\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nfrom liability for an entrant\xe2\x80\x99s injuries if the entrant committed one of 25 specified felonies while\non the landowner\xe2\x80\x99s property. Today, only eight states (including California) hold landowners to\nthe Rowland standard\xe2\x80\x94the same number as in 1977. In 17 states and the District of Columbia,\nlandowners owe invitees and licensees\xe2\x80\x94but not trespassers\xe2\x80\x94a duty of reasonable care. In the\nother 25 states, some version of the traditional tripartite rule remains in place.\n\n2. Rowland\xe2\x80\x99s practical implications. What are the real-world implications of adopting a\nRowland-like standard? How much of an effect does abolishing status distinctions have on the\noutcomes of cases? In Rowland, the California Supreme Court sided with the plaintiff, a social\nguest whose hand was injured by the landowner\xe2\x80\x99s broken faucet, on the grounds that a fact-finder\ncould reasonably conclude that the landowner had negligently failed to warn the plaintiff of the\ndanger. But the court could have reached the same conclusion by applying the traditional rule; in\nmost states the traditional rule imposed a duty of reasonable care to warn licensees of precisely\nthese kinds of hidden dangers.\nMore generally, outcomes in cases decided under the Rowland standard may generally\ntrack those that would have been reached under the older common law rules. Consider for\nexample trespassers injured engaged in dangerous activity. Such trespassers typically lose\nwhether we apply the old-fashioned rule of no duty, see Cates v. Beauregard Elec. Co-op., Inc.,\n328 So. 2d 367 (La. 1976) (holding that trespassing plaintiff who cut defendant\xe2\x80\x99s electrical wire\ncould not recover for injuries resulting from electrocution), or whether we apply Rowland\xe2\x80\x99s\ngeneral foreseeability and reasonableness standard, see Tantimonico v. Allendale Mut. Ins. Co.,\n637 A.2d 1056 (R.I. 1994) (holding that trespassing plaintiffs who were injured in a motorcycle\ncrash on defendant\xe2\x80\x99s property could not recover for injuries).\n\n3. The open-and-obvious rule. Despite Rowland\xe2\x80\x99s opening of landowners and occupiers\xe2\x80\x99\nliability, many states hold that landowners are not liable for injuries caused by open and obvious\ndangers, absent extenuating circumstances. When a danger is sufficiently obvious, the thinking\ngoes, it is unnecessary for a landowner to warn occupiers of its existence.\nIn some jurisdictions, the open-and-obvious doctrine operates as a factor in determining\nthe plaintiff\xe2\x80\x99s comparative negligence. See Ward v. K Mart Corp., 136 Ill. 2d 132, 147 (1990).\nWhere an open and obvious risk is unreasonably dangerous, a plaintiff will be deemed\ncomparatively negligent to have run the risk. See Lugo v. Ameritech Corp., 464 Mich. 512, 516\n(2001). Another approach is to treat the openness and obviousness of a danger as a factor in\ndetermining the reasonableness of a landowner\xe2\x80\x99s behavior. See Foster v. Costco Wholesale\nCorp., 291 P.3d 150, 152 (Nev. 2012). At least six states have done away with the Open-andObvious Rule altogether, folding the concept of obviousness into their comparative negligence\ncalculations. See, e.g., Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978).\nIn New York, however, which has abolished the traditional status categories, a more\nrobust version of the Open-and-Obvious Rule still exists. The general rule in New York is that \xe2\x80\x9ca\nlandowner has no duty to warn of an open and obvious danger,\xe2\x80\x9d with a possible exception for\ncases where a landowner has reason to anticipate the harm to the occupier. Tagle v. Jakob, 97\nN.Y.2d 165, 169 (2001).\n\n399\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n4. Condominiums, co-ops, and housing developments. What about housing collectives in\nwhich tort duties among the members could be displaced by contract? In at least some\ncondominium developments, the practice is to use homeowners\xe2\x80\x99 insurance as a substitute for tort\ncauses of action. Consider the following model condominium document:\n1.c. Each Unit Owner and Executive Board hereby waives and releases any and all\nclaims which he or it may have against any other Unit Owner, the Association, the\nExecutive Board and members thereof, the Declarant and their respective\nemployees and agents, for damage to the Common Elements, the Units, or to any\npersonal property located in the Units or Common Elements, caused by fire or other\ncasualty or any act or omission of any such party to the extent that such damage is\ncovered by fire or other form of hazard insurance.\nRONALD B. GLAZER, PENNSYLVANIA CONDOMINIUM LAW AND PRACTICE art. 15 (3d ed. 1995).\n\nC. Negligent Infliction of Emotional Distress\nRecall that in Chapter 1 we encountered the tort of assault, which is a centuries-old cause\nof action for intentional infliction of emotional harm, namely fear of an unlawful contact. We\nalso encountered the newer tort of intentional infliction of emotional distress, which allows\nrecovery even in the absence of apprehension of contact. What happens when emotional harm\narises accidentally?\n\nMitchell v. Rochester Railway, 45 N.E. 354 (N.Y. 1896)\nMARTIN, J.\nThe facts in this case are few and may be briefly stated. On the first day of April, 1891,\nthe plaintiff was standing upon a crosswalk on Main street in the city of Rochester, awaiting an\nopportunity to board one of the defendant\xe2\x80\x99s cars which had stopped upon the street at that place.\nWhile standing there, and just as she was about to step upon the car, a horse car of the defendant\ncame down the street. As the team attached to the car drew near, it turned to the right and came\nso close to the plaintiff that she stood between the horses\xe2\x80\x99 heads when they were stopped.\nShe testified that from fright and excitement caused by the approach and proximity of the\nteam she became unconscious, and also that the result was a miscarriage and consequent illness.\nMedical testimony was given to the effect that the mental shock which she then received was\nsufficient to produce that result.\nAssuming that the evidence tended to show that the defendant\xe2\x80\x99s servant was negligent in\nthe management of the car and horses, and that the plaintiff was free from contributory\nnegligence, the single question presented is whether the plaintiff is entitled to recover for the\ndefendant\xe2\x80\x99s negligence which occasioned her fright and alarm, and resulted in the injuries already\nmentioned. While the authorities are not harmonious upon this question, we think the most\nreliable and better considered cases, as well as public policy, fully justify us in holding that the\nplaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal\n400\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ninjury. . . . The learned counsel for the respondent in his brief very properly stated that, \xe2\x80\x9cThe\nconsensus of opinion would seem to be that no recovery can be had for mere fright. . . .\xe2\x80\x9d\n. . . Assuming that fright cannot form the basis of an action, it is obvious that no recovery\ncan be had for injuries resulting therefrom. That the result may be nervous disease, blindness,\ninsanity, or even a miscarriage, in no way changes the principle. These results merely show the\ndegree of fright or the extent of the damages. The right of action must still depend upon the\nquestion whether a recovery may be had for fright. If it can, then an action may be maintained,\nhowever slight the injury. If not, then there can be no recovery, no matter how grave or serious\nthe consequences. . . .\nIf the right of recovery in this class of cases should be once established, it would naturally\nresult in a flood of litigation in cases where the injury complained of may be easily feigned\nwithout detection, and where the damages must rest upon mere conjecture or speculation. The\ndifficulty which often exists in cases of alleged physical injury, in determining whether they exist,\nand if so, whether they were caused by the negligent act of the defendant, would not only be\ngreatly increased, but a wide field would be opened for fictitious or speculative claims. . . .\nMoreover, it cannot be properly said that the plaintiff\xe2\x80\x99s miscarriage was the proximate\nresult of the defendant\xe2\x80\x99s negligence. Proximate damages are such as are the ordinary and natural\nresults of the negligence charged, and those that are usual and may, therefore, be expected. It is\nquite obvious that the plaintiff\xe2\x80\x99s injuries do not fall within the rule as to proximate damages. The\ninjuries to the plaintiff were plainly the result of an accidental or unusual combination of\ncircumstances, which could not have been reasonably anticipated, and over which the defendant\nhad no control, and, hence, her damages were too remote to justify a recovery in this action.\nThese considerations lead to the conclusion that no recovery can be had for injuries\nsustained by fright occasioned by the negligence of another, where there is no immediate personal\ninjury.\nThe orders of the General and Special Terms should be reversed, and the order of the Trial\nTerm granting a nonsuit affirmed, with costs.\n\nNotes\n\n1. Injuries and impacts. One mystery of the Mitchell decision is why the court insists on a\nrequirement of immediate physical injury. Mitchell suffered a physical injury in the form of the\nmiscarriage. At the very least, her body was caused to strike the ground when she fell. Nor is\nthere any indication of inordinate time between the negligence of the defendant and the\nmiscarriage, and there was certainly no time lag between the defendant\xe2\x80\x99s negligence and\nMitchell\xe2\x80\x99s fall. In subsequent years, the basic holding of Mitchell came to be explained as having\nnot so much to do with the absence of an immediate physical injury as with the absence of a\nphysical impact between some instrumentality in the negligent defendant\xe2\x80\x99s control and the\nplaintiff.\n\n401\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nWhy did the Mitchell court hold that there was no common law cause of action for\nnegligent infliction of emotional distress, absent some physical impact? Recall that the tort of\nassault does not require a showing of physical impact.\n\n2. A gender bias? Plaintiffs in early negligent infliction of emotional distress cases were\noften women. Did the common law\xe2\x80\x99s exclusion of stand-alone emotional distress damages\nindicate a bias against women? According to Professors Martha Chamallas and Linda Kerber, it\ndid. The early doctrine of emotional distress, they argue, \xe2\x80\x9cmarginaliz[ed] . . . the harm suffered\nby women.\xe2\x80\x9d In particular, Professors Chamallas and Kerber note that\n[t]he law of torts values physical security and property more highly than emotional\nsecurity. . . . This apparently gender-neutral hierarchy of values has privileged men,\nas the traditional owners and managers of property, and has burdened women, to\nwhom the emotional work of maintaining human relationships has commonly been\nassigned. The law has often failed to compensate women for recurring harms\xe2\x80\x94\nserious though they may be in the lives of women\xe2\x80\x94for which there is no precise\nmasculine analogue. This phenomenon is evident in the history of tort law\xe2\x80\x99s\ntreatment of fright-based physical injuries, a type of claim historically brought more\noften by female plaintiffs. . . . These claims were classified in the law as emotional\nharms and a number of special doctrinal obstacles were created to contain recovery\nin such cases. . . . The inequity of the doctrines comprising the law of fright not\nsurprisingly reflected and reinforced inequities present in the larger social and\ncultural settings.\nMartha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88\nMICH. L. REV. 814, 814, 864 (1990). Some scholars object that the difficulty of discerning\ncausation in such cases is a better explanation for the doctrine. See Gary T. Schwartz, Feminist\nApproaches to Tort Law, 2 THEORETICAL INQUIRIES L. 175, 203 (2001).\n\n3. Narrower tests. Is there a narrower way to accomplish the goals articulated by the\nMitchell court? Another case involving a woman plaintiff raised that question some seventy years\nafter Mitchell.\n\nFalzone v. Busch, 214 A.2d 12 (N.J. 1965)\nPROCTOR, J.\nCharles Falzone, was standing in a field adjacent to the roadway when he was struck and\ninjured by defendant\xe2\x80\x99s negligently driven automobile. The second count alleges that the plaintiff,\nMabel Falzone, wife of Charles, was seated in his lawfully parked automobile close to the place\nwhere her husband was struck and that the defendant\xe2\x80\x99s negligently driven automobile \xe2\x80\x9cveered\nacross the highway and headed in the direction of this plaintiff,\xe2\x80\x9d coming \xe2\x80\x9cso close to plaintiff as to\nput her in fear for her safety.\xe2\x80\x9d As a direct result she became ill and required medical attention.\nThere is no allegation that her fear arose from apprehension of harm to her husband.\nThe Law Division granted the defendant\xe2\x80\x99s motion for summary judgment on the second . .\n402\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n. count . . . , holding that it was constrained to follow the existing New Jersey rule that where there\nis no physical impact upon the plaintiff, there can be no recovery for the bodily injury or sickness\nresulting from negligently induced fright. . . .\n[S]ince a decision of our former Supreme Court in 1900, Ward v. West Jersey & Seashore\nR.R. Co., it has been considered settled that a physical impact upon the plaintiff is necessary to\nsustain a negligence action.\nIn Ward, the complaint alleged that the plaintiff, while driving on a highway, was\npermitted without warning from defendant railroad to drive upon a public crossing of its tracks in\nthe face of an approaching train; that the defendant, by improperly lowering the gates before the\nplaintiff was off the tracks, subjected him to \xe2\x80\x9cgreat danger of being run down and killed by said\ntrain\xe2\x80\x9d and caused him to be \xe2\x80\x9cshocked, paralyzed, and otherwise injured.\xe2\x80\x9d . . . Three reasons for\ndenying recovery were set forth in the opinion. The first was that physical injury was not the\nnatural and proximate result of the negligent act. . . .\nSecond, the court concluded that since this was the first action of its kind in New Jersey,\nthe consensus of the bar must have been that no liability exists in the absence of impact. . . . The\nthird reason was \xe2\x80\x9cpublic policy\xe2\x80\x9d which the court explained by quoting with approval from\nMitchell v. Rochester Ry. Co. . . .\nWe think that the reasons assigned in Ward for denying liability are no longer tenable, and\nit is questionable if they ever were. . . .\n[T]hree rules of law inconsistent with the Ward doctrine have developed. It has been held\nthat where a person is injured attempting to avoid a hazard negligently created by another, he may\nrecover for the physical consequences of fright even though the immediate injury suffered was\nslight and was not a link in the causal chain. Thus, in Buchanan v. West Jersey R.R. Co., [1890] .\n. . a woman standing in a railroad station threw herself to the platform to avoid being struck by a\nprotruding timber on a passing train. . . . The court allowed recovery even though her fright, and\nnot the injury, if any, sustained in the fall, caused her physical suffering. Our courts have also\nbeen willing to allow recovery for physical injury traceable directly to fright when there is any\nimpact, however inconsequential or slight. The application of this rule was illustrated in Porter v.\nDelaware, Lackawanna & W.R.R. Co. [1906], where a woman became ill as the result of her\nshock at seeing a railroad bridge fall near the place where she was standing. She testified that\nsomething fell on her neck and that dust entered her eyes. In allowing recovery for the physical\nconsequences of her fright, the court said either the small injury to her neck or the dust in her eyes\nwas a sufficient \xe2\x80\x9cimpact\xe2\x80\x9d to distinguish the case from Ward. And third, recovery has been\npermitted where physical suffering resulted from a willfully caused emotional disturbance.\nThe second reason given in Ward for denying recovery was that the absence of suits of\nthis nature in New Jersey demonstrated the concurrence of the bar with the rule of no liability. . . .\n[A] sufficient answer is that the common law would have atrophied hundreds of years ago if it had\ncontinued to deny relief in cases of first impression.\nPublic policy was the final reason given in Ward for denying liability. The court was of\nthe opinion that proof or disproof of fear-induced physical suffering would be so difficult that\nrecovery would often be based on mere conjecture and speculation, and that the door would be\nopened to extensive litigation in a class of cases where injury is easily feigned. . . . However, the\n403\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nproblem of tracing a causal connection from negligence to injury is not peculiar to cases without\nimpact and occurs in all types of personal injury litigation. . . . [D]ifficulty of proof should not\nbar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her\nclaim.\nAs to the possibility of actions based on fictitious injuries, a court should not deny\nrecovery for a type of wrong which may result in serious harm because some people may institute\nfraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the\nrequirements as to the sufficiency of evidence, to safeguard against the danger that juries will find\nfacts without legally adequate proof. Moreover, the allowance of recovery in cases where there\nhas been an impact, however slight, negates the effectiveness of the no impact rule as a method of\npreventing fraudulent claims. As stated by Dean McNiece in his comprehensive article dealing\nwith tort liability for psychic injuries, \xe2\x80\x9cit is quite as simple to feign emotional disturbance plus\nslight impact and get in \xe2\x80\x98under the wire\xe2\x80\x99 of one of the exceptions as it is to feign emotional\ndisturbance sans impact.\xe2\x80\x9d (McNiece, \xe2\x80\x9cPyschic Injury and Liability in New York,\xe2\x80\x9d 24 St. John\xe2\x80\x99s\nL. Rev. 1, 31 (1949)). . . .\nOur conclusion is that Ward should no longer be followed in New Jersey. We are not\ndealing with property law, contract law or other fields where stability and predictability may be\ncrucial. We are dealing with torts where there can be little, if any, justifiable reliance and where\nthe rule of stare decisis is admittedly limited. We hold, therefore, that where negligence causes\nfright from a reasonable fear of immediate personal injury, which fright is adequately\ndemonstrated to have resulted in substantial bodily injury or sickness, the injured person may\nrecover if such bodily injury or sickness would be regarded as proper elements of damage had\nthey occurred as a consequence of direct physical injury rather than fright. Of course, where\nfright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in\nseriousness and too speculative to warrant the imposition of liability.\nWe recognize that where there is no impact a defendant may be unaware of the alleged\nincident and thus not forewarned to preserve evidence upon which he might base his defense.\nHowever, this consideration should not be sufficient to bar a meritorious claim. . . .\n\nNotes\n\n1. The common law process. The process by which the Mitchell/Ward rule gave way to the\nFalzone alternative is a classic pattern in common law development. After a rule is set at time 1,\nexceptions and caveats limit and undermine at time 2 until eventually at time 3 it has lost much of\nits persuasiveness and usefulness. Indeed, after the exceptions have accumulated, courts may no\nlonger be able to identify any kind of useful project advanced by the original rule.\n\n2. Falzone\xe2\x80\x99s adoption. Currently, twelve states and the District of Columbia have adopted\nFalzone\xe2\x80\x99s zone of danger test in adjudicating negligent infliction of emotional distress claims:\nAlabama, Walmart Stores, Inc. v. Bowers, 752 So. 2d 1201 (Ala. 1999); Colorado, Towns v.\nAnderson, 579 P.2d 1163 (Colo. 1978) (en banc); Delaware, Robb v. Pa. R.R., 210 A.2d 709 (Del.\n1965); District of Columbia, Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d 821\n(D.C. 2004); Illinois, Rickey v. Chi. Transit Auth., 457 N.E.2d 1 (Ill. 1983); Maryland, Resavage\n404\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nv. Davies, 86 A2d 879 (Md. 1952); Minnesota, Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764\n(Minn. 2005); Missouri, Asaro v. Cardinal Glennon Mem\xe2\x80\x99l Hosp., 799 S.W.2d 595 (Mo. 1990)\n(en banc); New York, Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984); North Dakota, Whetham v.\nBismarck Hosp., 197 N.W.2d 678 (N.D. 1972); South Dakota, Nielson v. AT&T Corp., 597\nN.W.2d 434 (S.D. 1999); Utah, Boucher v. Dixie Med. Ctr., 850 P.2d 1179 (Utah 1992); and\nVermont, Brueckner v. Norwich Univ., 730 A.2d 1086 (Vt. 1999).\n\n3. Beyond the zone of danger? The rule in Falzone may have been an improvement over\nMitchell. But it still left unaddressed a class of cases in which the plaintiff was not in the zone of\ndanger but nonetheless has demonstrable emotional injuries caused by the defendant\xe2\x80\x99s tortious\nconduct. Should such plaintiffs lose even where it seems indisputable that they suffered injuries\nthat were caused by the negligence of the defendant? This is the question that the California\nSupreme Court took up in 1968:\n\nDillon v. Legg, 441 P.2d 912 (Cal. 1968)\nTOBRINER, J.\nThat the courts should allow recovery to a mother who suffers emotional trauma and\nphysical injury from witnessing the infliction of death or injury to her child for which the\ntortfeasor is liable in negligence would appear to be a compelling proposition. . . .\nNevertheless, past American decisions have barred the mother\xe2\x80\x99s recovery. Refusing the\nmother the right to take her case to the jury, these courts ground their position on an alleged\nabsence of a required \xe2\x80\x9cduty\xe2\x80\x9d of due care of the tortfeasor to the mother. Duty, in turn, they state,\nmust express public policy; the imposition of duty here would work disaster because it would\ninvite fraudulent claims and it would involve the courts in the hopeless task of defining the extent\nof the tortfeasor\xe2\x80\x99s liability. In substance, they say, definition of liability being impossible, denial\nof liability is the only realistic alternative.\nWe have concluded that neither of the feared dangers excuses the frustration of the natural\njustice upon which the mother\xe2\x80\x99s claim rests. . . .\nIn the instant case plaintiff\xe2\x80\x99s first cause of action alleged that on or about September 27,\n1964, defendant drove his automobile in a southerly direction on Bluegrass Road near its\nintersection with Clover Lane in the County of Sacramento, and at that time plaintiff\xe2\x80\x99s infant\ndaughter, Erin Lee Dillon, lawfully crossed Bluegrass Road. The complaint further alleged that\ndefendant\xe2\x80\x99s negligent operation of his vehicle caused it to \xe2\x80\x9ccollide with the deceased Erin Lee\nDillon resulting in injuries to decedent which proximately resulted in her death.\xe2\x80\x9d . . .\n[Plaintiff brought three causes of action: one for the death of her daughter Erin; a second\non behalf of another daughter, Cheryl, for the \xe2\x80\x9cgreat emotional disturbance and shock and injury\xe2\x80\x9d\nto her nervous system caused by her \xe2\x80\x9cclose proximity to\xe2\x80\x9d and personal witnessing of the collision;\nand a third on her own behalf for \xe2\x80\x9cgreat emotional disturbance and shock and injury to her\nnervous system\xe2\x80\x9d arising because she \xe2\x80\x9cwas in close proximity to the . . . collision and personally\nwitnessed said collision.\xe2\x80\x9d Defendant moved for judgment on the pleadings as to the second two\ncounts, contending that \xe2\x80\x9cNo cause of action is stated in that allegation that plaintiff sustained\n405\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nemotional distress, fright or shock induced by apprehension of negligently caused danger or injury\nor the witnessing of negligently caused injury to a third person. . . . Even where a child, sister or\nspouse is the object of the plaintiff\xe2\x80\x99s apprehension no cause of action is stated . . . unless the\ncomplaint alleges that the plaintiff suffered emotional distress, fright or shock as a result of fear\nfor his own safety. . . .\xe2\x80\x9d The trial court sustained defendant\xe2\x80\x99s motion as to the mother because she\nwas not within the zone of danger and denied that motion as to the second daughter, Cheryl,\nbecause of the possibility that she was within such zone of danger or feared for her own safety.]\n[T]he complaint here presents the claim of the emotionally traumatized mother, who\nadmittedly was not within the zone of danger, as contrasted with that of the sister, who may have\nbeen within it. The case thus illustrates the fallacy of the rule that would deny recovery in the one\nsituation and grant it in the other. In the first place, we can hardly justify relief to the sister for\ntrauma which she suffered upon apprehension of the child\xe2\x80\x99s death and yet deny it to the mother\nmerely because of a happenstance that the sister was some few yards closer to the accident. The\ninstant case exposes the hopeless artificiality of the zone-of-danger rule. . . . We have . . . held that\nimpact is not necessary for recovery. The zone-of-danger concept must, then, inevitably collapse\nbecause the only reason for the requirement of presence in that zone lies in the fact that one within\nit will fear the danger of impact. . . .\nNormally the simple facts of plaintiff\xe2\x80\x99s complaint would establish a cause of action: the\ncomplaint alleges that defendant drove his car (1) negligently, as a (2) proximate result of which\nplaintiff suffered (3) physical injury. Proof of these facts to a jury leads to recovery in damages;\nindeed, such a showing represents a classic example of the type of accident with which the law of\nnegligence has been designed to deal.\nThe assertion that liability must nevertheless be denied because defendant bears no \xe2\x80\x9cduty\xe2\x80\x9d\nto plaintiff \xe2\x80\x9cbegs the essential question\xe2\x80\x94whether the plaintiff\xe2\x80\x99s interests are entitled to legal\nprotection against the defendant\xe2\x80\x99s conduct. . . . It [duty] is a shorthand statement of a conclusion,\nrather than an aid to analysis in itself. . . . \xe2\x80\x98[D]uty\xe2\x80\x99 is not sacrosanct in itself, but only an\nexpression of the sum total of those considerations of policy which lead the law to say that the\nparticular plaintiff is entitled to protection.\xe2\x80\x9d (Prosser, Law of Torts, supra, at pp. 332-333.)\nThe history of the concept of duty in itself discloses that it is not an old and deep-rooted\ndoctrine but a legal device of the latter half of the nineteenth century designed to curtail the feared\npropensities of juries toward liberal awards. \xe2\x80\x9cIt must not be forgotten that \xe2\x80\x98duty\xe2\x80\x99 got into our law\nfor the very purpose of combatting what was then feared to be a dangerous delusion (perhaps\nespecially prevalent among juries imbued with popular notions of fairness untempered by\nparamount judicial policy), viz., that the law might countenance legal redress for all foreseeable\nharm.\xe2\x80\x9d (Fleming, An Introduction to the Law of Torts (1967) p. 47.)\n...\n1. This court in the past has rejected the argument that we must deny recovery upon a legitimate\nclaim because other fraudulent ones may be urged.\n. . . The rationale apparently assumes that juries, confronted by irreconcilable expert\nmedical testimony, will be unable to distinguish the deceitful from the bona fide. . . .\n\n406\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nIn the first instance, the argument proceeds from a doubtful factual assumption. Whatever\nthe possibilities of fraudulent claims of physical injury by disinterested spectators of an accident,\na question not in issue in this case, we certainly cannot doubt that a mother who sees her child\nkilled will suffer physical injury from shock. . . .\nIn the second instance, and more fundamentally, the possibility that fraudulent assertions\nmay prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of\nclaims in which that potentiality arises. . . .\nIndubitably juries and trial courts, constantly called upon to distinguish the frivolous from\nthe substantial and the fraudulent from the meritorious, reach some erroneous results. But such\nfallibility . . . offers no reason for substituting for the case-by-case resolution of causes an\nartificial and indefensible barrier. Courts not only compromise their basic responsibility to decide\nthe merits of each case individually but destroy the public\xe2\x80\x99s confidence in them by using the broad\nbroom of \xe2\x80\x9cadministrative convenience\xe2\x80\x9d to sweep away a class of claims a number of which are\nadmittedly meritorious. . . . [W]e cannot let the difficulties of adjudication frustrate the principle\nthat there be a remedy for every substantial wrong.\n2. The alleged inability to fix definitions for recovery on the different facts of future cases does\nnot justify the denial of recovery on the specific facts of the instant case; in any event, proper\nguidelines can indicate the extent of liability for such future cases.\nIn order to limit the otherwise potentially infinite liability which would follow every\nnegligent act, the law of torts holds defendant amenable only for injuries to others which to\ndefendant at the time were reasonably foreseeable.\nIn the absence of \xe2\x80\x9coverriding policy considerations . . . foreseeability of risk [is] of . . .\nprimary importance in establishing the element of duty. . . .\xe2\x80\x9d As a classic opinion states: \xe2\x80\x9dThe risk\nreasonably to be perceived defines the duty to be obeyed. . . .\xe2\x80\x9d (Palsgraf v. Long Island R.R. Co.\n(1928) . . . [162 N.E. 99].) Defendant owes a duty, in the sense of a potential liability for\ndamages, only with respect to those risks or hazards whose likelihood made the conduct\nunreasonably dangerous, and hence negligent, in the first instance. (See Keeton, Legal Cause in\nthe Law of Torts (1963) 18-20 . . . ).\nWe cannot now predetermine defendant\xe2\x80\x99s obligation in every situation by a fixed\ncategory; no immutable rule can establish the extent of that obligation for every circumstance of\nthe future. We can, however, define guidelines which will aid in the resolution of such an issue as\nthe instant one.\nWe note, first, that we deal here with a case in which plaintiff suffered a shock which\nresulted in physical injury and we confine our ruling to that case. In determining, in such a case,\nwhether defendant should reasonably foresee the injury to plaintiff, or, in other terminology,\nwhether defendant owes plaintiff a duty of due care, the courts will take into account such factors\nas the following: (1) Whether plaintiff was located near the scene of the accident as contrasted\nwith one who was a distance away from it. (2) Whether the shock resulted from a direct\nemotional impact upon plaintiff from the sensory and contemporaneous observance of the\naccident, as contrasted with learning of the accident from others after its occurrence. (3) Whether\nplaintiff and the victim were closely related, as contrasted with an absence of any relationship or\nthe presence of only a distant relationship.\n407\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe evaluation of these factors will indicate the degree of the defendant\xe2\x80\x99s\nforeseeability: obviously defendant is more likely to foresee that a mother who observes an\naccident affecting her child will suffer harm than to foretell that a stranger witness will do so.\nSimilarly, the degree of foreseeability of the third person\xe2\x80\x99s injury is far greater in the case of his\ncontemporaneous observance of the accident than that in which he subsequently learns of it. The\ndefendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical\nharm than to anticipate that someone distant from the accident will suffer more than a temporary\nemotional reaction. All these elements, of course, shade into each other; the fixing of obligation,\nintimately tied into the facts, depends upon each case.\nIn light of these factors the court will determine whether the accident and harm was\nreasonably foreseeable. Such reasonable foreseeability . . . contemplates that courts, on a case-tocase basis, analyzing all the circumstances, will decide what the ordinary man under such\ncircumstances should reasonably have foreseen. . . .\n[T]he history of the cases does not show the development of a logical rule but rather a\nseries of changes and abandonments. Upon the argument in each situation that the courts draw a\nMaginot Line to withstand an onslaught of false claims, the cases have assumed a variety of\npostures. At first they insisted that there be no recovery for emotional trauma at all. . . . They then\nabandoned the requirement for physical impact but insisted that the victim fear for her own\nsafety . . . , holding that a mother could recover for fear for her children\xe2\x80\x99s safety if she\nsimultaneously entertained a personal fear for herself. . . . The final anomaly would be the instant\ncase in which the sister, who observed the accident, would be granted recovery because she was in\nthe \xe2\x80\x9czone of danger,\xe2\x80\x9d but the mother, not far distant, would be barred from recovery.\nThe successive abandonment of these positions exposes the weakness of artificial\nabstractions which bar recovery contrary to the general rules. As the commentators have\nsuggested, the problem should be solved by the application of the principles of tort, not by the\ncreation of exceptions to them. Legal history shows that artificial islands of exceptions, created\nfrom the fear that the legal process will not work, usually do not withstand the waves of reality\nand, in time, descend into oblivion. . . .\nThe judgment is reversed.\n\nNotes\n\n1. The triumph of foreseeability. Consider the relationship between Dillon and the Rowland\ncase, which we read in the materials on landowners and occupiers\xe2\x80\x99 liability. Each aims to replace\na long-standing common law rule with a generalized foreseeability approach.\n\n2. Landmarks in the featureless generality of foreseeability. The Dillon court did try to add\nsome handholds in the otherwise featureless generality of the reasonableness standard. Justice\nTobriner mentioned proximity in space, closeness in time, and nearness of relationship as three\nguiding principles for courts trying to determine which plaintiffs may bring causes of action for\nnegligent infliction of emotional distress.\n408\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nFor forty-five years, California courts have struggled to apply the Dillon factors of time,\nspace, and relationship. The goal of Dillon was to eliminate the arbitrary distinctions between\ncases where recovery is permitted and cases where it is not. But some observers argue that the\nDillon factors have reintroduced the very arbitrary distinctions the court aimed to banish from the\nlaw. Consider that a father who witnesses his child\xe2\x80\x99s stillbirth as a result of negligent medical\ncare may recover, see Austin v. Regents of Univ. of Cal., 89 Cal. App. 3d 354 (1979), but that a\nfather who receives real-time knowledge that his newborn baby has been delivered stillborn but\ndoes not witness the delivery cannot recover, see Justus v. Atchinson, 565 P.2d 122 (Cal. 1977).\nNor can a mother who watches her daughter die as a result of a negligent misdiagnosis she did not\nobserve, see Jansen v. Children\xe2\x80\x99s Hosp. Med. Ctr., 31 Cal. App. 3d 22 (1973). A mother who\narrives at the scene seconds after her son is injured in an explosion can recover, see Archibald v.\nBraverman, 275 Cal. App. 2d 253 (1969), but parents who arrive at the scene of a car accident\n\xe2\x80\x9cseconds after\xe2\x80\x9d their daughters were killed cannot, see Parsons v. Superior Court, 81 Cal. App. 3d\n506 (1978). Nor can a mother who arrives at the scene of a car accident five minutes after her\ninfant daughter dies, see Arauz v. Gerhardt, 68 Cal. App. 3d 937 (1977). Is there any good reason\nto doubt the emotional trauma experienced by any of these emotional distress plaintiffs?\nTwenty years after Dillon was decided, the California Supreme Court announced that the\nDillon factors ought to be viewed as rules so as to achieve predictability and consistency in future\nnegligent infliction of emotional distress cases. See Thing v. La Chusa, 771 P.2d 814, 827 (Cal.\n1989) (en banc). Is rule-based consistency reconcilable with the elimination of arbitrary\ndistinctions between cases at the margin? Or does consistency and predictability necessarily\nreintroduce the kind of distinctions that the Dillon court described as arbitrary? Do Dillon and La\nChusa simply rebuild another Maginot Line? For the first generation of post-Dillon cases, see\nGeorge W. VanDeWeghe, Jr., California Continues to Struggle with Bystander Claims for\nNegligent Infliction of Emotional Distress: Thing v. La Chusa, 24 LOY. L. REV. 89, 93-96 (1990).\n\n3. Dillon\xe2\x80\x99s reception. Currently, thirty-one states have adopted Dillon\xe2\x80\x99s bystander proximity\ntest in adjudicating negligent infliction of emotional distress claims: Alaska, Tommy\xe2\x80\x99s Elbow\nRoom, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986); Arizona, Keck v. Jackson, 593 P.2d 668\n(Ariz. 1979) (en banc); California, Thing v. La Chusa, 771 P.2d 814, 827 (Cal. 1989) (en banc);\nConnecticut, Carrol v. Allstate Ins. Co., 815 A.2d 119 (Conn. 2003); Florida, Champion v. Gray,\n478 So. 2d 17 (Fla. 1985); Hawaii, Rodrigues v. State, 472 P.2d 509 (Haw. 1970); Indiana,\nGroves v. Taylor, 729 N.E.2d 569 (Ind. 2000); Iowa, Barnill v. Davis, 300 N.W.2d 104 (Iowa\n1981); Kentucky, Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012); Louisiana, Maney v. Evans, 780\nSo. 2d 1136 (La. Ct. App. 2001); Maine, Michaud v. Great N. Nekoosa Corp., 715 A.2d 955 (Me.\n1998); Massachusetts, Migliori v. Airborne Freight Corp., 690 N.E.2d 413 (Mass. 1998);\nMichigan, Hesse v. Ashland Oil, Inc., 642 N.W.2d 330 (Mich. 2002); Mississippi, Entex, Inc. v.\nMcGuire, 414 So. 2d 437 (Miss. 1982); Montana, Versland v. Caron Transp., 671 P.2d 583\n(Mont. 1983); Nebraska, Vosburg v. Cenex-Land O\xe2\x80\x99Lakes Agronomy Co., 513 N.W.2d 870 (Neb.\n1994); Nevada, State v. Eaton, 710 P.2d 1370 (Nev. 1985); New Hampshire, Graves v. Estabrook,\n818 A.2d 1255 (N.H. 2003); New Jersey, Portee v. Jaffee, 417 A.2d 521 (N.J. 1980); New\nMexico, Folz v. State, 797 P.2d 246 (N.M. 1990); North Carolina, Johnson v. Ruark Obstetrics &\nGynecology Assocs., P.A., 395 S.E.2d 85 (N.C. 1990); Ohio, Paugh v. Hanks, 451 N.E.2d 759\n(Ohio 1983); Pennsylvania, Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Rhode Island, Marchetti v.\nParsons, 638 A.2d 1047 (R.I. 1994); South Carolina, Kinard v. Augusta Sash & Door Co., 336\nS.E.2d 465 (S.C. 1985); Tennessee, Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996); Texas,\nBoyles v. Kerr, 855 S.W.2d 593 (Tex. 1993); Washington, Gain v. Carroll Mill Co., 787 P.2d 553\n409\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n(Wash. 1990) (en banc); West Virginia, Jones v. Sanger, 512 S.E.2d 590 (W. Va. 1998);\nWisconsin, Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001); and Wyoming, Gates v.\nRichardson, 719 P.2d 193 (Wyo. 1986).\n\n4. Gender bias, redux. Interestingly, the disparate impact on women of the traditional\ncommon law rule\xe2\x80\x94if it really existed\xe2\x80\x94may have dissipated, or at least transformed itself. One\nstudy in Australia concluded that women are more likely than men to recover for emotional\ndistress claims. The study also found that women bring substantially more emotional distress\nclaims than men. See Prue Vines, Mehera San Roque & Emily Rumble, Is Nervous Shock Still a\nFeminist Issue? The Duty of Care and Psychiatric Injury in Australia, 18 TORT L. REV. 9, 16\n(2010). Are such findings cause for celebration or critique?\n\n5. Crystals and mud in tort law. The Dillon court\xe2\x80\x99s reference to the cyclical character of the\neffort to build new lines of defense in emotional distress cases has a parallel in the law of\nproperty, where the distinguished scholar Carol Rose describes cycles of what she calls \xe2\x80\x9ccrystals\xe2\x80\x9d\nand \xe2\x80\x9cmud\xe2\x80\x9d in the law. Property is, if anything, populated more heavily by hard-and-fast rules\nthan torts is. Yet even in property, Rose detects a persistent oscillation from crystalline rules to\nmuddy standards and back again. A crystal such as the rule in Mitchell gets messy with an\nintermediate position in Falzone and then gives way completely to the muddy standard of the\nreasonable foreseeability standard in Dillon, only to see the pendulum swing back again. Same\nwith the old common law rule for landowners and occupiers, which allows exceptions in attractive\nnuisance and other especially sympathetic cases and then gives way entirely in Rowland\xe2\x80\x94only to\nbe revived, once again, in recent years.\nWhat are the virtues and characteristic vices associated with these two legal styles? Why\nthe ceaseless swings between them? As Rose observes, the persistent cycling between crystals\nand mud suggests that the quest to figure out once and for all which legal style is better may be a\nfutile one:\n[T]he history of property law tells us that we seem to be stuck with both. Even\nwhen we choose one . . . , the choice seems to dissolve, and instead of really\nchoosing, we seem to oscillate between them. Because this pattern recurs so often\nin so many areas, it is difficult to believe that it is due to abnormal foolishness or\nturpitude, or that it can be permanently overcome by a more thoughtful or more\nvirtuous choice . . . .\nCarol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988). Rules and\nstandards\xe2\x80\x94crystals and mud\xe2\x80\x94are legal technologies that each have powerfully appealing virtues\nand gravely troubling flaws.\nIf Rose is right, then it would have been shocking if Dillon turned out to be the final word\non the problem of emotional distress. And sure enough, it was not. In 1997, the distinctive crisis\nof thousands upon thousands of claims by injured workers and others against asbestos\nmanufacturers led the United States Supreme Court to revisit the basic problem of negligently\ninflicted emotional injuries:\n\n410\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nMetro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997)\nBREYER, J.\nThe basic question in this case is whether a railroad worker negligently exposed to a\ncarcinogen (here, asbestos) but without symptoms of any disease can recover under the Federal\nEmployers\xe2\x80\x99 Liability Act (FELA or Act) for negligently inflicted emotional distress. We\nconclude that the worker before us here cannot recover unless, and until, he manifests symptoms\nof a disease. . . .\nI\nRespondent, Michael Buckley, works as a pipefitter for Metro-North, a railroad. For three\nyears (1985-1988) his job exposed him to asbestos for about one hour per working day. During\nthat time Buckley would remove insulation from pipes, often covering himself with insulation\ndust that contained asbestos. Since 1987, when he attended an \xe2\x80\x9casbestos awareness\xe2\x80\x9d class,\nBuckley has feared that he would develop cancer\xe2\x80\x94and with some cause, for his two expert\nwitnesses testified that, even after taking account of his now-discarded 15-year habit of smoking\nup to a pack of cigarettes per day, the exposure created an added risk of death due to cancer, or to\nother asbestos- related diseases, of either 1% to 5% (in the view of one of plaintiff\xe2\x80\x99s experts), or\n1% to 3% (in the view of another). Since 1989, Buckley has received periodic medical checkups\nfor cancer and asbestosis. So far, those check-ups have not revealed any evidence of cancer or\nany other asbestos- related disease.\nBuckley sued Metro-North under the FELA, a statute that permits a railroad worker to\nrecover for an \xe2\x80\x9cinjury . . . resulting . . . from\xe2\x80\x9d his employer\xe2\x80\x99s \xe2\x80\x9cnegligence.\xe2\x80\x9d . . . His employer\nconceded negligence, but it did not concede that Buckley had actually suffered emotional distress,\nand it argued that the FELA did not permit a worker like Buckley, who had suffered no physical\nharm, to recover for [such] injuries. After hearing Buckley\xe2\x80\x99s case, the District Court dismissed\nthe action. The court found that Buckley did not \xe2\x80\x9coffer sufficient evidence to allow a jury to find\nthat he suffered a real emotional injury.\xe2\x80\x9d And, in any event, Buckley suffered no \xe2\x80\x9cphysical\nimpact\xe2\x80\x9d; hence any emotional injury fell outside the limited set of circumstances in which,\naccording to this Court, the FELA permits recovery. . . . [S]ee Consolidated Rail Corporation v.\nGottshall [U.S. 1994]. . . .\nBuckley appealed, and the Second Circuit reversed. . . . Buckley\xe2\x80\x99s evidence, it said,\nshowed that his contact with the insulation dust (containing asbestos) was \xe2\x80\x9cmassive, lengthy, and\ntangible,\xe2\x80\x9d and that the contact \xe2\x80\x9cwould cause fear in a reasonable person.\xe2\x80\x9d Under these\ncircumstances, the court held, the contact was what this Court in Gottshall had called a \xe2\x80\x9cphysical\nimpact\xe2\x80\x9d\xe2\x80\x94a \xe2\x80\x9cphysical impact\xe2\x80\x9d that, when present, permits a FELA plaintiff to recover for\naccompanying emotional distress. . . .\nII\nThe critical question before us in respect to Buckley\xe2\x80\x99s \xe2\x80\x9cemotional distress\xe2\x80\x9d claim is\nwhether the physical contact with insulation dust that accompanied his emotional distress amounts\nto a \xe2\x80\x9cphysical impact\xe2\x80\x9d as this Court used that term in Gottshall. In Gottshall, an emotional\ndistress case, the Court interpreted the word \xe2\x80\x9cinjury\xe2\x80\x9d in FELA \xc2\xa7 1, a provision that makes\n\xe2\x80\x9c[e]very common carrier by railroad . . . liable in damages to any person suffering injury while . . .\n411\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nemployed\xe2\x80\x9d by the carrier if the \xe2\x80\x9cinjury\xe2\x80\x9d results from carrier \xe2\x80\x9cnegligence.\xe2\x80\x9d In doing so, it initially\nset forth several general legal principles applicable here. Gottshall described FELA\xe2\x80\x99s purposes as\nbasically \xe2\x80\x9chumanitarian.\xe2\x80\x9d It pointed out that the Act expressly abolishes or modifies a host of\ncommon-law doctrines that previously had limited recovery. It added that this Court has\ninterpreted the Act\xe2\x80\x99s language \xe2\x80\x9cliberally\xe2\x80\x9d in light of its humanitarian purposes. But, at the same\ntime, the Court noted that liability under the Act rests upon \xe2\x80\x9cnegligence\xe2\x80\x9d and that the Act does not\nmake the railroad \xe2\x80\x9c\xe2\x80\x98the insurer\xe2\x80\x99\xe2\x80\x9d for all employee injuries. The Court stated that \xe2\x80\x9ccommon-law\nprinciples,\xe2\x80\x9d where not rejected in the text of the statute, \xe2\x80\x9care entitled to great weight\xe2\x80\x9d in\ninterpreting the Act, and that those principles \xe2\x80\x9cplay a significant role\xe2\x80\x9d in determining whether, or\nwhen, an employee can recover damages for \xe2\x80\x9cnegligent infliction of emotional distress.\xe2\x80\x9d\nThe Court also set forth several more specific legal propositions. It recognized that the\ncommon law of torts does not permit recovery for negligently inflicted emotional distress unless\nthe distress falls within certain specific categories that amount to recovery-permitting exceptions.\nThe law, for example, does permit recovery for emotional distress where that distress\naccompanies a physical injury . . . , and it often permits recovery for distress suffered by a close\nrelative who witnesses the physical injury of a negligence victim, e.g., Dillon v. Legg, [Cal. 1968]\n. . . . The Court then held that FELA \xc2\xa7 1, mirroring the law of many States, sometimes permitted\nrecovery \xe2\x80\x9cfor damages for negligent infliction of emotional distress,\xe2\x80\x9d and, in particular, it does so\nwhere a plaintiff seeking such damages satisfies the common law\xe2\x80\x99s \xe2\x80\x9czone of danger\xe2\x80\x9d test. It\ndefined that test by stating that the law permits \xe2\x80\x9crecovery for emotional injury\xe2\x80\x9d by\nthose plaintiffs who sustain a physical impact as a result of a defendant\xe2\x80\x99s negligent\nconduct, or who are placed in immediate risk of physical harm by that conduct.\nThe case before us, as we have said, focuses on the italicized words \xe2\x80\x9cphysical impact.\xe2\x80\x9d\nThe Second Circuit interpreted those words as including a simple physical contact with a\nsubstance that might cause a disease at a future time, so long as the contact was of a kind that\nwould \xe2\x80\x9ccause fear in a reasonable person.\xe2\x80\x9d In our view, however, the \xe2\x80\x9cphysical impact\xe2\x80\x9d to which\nGottshall referred does not include a simple physical contact with a substance that might cause a\ndisease at a substantially later time\xe2\x80\x94where that substance, or related circumstance, threatens no\nharm other than that disease-related risk. . . .\n[C]ommon-law precedent does not favor the plaintiff. Common-law courts do permit a\nplaintiff who suffers from a disease to recover for related negligently caused emotional distress,\nand some courts permit a plaintiff who exhibits a physical symptom of exposure to recover . . . .\nBut with only a few exceptions, common-law courts have denied recovery to those who, like\nBuckley, are disease and symptom free. . . .\n[T]he general policy reasons to which Gottshall referred\xe2\x80\x94in its explanation of why\ncommon-law courts have restricted recovery for emotional harm to cases falling within rather\nnarrowly defined categories\xe2\x80\x94militate against an expansive definition of \xe2\x80\x9cphysical impact\xe2\x80\x9d here.\nThose reasons include: (a) special \xe2\x80\x9cdifficult[y] for judges and juries\xe2\x80\x9d in separating valid,\nimportant claims from those that are invalid or \xe2\x80\x9ctrivial\xe2\x80\x9d; (b) a threat of \xe2\x80\x9cunlimited and\nunpredictable liability\xe2\x80\x9d; and (c) the \xe2\x80\x9cpotential for a flood\xe2\x80\x9d of comparatively unimportant, or\n\xe2\x80\x9ctrivial,\xe2\x80\x9d claims.\nTo separate meritorious and important claims from invalid or trivial claims does not seem\n412\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\neasier here than in other cases in which a plaintiff might seek recovery for typical negligently\ncaused emotional distress. . . .\nMore important, the physical contact at issue here\xe2\x80\x94a simple (though extensive) contact\nwith a carcinogenic substance\xe2\x80\x94does not seem to offer much help in separating valid from invalid\nemotional distress claims. That is because contacts, even extensive contacts, with serious\ncarcinogens are common. See, e.g., Nicholson, Perkel, & Selikoff, Occupational Exposure to\nAsbestos: Population at Risk and Projected Mortality\xe2\x80\x941980-2030, 3 Am. J. Indust. Med. 259\n(1982) (estimating that 21 million Americans have been exposed to work-related asbestos); . . . .\nThey may occur without causing serious emotional distress, but sometimes they do cause distress,\nand reasonably so, for cancer is both an unusually threatening and unusually frightening disease.\nThe relevant problem, however, remains one of evaluating a claimed emotional reaction to an\nincreased risk of dying. An external circumstance\xe2\x80\x94exposure\xe2\x80\x94makes some emotional distress\nmore likely. But how can one determine from the external circumstance of exposure whether, or\nwhen, a claimed strong emotional reaction to an increased mortality risk (say, from 23% to 28%)\nis reasonable and genuine, rather than overstated\xe2\x80\x94particularly when the relevant statistics\nthemselves are controversial and uncertain (as is usually the case), and particularly since neither\nthose exposed nor judges or juries are experts in statistics? The evaluation problem seems a\nserious one.\nThe large number of those exposed and the uncertainties that may surround recovery also\nsuggest what Gottshall called the problem of \xe2\x80\x9cunlimited and unpredictable liability.\xe2\x80\x9d Does such\nliability mean, for example, that the costs associated with a rule of liability would become so great\nthat, given the nature of the harm, it would seem unreasonable to require the public to pay the\nhigher prices that may result? [citing Priest, 96 YALE L.J. 1521 (1987)]. The same characteristics\nfurther suggest what Gottshall called the problem of a \xe2\x80\x9cflood\xe2\x80\x9d of cases that, if not \xe2\x80\x9ctrivial,\xe2\x80\x9d are\ncomparatively less important. In a world of limited resources, would a rule permitting immediate\nlarge- scale recoveries for widespread emotional distress caused by fear of future disease diminish\nthe likelihood of recovery by those who later suffer from the disease? Cf. J. WEINSTEIN,\nINDIVIDUAL JUSTICE IN MASS. TORT LITIGATION 10-11, 141 (1995); Schuck, The Worst Should Go\nFirst: Deferral Registries in Asbestos Litigation, 15 HARV. J.L. & PUB. POL\xe2\x80\x99Y 541 (1992).\nWe do not raise these questions to answer them (for we do not have the answers), but\nrather to show that general policy concerns of a kind that have led common-law courts to deny\nrecovery for certain classes of negligently caused harms are present in this case as well. . . .\nFor the reasons stated, we reverse the determination of the Second Circuit, and we\nremand the case for further proceedings consistent with this opinion.\nIt is so ordered.\n[Justice Ginsburg, joined by Justice Stevens, separately concurred in this part of the\nCourt\xe2\x80\x99s judgment. In Ginsburg\xe2\x80\x99s view, \xe2\x80\x9cBuckley\xe2\x80\x99s extensive contact with asbestos particles in\nGrand Central\xe2\x80\x99s tunnels . . . constituted \xe2\x80\x98physical impact\xe2\x80\x99 as that term was used in Gottshall.\xe2\x80\x9d\nNonetheless, Ginsburg found that Buckley had failed to \xe2\x80\x9cpresent objective evidence of severe\nemotional distress\xe2\x80\x9d and concluded therefore that his emotional distress claim failed.]\n\n413\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nNotes\n\n1. Resistance to Dillon. The Supreme Court\xe2\x80\x99s Buckley decision is not alone in its skepticism\nfor the Dillon approach. It may even stand for a broader resistance to Dillon\xe2\x80\x99s heavy reliance on\nan open-ended and case-by-case reasonableness analysis. Nearly fifty years after Dillon, seven\nstates still do not recognize claims for the negligent infliction of emotional distress absent\nphysical impact, retaining the old rule of Mitchell v. Rochester Railway. For cases retaining the\ncommon law rule, see Arkansas, Mechs. Lumber Co. v. Smith, 752 S.W.2d 763 (Ark. 1988);\nGeorgia, Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000); Idaho, Evans v. Twin Falls\nCnty., 796 P.2d 87 (Idaho 1990); Kansas, Hopkins v. State, 702 P.2d 311 (Kan. 1985); Oklahoma,\nKraszewski v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241 (Okla. 1996); Oregon, Hammond v.\nCent. Lane Commc\xe2\x80\x99ns Ctr., 816 P.2d 593 (Or. 1991) (en banc); and Virginia, Hughes v. Moore,\n197 S.E.2d 214 (Va. 1973).\nJustice Breyer\xe2\x80\x99s opinion in Buckley does not, however, merely restate the generalized\nfears of a glut of litigation cited by the state courts in cases like Mitchell and Ward. Instead,\nJustice Breyer\xe2\x80\x99s decision rests largely on a very specific policy consideration: the risk that paying\nemotional distress damages for fear of cancer now might deplete funds available later for the\nvictims of deadly asbestos-related diseases like mesothelioma.\n\n2. Buckley and medical monitoring damages. Buckley also advanced a separate claim for\ndamages arising out of increased medical monitoring costs. In a separate part of Justice Breyer\xe2\x80\x99s\nopinion for the Court, not excerpted above, he assumed that an \xe2\x80\x9cexposed plaintiff can recover\nrelated reasonable medical monitoring costs if and when he develops symptoms.\xe2\x80\x9d But to the\nextent that the Second Circuit had recognized a distinct \xe2\x80\x9ctort law cause of action [under the\nFELA] permitting . . . the recovery of medical cost damages in the form of a lump sum\xe2\x80\x9d absent\nsuch symptoms, the Supreme Court drew back. Justice Breyer noted that \xe2\x80\x9ctens of millions of\nindividuals may have suffered exposure to substances that might justify some form of substanceexposure-related medical monitoring.\xe2\x80\x9d In Breyer\xe2\x80\x99s view, this fact threatened \xe2\x80\x9cboth a \xe2\x80\x98flood\xe2\x80\x99 of\nless important cases (potentially absorbing resources better left available to those more seriously\nharmed . . .) and the systemic harms that can accompany \xe2\x80\x98unlimited and unpredictable liability\xe2\x80\x99\n(for example, vast testing liability adversely affecting the allocation of scarce medical resources).\xe2\x80\x9d\nBreyer noted, for example, that while \xe2\x80\x9cBuckley here sought damages worth $950 annually for 36\nyears, \xe2\x80\x9cthe average settlement for plaintiffs injured by asbestos\xe2\x80\x9d between 1988 and 1993 \xe2\x80\x9cwas\nabout $12,500.\xe2\x80\x9d (Nonmalignant plaintiffs received settlements averaging still less: $8,810.)\nBreyer also observed that \xe2\x80\x9ca traditional, full-blown ordinary tort liability rule would\nignore the presence of existing alternative sources of payment\xe2\x80\x9d such as health insurance or\nstatutorily-mandated monitoring for asbestos injuries, \xe2\x80\x9cthereby leaving a court uncertain about\nhow much of the potentially large recoveries would pay for otherwise unavailable medical testing\nand how much would accrue to plaintiffs for whom employers or other sources . . . might provide\nmonitoring in any event.\xe2\x80\x9d\nAccordingly, the Court rejected Buckley\xe2\x80\x99s medical monitoring claim. In doing so,\nhowever, the Court declined to \xe2\x80\x9cexpress any view here about the extent to which the FELA might,\nor might not, accommodate medical cost recovery rules more finely tailored\xe2\x80\x9d than the lump-sum\nfull-recovery rule advocated by the plaintiff and adopted by the Second Circuit.\n414\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nJustices Ginsburg and Stevens dissented from the majority\xe2\x80\x99s decision to order the\ndismissal of Buckley\xe2\x80\x99s medical monitoring claim:\nThe Court of Appeals held that a medical monitoring claim is solidly grounded, and\nthis Court does not hold otherwise. Hypothesizing that Buckley demands lumpsum damages and nothing else, the Court ruminates on the appropriate remedy\nwithout answering the anterior question: Does the plaintiff have a claim for relief?\nBuckley has shown that Metro-North negligently exposed him to \xe2\x80\x9cextremely high\nlevels of asbestos,\xe2\x80\x9d and that this exposure warrants \xe2\x80\x9cmedical monitoring in order to\ndetect and treat [asbestos-related] diseases as they may arise.\xe2\x80\x9d . . . Buckley\xe2\x80\x99s expert\nmedical witness estimated the annual costs of proper monitoring at $950. We do\nnot know from the Court\xe2\x80\x99s opinion what more a plaintiff must show to qualify for\nrelief.\n521 U.S. at 448 (Ginsburg, J., concurring and dissenting).\n\n3. Norfolk & Western v. Ayres: The limits of Buckley. What about plaintiffs with mental\nanguish alongside physical symptoms caused by asbestos exposure? Did Buckley\xe2\x80\x99s rationale\nextend to their emotional distress claims as well? The Supreme Court took up this question six\nyears after Buckley in Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003).\nIn Norfolk & Western, the Court clarified that \xe2\x80\x9cmental anguish damages resulting from the\nfear of developing cancer may be recovered under the FELA by a railroad worker\xe2\x80\x9d when they are\n\xe2\x80\x9cassociated with, or \xe2\x80\x98parasitic\xe2\x80\x99 on, a physical injury.\xe2\x80\x9d\nDistinguishing Metro-North v. Buckley, the Court contended that the \xe2\x80\x9cuniverse of\npotential claimants\xe2\x80\x9d with asbestosis symptoms in fear of cancer claims would be \xe2\x80\x9conly a fraction\xe2\x80\x9d\nof those exposed to asbestos, citing studies indicating that \xe2\x80\x9cof persons exposed to asbestos after\n1959, only 2 percent had asbestosis when first examined.\xe2\x80\x9d Norfolk & Western, 538 U.S. at 157.\nFinally, the Court acknowledged concerns it had articulated in the late 1990s in class\naction asbestos cases: \xe2\x80\x9cThe \xe2\x80\x98elephantine mass of asbestos cases\xe2\x80\x99 lodged in state and federal\ncourts, we again recognize, \xe2\x80\x98defies customary judicial administration and calls for national\nlegislation.\xe2\x80\x99 Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).\xe2\x80\x9d But Justice Ginsburg insisted\nthat courts must nonetheless \xe2\x80\x9cresist pleas of the kind Norfolk has made, essentially to reconfigure\nestablished liability rules because they do not serve to abate today\xe2\x80\x99s asbestos litigation crisis.\xe2\x80\x9d\nNorfolk & Western, 538 U.S. at 166.\nJustice Kennedy, joined by Chief Justice Rehnquist and Justices O\xe2\x80\x99Connor and Breyer\ndissented from the majority\xe2\x80\x99s holding on the fear of cancer claims at issue on the grounds that\nneither the Court\xe2\x80\x99s prior FELA interpretations nor common law principles compelled or justified\nthe majority view. Moreover, Justice Kennedy contended that \xe2\x80\x9cthe realities of asbestos\nlitigation,\xe2\x80\x9d id. at 167, warranted holding that asbestos plaintiffs suffering from asbestosis should\nnot be able to recover for fear of future cancer. In particular, Justice Kennedy expressed concern\nthat those asbestos plaintiffs who eventually contract diseases such as mesothelioma, for example,\nwould be less likely to be able to recover damages \xe2\x80\x9cfor the simple reason that, by the time [they\n415\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nwere] entitled to sue for the cancer, the funds available for compensation in all likelihood will\nhave disappeared, depleted by verdicts awarding damages for unrealized fear, verdicts the\nmajority is so willing to embrace.\xe2\x80\x9d Id. at 168.\nJustice Breyer added a separate dissenting opinion, emphasizing that \xe2\x80\x9cthe Second\nRestatement neither gives a definition of the kind of \xe2\x80\x98emotional disturbance\xe2\x80\x99 for which recovery is\navailable nor otherwise states that recovery is available for any kind of emotional disturbance\nwhatsoever.\xe2\x80\x9d Id. at 182.\nThe underlying history underscores the openness of the legal question and the\nconsequent uncertainty as to the answer. When Congress enacted the Federal\nEmployers\xe2\x80\x99 Liability Act (FELA) in 1908, the kinds of injury that it primarily had\nin mind were those resulting directly from physical accidents, such as railway\ncollisions and entanglement with machinery.\n\xe2\x80\x9cGiven the legal uncertainty,\xe2\x80\x9d Justice Breyer wrote, \xe2\x80\x9cthis Court, acting like any court interpreting\nthe common law . . . should determine the proper rule of law through reference to the underlying\nfactors that have helped to shape related \xe2\x80\x98emotional distress\xe2\x80\x99 rules. Those factors argue for the\nkind of liability limitation that Justice Kennedy has described.\xe2\x80\x9d Id. at 182-84.\n\n4. Whither negligent infliction of emotional distress? What is the current state of play in the\noscillation of crystals and mud in the law of negligently inflicted emotional distress? Where do\nDillon, Buckley, and Ayers leave the law in this area?\n\nD. To Whom Does a Defendant Owe a Duty?\n1. The Duty Debate (Part 1)\nNow that we have seen a few examples of the duty analysis in action, it is worth stepping\nback and taking a brief look at the theoretical debates that scholars have carried on about the\nsubject. We will return to these debates at the end of this section, but for now consider a classic\nstatement from one of the leading twentieth-century critics of the duty inquiry followed by a more\nrecent defense of the duty idea from two leading torts scholars from closer to our own time:\n\nWilliam L. Prosser, Handbook of the Law of Torts \xc2\xa7 31, at 180, 185 (1941)\nThe statement that there is or is not a duty [of care] begs the essential question\xe2\x80\x94\nwhether the plaintiff\xe2\x80\x99s interests are entitled to legal protection against the\ndefendant\xe2\x80\x99s conduct. . . . It is a shorthand statement of a conclusion, rather than an\naid to analysis in itself. . . . \xe2\x80\x98[D]uty\xe2\x80\x99 is not sacrosanct in itself, but only an expression\nof the sum total of those considerations of policy which lead the law to say that the\nparticular plaintiff is entitled to protection. . . . The real problem, and the one to\nwhich attention should be directed, would seem to be one of social policy: whether\nthe defendants in such cases should bear the heavy negligence losses of a complex\n416\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ncivilization, rather than the individual plaintiff.\n\nJohn Goldberg & Benjamin Zipursky, The Moral of MacPherson 146 U. PA. L. REV. 1733,\n1810-11 (1998)\n[Prosser] insists that conceptual categories must be incoherent unless they are tied\nto specific utilitarian goals, such as deterrence, compensation or administrative ease.\nProsser was not able to recognize the possibility of a principle that links the\njustification for imposing a duty to compensate a plaintiff with the question of\nwhether the defendant had actually breached a duty to the plaintiff. This principle\ntreats liability-imposition as having a normative structure and significance apart\nfrom its instrumental value.\nWhat is the nub of the disagreement between Prosser, on the one hand, and Goldberg and\nZipursky, on the other?\nWhen mid-twentieth-century torts jurist William Prosser\xe2\x80\x94the long-time dean at the\nUniversity of California at Berkeley\xe2\x80\x94argued that the duty stage of the tort analysis was\nredundant, his critique represented the culmination of legal realists\xe2\x80\x99 functional analysis of tort law\nin the early twentieth century. The same generation of lawyers that critiqued such traditional\ndoctrinal notions as causation and fault made \xe2\x80\x9cduty\xe2\x80\x9d a principal target of their functionalist\nproject. A half-century later, their view continues to be influential. The Third Restatement, for\nexample, recommends that typical torts cases ought not involve a separate duty analysis at all;\nduty or modified duty determinations, the Third Restatement urges, should be limited to\n\xe2\x80\x9cexceptional cases, when an articulated countervailing principle or policy warrants denying or\nlimiting liability in a particular class of cases.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.\nHARM \xc2\xa7 7(b), cmt. a (2010).\nNonetheless, the duty concept remains a separate analytic stage in virtually every\nAmerican jurisdiction. And of late, distinguished jurists like Harvard\xe2\x80\x99s Goldberg and Fordham\xe2\x80\x99s\nZipursky (authors of the excerpt above) have defended the duty analysis and countered Prosser\xe2\x80\x99s\nlong-standing realist argument against it. Defenders of the duty principle insist that the idea of\nparticular relational duties is central to the normative structure of tort law. Rejecting the realists\xe2\x80\x99\ninstrumental or functional ideas of duty, scholars like Goldberg and Zipursky argue that duty\nembodies the essential bilateral structure of tort law\xe2\x80\x99s duties: duties that do not run to the whole\nworld, but that run (as Cardozo\xe2\x80\x99s Palsgraf opinion suggested) to particular people and perhaps\neven exclusively for certain wrongfully imposed risks. Functional theories of tort law, on this\nview, do not capture what tort law does\xe2\x80\x94namely, require the repair of losses because they are\nwrongful with respect to certain people. The duty element of the analysis (according to its\ndefenders, anyway) focuses the torts inquiry on the defendant\xe2\x80\x99s wrongfulness and on the\nsignificance of that wrongfulness for the plaintiff\xe2\x80\x99s injuries and for whether defendant has an\nobligation to repair those injuries. See generally Benjamin C. Zipursky, Civil Recourse, Not\nCorrective Justice, 91 GEO. L. REV. 695, 699-709 (2003).\nKeep the debate in mind as you read the cases. Ask yourself the question: Who has the\nbetter of the argument over duty in American tort law?\n\n417\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n2. Cases and Materials\nStrauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985)\nKAYE, J.\nOn July 13, 1977, a failure of defendant Consolidated Edison\xe2\x80\x99s power system left most of\nNew York City in darkness. In this action for damages allegedly resulting from the power failure,\nwe are asked to determine whether Con Edison owed a duty of care to a tenant who suffered\npersonal injuries in a common area of an apartment building, where his landlord\xe2\x80\x94but not he\xe2\x80\x94\nhad a contractual relationship with the utility. We conclude that in the case of a blackout of a\nmetropolis of several million residents and visitors, each in some manner necessarily affected by a\n25-hour power failure, liability for injuries in a building\xe2\x80\x99s common areas should, as a matter of\npublic policy, be limited by the contractual relationship. . . .\nPlaintiff, Julius Strauss, then 77 years old, resided in an apartment building in Queens.\nCon Edison provided electricity to his apartment pursuant to agreement with him, and to the\ncommon areas of the building under a separate agreement with his landlord, defendant Belle\nRealty Company. As water to the apartment was supplied by electric pump, plaintiff had no\nrunning water for the duration of the blackout. Consequently, on the second day of the power\nfailure, he set out for the basement to obtain water, but fell on the darkened, defective basement\nstairs, sustaining injuries. In this action against Belle Realty and Con Edison, plaintiff alleged\nnegligence against the landlord, in failing to maintain the stairs or warn of their dangerous\ncondition, and negligence against the utility in the performance of its duty to provide electricity.\nPlaintiff moved for partial summary judgment against Con Edison (1) to estop it from\ncontesting the charge of gross negligence in connection with the blackout, and (2) to establish that\nCon Edison owed a duty of care to plaintiff. He argued that Con Edison was prohibited from\ndenying it was grossly negligent by virtue of the affirmed jury verdict in Food Pageant v.\nConsolidated Edison [a prior case arising out of the same blackout], and that it owed plaintiff a\nduty even though he was \xe2\x80\x9cnot a customer of Consolidated Edison in a place where the accident\noccurred.\xe2\x80\x9d Con Edison cross-moved for summary judgment dismissing the complaint,\nmaintaining it had no duty to a noncustomer.\nThe court granted the motion insofar as it sought collateral estoppel regarding gross\nnegligence, and denied Con Edison\xe2\x80\x99s cross motion to dismiss the complaint, finding a question of\nfact as to whether it owed plaintiff a duty of care. The Appellate Division reversed and dismissed\nthe complaint against Con Edison. Citing Moch Co. v. Rensselaer Water Co., the plurality\nconcluded that \xe2\x80\x9cCon Ed did not owe a duty to plaintiff in any compensable legal sense.\xe2\x80\x9d Justice\nGibbons dissented, finding extension of the duty tolerable here because \xe2\x80\x9c[t]he tenants of the\nbuilding in question constitute a defined, limited and known group of people.\xe2\x80\x9d On public policy\ngrounds, we now affirm the Appellate Division order dismissing the complaint against Con\nEdison.\nA defendant may be held liable for negligence only when it breaches a duty owed to the\nplaintiff. The essential question here is whether Con Edison owed a duty to plaintiff, whose\ninjuries from a fall on a darkened staircase may have conceivably been foreseeable, but with\nwhom there was no contractual relationship for lighting in the building\xe2\x80\x99s common areas.\n418\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nDuty in negligence cases is defined neither by foreseeability of injury . . . nor by privity of\ncontract. As this court has long recognized, an obligation rooted in contract may engender a duty\nowed to those not in privity, for \xe2\x80\x9c[t]here is nothing anomalous in a rule which imposes upon A,\nwho has contracted with B, a duty to C and D and others according as he knows or does not know\nthat the subject-matter of the contract is intended for their use\xe2\x80\x9d (MacPherson v. Buick Motor Co.).\nIn Fish v. Waverly Elec. Light & Power Co., for example, an electric company which had\ncontracted with the plaintiff\xe2\x80\x99s employer to install ceiling lights had a duty to the plaintiff to\nexercise reasonable care. And in Glanzer v. Shepard, a public weigher, hired by a seller of beans\nto certify the weight of a particular shipment, was found liable in negligence to the buyer.\nBut while the absence of privity does not foreclose recognition of a duty, it is still the\nresponsibility of courts, in fixing the orbit of duty, \xe2\x80\x9cto limit the legal consequences of wrongs to a\ncontrollable degree\xe2\x80\x9d . . . and to protect against crushing exposure to liability . . . . \xe2\x80\x9cIn fixing the\nbounds of that duty, not only logic and science, but policy play an important role.\xe2\x80\x9d . . . The courts\xe2\x80\x99\ndefinition of an orbit of duty based on public policy may at times result in the exclusion of some\nwho might otherwise have recovered for losses or injuries if traditional tort principles had been\napplied.\nConsiderations of privity are not entirely irrelevant in implementing policy. Indeed, in\ndetermining the liability of utilities for consequential damages for failure to provide service\xe2\x80\x94a\nliability which could obviously be \xe2\x80\x9cenormous,\xe2\x80\x9d and has been described as \xe2\x80\x9csui generis,\xe2\x80\x9d rather\nthan strictly governed by tort or contract law principles (see, Prosser and Keeton, Torts \xc2\xa7 92, at\n663 [5th ed] )\xe2\x80\x94courts have declined to extend the duty of care to noncustomers. For example, in\nMoch, supra, a water works company contracted with the City of Rensselaer to satisfy its water\nrequirements. Plaintiff\xe2\x80\x99s warehouse burned and plaintiff brought an action against the water\ncompany in part based on its alleged negligence in failing to supply sufficient water pressure to\nthe city\xe2\x80\x99s hydrants. The court denied recovery, concluding that the proposed enlargement of the\nzone of duty would unduly extend liability. . . .\nIn the view of the Appellate Division dissenter, Moch does not control because the injuries\nhere were foreseeable and plaintiff was a member of a specific, limited, circumscribed class with\na close relationship with Con Edison. The situation was thought to be akin to White v. Guarente,\nwhere an accounting firm was retained by a limited partnership to perform an audit and prepare its\ntax returns. As the court noted there, the parties to the agreement contemplated that individual\nlimited partners would rely on the tax returns and audit. Refusing to dismiss a negligence action\nbrought by a limited partner against the accounting firm, the court said, \xe2\x80\x9cthe services of the\naccountant were not extended to a faceless or unresolved class of persons, but rather to a known\ngroup possessed of vested rights, marked by a definable limit and made up of certain\ncomponents.\xe2\x80\x9d . . .\nCentral to these decisions was an ability to extend the defendant\xe2\x80\x99s duty to cover\nspecifically foreseeable parties but at the same time to contain liability to manageable levels. . . .\nHere, insofar as revealed by the record, the arrangement between Con Edison and Belle Realty\nwas no different from those existing between Con Edison and the millions of other customers it\nserves. . . . When plaintiff\xe2\x80\x99s relationship with Con Edison is viewed from this perspective, it is no\nanswer to say that a duty is owed because, as a tenant in an apartment building, plaintiff belongs\nto a narrowly defined class.\n\n419\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nAdditionally, we deal here with a system-wide power failure occasioned by what has\nalready been determined to be the utility\xe2\x80\x99s gross negligence. If liability could be found here, then\nin logic and fairness the same result must follow in many similar situations. For example, a\ntenant\xe2\x80\x99s guests and invitees, as well as persons making deliveries or repairing equipment in the\nbuilding, are equally persons who must use the common areas, and for whom they are maintained.\nCustomers of a store and occupants of an office building stand in much the same position with\nrespect to Con Edison as tenants of an apartment building. . . . [P]ermitting recovery to those in\nplaintiff\xe2\x80\x99s circumstances would, in our view, violate the court\xe2\x80\x99s responsibility to define an orbit of\nduty that places controllable limits on liability. . . .\nIn sum, Con Edison is not answerable to the tenant of an apartment building injured in a\ncommon area as a result of Con Edison\xe2\x80\x99s negligent failure to provide electric service as required\nby its agreement with the building owner. Accordingly, the order of the Appellate Division\nshould be affirmed, with costs.\nMEYER, J., dissenting.\nMy disagreement with the majority results not from its consideration of public policy as a\nfactor in determining the scope of Con Ed\xe2\x80\x99s duty, but from the fact that in reaching its public\npolicy conclusion it has considered only one side of the equation . . . .\nAs Professors Prosser and Keeton have emphasized, \xe2\x80\x9cThe statement that there is or is not\na duty begs the essential question\xe2\x80\x94whether the plaintiff\xe2\x80\x99s interests are entitled to legal protection\nagainst the defendant\xe2\x80\x99s conduct . . . .\xe2\x80\x9d\n...\nThe majority\xe2\x80\x99s blind acceptance of the notion that Consolidated Edison will be crushed if\nheld liable to the present plaintiff and others like him ignores the possibility that through\napplication to the Public Service Commission Con Ed can seek such reduction of the return on\nstockholders\xe2\x80\x99 equity . . . , or increase in its rates, or both, as may be necessary to pay the\njudgments obtained against it. It ignores as well the burden imposed upon the persons physically\ninjured by Con Ed\xe2\x80\x99s gross negligence or, as to those forced to seek welfare assistance because\ntheir savings have been wiped out by the injury, the State. Doing so in the name of public policy\nseems particularly perverse, for what it says, in essence, is the more persons injured through a\ntortfeasor\xe2\x80\x99s gross negligence, the less the responsibility for injuries incurred.\nWACHTLER, C.J., and SIMONS, ALEXANDER and TITONE, JJ., concur with KAYE, J.\nMEYER, J., dissents and votes to reverse in a separate opinion in which JASEN, J., concurs.\n\nNotes\n\n1. Liability for public utilities. Unlike the New York Court of Appeals in Moch and Strauss,\nother courts have refused to immunize utility companies from liability incurred by third parties.\nAfter the New York Court of Appeals decided Moch, the Pennsylvania Supreme Court held that a\ndefendant-utility company could be liable for negligence even though the plaintiff had no\n420\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ncontractual relationship with the defendant. See Doyle v. South Pittsburgh Water Co., 199 A.2d\n875, 878 (Pa. 1964). After the New York Court of Appeals decided Strauss, the New Jersey\nSupreme Court refused to immunize a defendant-utility company from liability arising outside of\na contractual relationship. See Weinberg v. Dinger, 524 A.2d 366, 378 (N.J. 1987).\nThe Restatement (Third) of Torts criticizes Moch. In particular, the Restatement notes:\n[t]he difficulty with [Moch] is that the provision of utilities creates an expectation\nof and reliance on continued service. When the utility ceases to supply service, the\nomission is much like ceasing to provide warning signals at a railroad crossing. . . .\n[R]eliance on the utility\xe2\x80\x99s continuing to provide its services is a cause of harm.\nRESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa7 42 cmt. i (2012). Nevertheless, the\nNew York Court of Appeals continues to apply Strauss and Moch, even in cases that do not\ninvolve utility companies. See, e.g., Espinal v. Melville Snow Contrs., 773 N.E.2d 485, 489 (N.Y.\n2002) (holding that defendant snow removal company owed the injured party no duty of care\nbecause the defendant contracted with the injured party\xe2\x80\x99s employer, not the injured party himself).\n\n2. Scholarly reaction to Strauss. Certain scholars have criticized the Strauss court\xe2\x80\x99s\nreasoning. For example, Professors Goldberg and Zipursky have stated that the plaintiff\xe2\x80\x99s case for\na duty was particularly strong in Strauss because \xe2\x80\x9cthe very point in providing electricity to\nbuilding owners is to provide for the needs and safety of their tenants.\xe2\x80\x9d John C.P. Goldberg &\nBenjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54\nVAND. L. REV. 657, 719 (2001). The Strauss court, however, was concerned about the monetary\nburden \xe2\x80\x9cimposed on New York\xe2\x80\x99s major electrical supplier\xe2\x80\x9d if the defendant-utility company was\nnegligent. Id. Thus, the court disguised a policy rationale by issuing a \xe2\x80\x9cno duty decision.\xe2\x80\x9d Id.\nOther scholars have stated that New York courts \xe2\x80\x9cact like a legislature when deciding duty in\n[cases like Strauss].\xe2\x80\x9d Anthony J. Sebok, What\xe2\x80\x99s Law Got to Do with It? Designing Compensation\nSchemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 501, 516 (2001). Does a court\nhave a non-legislative option in such cases?\nProfessor Daniel Farber has praised the Strauss court: \xe2\x80\x9cStrauss created a triage rule,\nidentifying a subclass of victims (those in privity of contract with the utility) whose claims\nseemed particularly deserving to the court. . . . [This rule] at least establish[es] the possibility of\ncutting potentially unmanageable cases down to size.\xe2\x80\x9d Daniel A. Farber, Tort Law in the Era of\nClimate Change, Katrina, and 9/11: Exploring Liability for Extraordinary Risks, 43 VAL. U. L.\nREV. 1075, 1128 (2009).\n\n3. Policy arguments? What other policy arguments would support the Strauss and Moch\ncourts\xe2\x80\x99 holdings? One court has considered consumer welfare as a reason to immunize utility\ncompanies from liability. According to the court\xe2\x80\x99s analysis, liability would increase utility\ncompanies\xe2\x80\x99 costs, which would be passed on to consumers in the form of higher utility rates. In\ncontrast to insurance premiums, which vary according to the risk of loss, higher rates would be\nuniform for all consumers. The class of insurance company customers would form an ersatz\ninsurance pool\xe2\x80\x94but one in which the low-risk consumers would subsidize high-risk consumers.\nSee Reimann v. Monmouth Consol. Water Co., 87 A.2d 325, 327 (N.J. 1952), overruled by\nWeinberg v. Dinger, 524 A.2d 366, 378 (N.J. 1987). Why won\xe2\x80\x99t the costs be borne, as the\n421\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ndissenter in Strauss objected, by the utility company\xe2\x80\x99s shareholders in the form of lower returns to\ncapital or by the company\xe2\x80\x99s employees in the form of lower wages? Determining the incidence of\ntort liability in settings characterized by networks of contracts turns out to be exceedingly\ncomplicated and to turn on the relative elasticities of supply and demand in the networks of\nmarkets (capital, labor, consumer) in which the relevant firms are involved. Sometimes the best\none can say is that the incidence of a new tort liability is an empirical question. See, e.g., Price\nFishback & Shawn Kantor, Prelude to the Welfare State: The Origins of Workers\xe2\x80\x99 Compensation\n(2000) (employing sophisticated econometric techniques to conclude that the enactment of\nworkers\xe2\x80\x99 compensation statutes created costs that were borne in part by employers and in part by\nemployees in the form of lower wages).\n\n4. Subrogation claims. Ought insurance companies be able to sue utility companies to\nrecover losses sustained by the homeowners and tenants they insure? Some courts do not allow\nthese subrogation claims on the theory that such a liability scheme would doubly harm consumers:\nif liability is imposed, the theory goes, consumers would not only pay homeowners\xe2\x80\x99 or renters\xe2\x80\x99\ninsurance to cover future risks but would also pay higher water rates to utility companies.\nFranklin Mut. Ins. Co. v. Jersey Cent. Power & Light Co., 902 A.2d 885, 887 (N.J. 2006);\nWilliam Bufford & Co. v. Glasgow Water Co., 2 S.W.2d 1027, 1029 (Ky. 1928). An insurer may,\nhowever, bring subrogation claims against utility companies that negligently cause property\ndamage as opposed to service disruptions. See E & M Liquors, Inc. v. Public. Serv. Elec. & Gas\nCo., 909 A.2d 1141, 1143 (N.J. App. Div. 2006).\n\n5. What about one party\xe2\x80\x99s obligations to exercise reasonable care in controlling another?\nThe next materials take up this problem.\n\nKline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970)\nWILKEY, J.\nThe appellee apartment corporation states that there is \xe2\x80\x9conly one issue presented for\nreview . . . whether a duty should be placed on a landlord to take steps to protect tenants from\nforeseeable criminal acts committed by third parties\xe2\x80\x9d. The District Court as a matter of law held\nthat there is no such duty. We find that there is, and that in the circumstances here the applicable\nstandard of care was breached. . . .\nI\nThe appellant, Sarah B. Kline, sustained serious injuries when she was criminally\nassaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway\nof an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant\nKline moved in October 1959, is a large apartment building with approximately 585 individual\napartment units. It has a main entrance on Massachusetts Avenue, with side entrances on both\n15th and 16th Streets. At the time the appellant first signed a lease a doorman was on duty at the\nmain entrance twenty-four hours a day, and at least one employee at all times manned a desk in\nthe lobby from which all persons using the elevators could be observed. The 15th Street door\n422\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nadjoined the entrance to a parking garage used by both the tenants and the public. Two garage\nattendants were stationed at this dual entranceway; the duties of each being arranged so that one\nof them always was in position to observe those entering either the apartment building or the\ngarage. The 16th Street entrance was unattended during the day but was locked after 9:00 P.M.\nBy mid-1966, however, the main entrance had no doorman, the desk in the lobby was left\nunattended much of the time, the 15th Street entrance was generally unguarded due to a decrease\nin garage personnel, and the 16th Street entrance was often left unlocked all night. The entrances\nwere allowed to be thus unguarded in the face of an increasing number of assaults, larcenies, and\nrobberies being perpetrated against the tenants in and from the common hallways of the apartment\nbuilding. These facts were undisputed, and were supported by a detailed chronological listing of\noffenses admitted into evidence. The landlord had notice of these crimes and had in fact been\nurged by appellant Kline herself prior to the events leading to the instant appeal to take steps to\nsecure the building.\nShortly after 10:00 P.M. on November 17, 1966, Miss Kline was assaulted and robbed just\noutside her apartment on the first floor above the street level of this 585 unit apartment building.\nThis occurred only two months after Leona Sullivan, another female tenant, had been similarly\nattacked in the same commonway.\nII\nAt the outset we note that of the crimes of violence, robbery, and assault which had been\noccurring with mounting frequency on the premises at 1500 Massachusetts Avenue, the assaults\non Miss Kline and Miss Sullivan took place in the hallways of the building, which were under the\nexclusive control of the appellee landlord. Even in those crimes of robbery or assault committed\nin individual apartments, the intruders of necessity had to gain entrance through the common\nentry and passageways. These premises fronted on three heavily traveled streets, and had multiple\nentrances. The risk to be guarded against therefore was the risk of unauthorized entrance into the\napartment house by intruders bent upon some crime of violence or theft.\nWhile the apartment lessees themselves could take some steps to guard against this risk by\ninstalling extra heavy locks and other security devices on the doors and windows of their\nrespective apartments, yet this risk in the greater part could only be guarded against by the\nlandlord. No individual tenant had it within his power to take measures to guard the garage\nentranceways, to provide scrutiny at the main entrance of the building, to patrol the common\nhallways and elevators, to set up any kind of a security alarm system in the building, to provide\nadditional locking devices on the main doors, to provide a system of announcement for authorized\nvisitors only, to close the garage doors at appropriate hours, and to see that the entrance was\nmanned at all times.\nThe risk of criminal assault and robbery on a tenant in the common hallways of the\nbuilding was thus entirely predictable; that same risk had been occurring with increasing\nfrequency over a period of several months immediately prior to the incident giving rise to this\ncase; it was a risk whose prevention or minimization was almost entirely within the power of the\nlandlord; and the risk materialized in the assault and robbery of appellant on November 17, 1966.\nIII\n423\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n. . . As a general rule, a private person does not have a duty to protect another from a\ncriminal attack by a third person. We recognize that this rule has sometimes in the past been\napplied in landlord-tenant law, even by this court. Among the reasons for the application of this\nrule to landlords are: judicial reluctance to tamper with the traditional common law concept of the\nlandlord-tenant relationship; the notion that the act of a third person in committing an intentional\ntort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes\ndifficult problem of determining foreseeability of criminal acts; the vagueness of the standard\nwhich the landlord must meet; the economic consequences of the imposition of the duty; and\nconflict with the public policy allocating the duty of protecting citizens from criminal acts to the\ngovernment rather than the private sector.\nBut the rationale of this very broad general rule falters when it is applied to the conditions\nof modern day urban apartment living, particularly in the circumstances of this case. The\nrationale of the general rule exonerating a third party from any duty to protect another from a\ncriminal attack has no applicability to the landlord-tenant relationship in multiple dwelling\nhouses. The landlord is no insurer of his tenants\xe2\x80\x99 safety, but he certainly is no bystander. And\nwhere, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that\nthese crimes occurred in the portion of the premises exclusively within his control, has every\nreason to expect like crimes to happen again, and has the exclusive power to take preventive\naction, it does not seem unfair to place upon the landlord a duty to take those steps which are\nwithin his power to minimize the predictable risk to his tenants.\n...\nOther relationships in which similar duties have been imposed include landowner-invitee,\nbusinessman-patron, employer-employee, school district-pupil, hospital-patient, and carrierpassenger. In all, the theory of liability is essentially the same: that since the ability of one of the\nparties to provide for his own protection has been limited in some way by his submission to the\ncontrol of the other, a duty should be imposed upon the one possessing control (and thus the\npower to act) to take reasonable precautions to protect the other one from assaults by third parties\nwhich, at least, could reasonably have been anticipated. However, there is no liability normally\nimposed upon the one having the power to act if the violence is sudden and unexpected provided\nthat the source of the violence is not an employee of the one in control.\n...\nUpon consideration of all pertinent factors, we find that there is a duty of protection owed\nby the landlord to the tenant in an urban multiple unit apartment dwelling.\n...\nIV\n[I]n the last analysis the standard of care is the same\xe2\x80\x94reasonable care in all the\ncircumstances. The specific measures to achieve this standard vary with the individual\ncircumstances. It may be impossible to describe in detail for all situations of landlord-tenant\nrelationships, and evidence of custom amongst landlords of the same class of building may play a\nsignificant role in determining if the standard has been met.\n\n424\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nIn the case at bar, appellant\xe2\x80\x99s repeated efforts to introduce evidence as to the standard of\nprotection commonly provided in apartment buildings of the same character and class as 1500\nMassachusetts Avenue at the time of the assault upon Miss Kline were invariably frustrated by the\nobjections of opposing counsel and the impatience of the trial judge. . . . The record as to custom\nis thus unsatisfactory, but its deficiencies are directly chargeable to defendant\xe2\x80\x99s counsel and the\ntrial judge, not appellant.\nWe therefore hold in this case that the applicable standard of care in providing protection\nfor the tenant is that standard which this landlord himself was employing in October 1959 when\nthe appellant became a resident on the premises at 1500 Massachusetts Avenue. The tenant was\nled to expect that she could rely upon this degree of protection. While we do not say that the\nprecise measures for security which were then in vogue should have been kept up (e.g., the\nnumber of people at the main entrances might have been reduced if a tenant-controlled intercomautomatic latch system had been installed in the common entryways), we do hold that the same\nrelative degree of security should have been maintained.\nThe appellant tenant was entitled to performance by the landlord measured by this\nstandard of protection whether the landlord\xe2\x80\x99s obligation be viewed as grounded in contract or in\ntort. As we have pointed out, this standard of protection was implied as an obligation of the lease\ncontract from the beginning. Likewise, on a tort basis, this standard of protection may be taken as\nthat commonly provided in apartments of this character and type in this community, and this is a\nreasonable standard of care on which to judge the conduct of the landlord here.\nV\nGiven this duty of protection, and the standard of care as defined, it is clear that the\nappellee landlord breached its duty toward the appellant tenant here. . . .\nHaving said this, it would be well to state what is not said by this decision. We do not\nhold that the landlord is by any means an insurer of the safety of his tenants. His duty is to take\nthose measures of protection which are within his power and capacity to take, and which can\nreasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. The\nlandlord is not expected to provide protection commonly owed by a municipal police department;\nbut as illustrated in this case, he is obligated to protect those parts of his premises which are not\nusually subject to periodic patrol and inspection by the municipal police. We do not say that\nevery multiple unit apartment house in the District of Columbia should have those same measures\nof protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do we say that 1500\nMassachusetts Avenue should have precisely those same measures in effect at the present time.\nAlternative and more up-to-date methods may be equally or even more effective.\n...\nThe landlord is entirely justified in passing on the cost of increased protective measures to\nhis tenants, but the rationale of compelling the landlord to do it in the first place is that he is the\nonly one who is in a position to take the necessary protective measures for overall protection of\nthe premises, which he owns in whole and rents in part to individual tenants.\nReversed and remanded to the District Court for the determination of damages.\n\n425\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nNotes\n\n1. Kline\xe2\x80\x99s durability. D.C. courts have continued to apply Kline. See, e.g., Novak v. Capital\nMgmt. & Dev. Corp., 452 F.3d 902 (D.C. Cir. 2006). Other federal courts of appeal and most\nstate supreme courts have also applied Kline in similar contexts. See, e.g., Banks v. Hyatt Corp.,\n722 F.2d 214 (5th Cir. 1984); Frances T. v. Village Green Owners Ass\xe2\x80\x99n, 723 P.2d 573 (Cal.\n1986). One state supreme court, however, has limited Kline\xe2\x80\x99s holding to situations in which the\nlandlord either agrees to provide security or creates a physical defect that foreseeably increases\nthe risk of criminal attack. See Ward v. Inishmann Assocs., 931 A.2d 1235 (N.H. 2007).\n\n2. High-rent protections for slum prices? Does the Kline court decision give the plaintiff\n1959 protections for 1966 prices? What if the rental market would no longer support the kinds of\nstaffing that the building had in 1959? One way to think of Kline is as a case requiring that\nlandlords make highly salient at the time of lease renewals certain reductions in the quality of the\nservices offered to tenants. Had the landlord brought staffing reductions to the plaintiff-tenant\xe2\x80\x99s\nattention each year at the time her lease was renewed, would the case come out differently? What\nif the landlord also disclosed crime statistics for the building so that the plaintiff-tenant had\npossessed full information about the risks at hand? Even if competitor buildings were offering\nbetter staffing and higher security, such disclosures might offer powerful arguments against\nliability. Indeed, the arguments against landlord liability might be stronger if competitor\nbuildings offered better security services, since that would make it clear that the tenant could have\npursued a higher security living option in the market if she had so desired. Of course, some\ntenants might not have been able to afford the higher security apartments. But if a tenant prefers\nlow security and concomitantly low rent payments, shouldn\xe2\x80\x99t a landlord be able to offer this\ncombination? The alternative is simple paternalism: it would deny low-income tenants a low-cost\noption in the marketplace.\nNote that none of these arguments necessarily go to the question of whether the landlord\nin Kline had a duty of reasonable care. They are probably best thought of as considerations in\ndetermining whether the defendant\xe2\x80\x99s conduct breached its duty of care to the plaintiff.\n\n3. Duties versus liabilities. A recent variation on Kline arose in Illinois, where Detroy\nMarshall, III, was eating in a Winnebago County Burger King when a car crashed through the\nrestaurant\xe2\x80\x99s wall and killed him. In the wrongful death suit against Burger King that followed, the\ncourt observed that the defendants\xe2\x80\x99 arguments about the great costs that would be imposed on\nthem by a finding of a duty to protect against such third party drivers was deeply flawed:\nDefendants argue that businesses will incur an immense financial burden if required\nto protect their invitees from out-of-control automobiles and that the protective\nmeasures businesses take will make buildings everywhere less aesthetically\npleasing. These arguments are based on mistaken assumptions about the nature of\na duty of care. Recognizing that the duty of reasonable care that businesses owe to\ntheir invitees applies to cases where invitees are injured by out-of-control\nautomobiles is not the same as concluding the duty has been breached because a\nbusiness failed to take a certain level of precaution. Nor is it the same as concluding\nthat the breach was the proximate cause of an invitee\xe2\x80\x99s injuries. In short, merely\n426\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nconcluding that the duty applies does not constitute an automatic, broad-based\ndeclaration of negligence liability.\nMarshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006).\nThe Marshall court concluded that the duty of reasonable care owed by the restaurant to\nthe plaintiff included an obligation to take reasonable precautions against the risk of injury to\ncustomers by automobiles driven against the restaurant\xe2\x80\x99s exterior walls.\nOther jurisdictions have been reluctant to adopt the Marshall court\xe2\x80\x99s reasoning. The\nIndiana Court of Appeals has held that business owners owe a duty to business invitees in\nvehicular collision cases, see Schoop\xe2\x80\x99s Rest. v. Hardy, 863 N.E.2d 451 (Ind. Ct. App. 2007), but\nhas not officially overruled a previous case that held the opposite, see Fawley v. Martin\xe2\x80\x99s\nSupermarkets, Inc., 618 N.E.2d 10 (Ind. Ct. App. 1993). Some jurisdictions have declined to\nrecognize such a duty. See, e.g., Albert v. Hsu, 602 So. 2d 895 (Ala. 1992); Glick v. Prince\nItalian Foods, Inc., 514 N.E.2d 100 (Mass. App. Ct. 1987); Howe v. Stubbs, 570 A.2d 1203 (Me.\n1990); Carpenter v. Stop-N-Go Markets of Ga., Inc., 512 So. 2d 708 (Miss. 1987); Watkins v.\nDavis, 308 S.W.2d 906 (Tex. Civ. App. 1957).\n\nEnnabe v. Manosa, 319 P.3d 201 (Cal. 2014)\nWERDEGAR, J.\n. . . On the evening of April 27, 2007, defendant Jessica Manosa (Manosa) hosted a party\nat a vacant rental residence owned by her parents, defendants Carlos and Mary Manosa, without\ntheir consent. The party was publicized by word of mouth, telephone, and text messaging,\nresulting in an attendance of between 40 and 60 people. The vast majority of attendees were, like\nManosa, under 21 years of age.\nFor her party, Manosa personally provided $60 for the purchase of rum, tequila, and beer.\nShe also provided cups and cranberry juice, but nothing else. Two of Manosa\xe2\x80\x99s friends, Mario\nAparicio and Marcello Aquino, also provided money toward the initial purchase of alcohol, and\nAquino purchased the alcoholic beverages for the party with this money. The beer was placed in\na refrigerator in the kitchen, and the tequila and \xe2\x80\x9cjungle juice\xe2\x80\x9d (a mixture of rum and fruit juice)\nwere placed outside on a table at the side of the house. Manosa did not have a license to sell\nalcoholic beverages.\nGuests began to arrive at the party around 9:00 p.m., entering through a side gate in the\nyard. Aquino heard Manosa ask Todd Brown to \xe2\x80\x9cstand by the side gate to kind of control the\npeople that came in and if he didn\xe2\x80\x99t know them, then charge them some money to get into the\nparty.\xe2\x80\x9d Brown thereafter served as a \xe2\x80\x9cbouncer,\xe2\x80\x9d standing at the gate and charging uninvited\nguests an admission fee of $ 3 to $ 5 per person. Once inside, partygoers enjoyed music played\nby a disc jockey Manosa had hired and could help themselves to the beer, tequila, and jungle\njuice.\nThomas Garcia, who had not been invited and was unknown to Manosa, testified that a\n\xe2\x80\x9cbig, tall, husky, Caucasian dude\xe2\x80\x9d was charging an entrance fee to get into the party. Garcia paid\n$20 so that he and three or four of his friends could enter. The person who took Garcia\xe2\x80\x99s money,\n427\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\npresumably Brown, told him alcoholic beverages were available if he wanted them. Mike\nBossley, another uninvited guest, declared he was charged $ 5 to enter the party. Brown\neventually collected between $ 50 and $ 60 in entrance fees, and this money was used to buy\nadditional alcohol sometime during the party. The record is unclear whether any attendees brought\ntheir own alcoholic beverages or whether Manosa provided the only alcohol consumed on the\npremises.\nSometime before midnight, decedent Andrew Ennabe arrived at the party; he was\nManosa\xe2\x80\x99s friend and an invited guest. Thomas Garcia and his friends arrived about 30 minutes\nlater and were charged admission. Ennabe and Garcia, both under 21 years of age, were visibly\nintoxicated on arrival. Garcia in particular exhibited slurred speech and impaired faculties. By\nhis own reckoning, he had consumed at least four shots of whiskey before arriving. Although\nGarcia later denied drinking anything at Manosa\xe2\x80\x99s party, other guests reported seeing him\ndrinking there.\nOnce inside the gate, Garcia became rowdy, aggressive, and obnoxious. He made obscene\nand vaguely threatening comments to female guests, and either he or a friend dropped his pants.\nWhile Manosa claimed she was neither aware of Garcia\xe2\x80\x99s presence nor that he was causing\nproblems with other guests, Garcia was eventually asked to leave for his inappropriate behavior.\nEnnabe and some other guests escorted Garcia and his friends off the premises and ultimately to\ntheir car. One of Garcia\xe2\x80\x99s friends spit on Ennabe, prompting Ennabe to chase him into the street.\nGarcia, who by this time was driving away, ran over Ennabe, severely injuring him. Ennabe later\ndied from his injuries.\nPlaintiffs Faiez and Christina Ennabe, on behalf of themselves and the estate of their son,\nfiled a wrongful death action against defendant Manosa and her parents. . . . Defendants moved\nfor summary judgment or adjudication, claiming plaintiffs could not show defendants were liable\nunder section 25602.1, which permits liability for certain persons who serve alcohol to obviously\nintoxicated minors, and that they were entitled to civil immunity. . . . The trial court granted\ndefendants\xe2\x80\x99 motion for summary judgment on all causes of action . . . . The Court of Appeal\naffirmed.\nWe granted plaintiffs\xe2\x80\x99 petition for review.\n...\nFor the better part of the 20th century, California case law held that a person who\nfurnished alcoholic beverages to another person was not liable for any damages resulting from the\nlatter\xe2\x80\x99s intoxication. . . . The Legislature . . . declin[ed] to enact a contrary statutory scheme that\nwould permit civil liability . . . although it enacted legislation making the selling or furnishing of\nan alcoholic beverage to an obviously intoxicated person a misdemeanor in 1953. . . . This court\nfirst departed from the general common law rule of nonliability in 1971 when, noting the trend in\na majority of other states, we ruled that a vendor could be liable for selling alcoholic beverages to\nan obviously intoxicated person who thereafter inflicted injury on third persons.\nFive years later . . . , this court broadened the scope of potential liability.\nFinally, in 1978, this court extended [liability] to noncommercial social hosts, reasoning\nthat a private person who serves alcohol in a noncommercial setting to an obviously intoxicated\n428\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nguest with the knowledge that person intends to drive a vehicle while in an intoxicated state fails\nto act with reasonable care. . . .\nThe Legislature responded . . . by expressly abrogating their holdings and largely\nreinstating the previous common law rule that the consumption of alcohol, not the service\nof alcohol, is the proximate cause of any resulting injury. . . . : \xe2\x80\x9cNo social host who furnishes\nalcoholic beverages to any person shall be held legally accountable for damages suffered by such\nperson, or for injury to the person or property of, or death of, any third person, resulting from the\nconsumption of such beverages.\xe2\x80\x9d\n. . . [The Legislature also enacted civil immunity]: \xe2\x80\x9cNo person who sells, furnishes, gives,\nor causes to be sold, furnished, or given away, any alcoholic beverage [to any habitual or common\ndrunkard or to any obviously intoxicated person] . . . shall be civilly liable to any injured person\nor the estate of such person for injuries inflicted on that person as a result of intoxication by the\nconsumer of such alcoholic beverage.\xe2\x80\x9d . . . This \xe2\x80\x9csweeping civil immunity\xe2\x80\x9d . . . was intended \xe2\x80\x9cto\nsupersede evolving common law negligence principles which would otherwise permit a finding of\nliability under the[se] circumstances\xe2\x80\x9d\nThe third prong of the legislative response to this court\xe2\x80\x99s recognition of potential liability\nin alcohol cases authorized a \xe2\x80\x9csingle statutory exception to the broad immunity created by the\n1978 amendments.\xe2\x80\x9d . . . Newly enacted section 25602.1 . . . concerned underage drinkers and\nauthorized a cause of action against licensees . . . who sell, furnish, or give away alcoholic\nbeverages to obviously intoxicated minors who later injure themselves or others. . . .\nSection 25602.1\xe2\x80\x99s exception to immunity now embraces those required to be licensed and\nthose who sell alcohol on military bases. In addition, the Legislature excepted from the rule of\ncivil immunity \xe2\x80\x9cany other person\xe2\x80\x9d who sells alcohol to an obviously intoxicated minor.\nIn sum, if a plaintiff can establish the defendant provided alcohol to an obviously\nintoxicated minor, and that such action was the proximate cause of the plaintiff\xe2\x80\x99s injuries or\ndeath, section 25602.1\xe2\x80\x94the applicable statute in this case\xe2\x80\x94permits liability in two\ncircumstances: (1) the defendant was either licensed to sell alcohol, required to be licensed, or\nfederally authorized to sell alcoholic beverages in certain places, and the defendant sold,\nfurnished, or gave the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;\nor (2) the defendant was \xe2\x80\x9cany other person\xe2\x80\x9d (i.e., neither licensed nor required to be licensed), and\nhe or she sold alcohol to the minor or caused it to be sold. Whereas licensees (and those required\nto be licensed) may be liable if they merely furnish or give an alcoholic beverage away, a\nnonlicensee may be liable only if a sale occurs; that is, a nonlicensee, such as a social host, who\nmerely furnishes or gives drinks away\xe2\x80\x94even to an obviously intoxicated minor\xe2\x80\x94retains his or\nher statutory immunity. . . .\n[D]efendant urges us to embrace the Court of Appeal\xe2\x80\x99s reasoning, which found no sale\nbecause \xe2\x80\x9cthere [was] no transfer of title to an alcoholic beverage at the time the entrance fee [was]\npaid,\xe2\x80\x9d and that \xe2\x80\x9cit is difficult, if not impossible, to determine which individual or individuals held\ntitle to the alcoholic beverages consumed by Garcia.\xe2\x80\x9d But the [statutory] definition of a sale . . . is\nbroad enough to encompass indirect sales; the statute requires simply a transfer of title, not\nnecessarily a transfer of possession of a particular drink. . . .\n\n429\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n[I]t [is not] difficult to discern when title to a drink passed to Garcia. Although his\npayment of the admission fee did not entitle him to, say, take possession of all the alcohol at the\nparty, nor did he at that time necessarily take title to any particular drink, when Garcia did pour\nhimself a drink and begin to consume it, title to that drink clearly passed to him. We conclude the\nplain meaning of a \xe2\x80\x9csale,\xe2\x80\x9d . . . includes Garcia\xe2\x80\x99s payment of the entrance fee for Manosa\xe2\x80\x99s party,\nirrespective of the fact possession of a particular drink did not occur immediately upon\npayment. . . .\nBecause [Manosa] sold Garcia alcoholic beverages at her party, [the statute] permits \xe2\x80\x9ca\ncause of action [to] be brought [against her] by or on behalf of any person who has suffered injury\nor death.\xe2\x80\x9d\n...\nNoting that alcohol is \xe2\x80\x9cfurnished at an infinite variety of social settings hosted by\nnonlicensees\xe2\x80\x94from gallery openings, bar mitzvahs, weddings, political fundraisers and charity\nevents\xe2\x80\x94where admission is not \xe2\x80\x98free\xe2\x80\x99 and financial contributions from attendees are expected or\nrequired,\xe2\x80\x9d defendant argues by a reductio ad absurdum that this court would wreak havoc on the\n\xe2\x80\x9csocial fabric of modern life.\xe2\x80\x9d . . . The assertion is exaggerated. One does not normally charge\nguests an entrance fee to attend bar mitzvahs, weddings, or gallery openings, and the provision of\nalcoholic beverages to guests invited to such events typically is governed by social host immunity.\n(Even if a host at such an event charged his or her guests for alcohol, such payment would simply\nraise questions of licensure, and civil liability could attach only if the host sold alcohol to an\nobviously intoxicated minor.) In any event, in contrast to how Manosa conducted herself at her\nparty, ordinary social hosts do not use bouncers, allow uninvited strangers into their homes, or\nextract an entrance fee or cover charge from their guests. Nor does maintaining the social fabric\nof our society depend on protecting from civil liability those persons who would sell alcoholic\nbeverages to minors who are already visibly intoxicated.\n...\nThe decision of the Court of Appeal is reversed and the case remanded for further\nproceedings consistent with our opinion.\n\nNote\n\n1. Social hosts and liquor sales. Historically, an injured third party could not sue a social\nhost or liquor vendor for providing alcohol to a tortfeasor. Courts refused to impose liability in\nthese situations for three reasons. First, courts held that the consumption, not the sale or\nprovision, of alcohol caused the injury. Second, courts regarded the intoxicated tortfeasor\xe2\x80\x99s act as\nan intervening, superseding cause. Third, courts believed that intoxicated individuals were largely\nresponsible for their own actions. LaDonna Hatton, Note, Common Law Negligence Theory of\nSocial Host Liability for Serving Alcohol to Obviously Intoxicated Guests, 26 B.C. L. REV. 1249,\n1249-50 (1985).\nCourts gradually began to impose liability on liquor vendors under a negligence theory.\nSee, e.g., Lopez v. Maez, 651 P.2d 1269 (N.M. 1982). In the mid-1980s, courts also began to\n430\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nimpose liability on social hosts under a negligence theory. See, e.g., Kelly v. Gwinnell, 476 A.2d\n1219 (N.J. 1984).\nCurrently, thirteen states and the District of Columbia decline to impose liability on social\nhosts under a negligence theory. See Cartwright v. Hyatt Corp., 460 F. Supp. 80 (D.D.C. 1978);\nMulvihill v. Union Oil Co. of Cal., 859 P.2d 1310 (Alaska 1993); Shea v. Matassa, 918 A.2d 1090\n(Del. 2007); Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987); Johnston v. KFC Nat. Mgmt. Co.,\n788 P.2d 159 (Haw. 1990); Charles v. Seigfried, 651 N.E.2d 154 (Ill. 1995); Thies v. Cooper, 753\nP.2d 1280 (Kan. 1988); Harriman v. Smith, 697 S.W.2d 219 (Mo. Ct. App. 1985); Pelzek v. Am.\nLegion, 463 N.W.2d 321 (Neb. 1990); McGee v. Alexander, 37 P.3d 800 (Okla. 2001); Ferreira v.\nStack, 652 A.2d 965 (R.I. 1995); Garren v. Cummings & McCrady, Inc., 345 S.E.2d 508 (S.C. Ct.\nApp. 1986); Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001); Cox v. Malcolm, 808 P.2d 758 (Wash.\nCt. App. 1991).\nFour state statutes immunize social hosts from liability. See, e.g., ARK. CODE ANN. \xc2\xa7 16126-106 (2014); KY. REV. STAT. ANN. \xc2\xa7 413.241 (West 2014); S.D. CODIFIED LAWS \xc2\xa7 35-11-2\n(2013); TENN. CODE ANN. \xc2\xa7 57-10-101 (2014). Four states impose liability on social hosts only\nwhen they serve alcohol to minors. See, e.g., IOWA CODE ANN. \xc2\xa7 123.92 (2014); MINN. STAT. \xc2\xa7\n340A.90 (2014); MONT. CODE. ANN. \xc2\xa7 16-6-305(4) (2013); NEV. REV. STAT. \xc2\xa7 41.1305 (2013).\nWhy should serving alcohol to social guests receive immunization from review for\nreasonableness when other ordinary social activities are governed uncontroversially by a\nreasonableness test? Is there a justification for providing special protections to the defendants in\nsuch cases, given that their liability only arises when their behavior is found to have been\nunreasonable under the circumstances?\n\nTarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)\nTOBRINER, J.\nOn October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana\xe2\x80\x99s\nparents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr.\nLawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the\nUniversity of California at Berkeley. They allege that on Moore\xe2\x80\x99s request, the campus police\nbriefly detained Poddar, but released him when he appeared rational. They further claim that Dr.\nHarvey Powelson, Moore\xe2\x80\x99s superior, then directed that no further action be taken to detain\nPoddar. No one warned plaintiffs of Tatiana\xe2\x80\x99s peril.\nConcluding that these facts set forth causes of action against neither therapists and\npolicemen involved, nor against the Regents of the University of California as their employer, the\nsuperior court sustained defendants\xe2\x80\x99 demurrers to plaintiffs\xe2\x80\x99 second amended complaints without\nleave to amend. This appeal ensued.\nPlaintiffs\xe2\x80\x99 complaints predicate liability on . . . defendants\xe2\x80\x99 failure to warn plaintiffs of the\nimpending danger. . . . Defendants, in turn, assert that they owed no duty of reasonable care to\nTatiana. . . .\n\n431\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe most important . . . consideration . . . in establishing duty is foreseeability. As a\ngeneral principle, a \xe2\x80\x98defendant owes a duty of care to all persons who are foreseeably endangered\nby his conduct, with respect to all risks which make the conduct unreasonably dangerous.\xe2\x80\x99 . . . .\nAlthough . . . under the common law, as a general rule, one person owed no duty to\ncontrol the conduct of another nor to warn those endangered by such conduct, the courts have\ncarved out an exception to this rule in cases in which the defendant stands in some special\nrelationship to either the person whose conduct needs to be controlled or in a relationship to the\nforeseeable victim of that conduct. Applying this exception to the present case, we note that a\nrelationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of\ncare; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise\nfrom either \xe2\x80\x98(a) a special relation . . . between the actor and the third person which imposes a duty\nupon the actor to control the third person\xe2\x80\x99s conduct, or (b) a special relation . . . between the actor\nand the other which gives to the other a right of protection.\xe2\x80\x99\nAlthough plaintiffs\xe2\x80\x99 pleadings assert no special relation between Tatiana and defendant\ntherapists, they establish as between Poddar and defendant therapists the special relation that\narises between a patient and his doctor or psychotherapist. Such a relationship may support\naffirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise\nreasonable care to control the behavior of a patient which may endanger other persons. A doctor\nmust also warn a patient if the patient\xe2\x80\x99s condition or medication renders certain conduct, such as\ndriving a car, dangerous to others. . . .\nDefendants contend, however, that imposition of a duty to exercise reasonable care to\nprotect third persons is unworkable because therapists cannot accurately predict whether or not a\npatient will resort to violence. . . .\nWe recognize the difficulty that a therapist encounters in attempting to forecast whether a\npatient presents a serious danger of violence. Obviously we do not require that the therapist, in\nmaking that determination, render a perfect performance; the therapist need only exercise \xe2\x80\x99that\nreasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of\n(that professional specialty) under similar circumstances.\xe2\x80\x99 . . .\nIn the instant case, however, the pleadings do not raise any question as to failure of\ndefendant therapists to predict that Poddar presented a serious danger of violence. On the\ncontrary, the present complaints allege that defendant therapists did in fact predict that Poddar\nwould kill, but were negligent in failing to warn. . . .\nWeighing the uncertain and conjectural character of the alleged damage done the patient\nby such a warning against the peril to the victim\xe2\x80\x99s life, we conclude that professional inaccuracy\nin predicting violence cannot negate the therapist\xe2\x80\x99s duty to protect the threatened victim.\nThe risk that unnecessary warnings may be given is a reasonable price to pay for the lives\nof possible victims that may be saved. We would hesitate to hold that the therapist who is aware\nthat his patient expects to attempt to assassinate the President of the United States would not be\nobligated to warn the authorities because the therapist cannot predict with accuracy that his patient\nwill commit the crime. . . .\n\n432\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe revelation of a communication under the above circumstances is not a breach of trust\nor a violation of professional ethics; as stated in the Principles of Medical Ethics of the American\nMedical Association (1957), section 9: \xe2\x80\x9cA physician may not reveal the confidence entrusted to\nhim in the course of medical attendance . . . [u]nless he is required to do so by law or unless it\nbecomes necessary in order to protect the welfare of the individual or of the community.\xe2\x80\x9d We\nconclude that the public policy favoring protection of the confidential character of patientpsychotherapist communications must yield to the extent to which disclosure is essential to avert\ndanger to others. The protective privilege ends where the public peril begins.\n...\nThe judgment of the superior court in favor of defendants . . . is reversed, and the cause\nremanded for further proceedings consistent with the views expressed herein.\n\nNotes\n\n1. The Restatement\xe2\x80\x99s catalog of special relationships. The Tarasoff opinion rests heavily on\nsection 315 of the Second Restatement and its view of the significance of a \xe2\x80\x9cspecial relationship\xe2\x80\x9d\nbetween the defendant and the third party. Since the Tarasoff decision, the Third Restatement has\noffered a nonexhaustive catalog of special relationships, including the relationship of a parent and\na dependent child; a custodian and those in custody; employers and employees; and (as in\nTarasoff) mental health care professionals and their patients. See RESTATEMENT (THIRD) OF\nTORTS: LIAB. FOR PHYS. & EMOT. HARM \xc2\xa7 41 (2012). What makes these relationships special?\nAre there others that belong on this list?\n\n2. Common law limits on the Tarasoff rule. Some courts, including the California Supreme\nCourt, have limited Tarasoff\xe2\x80\x99s holding to apply only when the psychotherapist knows that an\n\xe2\x80\x9cidentifiable victim\xe2\x80\x9d is in danger. See, e.g., Thompson v. County of Alameda, 614 P.2d 728 (Cal.\n1980); Fraser v. United States, 674 A.2d 811 (Conn. 1996). Other courts have held that\npsychotherapists owe no duty to victims at all. See, e.g., State v. Cowles, 151 P.3d 353 (Alaska\n2006); Santa Cruz v. Nw. Dade Cmty. Health Ctr., Inc., 590 So. 2d 444 (Fla. Dist. Ct. App. 1991);\nBoulanger v. Pol, 900 P.2d 823 (Kan. 1995); Furr v. Spring Grove State Hosp., 454 A.2d 414\n(Md. Ct. Spec. App. 1983); Kehler v. Eudaly, 933 S.W.2d 321 (Tex. App. 1996); Nasser v.\nParker, 455 S.E.2d 502 (Va. 1995).\n\n3. Negligent failure to diagnose. Tarasoff involved a therapist who had predicted violence\ntoward a specific individual and allegedly failed to fulfill the duty triggered by that prediction. In\njurisdictions that have chosen to recognize the duty of care outlined in Tarasoff, should therapists\nalso be subject to liability for failing to predict violence? In California, the answer initially\nappeared to be \xe2\x80\x9cyes.\xe2\x80\x9d In Hedlund v. Superior Court, a case involving an alleged missed diagnosis\nand the patient\xe2\x80\x99s subsequent violent assault on the plaintiffs, the California Supreme Court noted\nthat \xe2\x80\x9c[a] negligent failure to diagnose dangerousness in a Tarasoff action is as much a basis for\nliability as is a negligent failure to warn a known victim once such diagnosis has been made.\xe2\x80\x9d\n669 P.2d 41, 45 (Cal. 1983). In response to Hedlund, the California State Assembly disallowed\ncivil lawsuits stemming from a psychotherapist\xe2\x80\x99s failure to predict violence. CAL. CIV. CODE \xc2\xa7\n433\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n43.92 (West 2013). In other jurisdictions, however, Hedlund-type actions still appear to be\navailable. Consider Perreira v. State, 768 P.2d 1198 (Colo. 1989) (en banc), which stemmed\nfrom the shooting death of a police officer by an outpatient of a state mental health center. Prior\nto the shooting, the defendant doctor had been \xe2\x80\x9cof the opinion that [the patient] did not pose any\nrisk of violence to others upon his release.\xe2\x80\x9d The court held that the doctor \xe2\x80\x9chad a legal duty to\nexercise due care in determining whether [the patient] had a propensity for violence and, if\nreleased from his involuntary commitment, would thereby present an unreasonable risk of serious\nbodily harm to others, including a police officer in the position of [the plaintiffs\xe2\x80\x99 decedent].\xe2\x80\x9d Id.\nat 1205, 1220; see also Bardoni v. Kim, 390 N.W.2d 218, 222 (Mich. Ct. App. 1986) (emphasis\nadded) (recognizing that a psychiatrist owes a duty of reasonable care to a third party if the\npsychiatrist (1) \xe2\x80\x9cknew or, according to the standards of his profession, should have known that his\npatient posed a serious threat of danger to others\xe2\x80\x9d and (2) \xe2\x80\x9cknew or should have known that his\npatient was dangerous specifically to the injured third party\xe2\x80\x9d). Published opinions suggest that\nnegligent diagnosis cases are rare, as compared to cases where a therapist predicted violence and\nthen allegedly failed to take reasonable steps. Why might that be?\n\n4. The content of the Tarasoff duty. Where a therapist owes a duty of care to a third party,\nwhat conduct satisfies that duty? What conduct falls short? The case law is at times frustratingly\nvague. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 193 (D. Neb. 1980)\n(recognizing that a therapist has a duty to \xe2\x80\x9cinitiate whatever precautions are reasonably necessary\nto protect potential victims of his patient\xe2\x80\x9d). The authors of the Third Restatement identify some\nactions that may comprise part of this duty, including \xe2\x80\x9cproviding appropriate treatment, warning\nothers of the risks posed by the patient, seeking the patient\xe2\x80\x99s agreement to a voluntary\ncommitment, [or] making efforts to commit the patient involuntarily.\xe2\x80\x9d RESTATEMENT (THIRD) OF\nPHYSICAL AND EMOTIONAL HARMS \xc2\xa7 41 cmt. g. Various courts have, at different times, found all\nthese actions salient. See, e.g., Hamman v. Cty. of Maricopa, 775 P.2d 1122, 1223, 1128\xe2\x80\x9329\n(Ariz. 1989) (en banc) (considering that the psychiatrist did not review previous medical records,\nprovide instructions to follow if the patient\xe2\x80\x99s condition worsened, or warn likely victims of the\ndanger); Petersen v. State, 671 P.2d 230, 237 (Wash. 1983) (en banc) (noting the psychologist\xe2\x80\x99s\nfailure to petition the court for the patient\xe2\x80\x99s temporary civil commitment); Kuligoski v.\nBrattleboro Retreat, 156 A.3d 436, 450\xe2\x80\x9353 (Vt. 2016) (discussing whether therapists properly\ntrained a patient\xe2\x80\x99s caretakers before discharge). Still, when courts discuss a therapist\xe2\x80\x99s duty of\ncare to a third party, they seem chiefly concerned with the question of to whom the duty is owed,\nnot what conduct satisfies that duty. Why might that be?\n\n5. Legislative responses. State legislatures have responded to Tarasoff in different ways.\nCertain states provide that mental health professionals have an affirmative duty to take\nprecautions against violent patients. See, e.g., IDAHO CODE ANN. \xc2\xa7 6-1902 (2013); MICH. COMP.\nLAWS \xc2\xa7 330.1946 (2014). Some states do not establish an affirmative duty, but have enacted\nlegislation permitting mental health professionals to disclose patients\xe2\x80\x99 threats. See, e.g., FLA.\nSTAT. \xc2\xa7 456.059 (2013); MISS. CODE ANN. \xc2\xa7 41-21-97 (2013). Other states have immunized\nmental health professionals from liability. See, e.g., DEL. CODE ANN. tit. 16, \xc2\xa7 5402 (2014). A\nmajority of states that impose an affirmative duty limit the duty to instances when the patient\nthreatens a reasonably identifiable third party. See, e.g., CAL. CIV. CODE \xc2\xa7 43.92 (West 2013);\nN.J. STAT. \xc2\xa7 2A:62A-16 (2014); TENN. CODE ANN. \xc2\xa7 24-1-207 (2013). Other states limit mental\nhealth professionals\xe2\x80\x99 duty to instances when the patient threatens a specified victim. See, e.g.,\nCOLO. REV. STAT. \xc2\xa7 13-21-117 (2013). See generally Mary I. Wood, Comment, Protective\n434\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nPrivilege Versus Public Peril: How Illinois Has Failed to Balance Patient Confidentiality with the\nMental Health Professional\xe2\x80\x99s Duty to Protect the Public, 29 N. ILL. U. L. REV. 571, 584-85\n(2009).\n\n6. Nguyen v. Massachusetts Inst. of Tech., 96 N.E.3d 128 (Mass. 2018). Nguyen brought a\nwrongful death action against MIT after his son, a graduate student, committed suicide. Before\nthe court could address Nguyen\xe2\x80\x99s negligence claims, it had to determine whether MIT had a duty\nto prevent student suicides:\nIn analyzing whether a duty to prevent suicide falls within the scope of the complex\nrelationship that universities have with their students, we consider a number of\nfactors used to delineate duties in tort law. Irwin v. Ware, 392 Mass. 745, 756\n(1984). \xe2\x80\x9cForemost among these is whether a defendant reasonably could foresee\nthat he [or she] would be expected to take affirmative action to protect the plaintiff\nand could anticipate harm to the plaintiff from the failure to do so.\xe2\x80\x9d Irwin, supra.\nA related factor is \xe2\x80\x9creasonable reliance by the plaintiff [on the defendant], impeding\nother persons who might seek to render aid.\xe2\x80\x9d Id. Other factors that have been\nconsidered relevant to special relationships and the creation of a duty in the\nuniversity context are the \xe2\x80\x9cdegree of certainty of harm to the plaintiff; burden upon\nthe defendant to take reasonable steps to prevent the injury; some kind of mutual\ndependence of plaintiff and defendant upon each other, frequently . . . involving\nfinancial benefit to the defendant arising from the relationship; moral\nblameworthiness of defendant\xe2\x80\x99s conduct in failing to act; and social policy\nconsiderations involved in placing the economic burden of the loss on the\ndefendant.\xe2\x80\x9d [quoting Massie, Suicide on Campus: The Appropriate Legal\nResponsibility of College Personnel, 91 MARQ. L. REV. 625, 2008].\n....\nThe probability of the harm must of course be considered along with its gravity\nincluding the death of the student. . . . Thus, where a student has attempted to commit\nsuicide while enrolled at the university or recently before matriculation or stated\nplans or intentions to commit suicide, that probability is sufficient to justify\nimposition of a duty on the university. The burden on the university is not\ninsubstantial, but so is the financial benefit received from student tuition.\nNguyen, 96 N.E.3d at 142-144. The court went on to stress that a university\xe2\x80\x99s duty to prevent\nstudent suicide is limited. Such a duty only exists if the university is aware of a student\xe2\x80\x99s\nintentions to commit suicide or of a recent suicide attempt; even then, the court emphasized that a\nuniversity will usually be able to discharge its obligations under its duty merely by initiating a\nreasonable suicide prevention protocol. Moreover, the court observed that the obligations of a\nuniversity may decrease over time if, for example, the student appears no longer to be at risk of\nsuicide.\nIn Nguyen itself, the court determined that \xe2\x80\x9cthere was no duty created\xe2\x80\x9d to prevent\nNguyen\xe2\x80\x99s suicide, since Nguyen had neither communicated his intent to commit suicide nor\nattempted to commit suicide in the year prior to his matriculation. Id. at 146. Why do the factors\nlisted by the court go to duty rather than breach? Put differently, is the court in Nguyen correct in\n435\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nthinking of the duty as never having come into existence, as opposed to not having been\nbreached? How, if at all, does it matter which way the court organizes the analysis if the arrows\npoint in the same direction?\n\n5. Duties of A for the Conduct of B? Does a successor corporation, following bankruptcy, owe\na duty to warn consumers about hazards associated with products manufactured and sold by the\npre-bankruptcy corporation? General Motors manufactured millions of cars with a small defect in\nthe vehicles\xe2\x80\x99 ignition switches could lead to fatal accidents. Then in 2009 it went through a\nbankruptcy reorganization and emerged as a new entity; the company that had manufactured the\ncars no longer existed.\nJudge Jesse Furman in the Southern District of New York concluded that New GM owed\na duty of care to the owners of Old GM\xe2\x80\x99s cars on the theory that tort \xe2\x80\x9cplaces the duty to protect\nthe public from a dangerous defect on the entity that is best situated to protect the public against\nproducts that are a menace to safety.\xe2\x80\x9d In re Gen. Motors LLC Ignition Switch Litig., 154 F. Supp.\n3d 30, 39 (S.D.N.Y. 2015) (quoting Okla. Gas & Elec. Co. v. McGraw\xe2\x80\x93Edison Co., 834 P.2d 980,\n984\xe2\x80\x9385 (Okla.1992)). Where New GM had \xe2\x80\x9cassumed service and repair duties\xe2\x80\x9d for Old GM\nproducts,\xe2\x80\x9d id., and where New GM had a continuing \xe2\x80\x9ccontractual warranty duty . . . to Old GM\nvehicles, the court concluded that New GM had a tort duty to warn purchasers of Old GM\nvehicles. In re Gen. Motors LLC Ignition Switch Litig., 154 F. Supp. 3d 30, 40-41 (S.D.N.Y.\n2015) (internal quotation marks omitted).\n\nIn re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y. 2003)\nHELLERSTEIN, J.\nThe injured, and the representatives of the thousands who died from the terrorist-related\naircraft crashes of September 11, 2001, are entitled to seek compensation. By act of Congress,\nthey may seek compensation by filing claims with a Special Master established pursuant to the\nAir Transportation Safety and System Stabilization Act of 2001 . . . . Or they may seek\ncompensation in the traditional manner, by alleging and proving their claims in lawsuits, with the\naggregate of their damages capped at the limits of defendants\xe2\x80\x99 liability insurance. If they choose\nthe former alternative, their claims will be paid through a Victim Compensation Fund from money\nappropriated by Congress, within a relatively short period after filing. Claimants will not have to\nprove fault or show a duty to pay on the part of any defendant. The amount of their\ncompensation, however, may be less than their possible recovery from lawsuits, for non-economic\ndamages are limited to $250,000, economic damages are subject to formulas that are likely to be\nless generous than those often allowable in lawsuits, and punitive damages are unavailable. . . .\n[A small number of the victims\xe2\x80\x99 families, as well as some people injured, and ten owners\nof damaged property sued the airlines, the airport security companies, the airport operators, the\nairplane manufacturer, and the operators and owners of the World Trade Center. Defendants\nmoved for dismissal on the grounds that they owed a duty to the crew and passengers on the\nplanes, but did not owe any duty to \xe2\x80\x9cground victims.\xe2\x80\x9d The Port Authority and World Trade\nCenter Properties argued that \xe2\x80\x9cthey did not owe a duty to protect occupants in the towers against\ninjury from hijacked airplanes and, even if they did, the terrorists\xe2\x80\x99 actions broke the chain of\nproximate causation, excusing any negligence\xe2\x80\x9d by the World Trade Center Defendants. Boeing\n436\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nargued \xe2\x80\x9cthat it did not owe a duty to ground victims or passengers, and that any negligence on its\npart was not the proximate cause for the harms suffered by the plaintiffs.\xe2\x80\x9d]\n...\nA. Aviation Defendants\xe2\x80\x99 Motions to Dismiss\n...\nii. Existence of Duty to Ground Victims\n\xe2\x80\x9cThe threshold question in any negligence action is: does the defendant owe a legally\nrecognized duty of care to plaintiff?\xe2\x80\x9d . . . The injured party must show that a defendant owed not\nmerely a general duty to society but a specific duty to the particular claimant, for \xe2\x80\x9cwithout a duty\nrunning directly to the injured person there can be no liability in damages, however careless the\nconduct or foreseeable the harm.\xe2\x80\x9d . . .\n. . . One additional consideration, the [New York] Court of Appeals added, is that \xe2\x80\x9cthe\nspecter of limitless liability is not present because the class of potential plaintiffs to whom the\nduty is owed is circumscribed by the relationship.\xe2\x80\x9d . . .\nPlaintiffs allege that the Aviation Defendants negligently failed to carry out their duty to\nsecure passenger aircraft against potential terrorists and weapons smuggled aboard. . . . Plaintiffs\nargue that the Aviation Defendants employed their security measures specifically to guard against\nhijackings, and knew or should have known that the hijacking of a jumbo jet would create\nsubstantial risks of damage to persons and property, not only to passengers and crew, but also to\npeople and property on the ground. . . .\nAirlines typically recognize responsibility to victims on the ground. . . . However, counsel\n[for the airline defendants] did not concede duty in relation to those killed and injured on the\nground in the September 11, 2001 aircraft crashes. . . . The distinction, in his opinion, is \xe2\x80\x9cno[t][a]\ndifference in kind,\xe2\x80\x9d but \xe2\x80\x9cthe law of extraordinary consequences [which] can sometimes draw a\ndistinction based on degree.\xe2\x80\x9d . . . He explained:\nWe are in an area of policy and there are lines to be drawn that may occasionally\nseem arbitrary. But what really distinguishes our case from [the hypothetical\nexample of an airplane crash into Shea Stadium while taking off from, or landing\nat, La Guardia airport] is the intentional intervening acts of the third party terrorists.7\n. . . As defense counsel commented, \xe2\x80\x9cwe are in an area of policy,\xe2\x80\x9d where \xe2\x80\x9cthe existence\nand scope of a tortfeasor\xe2\x80\x99s duty is . . . a legal question for the courts\xe2\x80\x9d . . . .\nIt is the court\xe2\x80\x99s job to \xe2\x80\x9cfix the duty point by balancing factors,\xe2\x80\x9d including the following:\n\n7\n\nWhile defense counsel raised the issue of proximate causation during the oral argument, the issue was not\nbriefed. Counsel suggested, without legal citation, that the extraordinary nature of the attacks, involving\nintervening acts by the terrorists, should negate the duty air carriers owed to ground victims.\n\n437\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nthe reasonable expectations of parties and society generally, the proliferation of\nclaims, the likelihood of unlimited or insurer-like liability, disproportionate risk and\nreparation allocation, and public policies affecting the expansion or limitation of\nnew channels of liability.\n[Citing 532 Madison Avenue.]\n[In] 532 Madison Avenue, [the] Court of Appeals acknowledged that \xe2\x80\x9c[p]olicy-driven\nline-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off\nliability to persons who foreseeably might be plaintiffs.\xe2\x80\x9d . . . If those who suffered financial losses\nwere to be allowed to sue, the Court of Appeals held, \xe2\x80\x9can indeterminate group in the affected\nareas\xe2\x80\x9d would be able to recover. . . . If, however, the field of plaintiffs was to be limited to those\nwho \xe2\x80\x9csuffered personal injury or property damage\xe2\x80\x9d as a result of defendants\xe2\x80\x99 negligence, the\nlimitation would \xe2\x80\x9cafford . . . a principled basis for reasonably apportioning liability,\xe2\x80\x9d and be\n\xe2\x80\x9chistorically\xe2\x80\x9d consistent with New York precedents. . . .\nThe cases before me involve claims to recover for personal injuries, death, or property\ndamage. They fall within the line drawn by the New York Court of Appeals in 532 Madison\nAvenue. . . . I therefore hold that the Aviation Defendants owed a duty of care, not only to their\npassengers to whom they concede they owed this duty, but also to victims on the ground.\n[P]laintiffs are favored by the first of the factors set out above, for plaintiffs and society\ngenerally could have reasonably expected that the screening performed at airports by the Aviation\nDefendants would be for the protection of people on the ground as well as for those in airplanes.\n...\nThe second factor to consider is \xe2\x80\x9cthe proliferation of claims.\xe2\x80\x9d . . . Proliferation, however,\nshould not be mistaken for size of number. . . . Their number may be large, tragically large, and\nthe potential liability may be substantial if negligence and cause is proven, but the class is not\nindefinite and claims at this point cannot proliferate. Furthermore, the defendants will be liable\nonly if plaintiffs sustain their burden of proof. . . . Thus, \xe2\x80\x9cthe likelihood of unlimited or insurerlike liability,\xe2\x80\x9d the third factor of 532 Madison Avenue, does not weigh heavily against a finding of\nduty.\nThe fourth factor of 532 Madison Avenue is \xe2\x80\x9cdisproportionate risk and reparation\nallocation.\xe2\x80\x9d This inquiry probes who was best able to protect against the risks at issue and weighs\nthe costs and efficacy of imposing such a duty. The airlines, and the airport security companies,\ncould best screen those boarding, and bringing objects onto, airplanes. The same activities\nreasonably necessary to safeguard passengers and crew are those that would protect the public as\nwell. . . . This case is thus distinguishable from other cases where courts did not find a duty to\nprotect against third-party conduct. . . . [I]n Hamilton [v. Aku-Tech, for example] the court held\nthat gun manufacturers did not owe a duty to victims of gun violence for negligent marketing and\ndistribution of firearms. The connection between the manufacturers, criminal wrongdoers, and\nvictims was too remote, running through many links in a long chain, from manufacturer,\ndistributor or wholesaler, retailer, legal purchasers, unlawful possessors, and finally to the victims\nof gun violence. . . .\nUnlike Hamilton and Waters, the Aviation Defendants could best control the boarding of\n438\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nairplanes, and were in the best position to provide reasonable protection against hijackings and the\ndangers they presented, not only to the crew and passengers, but also to ground victims. Imposing\na duty on the Aviation Defendants best allocates the risks to ground victims posed by inadequate\nscreening, given the Aviation Defendants\xe2\x80\x99 existing and admitted duty to screen passengers and\nitems carried aboard.\nLastly, recognition of a duty on the part of the Aviation Defendants would not\nsubstantially expand or create \xe2\x80\x9cnew channels of liability,\xe2\x80\x9d the fifth and last factor of 532 Madison\nAvenue. New York courts have found on other occasions that aircraft owners and operators owe a\nduty to those on the ground who may be harmed or sustain property damage resulting from\nimproper or negligent operation of an aircraft. . . . Although these cases involved injuries\nresulting from negligent operation or maintenance of airplanes, rather than negligence in\nregulating the boarding of airplanes, there is no principled distinction between the modes of\nnegligence. . . .\niii. Scope of Duty to Ground Victims: the Issue of Foreseeability\nDefendants argue that the ground victims lost their lives and suffered injuries from an\nevent that was not reasonably foreseeable, for terrorists had not previously used a hijacked\nairplane as a suicidal weapon to destroy buildings and murder thousands. Defendants contend\nthat because the events of September 11 were not within the reasonably foreseeable risks, any\nduty of care that they would owe to ground victims generally should not extend to the victims of\nSeptember 11. . . .\nConstruing the factual allegations in the light most favorable to the plaintiffs, I conclude\nthat the crash of the airplanes was within the class of foreseeable hazards resulting from\nnegligently performed security screening. While it may be true that terrorists had not before\ndeliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes\ncausing death and destruction on the ground was a hazard that would arise should hijackers take\ncontrol of a plane. . . . While the crashes into the particular locations of the World Trade Center,\nPentagon, and Shanksville field may not have been foreseen, the duty to screen passengers and\nitems brought on board existed to prevent harms not only to passengers and crew, but also to the\nground victims resulting from the crashes of hijacked planes . . . .\nB. World Trade Center Defendants\xe2\x80\x99 Motions to Dismiss\ni. Background\nThe Port Authority of New York and New Jersey and WTC Properties LLC move to\ndismiss all claims brought against them as owners and operators of the World Trade Center for\nloss of life, personal injury, and damage to nearby property and businesses resulting from the\ncollapse of the Twin Towers. . . .\nii. Existence and Scope of Duty\nThe WTC Defendants contend that they owed no duty to \xe2\x80\x9canticipate and guard against\ncrimes unprecedented in human history.\xe2\x80\x9d Plaintiffs argue that defendants owed a duty, not to\nforesee the crimes, but to have designed, constructed, repaired and maintained the World Trade\nCenter structures to withstand the effects and spread of fire, to avoid building collapses caused by\n439\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nfire and, in designing and effectuating fire safety and evacuation procedures, to provide for the\nescape of more people.\nThe existence of a duty owed by the WTC Defendants to its lessees and business\noccupants has been clearly set out in New York law. \xe2\x80\x9cA landowner has a duty to exercise\nreasonable care under the circumstances in maintaining its property in a safe condition\xe2\x80\x9d . . . ,\nincluding the duty to adopt reasonable fire-safety precautions . . . , regardless of the origin of the\nfire . . . .\nThe duty of landowners and lessors to adopt fire-safety precautions applies to fires caused\nby criminals. . . . Likewise, the WTC Defendants owed a duty to the occupants to create and\nimplement adequate fire safety measures, even in the case of a fire caused by criminals such as\nthose who hijacked flights 11 and 175 on September 11, 2001. . . .\nI hold that the WTC Defendants owed a duty to the plaintiffs, and that plaintiffs should\nnot be foreclosed from being able to prove that defendants failed to exercise reasonable care to\nprovide a safe environment for its occupants and invitees with respect to reasonably foreseeable\nrisks.\n[The court then reasoned that the rule of supervening causation from the doctrine of\nproximate cause did not preclude a judgment for the plaintiff against the WTC defendants because\nwhile \xe2\x80\x9cgenerally, an intervening intentional or criminal act severs the liability of the original tortfeasor,\xe2\x80\x9d that \xe2\x80\x9cdoctrine has no application when the intentional or criminal intervention of a third\nparty or parties is reasonably foreseeable.\xe2\x80\x9d Turning to the Boeing defendant, the court further\nconcluded that as manufacturer of the airplanes in question, Boeing also owed a duty of\nreasonable care to the air and ground victims in the case: \xe2\x80\x9cthe danger that a plane could crash if\nunauthorized individuals invaded and took over the cockpit,\xe2\x80\x9d the court concluded, \xe2\x80\x9cwas the very\nrisk that Boeing should reasonably have foreseen.\xe2\x80\x9d]\n\nNotes\n\n1. The September 11 Fund. Recall that Congress created the September 11 Victim\nCompensation Fund in the aftermath of the September 11 tragedy. The Fund allowed victims to\nrecover through a no-fault basis if they promised not to sue airlines and other potential defendants.\nRobert M. Ackerman, The September 11th Victim Compensation Fund: An Effective\nAdministrative Response to a National Tragedy, 10 HARV. NEGOTIATION L. REV. 135, 137 (2005).\nNinety-seven percent of victims applied for compensation through the Fund. As the\nFund\xe2\x80\x99s filing deadline loomed closer, a number of litigants dropped their suits and recovered\nthrough the Fund. Nearly two months before the deadline, only sixty percent of victims had\napplied for compensation from the Fund. But hours before the deadline \xe2\x80\x9cthere was a mad rush to\nfile.\xe2\x80\x9d Elizabeth Berkowitz, The Problematic Role of the Special Master: Undermining the\nLegitimacy of the September 11 Victim Compensation Fund, 24 YALE L. & POL\xe2\x80\x99Y REV. 1, 29\n(2006).\n\n440\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n2. The lawsuits. While the Victim Compensation Fund provided compensation to 97% of\nthe ground victims in the terrorist attacks of September 11th, the relatives of 95 victims chose to\nsue in court. Judge Alvin Hellerstein presided over all 95 cases. In the past, terrorism victims\nhave not successfully recovered against third parties. See Matthew Diller, Tort and Social\nWelfare Principles in the Victim Compensation Fund, 53 DEPAUL U. L. REV. 719, 722 (2003)\n(noting that victims of the Oklahoma City bombing and 1993 World Trade Center attacks did not\nrecover against third parties under a negligence theory). But this time the outcomes were more\ncomplex.\nBetween the beginning of the lawsuit in 2002 and 2005, 13 out of the original 95 cases\nsettled. Judge Hellerstein reviewed each settlement for fairness and reasonableness, but otherwise\nthe settlements were confidential. In re Sept. 11 Litig., 567 F. Supp. 2d 611, 615 (S.D.N.Y.\n2008).\nIn January 2006, Judge Hellerstein suggested the use of mediators to encourage further\nsettlements; the initial mediation sessions brought lawyers for the plaintiffs and defendants\ntogether with some success\xe2\x80\x9412 additional cases settled. However, Sheila Birnbaum, the chief\nmediator, suspected that many of the plaintiffs wanted the \xe2\x80\x9copportunity to tell the story of their\nloss and express their feelings to a representative of the Court [or] to a representative of the\nairlines and to personally receive expressions of condolences for their loss from the airlines.\xe2\x80\x9d In\nre Sept. 11 Litig., 600 F. Supp. 2d 549, 557 (S.D.N.Y. 2009). Birnbaum invited the victims\xe2\x80\x99\nfamilies to mediation sessions where they were able to express their side of the story to\nrepresentatives of the defendant.\nAdditionally, many of the remaining cases were being delayed by extensive discovery. In\nan effort to speed up the cases, Judge Hellerstein separated the question of liability from the\nquestion of damages and ordered that damages-only discovery and damages-only jury trials in six\ncases; as Hellerstein later wrote, \xe2\x80\x9c[b]oth sides objected because of the absence of precedents, but\nthey acquiesced upon reconsideration, and when it became clear that I was determined to proceed.\nThe experiment was successful. After some discovery, and without the need of any trials, all six\ncases settled and more followed.\xe2\x80\x9d In re Sept. 11 Litig., 600 F. Supp. 2d 549, 554 (S.D.N.Y.\n2009).\nBy involving victims\xe2\x80\x99 families in mediation and by separating the liability questions from\nthe damages questions, all but three of the original 95 cases settled by March 4, 2009. Ultimately,\nnone of the 95 cases went to trial. The last plaintiff settled on September 20, 2011. Benjamin\nWeiser, Family and United Airlines Settle Last 9/11 Wrongful-Death Suit, N.Y TIMES, Sep. 20,\n2011.\n\n3. The Duty Debate (Part 2)\nContemporary debates include whether no-duty decisions should be categorical or casespecific. Dilan Esper and Gregory Keating argue that duty articulates the moral obligations that\nguide conduct, and these obligations must therefore be decided in broad categorical fashion or\nthey cannot provide this guidance. Dilan A. Esper & Gregory C. Keating, Abusing \xe2\x80\x9cDuty\xe2\x80\x9d, 79 S.\nCAL. L. REV. 265, 282 (2006). John Goldberg and Benjamin Zipursky, by contrast, argue that\nduties are case-specific because the moral obligation to exercise care depends on the particular\n441\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nfacts of any given relationship between a plaintiff and a defendant. John C.P. Goldberg &\nBenjamin Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance,\nand Other \xe2\x80\x9cQuaint\xe2\x80\x9d Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. CAL. L.\nREV. 329, 340 (2006). The Third Restatement sides with the categorical view in those exceptional\ninstances in which (as the Restatement authors see it) a separate duty analysis is appropriate.\nRESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa77, cmt. I (2010).\nAnother debate concerns whether foreseeability should be a component of duty. Scholars\nwho emphasize the significance of the duty inquiry, even if as an inquiry to be made in unusual\nboundary-policing cases, argue that duty determination must include consideration of the\nforeseeability of a plaintiff\xe2\x80\x99s injury. Esper & Keating, supra, at 327. By contrast, those who\nbelieve that duty is redundant adopt the view that breach and proximate cause already\naccommodate considerations of foreseeability such that they need not reappear in the duty\nanalysis. See W. Jonathan Cardi & Michael D. Green, Duty Wars, 81 S. CAL. L. REV. 671, 72226; see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM \xc2\xa77, cmt. j (2010)\n(recommending that courts not use foreseeability in duty determinations and limit no-duty rulings\nto articulated policy or principle).\n\nE. Pure Economic Loss\nCourts have often announced that pure economic loss, much like pure emotional distress,\nis not recoverable in actions for negligence. Consider the following case, which both states the\nrule and at least in part questions it:\n\nPeople Express Airlines, Inc. v. Consolidated Rail Corporation, 100 N.J. 246 (1985)\nHANDLER J.\nThis appeal presents a question that has not previously been directly considered: whether a\ndefendant\xe2\x80\x99s negligent conduct that interferes with a plaintiff\xe2\x80\x99s business resulting in purely\neconomic losses, unaccompanied by property damage or personal injury, is compensable in tort. .\n..\nI\nBecause of the posture of the case\xe2\x80\x94an appeal taken from the grant of summary judgment\nfor the defendant railroad, subsequently reversed by the Appellate Division\xe2\x80\x94we must accept\nplaintiff\xe2\x80\x99s version of the facts as alleged. The facts are straight-forward.\nOn July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated\nRail Corporation (Conrail) when ethylene oxide manufactured by defendant BASF Wyandotte\nCompany (BASF) escaped from a tank car, punctured during a \xe2\x80\x9ccoupling\xe2\x80\x9d operation with another\nrail car, and ignited. The tank car was owned by defendant Union Tank Car Company (Union\nCar) and was leased to defendant BASF.\nThe plaintiff asserted at oral argument that at least some of the defendants were aware\nfrom prior experiences that ethylene oxide is a highly volatile substance; further, that emergency\n442\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nresponse plans in case of an accident had been prepared. When the fire occurred that gave rise to\nthis lawsuit, some of the defendants\xe2\x80\x99 consultants helped determine how much of the surrounding\narea to evacuate. The municipal authorities then evacuated the area within a one-mile radius\nsurrounding the fire to lessen the risk to persons within the area should the burning tank car\nexplode. The evacuation area included the adjacent North Terminal building of Newark\nInternational Airport, where plaintiff People Express Airlines\xe2\x80\x99 (People Express) business\noperations are based. Although the feared explosion never occurred, People Express employees\nwere prohibited from using the North Terminal for twelve hours.\nThe plaintiff contends that it suffered business-interruption losses as a result of the\nevacuation. These losses consist of cancelled scheduled flights and lost reservations because\nemployees were unable to answer the telephones to accept bookings; also, certain fixed operating\nexpenses allocable to the evacuation time period were incurred and paid despite the fact that\nplaintiff\xe2\x80\x99s offices were closed. No physical damage to airline property and no personal injury\noccurred as a result of the fire.\nAccording to People Express\xe2\x80\x99 original complaint, each defendant acted negligently and\nthese acts of negligence proximately caused the plaintiff\xe2\x80\x99s harm. An amended complaint alleged\nadditional counts of nuisance and strict liability based on the defendants\xe2\x80\x99 undertaking an\nabnormally dangerous activity, as well as defective manufacture or design of the tank car, causes\nof action with which we are not concerned here. Defendants filed answers and cross-claims for\ncontribution pursuant to the Joint Tortfeasors Contribution Law.\nConrail moved for summary judgment, seeking dismissal of the complaint and crossclaims against it; the motion was opposed by plaintiff, People Express, and defendants BASF and\nUnion Car. The trial court granted Conrail\xe2\x80\x99s summary judgment motion on the ground that absent\nproperty damage or personal injury economic loss was not recoverable in tort. Defendants BASF\nand Union Car subsequently sought summary judgment dismissing the complaint; the trial court\nalso granted these motions based on the same reasoning. . . .\nII\nThe single characteristic that distinguishes parties in negligence suits whose claims for\neconomic losses have been regulaly denied by American and English courts from those who have\nrecovered economic losses is, with respect to the successful claimants, the fortuitous occurrence\nof physical harm or property damage, however slight. It is well-accepted that a defendant who\nnegligently injures a plaintiff or his property may be liable for all proximately caused harm,\nincluding economic losses. Nevertheless, a virtually per se rule barring recovery for economic\nloss unless the negligent conduct also caused physical harm has evolved throughout this century .\n...\nThe reasons that have been advanced to explain the divergent results for litigants seeking\neconomic losses are varied. Some courts have viewed the general rule against recovery as\nnecessary to limit damages to reasonably foreseeable consequences of negligent conduct. This\nconcern in a given case is often manifested as an issue of causation and has led to the requirement\nof physical harm as an element of proximate cause. In this context, the physical harm requirement\nfunctions as part of the definition of the causal relationship between the defendant\xe2\x80\x99s negligent act\nand the plaintiff\xe2\x80\x99s economic damages; it acts as a convenient clamp on otherwise boundless\nliability. . . . The physical harm rule also reflects certain deep-seated concerns that underlie\n443\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ncourts\xe2\x80\x99 denial of recovery for purely economic losses occasioned by a defendant\xe2\x80\x99s negligence.\nThese concerns include the fear of fraudulent claims, mass litigation, and limitless liability, or\nliability out of proportion to the defendant\xe2\x80\x99s fault.\nThe assertion of unbounded liability is not unique to cases involving negligently caused\neconomic loss without physical harm. Even in negligence suits in which plaintiffs have sustained\nphysical harm, the courts have recognized that a tortfeasor is not necessarily liable for all\nconsequences of his conduct. While a lone act can cause a finite amount of physical harm, that\nharm may be great and very remote in its final consequences. A single overturned lantern may\nburn Chicago. Some limitation is required; that limitation is the rule that a tortfeasor is liable only\nfor that harm that he proximately caused. Proximate or legal cause has traditionally functioned to\nlimit liability for negligent conduct. Duty has also been narrowly defined to limit liability.\nCompare the majority and dissenting opinions in Palsgraf. . . .\nIt is understandable that courts, fearing that if even one deserving plaintiff suffering\npurely economic loss were allowed to recover, all such plaintiffs could recover, have anchored\ntheir rulings to the physical harm requirement. While the rationale is understandable, it supports\nonly a limitation on, not a denial of, liability. The physical harm requirement capriciously\nshowers compensation along the path of physical destruction, regardless of the status or\ncircumstances of individual claimants. Purely economic losses are borne by innocent victims,\nwho may not be able to absorb their losses. . . . In the end, the challenge is to fashion a rule that\nlimits liability but permits adjudication of meritorious claims. The asserted inability to fix\nchrystalline formulae for recovery on the differing facts of future cases simply does not justify the\nwholesale rejection of recovery in all cases.\nFurther, judicial reluctance to allow recovery for purely economic losses is discordant\nwith contemporary tort doctrine. The torts process, like the law itself, is a human institution\ndesigned to accomplish certain social objectives. One objective is to ensure that innocent victims\nhave avenues of legal redress, absent a contrary, overriding public policy. . . . This reflects the\noverarching purpose of tort law: that wronged persons should be compensated for their injuries\nand that those responsible for the wrong should bear the cost of their tortious conduct.\nOther policies underlie this fundamental purpose. Imposing liability on defendants for\ntheir negligent conduct discourages others from similar tortious behavior, fosters safer products to\naid our daily tasks, vindicates reasonable conduct that has regard for the safety of others, and,\nultimately, shifts the risk of loss and associated costs of dangerous activities to those who should\nbe and are best able to bear them. . . .\nIII\n...\nJudicial discomfiture with the rule of nonrecovery for purely economic loss throughout\nthe last several decades has led to numerous exceptions in the general rule. Although the\nrationalizations for these exceptions differ among courts and cases, two common threads run\nthroughout the exceptions. The first is that the element of foreseeability emerges as a more\nappropriate analytical standard to determine the question of liability than a per se prohibitory rule.\nThe second is that the extent to which the defendant knew or should have known the particular\n444\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nconsequences of his negligence, including the economic loss of a particularly foreseeable plaintiff,\nis dispositive of the issues of duty and fault.\nOne group of exceptions is based on the \xe2\x80\x9cspecial relationship\xe2\x80\x9d between the tortfeasor and\nthe individual or business deprived of economic expectations. Many of these cases are recognized\nas involving the tort of negligent misrepresentation, resulting in liability for specially foreseeable\neconomic losses. Importantly, the cases do not involve a breach of contract claim between parties\nin privity; rather, they involve tort claims by innocent third parties who suffered purely economic\nlosses at the hands of negligent defendants with whom no direct relationship existed. . . .\nThe special relationship exception has been extended to auditors, see H. Rosenblum, Inc.\nv. Adler (independent auditor whose negligence resulted in inaccurate public financial statement\nheld liable to plaintiff who bought stock in company for purposes of sale of business to company;\nstock subsequently proved to be worthless); surveyors, see Rozny v. Marnul, (surveyor whose\nnegligence resulted in error in depicting boundary of lot held liable to remote purchaser); [and]\ntermite inspectors, see Hardy v. Carmichael (termite inspectors whose negligence resulted in\npurchase of infested home liable to out-of-privity buyers)[, among others]. . . .\nA related exception in which courts have allowed recovery for purely economic losses has\nbeen extended to plaintiffs belonging to a particularly foreseeable group, such as sailors and\nseamen, for whom the law has traditionally shown great solicitude. See Carbone v. Ursich, 209\nF.2d 178 (9th Cir.1953) (plaintiff seaman recovered lost wages resulting from lack of work while\nthe ship on which they were employed, damaged through defendant\xe2\x80\x99s negligence, was being\nrepaired) . . . .\nParticular knowledge of the economic consequences has sufficed to establish duty and\nproximate cause in contexts other than those already considered. . . .\nThese exceptions expose the hopeless artificiality of the per se rule against recovery for\npurely economic losses. When the plaintiffs are reasonably foreseeable, the injury is directly and\nproximately caused by defendant\xe2\x80\x99s negligence, and liability can be limited fairly, courts have\nendeavored to create exceptions to allow recovery. . . .\nThe . . . theme that may be extracted from these decisions rests on the specificity and\nstrictness that are infused into the definitional standard of foreseeability. The foreseeability\nstandard that may be synthesized from these cases is one that posits liability in terms of where,\nalong a spectrum ranging from the general to the particular, foreseeability is ultimately found. . . .\nWe hold therefore that a defendant owes a duty of care to take reasonable measures to\navoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs or\nplaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to\nknow are likely to suffer such damages from its conduct. A defendant failing to adhere to this\nduty of care may be found liable for such economic damages proximately caused by its breach of\nduty.\nWe stress that an identifiable class of plaintiffs is not simply a foreseeable class of\nplaintiffs. For example, members of the general public, or invitees such as sales and service\npersons at a particular plaintiff\xe2\x80\x99s business premises, or persons travelling on a highway near the\nscene of a negligently-caused accident, such as the one at bar, who are delayed in the conduct of\n445\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ntheir affairs and suffer varied economic losses, are certainly a foreseeable class of plaintiffs. Yet\ntheir presence within the area would be fortuitous, and the particular type of economic injury that\ncould be suffered by such persons would be hopelessly unpredictable and not realistically\nforeseeable. Thus, the class itself would not be sufficiently ascertainable. An identifiable class of\nplaintiffs must be particularly foreseeable in terms of the type of persons or entities comprising\nthe class, the certainty or predictability of their presence, the approximate numbers of those in the\nclass, as well as the type of economic expectations disrupted. [Citing Strauss v. Belle Realty Co.]\n...\n[T]he judgment of the Appellate Division is modified, and, as modified, affirmed. The case\nis remanded for proceedings consistent with this opinion.\n\nNote\n\n1. Across the river, in New York, the high court of the state (the Court of Appeals) has\nadopted a stricter version of the pure economic loss rule. Consider the following case. Which\napproach is the better one?\n\n532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 750 N.E.2d 1097 (N.Y.\n2001)\nKAYE, C.J.\nThe novel issues raised by these appeals\xe2\x80\x94arising from construction-related disasters in\nmidtown Manhattan\xe2\x80\x94concern . . . a landholder\xe2\x80\x99s duty in negligence where plaintiffs\xe2\x80\x99 sole injury\nis lost income . . . .\nTwo of the three appeals involve the same event. On December 7, 1997, a section of the\nsouth wall of 540 Madison Avenue, a 39-story office tower, partially collapsed and bricks, mortar\nand other material fell onto Madison Avenue at 55th Street, a prime commercial location\ncrammed with stores and skyscrapers. The collapse occurred after a construction project, which\nincluded putting 94 holes for windows into the building\xe2\x80\x99s south wall, aggravated existing\nstructural defects. New York City officials directed the closure of 15 heavily trafficked blocks on\nMadison Avenue\xe2\x80\x94from 42nd to 57th Street\xe2\x80\x94as well as adjacent side streets between Fifth and\nPark Avenues. The closure lasted for approximately two weeks, but some businesses nearest to\n540 Madison remained closed for a longer period.\nIn 532 Madison Ave. Gourmet Foods v Finlandia Ctr., plaintiff operates a 24- hour\ndelicatessen one-half block south of 540 Madison, and was closed for five weeks. The two named\nplaintiffs in the companion case, 5th Ave. Chocolatiere v. 540 Acquisition Co., are retailers at 510\nMadison Avenue, two blocks from the building, suing on behalf of themselves and a putative\nclass of \xe2\x80\x9call other business entities, in whatever form, including but not limited to corporations,\npartnerships and sole proprietorships, located in the Borough of Manhattan and bounded\ngeographically on the west by Fifth Avenue, on the east by Park Avenue, on the north by 57th\nStreet and on the South by 42nd Street.\xe2\x80\x9d Plaintiffs allege that shoppers and others were unable to\ngain access to their stores during the time Madison Avenue was closed to traffic. Defendants in\n446\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nboth cases are Finlandia Center (the building owner), 540 Acquisition Company (the ground\nlessee) and Manhattan Pacific Management (the managing agent).\nOn defendants\xe2\x80\x99 motions in both cases, [the trial court] dismissed plaintiffs\xe2\x80\x99 negligence\nclaims on the ground that they could not establish that defendants owed a duty of care for purely\neconomic loss in the absence of personal injury or property damage . . . . In 5th Ave.\nChocolatiere, plaintiffs\xe2\x80\x99 additional claims for gross negligence and negligence per se were\ndismissed on the ground that plaintiffs could not establish a duty owed by defendants . . . .\nGoldberg Weprin & Ustin v. Tishman Constr. involves the July 21, 1998 collapse of a 48story construction elevator tower on West 43rd Street between Sixth and Seventh Avenues\xe2\x80\x94the\nheart of bustling Times Square. Immediately after the accident, the City prohibited all traffic in a\nwide area of midtown Manhattan and also evacuated nearby buildings for varying time periods.\nThree actions were consolidated\xe2\x80\x94one by a law firm, a second by a public relations firm and a\nthird by a clothing manufacturer, all situated within the affected area. Plaintiff law firm sought\ndamages for economic loss on behalf of itself and a proposed class \xe2\x80\x9cof all persons in the vicinity\nof Broadway and 42nd Street, New York, New York, whose businesses were affected and/or\ncaused to be closed\xe2\x80\x9d as well as a subclass of area residents who were evacuated from their homes.\n...\nNoting the enormity of the liability sought, including recovery by putative plaintiffs as\ndiverse as hot dog vendors, taxi drivers and Broadway productions, [the trial court] concluded that\nthe failure to allege personal injury or property damage barred recovery in negligence. The court\nfurther rejected recovery for strict liability, and dismissed both the public nuisance claim (because\nplaintiff was unable to show special damages) and the private nuisance claim (because plaintiff\ncould not show that the harm threatened only one person or relatively few).\nThe Appellate Division affirmed dismissal of the Goldberg Weprin complaint,\nconcluding that, absent property damage, the connection between defendants\xe2\x80\x99 activities and the\neconomic losses of the purported class of plaintiffs was \xe2\x80\x9ctoo tenuous and remote to permit\nrecovery on any tort theory\xe2\x80\x9d . . . . The court, however, reinstated the negligence . . . claims of\nplaintiffs 532 Madison and 5th Ave. Chocolatiere, holding that defendants\xe2\x80\x99 duty to keep their\npremises in reasonably safe condition extended to \xe2\x80\x9cthose businesses in such close proximity that\ntheir negligent acts could be reasonably foreseen to cause injury\xe2\x80\x9d (which included the named\nmerchant plaintiffs) . . . , and that, as such, they established a special injury distinct from the\ngeneral inconvenience to the community at large. Two [of the five] Justices dissented, urging\napplication of the \xe2\x80\x9ceconomic loss\xe2\x80\x9d rule, which bars recovery in negligence for economic damage\nabsent personal injury or property damage. The dissenters further concluded that the public\nnuisance claims were properly dismissed because plaintiffs could not establish special injury.\nWe now reverse in 532 Madison and 5th Ave. Chocolatiere and affirm in Goldberg\nWeprin & Ustin.\nPlaintiffs\xe2\x80\x99 Negligence Claims\nPlaintiffs contend that defendants owe them a duty to keep their premises in reasonably\nsafe condition, and that this duty extends to protection against economic loss even in the absence\nof personal injury or property damage. Defendants counter that the absence of any personal injury\nor property damage precludes plaintiffs\xe2\x80\x99 claims for economic injury.\n447\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe existence and scope of a tortfeasor\xe2\x80\x99s duty is, of course, a legal question for the courts,\nwhich \xe2\x80\x9cfix the duty point by balancing factors, including the reasonable expectations of parties\nand society generally, the proliferation of claims, the likelihood of unlimited or insurerlike\nliability, disproportionate risk and reparation allocation, and public policies affecting the\nexpansion or limitation of new channels of liability\xe2\x80\x9d . . . . At its foundation, the common law of\ntorts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining\nactionable duty, courts must therefore always be mindful of the consequential, and precedential,\neffects of their decisions.\nAs we have many times noted, foreseeability of harm does not define duty . . . . Absent a\nduty running directly to the injured person there can be no liability in damages, however careless\nthe conduct or foreseeable the harm. This restriction is necessary to avoid exposing defendants to\nunlimited liability to an indeterminate class of persons conceivably injured by any negligence in a\ndefendant\xe2\x80\x99s act.\nA duty may arise from a special relationship that requires the defendant to protect against\nthe risk of harm to plaintiff . . . . Landowners, for example, have a duty to protect tenants, patrons\nand invitees from foreseeable harm caused by the criminal conduct of others while they are on the\npremises, because the special relationship puts them in the best position to protect against the risk\n. . . . That duty, however, does not extend to members of the general public . . . . Liability is in this\nway circumscribed, because the special relationship defines the class of potential plaintiffs to\nwhom the duty is owed.\nIn Strauss v. Belle Realty Co. we considered whether a utility owed a duty to a plaintiff\ninjured in a fall on a darkened staircase during a citywide blackout. While the injuries were\nlogically foreseeable, there was no contractual relationship between the plaintiff and the utility for\nlighting in the building\xe2\x80\x99s common areas. As a matter of policy, we restricted liability for damages\nin negligence to direct customers of the utility in order to avoid crushing exposure to the suits of\nmillions of electricity consumers in New York City and Westchester.\nEven closer to the mark is Milliken & Co. v. Consolidated Edison Co., in which an\nunderground water main burst near 38th Street and 7th Avenue in Manhattan. The waters flooded\na subbasement where Consolidated Edison maintained an electricity supply substation, and then a\nfire broke out, causing extensive damage that disrupted the flow of electricity to the Manhattan\nGarment Center and interrupting the biannual Buyers Week. Approximately 200 Garment Center\nbusinesses brought more than 50 lawsuits against Con Edison, including plaintiffs who had no\ncontractual relationship with the utility and who sought damages solely for economic loss.\nRelying on Strauss, we again held that only those persons contracting with the utility could state a\ncause of action. We circumscribed the ambit of duty to avoid limitless exposure to the potential\nsuits of every tenant in the skyscrapers embodying the urban skyline.\nA landowner who engages in activities that may cause injury to persons on adjoining\npremises surely owes those persons a duty to take reasonable precautions to avoid injuring them . .\n. . We have never held, however, that a landowner owes a duty to protect an entire urban\nneighborhood against purely economic losses. . . .\nPlaintiffs\xe2\x80\x99 reliance on People Express Airlines v. Consolidated Rail Corp. . . . is\nmisplaced. There, a fire started at defendant\xe2\x80\x99s commercial freight yard located across the street\n448\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nfrom plaintiff\xe2\x80\x99s airport offices. A tank containing volatile chemicals located in the yard was\npunctured, emitting the chemicals and requiring closure of the terminal because of fear of an\nexplosion. Allowing the plaintiff to seek damages for purely economic loss, the New Jersey court\nreasoned that the extent of liability and degree of foreseeability stand in direct proportion to one\nanother: the more particular the foreseeability that economic loss would be suffered as a result of\nthe defendant\xe2\x80\x99s negligence, the more just that liability be imposed and recovery permitted. The\nNew Jersey court acknowledged, however, that the presence of members of the public, or invitees\nat a particular plaintiff\xe2\x80\x99s business, or persons traveling nearby, while foreseeable, is nevertheless\nfortuitous, and the particular type of economic injury that they might suffer would be hopelessly\nunpredictable. Such plaintiffs, the court recognized, would present circumstances defying any\nappropriately circumscribed orbit of duty. We see a like danger in the urban disasters at issue\nhere, and decline to follow People Express.\nPolicy-driven line-drawing is to an extent arbitrary because, wherever the line is drawn,\ninvariably it cuts off liability to persons who foreseeably might be plaintiffs. The Goldberg\nWeprin class, for example, would include all persons in the vicinity of Times Square whose\nbusinesses had to be closed and a subclass of area residents evacuated from their homes; the 5th\nAve. Chocolatiere class would include all business entities between 42nd and 57th Streets and\nFifth and Park Avenues. While the Appellate Division attempted to draw a careful boundary at\nstorefront merchant-neighbors who suffered lost income, that line excludes others similarly\naffected by the closures\xe2\x80\x94such as the law firm, public relations firm, clothing manufacturer and\nother displaced plaintiffs in Goldberg Weprin, the thousands of professional, commercial and\nresidential tenants situated in the towers surrounding the named plaintiffs, and suppliers and\nservice providers unable to reach the densely populated New York City blocks at issue in each\ncase.\nAs is readily apparent, an indeterminate group in the affected areas thus may have\nprovable financial losses directly traceable to the two construction-related collapses, with no\nsatisfactory way geographically to distinguish among those who have suffered purely economic\nlosses (see also, Matter of Kinsman Tr. Co., [II]) . . . . In such circumstances, limiting the scope of\ndefendants\xe2\x80\x99 duty to those who have, as a result of these events, suffered personal injury or\nproperty damage\xe2\x80\x94as historically courts have done\xe2\x80\x94affords a principled basis for reasonably\napportioning liability.\nWe therefore conclude that plaintiffs\xe2\x80\x99 negligence claims based on economic loss alone fall\nbeyond the scope of the duty owed them by defendants and should be dismissed.\n\nNotes\n\n1. The pure economic loss rule. Virtually all states adopt some version of the economic loss\nrule in actions for negligence. DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW\nOF TORTS \xc2\xa7 646 (2d ed. 2011). Alaska and New Jersey purport to reject the rule altogether. See\nMattingly v. Sheldon Jackson College, 743 P.2d 356 (Ala. 1987). The Supreme Court of\nCalifornia allows recovery for economic losses under certain conditions, including the\nrelationship between the parties, the foreseeability of the losses, and the culpability of the\ndefendant. See J\xe2\x80\x99Aire Corp v. Gregory, 598 P.2d 60 (Cal. 1979).\n449\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nPurely economic losses are typically not available in nuisance cases. See, e.g., Conley v.\nAmalgamated Sugar Co., 263 P.2d 705 (Idaho 1953); Innkeepers, Inc. v. Pittsburgh-Des Moines\nCorp., 345 N.W.2d 124 (Iowa 1984). Similarly, a number of courts reject pure economic loss\nclaims in trespass and product liability claims. See, e.g., Dale v. Grant, 34 N.J.L. 142 (1870)\n(holding that purely economic damage in an action for trespass is not recoverable); Moore v.\nPavex, Inc., 514 A.2d 137 (Pa. 1986) (refusing to allow business owners to recover for purely\neconomic damage in a products liability action).\n\n2. Functions of the pure economic loss rule? One role of the pure economic loss rule is to\npreserve a boundary between tort cases and contract cases. The U.S. Supreme Court has asserted\nthat without the pure economic loss rule, \xe2\x80\x9ccontract law would drown in a sea of tort.\xe2\x80\x9d E. River\nS.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866 (1986) (holding that a purchaser of\nturbines was limited to its contract rights against a manufacturer-seller when the malfunction in\nquestion caused damage only to the product itself). Why does it matter whether the plaintiffpurchaser had contract rights or tort rights? Tort damages remedies often include consequential\ndamages such as lost profits while contract damages typically do not. More generally, restricting\nparties to their contract rights allows the parties to tailor their rights and responsibilities as they\nsee fit. Were the pure economic loss rule abandoned, the Uniform Commercial Code\xe2\x80\x99s capacity\nto govern the resolution of disputes concerning sale of goods might be undermined by the\napplication of tort principles. See Vincent R. Johnson, The Boundary-Line Function of the\nEconomic Loss Rule, 66 WASH & LEE L. REV. 523, 551 (2009). What is at stake in preserving the\nplace of contract law and the U.C.C.?\n\n3. Business interruption insurance. One of the justifications for the economic loss rule is\nthat the rule allocates the risk of economic loss to \xe2\x80\x9cthe party best situated to assess the risk of his\nor her economic loss, to assume, allocate, or insure against that risk.\xe2\x80\x9d Below v. Norton, 751\nN.W.2d 351, 726 (Wis. 2008). But is business interruption insurance really available? Insurers\noffering business interruption insurance typically require a showing of damage to physical assets\nin order to trigger business interruption coverage. In other words, the insurance policies very\noften contain the same limit on recovery under the policy that the courts impose in tort suits.\nCourts regularly uphold denials of coverage where the policy excludes payment for business\ninterruption absent physical damage. See, e.g., Peerless Dyeing Co., Inc. v. Industrial Risk\nInsurers, 573 A.2d 541 (Pa. 1990).\n\n4. Brand tarnishment? What about economic losses that arise when the market devalues a\nproduct based on notorious negligent conduct by the manufacturer? This question became central\nto a consumer class action against General Motors following a series of headline-grabbing\nautomobile recalls over the course of 2014. Plaintiff-consumers advanced a broad theory of harm\nby \xe2\x80\x9cbrand devaluation\xe2\x80\x9d under which G.M.\xe2\x80\x99s wrongful conduct tarnished its brand and hurt its\ncustomers by \xe2\x80\x9cresulting in lower resale values across the board for the brand\xe2\x80\x99s products.\xe2\x80\x9d In re\nGen. Motors LLC Ignition Switch Litig., 14-MD-2543, 2016 WL 3920353, at *7 (S.D.N.Y. July\n15, 2016) (Furman, J.). Judge Furman rejected this \xe2\x80\x9cunprecedented theory of damages,\xe2\x80\x9d on the\nground that the theory would mean \xe2\x80\x9cthat every time a manufacturer sells a product, it vouches not\njust for the value and functionality of that product, but also the product\xe2\x80\x99s resale value and the\nbrand\xe2\x80\x99s continuing good name.\xe2\x80\x9d Id. Is it the right decision to immunize manufacturers against a\n450\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nwhole class of social harms arising of their conduct? Even for plaintiffs also suffering property\ndamage or personal injury?\n\nF. Relational Interests\nThe law of torts recognizes a variety of relational interests as well as personal interests.\nHistorically, plaintiffs could recover for the loss of services of an injured servant, slave, child, or\nwife. Until the early part of the last century, actions for seduction allowed a husband or father to\nrecover for the seduction of his wife or daughter. Still today, parties can sue third parties for\ntortious interference with a contractual relationship.\nOne of the most striking relational interests, however, is the loss of consortium claim.\nConsider the following materials:\n\n1. Spouses\nIn Diaz v. Eli Lilly (Mass. 1973), Milagros Diaz alleged that the defendant Eli Lilly\nnegligently manufactured a fungicide that caused severe bodily injuries to her husband, that that\nas a consequence, she \xe2\x80\x9csuffered a loss of the consortium of [her husband], including his \xe2\x80\x98services,\nsociety, affection, companionship, (and) relations.\xe2\x80\x99\xe2\x80\x9d After the trial court dismissed the claim on\nthe ground that Massachusetts law recognized no loss of consortium claim by wives for injuries to\ntheir husbands, the Massachusetts Supreme Judicial Court reversed. Justice Benjamin Kaplan,\nnow an emeritus member of the Harvard Law School faculty, reviewed the history of the action\nfor negligent interference with consortium:\nIn olden days, when married women were under legal disabilities corresponding to\ntheir inferior social status, any action for personal or other injuries to the wife was\nbrought in the names of the husband and wife, and the husband was ordinarily\nentitled to the avails of the action as of his own property. The husband had, in\naddition, his own recourse by action without even nominal joinder of the wife\nagainst those who invaded the conjugal relationship, for example, by criminal\nconversation with or abduction of his wife. At one time the gravamen of the latter\nclaims for loss of consortium was the deprivation of the wife\xe2\x80\x99s services conceived\nto be owing by the wife to the husband: the action was similar to that of a master\nfor enticement of his servant. Later the grounds of the consortium action included\nloss of the society of the wife and impairment of relations with her as a sexual\npartner, and emphasis shifted way from loss of her services or earning capacity. The\ndefendant, moreover, need not have infringed upon the marital relation by an act of\nadultery or the like, for he could inflict similar injuries upon the husband in the way\nof loss of consortium by an assault upon the wife or even a negligent injury.\nMeanwhile, what of the wife\xe2\x80\x99s rights? She had non analogous to the husband\xe2\x80\x99s.\nThe husband was of course perfectly competent to sue without joinder of the wife\nfor injuries to himself, and there was no thought that the wife had any legal claim\nto the husband\xe2\x80\x99s services or his sexual or other companionship\xe2\x80\x94any claim, at any\nrate, in the form of a cause of action for third-party damage to the relationship.\n\n451\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n302 N.E.2d at 556-57. \xe2\x80\x9c[T]he coming in of the married women\xe2\x80\x99s acts in the mid-nineteenth\ncentury\xe2\x80\x9d raised new challenges for the action for negligent interference with consortium. In\nMassachusetts, early twentieth-century courts finally decided not to allow loss of consortium\nactions by either husbands or wives. Elsewhere, however, \xe2\x80\x9c[i]t was held very widely that\nhusbands still retained their consortium rights, the element of loss of wives\xe2\x80\x99 services and earnings,\nhowever, being excluded from the husbands\xe2\x80\x99 recoveries as belonging to the wives themselves . . .\n.\xe2\x80\x9d 302 N.E.2d at 557. (Kaplan chalked this up to \xe2\x80\x9cthe reluctance of judges to accept the women\xe2\x80\x99s\nemancipation acts as introducing a general premise for fresh decision.\xe2\x80\x9d Id.).\nSince the 1950s, Justice Kaplan continued, there had grown a \xe2\x80\x9cmovement of opinion in\nthis country . . . toward recognizing a right of action in either spouse for loss of consortium due to\nnegligent injury of the other\xe2\x80\x9d:\nWe should be mindful of the trend although our decision is not reached by a process\nof following the crowd. Without attempting a count of the decisions, we may\nsummarize the position roughly as follows. The right of the husband has long been\nacknowledged in a very substantial majority of the jurisdictions. The right of the\nwife, first confirmed in Hitaffer v. Argonne Co. Inc. (D.C. Cir. 1950), . . . has now\nbeen established in perhaps half the American jurisdictions: the result has been\nachieved in some States by overruling relatively recent precedent in point. In certain\njurisdictions the wife\xe2\x80\x99s right has been denied although the husband\xe2\x80\x99s right is still\naffirmed\xe2\x80\x94a regrettable solecism. . . . Having in the first Restatement of Torts\npublished in 1938 affirmed the husband\xe2\x80\x99s right and denied the wife\xe2\x80\x99s in accordance\nwith the then weight of authority, the American law Institute in Restatement Second\nwill state that the husband and wife have the right on equal terms, adding the\nrequirement\xe2\x80\x94in recognition of the significant procedural point\xe2\x80\x94that where\npossible the consortium claim must be joined with the claim for bodily injury. . . .\nTo a few critics the idea of a right of consortium seems no more than an anachronism\nharking back to the days when a married woman was a chattel slave, and in a\nformulation such as that of the new Restatement they would find a potential for\nindefinitely expansion of a questionable liability. But that formulation, reflecting a\nstrong current of recent decisions, is a natural expression of a dominant (and\ncommonplace) theme of our modern law of torts, namely, that presumptively there\nshould be a recourse for a definite injury to a legitimate interest due to a lack of the\nprudence or care appropriate to the occasion. That it would be very difficult to put\nbounds on an interest and value it is a possible reason for leaving it without a\npossible reason for leaving it without for money damages. But the law is moderately\nconfident about the ability of the trier (subject to the usual checks at the trial and\nappellate levels) to apply common sense to the question. The marital interest is\nquite recognizable and its impairment may be definite, serious, and enduring, more\nso that the pain and suffering or mental or psychic distress for which recovery is\nnow almost routinely allowed in various tort actions. The valuation problem here\nmay be difficult but is not less manageable. Nor does it follow that if the husbandwife relationship is protected as here envisaged, identical protection must be\nafforded by analogy to other relationships from that of parent-child in a lengthy\nregress to that of master-servant; court will rather proceed from case to case with\ndiscerning caution.\n452\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n302 N.E.2d at 561-63. The Diaz court thus recognized symmetrical causes of action for negligent\ninterference with the consortium of a spouse. A few states still resist the cause of action. See,\ne.g., Boucher v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992), followed with reservations by\nFigueroa v. United States, 64 F. Supp.2d 1125 (D. Utah 1999).\n\n2. Children\nMost courts allow fathers and mothers to bring action for loss of the companionship of a\nchild. See, e.g., Lester v. Sayles, 850 S.W.2d 858 (Mo. 1993). The decision to allow such actions\nseems to have been eased by the long existence at common law of actions by fathers for the loss\nof their children\xe2\x80\x99s services.2 The early modern common law had also allowed fathers to recover\nfor the lost earning capacity of children injured by the tortious act of a third party. In the\ntwentieth century, and especially in the second half of the twentieth century, courts have reasoned\nthat \xe2\x80\x9c[t]he remedy of loss of a minor\xe2\x80\x99s earning capacity during minority is of diminishing\nsignificance\xe2\x80\x9d and that \xe2\x80\x9ctoday\xe2\x80\x99s relationship between parents and children is, or should be, more\nthan that between master and servant.\xe2\x80\x9d Davis v. Elizabeth General Medical Center, 548 A.2d 528\n(N.J. 1988) (quoting Shockley v. Prier, 225 N.W. 2d 495 (Wis. 1975)).\nThe question whether to allow actions by children for loss of the companionship and\nsociety of a parent has been more controversial. In Borer v. American Airlines (Cal. 1977), for\nexample the California Supreme Court upheld the dismissal of loss of consortium actions by nine\nchildren of a woman injured by falling lighting equipment. According to Justice Tobriner, writing\nfor the Court in Borer, loss of consortium claims must be narrowly limited because they involve\n\xe2\x80\x9cintangible injury for which money damages do not afford an accurate measure or suitable\nrecompense.\xe2\x80\x9d Moreover, \xe2\x80\x9crecognition of a right to recover for such losses in the present context .\n. . may substantially increase the number of claims asserted in ordinary accident cases, the\nexpense of settling or resolving such claims, and the ultimate liability of the defendants.\xe2\x80\x9d 563\nP.2d 858, 860 (Cal. 1977).\nThe current trend appears to be toward extending loss of consortium actions to children\nfor injuries to their parents. The Massachusetts Supreme Judicial Court, for example, allowed\nsuch actions in Ferriter v. Daniel O\xe2\x80\x99Connell\xe2\x80\x99s Sons, Inc., 413 N.E.2d 690 (Mass. 1980). Squarely\nrejecting Borer, the Ferriter court allowed dependent children to recover loss of consortium in\ncases in which they could establish a dependence that was \xe2\x80\x9crooted in . . . filial needs for closeness,\nguidance and nurture\xe2\x80\x9d and in which they could show injury to these needs. 413 N.E.2d at 696.\nOne recent decision allowing children\xe2\x80\x99s loss of consortium actions identified \xe2\x80\x9c15 courts and two\nstate legislatures [that] have recognized the claim of children for loss of parental consortium.\xe2\x80\x9d\nGiuliani v. Guiler, 951 S.W.2d 318, 319 (Ky. 1977). Citing \xe2\x80\x9c[t]he \xe2\x80\x98ancient fallacy\xe2\x80\x99 . . . that\nchildren do not have identity as individuals and as members of the family separate from the\nparents\xe2\x80\x9d and a \xe2\x80\x9clegislatively expressed public policy . . . to strengthen and encourage the family\xe2\x80\x9d\nthe Kentucky Supreme Court has held that \xe2\x80\x9cit is only logical to recognize that children have a\nright to be compensated for their losses when such harm has been caused to them by the\nwrongdoing of another. It is the purpose of all tort law to compensate one for the harm caused by\nanother and to deter future wrongdoing.\xe2\x80\x9d Id. at 320.\n2\n\nOn the transition from actions for loss of services to actions for loss of support, see John Fabian Witt, From\nLoss of Services to Loss of Support, 25 L. & SOC. INQ. 717 (2000).\n\n453\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nCourts have been considerably more reluctant\xe2\x80\x94even in the face of the modern trend\xe2\x80\x94to\nallow such claims where the victim parent objects to or refuses to cooperate in the suit. Such\ncases typically involve suits sponsored by one parent against a third party for injuries to a second,\nnow-estranged parent. See, e.g., Jacoby. Brinckerhoff, 735 A.2d 347 (Conn. 1999); J.A.H., ex rel\nR.M.H. v. Wadle & Associates, 589 N.W.2d 256 (Iowa 1999).\n\n3. Unmarried Partners\nUnmarried partners have typically had no action for loss of consortium. This is generally\ntrue for \xe2\x80\x9cunmarried cohabiting couples with a \xe2\x80\x98stable and significant relationship . . . parallel to a\nmarital relationship.\xe2\x80\x99\xe2\x80\x9d Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988).\nIn 2003, however, the New Mexico Supreme Court made that state the first jurisdiction in\nthe United States to allow loss of consortium actions by unmarried domestic partners.3\nClaimants must prove an \xe2\x80\x9cintimate familial relationship\xe2\x80\x9d with the victim in order to\nrecover for loss of consortium. Dunphy.4 \xe2\x80\x9cPersons engaged to be married and\nliving together may foreseeably fall into that category of relationship. \xe2\x80\x9c[G]iven the\nwidespread reality and acceptance of unmarried cohabitation, a reasonable person\nwould not find the \xe2\x80\x9csuch a cohabitant\xe2\x80\x99s] emotional trauma to be \xe2\x80\x98remote and\nunexpected.\xe2\x80\x99\xe2\x80\x9d Id.\nOf course, not everyone who is engaged to be married, living together, or assuming\nthe roles of husband and wife (common law or not) will be entitled to recover. The\nclaimant must prove a close familial relationship with the victim. . . . Courts should\npresume that such a relationship exists if the couple fits into one of the above\ncategories, but a myriad of factors should be considered to determine whether the\nrelationship was significant enough to recover.\nThat standard must take into account the duration of the relationship, the degree of\nmutual dependence, the extent of common contributions to a life together, the extent\nand quality of shared experience, and . . . whether the plaintiff and the injured person\nwere members of the same household, their emotional reliance on each other, the\nparticulars of their day to day relationship, and the manner in which they related to\neach other in attending to life\xe2\x80\x99s mundane requirements. [Quoting Dunphy (internal\nquotation marks and citation omitted).]\n66 P.3d at 957. The Lozoya court responded to the defendant\xe2\x80\x99s argument that the rule it was\nannouncing would be unadministrable by observing certain limits:\nFirst, a person can only have an intimate familial relationship with one other person\n\n3\n\nNew Mexico, interestingly enough, has also allowed grandparents to recover for the loss of the consortium of a\ngrandchild in certain cases. See Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (N.M. 1998).\n4\nDunphy v. Gregor, 642 A.2d 372 (N.J. 1994), sought to outline the universe of claimants in negligent infliction\nof emotional distress cases.\n\n454\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nat any one time. That is to say, if a person is married to a different person than the\nvictim of the tort, the claim will be barred. In the case of claims by unmarried\ncohabitants, the relationship between the claimant and the victim must be\ndemonstrated to be committed and exclusive. . . . Second, the burden of proving\nthat an intimate familial relationship existed will be on the claimant, with a\npresumption that this exists if the parties were engaged, married or met the general\ntest for common law marriage. The defendant should not have the burden of\n\xe2\x80\x9cfighting off\xe2\x80\x9d multiple claims for loss of consortium.\n66 P.3d at 958. In the Lozoya case, the Court concluded by reversing the trial judge\xe2\x80\x99s entry of a\ndirected verdict for the defendant on the loss of consortium claim lodged by Sara Lozoya for\ninjuries to Ubaldo Lozoya. Sara and Ubaldo were not married at the time of the car accident that\ngave rise to the lawsuit.\nIn the present case, we cannot deny that Ubaldo and Sara enjoyed a relationship that\nwas very similar, if not identical, to that of the typical married couple, or that a\nreasonable jury could so find. They had lived together in a house that they owned\ntogether for at least fifteen years. They had three children whom they raised\ntogether. They carried the same last name, and they generally enjoyed spending\ntime with one another and participating in social events as a couple. Further, their\nintent to be committed to one another indefinitely is evidenced by their marriage\nshortly after the first accident, despite Ubaldo\xe2\x80\x99s debilitating injuries.\nId. Several courts have specifically declined to adopt Lozoya. See Robinson v. Hartzell\nPropeller, 276 F. Supp. 2d 412 (E.D. Pa. 2003); Milberger v. KBHL, LLC, 486 F. Supp. 1156,\n1165 (D. Hawaii 2007); Conner v. Hodges, 333 P.3d 130 (Idaho 2014); Bailey v. Allderdice, No.\n54618-0-I, 2005 Wash. App. LEXIS 2542 (Wash. Sept. 26, 2005).\nWhat about same-sex couples? In August 2014, the Connecticut Supreme Court allowed\nloss of consortium claims from \xe2\x80\x9cmembers of couples who were not married when the tortious\nconduct occurred, but who would have been married if the marriage had not been barred by state\nlaw.\xe2\x80\x9d Mueller v. Tepler, 95 A.3d 1011, 1023 (Conn. 2014). A federal district court in New Jersey\nrejected a same sex partner\xe2\x80\x99s loss of consortium claim where the claim arose out of injuries\nsuffered before enactment of the state\xe2\x80\x99s civil union statute, which authorizes loss of consortium\nclaims between partners. Is it significant that the plaintiff and her same-sex partner did not enter\ninto a civil union once the New Jersey civil union statute was enacted, and still had not entered\ninto such a union at the time of the court\xe2\x80\x99s decision? See Brigando v. Walt Disney World Co., No.\n06-1191 (SRC), 2007 WL 3124702 (D.N.J. Oct. 23, 2007).\nDo unmarried couples, including same sex couples, have a better argument for loss of\nconsortium, or a worse argument, after the legalization of same-sex marriage?\n\nG. Tort Immunities\nSo far we\xe2\x80\x99ve seen a number of domains carved out from the standard of reasonableness.\nWe\xe2\x80\x99ve read that there is no general duty to rescue; that there are limited duties imposed on\nlandowners and occupiers; that the remedies for emotional distress injuries, pure economic loss\n455\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\ninjuries, and relational harms are highly constrained; and that any number of unusual or\nunexpected harms are held to be outside an actor\xe2\x80\x99s obligations.\nIn addition to these doctrines, there are a number of long-standing immunity doctrines in\nthe common law that bar suits altogether on the basis of the status of the defendant. Some of them\nhave been substantially cut back. But many of them are still robust.\nThe result is that in a very large number of social settings, tort defendants are protected by\na limited- or no-duty rule or an immunity doctrine. As these protections multiply, it becomes\nunclear what the general rule of American tort law is. Is it a general rule of liability for harms\ncaused by unreasonable acts, with specific exceptions? Or is it instead a general rule of no\nliability, with special exceptions for certain harms caused by unreasonable acts?\n\n1. Intrafamilial Immunities\nTraditionally, under the common law of coverture, courts prevented suits between spouses\nbecause of their supposed metaphysical unity or the husband\xe2\x80\x99s authority. As the English jurist\nWilliam Blackstone put it, \xe2\x80\x9chusband and wife\xe2\x80\x9d were \xe2\x80\x9cone person in law,\xe2\x80\x9d and \xe2\x80\x9cthe very being or\nlegal existence of the woman\xe2\x80\x9d was \xe2\x80\x9csuspended during the marriage\xe2\x80\x9d or \xe2\x80\x9cincorporated and\nconsolidated into that of the husband.\xe2\x80\x9d Blackstone, Commentaries on the Laws of England, bk. 1,\nch. 15 (1765). In the nineteenth century, the Married Woman\xe2\x80\x99s Property Acts enacted in most\nstates allowed wives to bring actions against their husbands for property torts, such as trespass and\nconversion. But courts continued to enforce spousal immunity for personal torts because of\nconcerns for marital harmony or fraud and collusion. See Carl Tobias, Interspousal Tort\nImmunity in America, 23 GA. L. REV. 359, 441 (1989). Indeed, on one account, courts adopted\nwider and wider ideas about marital privacy that effectively immunized domestic abusers (mostly\nmale) from damages. See Reva B. Siegel, \xe2\x80\x9cThe Rule of Love\xe2\x80\x9d: Wife Beating as Prerogative and\nPrivacy, 105 YALE L.J. 2117 (1996). Today, most states have rejected these rationales and\nabrogated spousal immunity, at least as a doctrinal matter. See, e.g., Leach v. Leach, 227 Ark.\n599 (1957). The Second Restatement adopts this approach. RESTATEMENT (SECOND) OF TORTS \xc2\xa7\n895F (1979).\nSimilarly, most states have abrogated traditional parental immunity, either doing so\nentirely (Gibson v. Gibson, 3 Cal.3d 914 (1971)), or at least cutting back significantly on the\nimmunity of parents for torts to their children. States adopting something less than complete\nabolition of the immunity typically allow a child\xe2\x80\x99s tort lawsuit except those arising out of acts of\nparental authority or discretionary parental responsibility. See Goller v. White, 20 Wis. 2d 402\n(Wis. 1963). Some states persist with robust versions of parental immunity, applying it even as\nagainst non-custodial parents. See Ascuitto v. Farricielli, 711 A.2d 708 (Conn. 1998).\nDespite doctrinal liberalization, intrafamilial tort suits continue to face serious practical\nobstacles. Most tort suits are viable because some form of liability insurance offers the hope that\nthere will be assets to collect in the event of success. But notwithstanding these doctrinal\nchanges, many insurance companies write exclusions of intrafamilial claims into their insurance\npolicies. Why do insurance companies write such exclusions into their policies? The worry is\ncollusive suits in which parent and child collude to extract money from the insurer.\n\n456\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nSome state legislatures have barred such insurance exclusions with respect to mandatory\nautomobile insurance. See, e.g., Ohio Rev. Code \xc2\xa7 3937.46 (2017); Rupert v. Stienne, 528 P.2d\n1013, 1016-17 (Nev. 1974). Some defend the illegality of such exclusions on the ground that they\nare an impermissible end-run around the conscious policy change of the courts to allow\nintrafamilial suits. But note that requiring insurers to offer insurance against intrafamilial torts\nmay effectively require families that are safe for children to subsidize the insurance of families\nthat are dangerous for children. One alternative for insurers would be to develop intrusive\nmechanisms for monitoring the parenting of their insureds, which would allow them to terminate\npolicies for families with children at risk, or to charge higher premiums. Does the pervasiveness\nof the exclusion in liability policies (other than vehicular liability policies) suggest that tort law is\nonly a mechanism for governing intrafamilial conduct in wealthy families?\n\n2. Charitable Immunity\nAmerican courts long embraced a doctrine of charitable immunity. See, e.g., McDonald v.\nMass. Gen. Hosp., 120 Mass. 432 (1876). This was a distinctively American rule; English courts\nallowed tort suits against charitable enterprises. American courts reasoned that subjecting\ncharities to liability would redirect their resources, preventing them from conducting their\ncharitable activities in accordance with the public good. Courts often rationalized the immunity\non the theory that the charity\xe2\x80\x99s funds had been entrusted to the organization by donors for specific\npurposes that did not include paying damages to tort victims. They sometimes contended that the\nusual respondeat superior doctrines were inapplicable outside the for-profit context. When the\nplaintiff was a beneficiary of the charitable enterprise, courts cited a doctrine of implied waiver.\nSee Dille v. St. Luke\xe2\x80\x99s Hospital, 355 Mo. 436 (1946).\nOver time, states created exceptions to the doctrine of charitable immunity, for example,\nby recognizing a cause of action for strangers while continuing to bar suits by beneficiaries. See,\ne.g., Byrd Theatre Foundation v. Barnett, 754 S.E.2d 299 (Va. 2014); Alabama Baptist Hosp. Bd.\nv. Carter, 226 Ala. 109 (1932). Today, most states have abrogated the immunity altogether. See,\ne.g., President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942).\nThe Second Restatement, for example, discourages any such immunity. RESTATEMENT (SECOND)\nOF TORTS \xc2\xa7 895E (1979). Some states preserve the immunity, e.g., George v. Jefferson Hosp.\nAss\xe2\x80\x99n, 987 S.W.2d 710 (Ark. 1999). In other states, legislatures restored a weakened immunity,\nsuch as caps on damage awards against charities, see, e.g., Mass. Gen. L. Ch. 231, \xc2\xa7 85 ($20,000),\nor a restriction of liability to cases of gross negligence, see, e.g., Crowley v. Bob Jones University,\n234 S.E.2d 879 (S.C. 1977), or a restriction of liability to strangers rather than beneficiaries, see,\ne.g., N.J. Stat. Ann. 2A:53A-7 (2017).\n\n3. Employers\xe2\x80\x99 Immunity\nAs you will recall from Chapter 5, the common law of employers\xe2\x80\x99 liability famously set\nout a formidable panoply of employer defenses, including assumption of the risk and contributory\nnegligence, which made it difficult for many employees to recover for injuries arising out of the\nnegligence of their employers. Since the enactment of workers\xe2\x80\x99 compensation laws beginning a\ncentury ago, most employers have had to pay administrative compensation for workplace injuries.\n\n457\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe workers\xe2\x80\x99 compensation regime, however, has brought its own form of common law\nimmunity. The New York compensation program, for example, provides that\n[t]he liability of an employer [under the workers\xe2\x80\x99 compensation law] shall be\nexclusive and in place of any other liability whatsoever, to such employee . . . or\nany person otherwise entitled to recover damages, contribution or indemnity, at\ncommon law or otherwise, on account of such injury or death . . . .\nN.Y. WORK. COMP. LAW \xc2\xa7 11. Workers\xe2\x80\x99 compensation programs like the one in New York thus\noffer a form of tort immunity, immunizing employers from common law tort liability as the quid\npro quo for employees\xe2\x80\x99 new statutory no-fault compensation claim. Other common law countries\nhave adopted workers\xe2\x80\x99 compensation systems without immunity: injured employees in Great\nBritain, for example, choose between tort suits or compensation claims after being injured. Law\nReform (Personal Injuries) Act, 1948, 11 & 12 Geo. 6, c. 41 (Eng.). Moreover, the leading early\nstatute in the United States also offered injured workers a choice between a common law action\nand a workers\xe2\x80\x99 compensation claim. But as we saw in the case of Ives v. South Buffalo Railway\nabove in Chapter 3, the courts struck down this first compensation statute as unconstitutional.\nVirtually all the compensation statutes that followed adopted the immunity provision in the\ncurrent New York statute.\nThis distinctive feature of American employers\xe2\x80\x99 immunity is qualified by the fact that, as\nwe saw briefly in Chapter 3, injured employees may still bring products liability actions against\nthird-party product manufacturers for injuries arising out of the workplace, and that those\nmanufacturers in some states may then implead the employer, effectively producing the\nemployee-versus-employer tort suits characteristic of the pre-workers\xe2\x80\x99 compensation era. By\nsome estimates, two-thirds of common law products liability suits arise out of workplace injuries.\nWe will read more about products cases in the next chapter, Chapter 9.\n\n4. Sovereign Immunity\nSince at least the time of King Edward I, the common law held that the King could do no\nwrong. The King\xe2\x80\x99s courts were his own creation and therefore could not hold him to account,\nespecially not for money damages. In the United States, the doctrine of sovereign immunity has\npersisted, despite the absence of a king, though with substantial alterations.\nWhy did sovereign immunity exist? The doctrine of sovereign immunity originated in the\nking\xe2\x80\x99s personal immunity. According to Blackstone, sovereign immunity was conceptually\nrequired as a consequence of the King\xe2\x80\x99s supremacy: \xe2\x80\x9cno suit or action can be brought against the\nKing, even in civil matters, because no court can have jurisdiction him. For all jurisdiction\nimplies superiority of power . . . .\xe2\x80\x9d 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF\nENGLAND 235. Because of the impossibility of subjecting the king to a court\xe2\x80\x99s jurisdiction, \xe2\x80\x9cthe\nlaw also ascribes to the King, in his political capacity, absolute perfection. The King can do no\nwrong . . . .\xe2\x80\x9d Id. at 238.\nIn the United States, Justice Joseph Story and Learned Hand offered two additional\njustifications for the doctrine, more consistent with the country\xe2\x80\x99s republican character.\n\n458\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nThe government itself is not responsible for the misfeasances or wrongs, or\nnegligences, or omissions of duty of the subordinate officers or agents employed in\nthe public service; for it does not undertake to guarantee to any person the fidelity\nof any of the officers or agents whom it employs; since that would involve it, in all\nits operations, in endless embarrassments, and difficulties, and losses, which would\nbe subversive of the public interests.\nSTORY ON AGENCY \xc2\xa7 319 (1839).\nIf it were possible to confine . . . the complaints to the guilty, it would be monstrous\nto deny recovery. The justification is . . . that it is impossible to know whether the\nclaim is well founded until the case has been tried, and that to submit all officials,\nthe innocent as well as the guilty, to the burden of a trial . . . would dampen the\nardor of all but the most resolute, or the most irresponsible, in the unflinching\ndischarge of their duties. . . . In this instance, it has been thought in the end better to\nleave unredressed the wrongs done by dishonest officers than to subject those who\ntry to do their duty to the constant dread of retaliation.\nGregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) (L. Hand, J.), cert. denied, 339 U.S. 949 (1950).\nSome early post-revolutionary states allowed actions against themselves in the state\ncourts, though usually they made any damages payments contingent on a subsequent (and\ndiscretionary) appropriation by the legislative branch. But for most of American history,\nsovereign immunity and its rationales meant that petitions to the state legislatures for\ndiscretionary compensation in private bills\xe2\x80\x94rather than lawsuits in the state courts\xe2\x80\x94were the\nstandard mechanism for gaining redress from the state for wrongs.\nIn the middle of the twentieth century, however, many states and the federal government\nshifted from private bills by waiving their sovereign immunity and allowing, subject to certain\nlimits, lawsuits against themselves for injuries. At the federal level, the Federal Tort Claims Act\nof 1946 set the terms that govern the liability of the federal government to this day. Consider the\nfollowing case:\n\nBaum v. U.S., 986 F.2d 716 (4th Cir. 1993)\nWIDENER, J.\nThis appeal requires us to examine the scope of the discretionary function exception to the\nlimited waiver of sovereign immunity provided for in the Federal Tort Claims Act . . . .\nAppellants Price A. Baum and Margaret Leedy were injured in an automobile accident in which\ntheir vehicle penetrated a guardrail on a bridge over the Baltimore-Washington Parkway, causing\nthem to fall to the roadway below. The bridge and guardrail system was owned and maintained\nby the United States Department of Interior, National Park Service. Baum and Leedy brought suit\nagainst the United States pursuant to the FTCA, claiming negligence in the design, construction,\nand maintenance of the guardrail system in question. The district court dismissed the action on\nthe government\xe2\x80\x99s motion, holding that all of the government actions complained of were\ninherently ones involving choice and policy considerations, and thus fell within the discretionary\nfunction exception to the FTCA. Finding no error, we affirm.\n459\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nI\nThe accident giving rise to the instant action occurred on May 24, 1987, when Baum was\ndriving [and] Leedy was a passenger in Baum\xe2\x80\x99s van. In their complaints Baum and Leedy allege\nthat a vehicle being driven westbound on Route 198 by one Michael Massey crossed into the\neastbound lane on or near the bridge and collided with the driver\xe2\x80\x99s side of Baum\xe2\x80\x99s van. Following\nthe collision, the Baum vehicle caromed off the south side of the road and ran into a curved stone\nbridge approach adjacent to the eastbound lanes. That collision, in turn, caused the van to\nrebound across the eastbound and westbound lanes of the bridge on Route 198. There the van\nwent over a curb, crossed a sidewalk, and hit a steel bridge rail mounted on cast iron bridge posts.\nThe guardrail gave way upon impact and the van fell 22 feet to the southbound lanes of the\nBaltimore-Washington parkway.\n...\n[Baum and Leedy brought suit under the FTCA claiming their injuries were the result of\nthe negligence of the National Park Service in designing, constructing, and maintaining the\nguardrail.] The government moved for dismissal or, in the alternative, summary judgment on the\ngrounds that the actions of the government with respect to the guardrail fell within the\ndiscretionary function exception to the FTCA and that the negligence action was thus barred by\nsovereign immunity. On May 23, 1991 the district court granted the government\xe2\x80\x99s motion and\ndismissed the case. Baum and Leedy now appeal from that dismissal.\nII\nA\nThe FTCA waives the sovereign immunity of the United States so that the government\nmay be liable in tort \xe2\x80\x9cin the same manner and to the same extent as a private individual under like\ncircumstances . . . .\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2674. This broad waiver of immunity is tempered by a rather\nextensive list of exceptions found at 28 U.S.C. \xc2\xa7 2680. The instant case involves one of the more\nimportant, and certainly one of the most often-contested, exceptions, the discretionary function\nexception of 28 U.S.C. \xc2\xa7 2680(a). That exception provides that the FTCA\xe2\x80\x99s waiver of the federal\nimmunity \xe2\x80\x9cshall not apply to\xe2\x80\x94[a]ny claim . . . based upon the exercise or performance or the\nfailure to exercise or perform a discretionary function or duty on the part of a federal agency or an\nemployee of the Government, whether or not the discretion be abused.\xe2\x80\x9d\nThe discretionary function exception \xe2\x80\x9cmarks the boundary between Congress\xe2\x80\x99 willingness\nto impose tort liability upon the United States and its desire to protect certain governmental\nactivities from exposure to suit by private individuals\xe2\x80\x9d [citing United States v. Varig Airlines].\nThe Supreme Court has further identified the purpose of the exception as follows:\nCongress wished to prevent judicial \xe2\x80\x9csecond-guessing\xe2\x80\x9d of legislative and\nadministrative decisions grounded in social, economic, and political policy through\nthe medium of an action in tort. By fashioning an exception for discretionary\ngovernmental functions, including regulatory activities, Congress took \xe2\x80\x9csteps to\nprotect the Government from liability that would seriously handicap efficient\ngovernment operations.\xe2\x80\x9d\n460\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nVarig Airlines.\n...\nIn [Berkovitz v. United States] and [United States v. Gaubert], the Court settled upon and\nthen clarified a two-tier analysis for identifying discretionary functions. When evaluating a claim\nunder the FTCA, we must ask first whether the governmental action complained of \xe2\x80\x9cinvolves an\nelement of judgment or choice.\xe2\x80\x9d The inquiry boils down to whether the government conduct is\nthe subject of any mandatory federal statute, regulation, or policy prescribing a specific course of\naction. If such a mandatory statute, regulation, or policy applies, then the conduct involves no\nlegitimate element of judgment or choice and the function in question cannot be said to be\ndiscretionary.\n...\nIf no such mandatory statute, regulation, or policy applies to remove the challenged\nconduct from the choice and judgment of the government, then we move to the second tier of the\nBerkovitz-Gaubert analysis and ask whether the choice or judgment involved is one \xe2\x80\x9cbased on\nconsiderations of public policy.\xe2\x80\x9d This requirement is consistent with and mandated by the general\npurpose underlying the FTCA and the discretionary function exception, i.e., to balance Congress\xe2\x80\x99\ndesire to allow redress of injuries suffered through the negligence of government actors against\nthe need to protect the government from being hobbled in the discharge of its policy-driven duties\nby tort suits. In Gaubert, the Court provided an illustration of the operation of this requirement\nthat we think particularly helpful in its application:\nThere are obviously discretionary acts performed by a Government agent that are\nwithin the scope of his employment but not within the discretionary function\nexception because these acts cannot be said to be based on the purposes that the\nregulatory regime seeks to accomplish. If one of the officials involved in this case\ndrove an automobile on a mission connected with his official duties and negligently\ncollided with another car, the exception would not apply. Although driving requires\nthe constant exercise of discretion, the official\xe2\x80\x99s decisions in exercising that\ndiscretion can hardly be said to be grounded in regulatory policy.\nFinally, we note one further point with respect to the application of the second element of\nthe foregoing analysis that we believe Gaubert clarified. Rather than requiring a fact-based\ninquiry into the circumstances surrounding the government actor\xe2\x80\x99s exercise of a particular\ndiscretionary function, we are of opinion that a reviewing court in the usual case is to look to the\nnature of the challenged decision in an objective, or general sense, and ask whether that decision\nis one which we would expect inherently to be grounded in considerations of policy. To quote the\nCourt:\nWhen established governmental policy, as expressed or implied by statute,\nregulation, or agency guidelines, allows a Government agent to exercise discretion,\nit must be presumed that the agent\xe2\x80\x99s acts are grounded in policy when exercising\nthat discretion. For a complaint to survive a motion to dismiss, it must allege facts\nwhich would support a finding that the challenged actions are not the kind of\nconduct that can be said to be grounded in the policy of the regulatory regime. The\nfocus of the inquiry is not on the agent\xe2\x80\x99s subjective intent in exercising the discretion\n461\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nconferred by statute or regulation, but on the nature of the actions taken and on\nwhether they are susceptible to policy analysis.\nGaubert, 499 U.S. at ___ n.7, 111 S.Ct. at 1275 n.7.\n...\nB\nBaum and Leedy argue that the National Park Service was negligent in designing and\nconstructing the bridge guardrail in question in that cast iron, rather than cast steel, was used to\nconstruct the posts holding the steel bridge rail. The National Park Service constructed the bridge\nin the early 1950\xe2\x80\x99s. Second, they claim the Park Service negligently failed to maintain the\nguardrail system during the time preceding their accident. We address separately the two types of\nclaims.\n1\nAs to the design and construction claim, . . . Baum and Leedy\xe2\x80\x99s only real allegation of\nnegligence appears to be that the selection of cast iron as the material for the guardrail posts fell\nbelow an objective standard of reasonableness; thus we inquire whether any law or official policy\nof that period mandated the exclusive use of cast steel in such projects.\nBaum and Leedy strive mightily to find in the legislation authorizing construction of the\nBaltimore-Washington Parkway a specific Congressional mandate from which the Park Service\ndeviated in constructing the guardrail as it did. They suggest that the following portion of that\nlegislation constitutes such a mandate:\nThe [Baltimore-Washington] parkway shall be constructed, developed, operated,\nand administered as a limited access road primarily to provide a protected, safe, and\nsuitable approach for passenger-vehicle traffic to the National Capital . . . .\nWe are of opinion that this very general, sweeping language is insufficient to remove\nquestions of design and construction of guardrails on the parkway from the discretion of the\nNational Park Service. . . . Surely such language cannot be interpreted as removing all safetyrelated decisions from the discretion of the agency administering the project.\nFinding no mandatory law governing the design and construction of the parkway\nguardrails, we turn to the second element of the Berkovitz-Gaubert analysis: whether the choice of\nmaterials to be used in the guardrails is a choice of the type that normally involves considerations\nof public policy. The question of what materials to use in such a project is also fundamentally\ndescribed as a question of how to allocate limited resources among competing needs. Considered\nin this light, we are of opinion that the Park Service\xe2\x80\x99s decision in this regard plainly was one\nbound up in economic and political policy considerations. As the Court [in Gaubert] has stated in\nthe related context of a regulatory agency, \xe2\x80\x9c[w]here Congress has delegated the authority . . . to\nthe executive branch to implement the general provisions of a regulatory statute and to issue\nregulations to that end, there is no doubt that planning-level decisions establishing programs are\nprotected by the discretionary function exception.\xe2\x80\x9d . . . Accordingly, we concur with the district\ncourt\xe2\x80\x99s dismissal of the claims related to design and construction.\n462\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n2\nNext we turn to Baum and Leedy\xe2\x80\x99s argument that the Park Service negligently maintained\nthe guardrail system in the years preceding their accident. . . . [W]e find no mandatory statute,\nregulation, or policy governing the Park Service\xe2\x80\x99s maintenance of bridges or guardrails on park\nproperty; thus maintenance, like design and construction, is a function subject to the judgment of\nthe Park Service. The only remaining question, then, is whether Park Service judgments\ninvolving when and how to maintain its bridges and guardrails are of the type normally involving\nconsiderations of economic, social, or political policy.\nHere we begin by examining exactly what Baum and Leedy contend that the Park Service\nshould have done in the way of \xe2\x80\x9cmaintenance\xe2\x80\x9d of the guardrail system in this case. As we have\ndescribed, the allegedly defective guardrail system was comprised of a steel guardrail supported\nby cast iron posts. Despite Baum and Leedy\xe2\x80\x99s allegation of negligence in what they call the\n\xe2\x80\x9cmaintenance\xe2\x80\x9d of the guardrail system, nowhere have they suggested that the allegedly defective\ncondition of the guardrail system could have been remedied by any action short of outright\nreplacement of the cast iron posts. Indeed, Baum and Leedy appear not to dispute the\ngovernment\xe2\x80\x99s assertion that the only act of maintenance that could have put the guardrail in\ncompliance with current engineering standards is outright replacement.\nIn light of the nature of Baum and Leedy\xe2\x80\x99s maintenance argument, we are of opinion that\nthe Park Service\xe2\x80\x99s judgment in this regard falls as squarely within the discretionary function\nexception as do its decisions with respect to design and construction. The decision of how and\nwhen to replace a major element of a substantial public facility is, like the decisions involving\ndesign and construction, at bottom a question of how best to allocate resources. . . . While we do\nnot suggest that every maintenance decision of every government actor is so policy-based as to\nfall within the discretionary function exception, on the facts of this case we should reach no other\nresult.\nThe judgment of the district court is accordingly affirmed.\n\nNotes\n\n1. Plaintiffs occasionally prevail. While the discretionary function exception often bars\nplaintiffs from recovering against the government, the 1988 case of Berkovitz v. United States\nshows that plaintiffs can prevail. Two-month-old Kevin Berkovitz contracted polio within one\nmonth of taking an oral polio vaccine approved by the FDA. The Berkovitz family sued, alleging\nthat the FDA had failed to follow its own policy of testing all vaccine lots. The Third Circuit held\nthat the licensing and release of polio vaccines are wholly discretionary actions protected by the\ndiscretionary function exception. The Supreme Court, however, found that the government had\n\xe2\x80\x9cadopted a policy of testing all vaccine lots for compliance with safety standards and preventing\nthe distribution to the public of any lots that fail to comply.\xe2\x80\x9d The Court concluded, therefore, that\nthe Berkovitz family\xe2\x80\x99s complaint was directed at a government action that involved no policy\ndiscretion. Justice Marshall, writing for a unanimous Court, explained that \xe2\x80\x9cthe discretionary\nfunction exception will not apply when a federal statute, regulation, or policy specifically\nprescribes a course of action for an employee to follow.\xe2\x80\x9d 486 U.S. 531, 536 (1988).\n463\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n2. Exception swallowing the rule? The discretionary function exception sometimes seems to\nundo FTCA liability altogether. Is there really a negligence maintenance claim that could survive\nthe Baum court? Consider the Sixth Circuit case Rosebush v. United States, in which a child fell\ninto a fire pit at a national park campsite maintained by the Forest Service. The majority in\nRosebush held that the choice of whether to install a grating or railing over the fire pit fell within\nthe discretionary function exception. Dissenting Judge Gilbert Merritt had this to say about the\nexception:\nOur Court\xe2\x80\x99s decision in this case means that the discretionary function exception\nhas swallowed, digested and excreted the liability-creating sections of the Federal\nTort Claims Act. It decimates the Act.\n...\nI do not agree that the Forest Service\xe2\x80\x99s decision regarding whether to place a grating,\na railing, or a warning near a campfire pit is the kind of judgment that the\ndiscretionary function exception was designed to shield. In Gaubert, the Supreme\nCourt explained that the discretionary function exception protects only\ngovernmental actions and decisions \xe2\x80\x9cgrounded in the policy of the regulatory\nregime.\xe2\x80\x9d The reasoning behind the exception was to \xe2\x80\x9cprevent judicial \xe2\x80\x98second\nguessing\xe2\x80\x99 of legislative and administrative decisions grounded in social, economic,\nand political policy through the medium of an action in tort.\xe2\x80\x9d Although I agree with\nthe majority that safety precautions involve some judgment, I do not agree that the\ndecision of the United States Forest Service in this case is grounded in the \xe2\x80\x9cpolicy\nof the regulatory regime.\xe2\x80\x9d I fail to see a social, economic, or political policy behind\na decision regarding whether to place gratings or railings or signs near a fire pit to\nmake it safer for the public.\nRosebush v. U.S., 119 F.3d 438 (6th Cir. 1997).\n\n3. Other exceptions to the FTCA. The discretionary function exception is not the only\nexception to the FTCA\xe2\x80\x99s waiver of sovereign immunity. 28 U.S.C. \xc2\xa7 2680. The FTCA also\nexcludes, inter alia, certain claims \xe2\x80\x9carising in respect of the assessment or collection of any tax or\ncustoms duty, or the detention of . . . property by any officer of customs or excise or any other law\nenforcement officer,\xe2\x80\x9d 28 U.S.C. \xc2\xa72680(c); certain intentional tort claims against \xe2\x80\x9claw enforcement\nofficers,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2680(h); \xe2\x80\x9c[a]ny claim arising out of the combatant activities of the\nmilitary . . . during a time of war,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2680(j); and \xe2\x80\x9c[a]ny claim arising in a foreign\ncountry,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2680(k).\nRecent Supreme Court decisions clarify the boundaries of these exceptions. In Ali v. Fed.\nBureau of Prisons, 552 U.S. 214 (2008), the Court ruled that the detention of property exception\ncovers all law enforcement officers, not only those who enforce customs or excise laws.\nSimilarly, in Millbrook v. United States, 569 U.S. 50 (2013), the Court ruled that the FTCA\xe2\x80\x99s\nintentional tort exception extends all acts or omissions that arise within the scope of a law\nenforcement officer\xe2\x80\x99s employment, regardless of whether they are engaged in investigative or law\nenforcement activity. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court denied relief to\na Mexican alien who alleged that he was unlawfully abducted from Mexico and arrested in the\n464\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nUnited States. The Court ruled that the foreign country exception barred the claim. In Smith v.\nUnited States, 507 U.S. 197 (1993), the Court ruled that the exception applies to Antarctica.\n4. A panoply of exceptions. The FTCA waives sovereign immunity where \xe2\x80\x9ca private person,\nwould be liable to the claimant in accordance with the law of the place where the act or omission\noccurred.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 1346 b(1). In United States v. Olson, 546 U.S. 43 (2005), the Supreme\nCourt unanimously reversed the Ninth Circuit\xe2\x80\x99s ruling that the FTCA waives sovereign immunity\nwhere a state or municipal entity would be liable.\nThe FTCA provides that \xe2\x80\x9c[t]he United States . . . shall not be liable for interest prior to\njudgment or for punitive damages.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2674. In FAA v. Cooper, 132 S. Ct. 1441\n(2012), the Supreme Court denied punitive damages to a pilot who sued the FAA, DOT, and SSA\nfor disclosing his HIV positive status in violation of the Privacy Act of 1974. However, in Molzof\nv. United States, 502 U.S. 301 (1992), the Court ruled that the exception does not bar damages for\nloss of enjoyment of life and future medical expenses when their recovery does not depend on any\nproof that the defendant engaged in intentional or egregious misconduct and their purpose is not\nto punish.\n\n5. Katrina canal breaches litigation. In the aftermath of Hurricane Katrina, Louisiana\nresidents brought a lawsuit against the Army Corp of Engineers (\xe2\x80\x9cCorps\xe2\x80\x9d), seeking compensation\nfor flooding damages.\nThe government\xe2\x80\x99s defense rested in part on the discretionary-function exception (\xe2\x80\x9cDFE\xe2\x80\x9d)\nto the Federal Tort Claims Act (\xe2\x80\x9cFTCA\xe2\x80\x9d), alleging that the Corps\xe2\x80\x99s conduct in question\nconstituted a discretionary function of a federal agency. Plaintiffs disputed the application of\nDFE based on three grounds, which the Fifth Circuit Court of Appeals described as follows:\nFirst, they claim that the impact-review requirement of the National Environmental\nPolicy Act (\xe2\x80\x9cNEPA\xe2\x80\x9d) constituted a legal mandate that overrides the Corps\xe2\x80\x99s\ndiscretion. Next, they maintain that one or more project authorizations created a\nnon-discretionary duty to armor the banks of MRGO. Finally, they argue that the\ncritical calculation made by the Corps in waiting to armor MRGO was an erroneous\nscientific judgment, not a decision susceptible to public-policy considerations.\n696 F.3d 436, 449 (5th Cir. 2012).\nA panel of the Fifth Circuit initially held that the DFE defense did not immunize the\ngovernment against damages caused by Katrina\xe2\x80\x99s effects on MRGO. Id. at 391. Reasoning that\nthe immunity defense under the DFE required that the conduct in question involve \xe2\x80\x9can element of\njudgment or choice\xe2\x80\x9d and constitute \xe2\x80\x9cgovernmental actions and decisions based on considerations\nof public policy,\xe2\x80\x9d the panel rejected the discretionary function defense. Id. at 392 (quoting\nFreeman v. United States, 556 F.3d 326, 337 (5th Cir. 2009)). In particular, the court found that\nthe Corps\xe2\x80\x99s delay in armoring the banks failed to satisfy the second prong of the requirement, as\nthe delay did not involve \xe2\x80\x9ca decision rooted in public-policy considerations\xe2\x80\x9d but \xe2\x80\x9can erroneous\nscientific judgment.\xe2\x80\x9d Id. at 394.\n\n465\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nOn rehearing, however, the panel reversed itself, finding that the government enjoyed\nDFE immunity:\nthere is ample record evidence indicating the public-policy character of the Corps\xe2\x80\x99s\nvarious decisions contributing to the delay in armoring Reach 2. Although the\nCorps appears to have appreciated the benefit of foreshore protection as early as\n1967, the record shows that it also had reason to consider alternatives (such as\ndredging and levee \xe2\x80\x9clifts\xe2\x80\x9d) and feasibility before committing to an armoring strategy\nthat, in hindsight, may well have been optimal. The Corps\xe2\x80\x99s actual reasons for the\ndelay are varied and sometimes unknown, but there can be little dispute that the\ndecisions here were susceptible to policy considerations. Whatever the actual\nreasons for the delay, the Corps\xe2\x80\x99s failure to armor timely Reach 2 is shielded by the\nDFE.\n696 F.3d 436, 451 (5th Cir. 2012) (footnote omitted).\n\n6. Local governmental immunity? Local governments in the United States were initially\ndeemed to have the same liability as private corporations. But beginning in the middle of the\nnineteenth century, courts began to distinguish between local governments in their governmental\ncapacity, in which they would enjoy sovereign immunity of the state, and local governments in\ntheir proprietary capacity, in which they would not. See Note, Municipal Tort Liability, 7 DUKE\nL.J. 142, 142-43 (1958). Today, the state-level waivers of sovereign immunity typically waive\nthe sovereign immunity of local governments in their governmental capacity. Nonetheless,\nquestions of local government tort liability continue to raise tricky problems. Consider the \xe2\x80\x9ccrazy\nlove\xe2\x80\x9d case that gripped New York City for nearly a decade after the 1959 events that led to it:\n\nRiss v. City of New York, 22 N.Y.2d 579 (1968)\nBREITEL, J.\nThis appeal presents, in a very sympathetic framework, the issue of the liability of a\nmunicipality for failure to provide special protection to a member of the public who was\nrepeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of\nsuch protection. The facts are amply described in the dissenting opinion and no useful purpose\nwould be served by repetition. The issue arises upon the affirmance by a divided Appellate\nDivision of a dismissal of the complaint, after both sides had rested but before submission to the\njury.\nIt is necessary immediately to distinguish those liabilities attendant upon governmental\nactivities which have displaced or supplemented traditionally private enterprises, such as are\ninvolved in the operation of rapid transit systems, hospitals, and places of public assembly. Once\nsovereign immunity was abolished by statute the extension of liability on ordinary principles of\ntort law logically followed. To be equally distinguished are certain activities of government\nwhich provide services and facilities for the use of the public, such as highways, public buildings\nand the like, in the performance of which the municipality or the State may be liable under\nordinary principles of tort law. The ground for liability is the provision of the services or facilities\nfor the direct use by members of the public.\n466\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nIn contrast, this case involves the provision of a governmental service to protect the public\ngenerally from external hazards and particularly to control the activities of criminal wrongdoers. .\n. . The amount of protection that may be provided is limited by the resources of the community\nand by a considered legislative-executive decision as to how those resources may be deployed.\nFor the courts to proclaim a new and general duty of protection in the law of tort, even to those\nwho may be the particular seekers of protection based on specific hazards, could and would\ninevitably determine how the limited police resources of the community should be allocated and\nwithout predictable limits. This is quite different from the predictable allocation of resources and\nliabilities when public hospitals, rapid transit systems, or even highways are provided.\nBefore such extension of responsibilities should be dictated by the indirect imposition of\ntort liabilities, there should be a legislative determination that that should be the scope of public\nresponsibility . . . .\nIt is notable that the removal of sovereign immunity for tort liability was accomplished\nafter legislative enactment and not by any judicial arrogation of power (Court of Claims Act, s 8).\nIt is equally notable that for many years, since as far back as 1909 in this State, there was by\nstatute municipal liability for losses sustained as a result of riot . . . . Yet even this class of liability\nhas for some years been suspended by legislative action . . . , a factor of considerable significance.\nWhen one considers the greatly increased amount of crime committed throughout the\ncities, but especially in certain portions of them, with a repetitive and predictable pattern, it is easy\nto see the consequences of fixing municipal liability upon a showing of probable need for and\nrequest for protection. To be sure these are grave problems at the present time, exciting high\npriority activity on the part of the national, State and local governments, to which the answers are\nneither simple, known, or presently within reasonable controls. To foist a presumed cure for these\nproblems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and\nan assumption of judicial wisdom and power not possessed by the courts.\n...\nFor all of these reasons, there is no warrant in judicial tradition or in the proper allocation\nof the powers of government for the courts, in the absence of legislation, to carve out an area of\ntort liability for police protection to members of the public. Quite distinguishable, of course, is\nthe situation where the police authorities undertake responsibilities to particular members of the\npublic and expose them, without adequate protection, to the risks which then materialize into\nactual losses.\nAccordingly, the order of the Appellate Division affirming the judgment of dismissal\nshould be affirmed.\nKEATING, J., dissenting.\nLinda Riss, an attractive young woman, was for more than six months terrorized by a\nrejected suitor well known to the courts of this State, one Burton Pugach. This miscreant,\nmasquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if\nshe did not yield to him: \xe2\x80\x9cIf I can\xe2\x80\x99t have you, no one else will have you, and when I get through\nwith you, no one else will want you.\xe2\x80\x9d In fear for her life, she went to those charged by law with\n467\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nthe duty of preserving and safeguarding the lives of the citizens and residents of this State.\nLinda\xe2\x80\x99s repeated and almost pathetic pleas for aid were received with little more than\nindifference. Whatever help she was given was not commensurate with the identifiable danger.\nOn June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event,\nshe received a phone call warning her that it was her \xe2\x80\x9clast chance.\xe2\x80\x9d Completely distraught, she\ncalled the police, begging for help, but was refused. The next day Pugach carried out his dire\nthreats in the very manner he had foretold by having a hired thug throw lye in Linda\xe2\x80\x99s face. Linda\nwas blinded in one eye, lost a good portion of her vision in the other, and her face was\npermanently scarred. After the assault the authorities concluded that there was some basis for\nLinda\xe2\x80\x99s fears, and for the next three and one-half years, she was given around-the-clock\nprotection. . . .\nLinda has turned to the courts of this State for redress, asking that the city be held liable in\ndamages for its negligent failure to protect her from harm. With compelling logic, she can point\nout that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and\nthereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the\ncourts would certainly require him to pay damages. (Restatement, 2d, Torts, s 323.) Why then\nshould the city, whose duties are imposed by law and include the prevention of crime (New York\nCity Charter, s 435) and, consequently, extend far beyond that of the Good Samaritan, not be\nresponsible? . . .\nWhat makes the city\xe2\x80\x99s position particularly difficult to understand is that, in conformity, to\nthe dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, s\n1897). Thus, by a rather bitter irony she was required to rely for protection on the City of New\nYork which now denies all responsibility to her.\nIt is not a distortion to summarize the essence of the city\xe2\x80\x99s case here in the following\nlanguage: \xe2\x80\x9cBecause we owe a duty to everybody, we owe it to nobody.\xe2\x80\x9d Were it not for the fact\nthat this position has been hallowed by much ancient and revered precedent, we would surely\ndismiss it as preposterous. To say that there is no duty is, of course, to start with the conclusion.\nThe question is whether or not there should be liability for the negligent failure to provide\nadequate police protection.\n. . . The city invokes the specter of a \xe2\x80\x9ccrushing burden\xe2\x80\x9d . . . if we should depart from the\nexisting rule and enunciate even the limited proposition that the State and its municipalities can be\nheld liable for the negligent acts of their police employees in executing whatever police services\nthey do in fact provide. . . .\nThe fear of financial disaster is a myth. The same argument was made a generation ago in\nopposition to proposals that the State waive its defense of \xe2\x80\x9csovereign immunity.\xe2\x80\x9d The prophecy\nproved false then, and it would now. The supposed astronomical financial burden does not and\nwould not exist. No municipality has gone bankrupt because it has had to respond in damages\nwhen a policeman causes injury through carelessly driving a police car or in the thousands of\nother situations where, by judicial fiat or legislative enactment, the State and its subdivisions have\nbeen held liable for the tortious conduct of their employees. Thus, in the past four or five years,\nNew York City has been presented with an average of some 10,000 claims each year. The figure\nwould sound ominous except for the fact the city has been paying out less than $8,000,000 on tort\nclaims each year and this amount includes all those sidewalk defect and snow and ice cases about\nwhich the courts fret so often. . . . Court delay has reduced the figure paid somewhat, but not\n468\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nsubstantially. Certainly this is a slight burden in a budget of more than six billion dollars (less\nthan two tenths of 1%) and of no importance as compared to the injustice of permitting\nunredressed wrongs to continue to go unrepaired. That Linda Riss should be asked to bear the\nloss, which should properly fall on the city if we assume, as we must, in the present posture of the\ncase, that her injuries resulted from the city\xe2\x80\x99s failure to provide sufficient police to protect Linda\nis contrary to the most elementary notions of justice. . . .\nAnother variation of the \xe2\x80\x9ccrushing burden\xe2\x80\x9d argument is the contention that, every time a\ncrime is committed, the city will be sued and the claim will be made that it resulted from\ninadequate police protection. . . . The argument is . . . made as if there were no such legal\nprinciples as fault, proximate cause or foreseeability, all of which . . . keep liability within\nreasonable bounds. No one is contending that the police must be at the scene of every potential\ncrime or must provide a personal bodyguard to every person who walks into a police station and\nclaims to have been threatened. They need only act as a reasonable man would under the\ncircumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to\nsubstantiate the alleged threat, the matter may be put aside and other matters attended to. If,\nhowever, the claims prove to have some basis, appropriate steps would be necessary. . . .\nIf the police department is in such a deplorable state that the city, because of insufficient\nmanpower, is truly unable to protect persons in Linda Riss\xe2\x80\x99 position, then liability not only\nshould, but must be imposed. It will act as an effective inducement for public officials to provide\nat least a minimally adequate number of police. If local officials are not willing to meet even such\na low standard, I see no reason for the courts to abet such irresponsibility.\n. . . We are not dealing here with a situation where the injury or loss occurred as a result\nof a conscious choice of policy made by those exercising high administrative responsibility. . . .\nThere was no major policy decision taken by the Police Commissioner to disregard Linda Riss\xe2\x80\x99\nappeal for help because there was absolutely no manpower available to deal with Pugach. This\n\xe2\x80\x9cgarden variety\xe2\x80\x9d negligence case arose in the course of \xe2\x80\x9cday-by-day operations of government.\xe2\x80\x9d .\n. . Linda Riss\xe2\x80\x99 tragedy resulted not from high policy or inadequate manpower, but plain\nnegligence on the part of persons with whom Linda dealt . . . .\nMore significant, however, is the fundamental flaw in the reasoning behind the argument\nalleging judicial interference. . . . [I]ndirectly courts are reviewing administrative practices in\nalmost every tort case against the State or a municipality, including even decisions of the Police\nCommissioner. Every time a municipal hospital is held liable for malpractice resulting from\ninadequate record-keeping, the courts are in effect making a determination that the municipality\nshould have hired or assigned more clerical help . . . or should have done something to improve its\nrecord-keeping procedures . . . . Every time a municipality is held liable for a defective sidewalk,\nit is as if the courts are saying that more . . . resources should have been allocated to sidewalk\nrepair . . . .\nThe truth of the matter, however, is that the courts are not making policy decisions for\npublic officials. In all these municipal negligence cases, the courts are doing two things. First,\nthey apply the principles of vicarious liability to the operations of government. Courts would not\ninsulate the city from liability for the ordinary negligence of members of the highway department.\nThere is no basis for treating the members of the police department differently.\n\n469\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nSecond, and most important, to the extent that the injury results from the failure to allocate\nsufficient funds and resources to meet a minimum standard of public administration, public\nofficials are presented with two alternatives: either improve public administration or accept the\ncost of compensating injured persons. Thus, if we were to hold the city liable here for the\nnegligence of the police, courts would no more be interfering with the operations of the police\ndepartment than they \xe2\x80\x98meddle\xe2\x80\x99 in the affairs of the highway department when they hold the\nmunicipality liable for personal injuries resulting from defective sidewalks, or a private employer\nfor the negligence of his employees. In other words, all the courts do in these municipal\nnegligence cases is require officials to weigh the consequences of their decisions. If Linda Riss\xe2\x80\x99\ninjury resulted from the failure of the city to pay sufficient salaries to attract qualified and\nsufficient personnel, the full cost of that choice should become acknowledged in the same way as\nit has in other areas of municipal tort liability. Perhaps officials will find it less costly to choose\nthe alternative of paying damages than changing their existing practices. . . .\nWhat has existed until now is that the City of New York and other municipalities have\nbeen able to engage in a sort of false bookkeeping in which the real costs of inadequate or\nincompetent police protection have been hidden by charging the expenditures to the individuals\nwho have sustained often catastrophic losses rather than to the community where it belongs,\nbecause the latter had the power to prevent the losses.\n. . . At one time the government was completely immunized from this salutary control.\nThis is much less so now, and the imposition of liability has had healthy side effects. In many\nareas, it has resulted in the adoption of better and more considered procedures just as workmen\xe2\x80\x99s\ncompensation resulted in improved industrial safety practices. To visit liability upon the city here\nwill no doubt have similar constructive effects. . . .\nNo doubt in the future we shall have to draw limitations just as we have done in the area\nof private litigation, and no doubt some of these limitations will be unique to municipal liability\nbecause the problems will not have any counterpart in private tort law. But if the lines are to be\ndrawn, let them be delineated on candid considerations of policy and fairness and not on the\nfictions or relics of the doctrine of \xe2\x80\x9csovereign immunity.\xe2\x80\x9d . . . [H]aving undertaken to provide\nprofessional police and fire protection, municipalities cannot escape liability for damages caused\nby their failure to do even a minimally adequate job of it. . . .\nFULD, C.J., and BURKE, SCILEPPI, BERGAN and JASEN, JJ. concur with BREITEL, J.\nNotes\n\n1. Crazy love. Burton Pugach, the lawyer responsible for Linda Riss\xe2\x80\x99s disfigurement, was\nconvicted of assault and sentenced to prison for his attack on Riss. During his fourteen-years in\nprison, he continued to write love letters to her. Eight months after Pugach was paroled, he and\nRiss resumed their relationship. They married soon thereafter. In 1997, Pugach was indicted for\nsexually abusing and threatening to kill another woman. During his trial, Riss testified on her\nhusband\xe2\x80\x99s behalf. Despite his conviction and subsequent imprisonment, they remained married.\nThe film Crazy Love documents their relationship. CRAZY LOVE (Magnolia Pictures 2007). See\nalso Ruth La Ferla, What\xe2\x80\x99s Love Got to Do With It?, N.Y. TIMES, May 27, 2007, at H1.\n\n470\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n2. Political accountability? Does it matter that victims of injuries caused by the state have\nanother way of holding their injurer accountable? The democratic electoral system offers a\npolitical accountability mechanism as an alternative to legal rights enforced through the courts?\nWhen a person is injured by the General Motors Company, a tort suit may be her only remedy.\nBut when you are injured by the City of New York, you can vote the bums out.\n\n3. Potholes in the law. State level waivers of sovereign immunity often include exceptions\nor special treatment for recurring problems.\nConsider, for example, the lowly pothole. A New York statute immunizes the state from\nliability arising from pothole-related claims between November 1 and May 15\xe2\x80\x94the season in\nwhich ice and snow creates the most severe pothole problems. N.Y. HIGH. LAW \xc2\xa7 58 (McKinney\n2014); see also Sam Roberts, Taking on a Pothole Law: In Winter, New York State Rejects\nDrivers\xe2\x80\x99 Claims, N.Y. TIMES, Apr. 29, 2014.\nTen states have statutory provisions that grant full immunity for injuries arising from\npothole- or weather-related defects. See DEL. CODE ANN. tit. 10, \xc2\xa7 4011 (2014); GA. CODE ANN. \xc2\xa7\n50-21-24 (2014); IDAHO CODE ANN. \xc2\xa7 6-904 (2014); KAN. STAT. ANN. \xc2\xa7 75-6104 (2014); MISS.\nCODE ANN. \xc2\xa7 11-46-9 (2014); OKLA. STAT. tit. 51, \xc2\xa7 155 (2014); OR. REV. STAT. \xc2\xa7 30.265 (2014);\nS.C. CODE ANN. \xc2\xa7 15-78-60 (2014); WYO. STAT. ANN. \xc2\xa7 1-39-120 (2014); Lane v. State, 811 A.2d\n190 (Vt. 2002).\n\n4. Local government liability for recreational activities. Every winter a particular\nrecreational activity creates a slippery slope problem for municipalities across much of the\ncountry: sledding.\nSome worry that sledding liability exposes municipalities to vast liabilities, possibly\nincreasing municipalities\xe2\x80\x99 insurance and tax rates. See Husna Haq, More US Cities Ban Sledding.\nWill It Work?, CHRISTIAN SCI. MONITOR (Jan. 5, 2015) (noting that Sioux City, Iowa, and Boone,\nIowa, have paid millions to individuals injured while sledding in city parks). Thus, to limit\npotential liability, some municipalities like Dubuque ban sledding in many city parks. See City of\nDubuque, Iowa\xe2\x80\x94City Council Proceedings Regular Session, CITY OF DUBUQUE 2 (Jan. 5, 2015).\nOther cities in Iowa have used non-legislative measures to decrease potential liability. For\ninstance, Des Moines has added signs at sledding hills, warning sledders that they sled at their\nown risk. DES MOINES, IOWA, CODE \xc2\xa7 74-117 (2013); Scott McFetridge, Liability Concerns\nPrompt Some Cities to Limit Sledding, ASSOC. PRESS (Jan. 4, 2015). Such signs likely shield\nmunicipalities from negligence claims. See Hecht v. Des Moines Playground & Recreation Ass\xe2\x80\x99n,\n287 N.W. 259, 264 (Iowa 1939) (holding that adequate warnings are \xe2\x80\x9call that [a defendant\xe2\x80\x99s duty\nof] reasonable and ordinary care require[s]\xe2\x80\x9d). Some states have enacted statutory immunization of\nstate and local governments for injuries arising out of recreational injuries, as in Michigan and\nWisconsin. MICH. COMP. LAWS \xc2\xa7 691.1407 (2014); WIS. STAT. ANN. 895.52 (West 2014).\nWhich approach is better: closing the slope (Dubuque) or immunizing the municipality by\nwarning signs (Des Moines) or enacting legislative immunity (Michigan and Wisconsin)? Even\n\n471\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nabsent the immunization, liability will only exist where a municipality is found negligent, though\nmunicipalities will sometimes face litigation costs whether they are found negligent or not.\nInterestingly, Dubuque\xe2\x80\x99s restrictions have \xe2\x80\x9cspark[ed] . . . backlash\xe2\x80\x9d among residents.\nDubuque Officials Consider Opening More Parks to Sledding, S.F. GATE (Jan. 17, 2015). In the\nwake of protests, Dubuque\xe2\x80\x99s City Council amended its ordinance and opened more of the city\xe2\x80\x99s\nparks for sledding. See City of Dubuque, Iowa\xe2\x80\x94City Council Proceedings Regular Session, CITY\nOF DUBUQUE 5 (Jan. 20, 2015), https://perma.cc/N564-DYBE.\n\n5. Government Officer Immunity\na. Federal Officials\nIn the 19th century, federal officials who committed common law torts while serving their\nduties received no protection from the judiciary. The existence of a superior\xe2\x80\x99s orders or an\nofficer\xe2\x80\x99s good faith belief in the legality of his actions provided no shield from personal liability.\nSee Orval Edwin Jones, Tort Immunity of Federal Executive Officials: The Mutable Scope of\nAbsolute Immunity, 37 OKLA. L. REV. 285 (1984). The earliest federal case demonstrating this\nprinciple is Little v. Barreme, which arose from the seizure of a foreign vessel sailing from France\nby Naval captain George Little. 6 U.S. (2 Cranch) 170 (1804). Little had acted in compliance\nwith a Presidential order authorizing the capture of any ship suspected of trading with the French\nduring the Quasi-War. However, the Congressional act that the order sought to execute only\nauthorized the seizure of ships sailing to any French port. The Court held that the President\xe2\x80\x99s\norder did not \xe2\x80\x9clegalize an act which without those instructions would have been a plain trespass\xe2\x80\x9d\nand that Little was thus liable for damages. Id. at 179.\nThe judiciary\xe2\x80\x99s early refusal to shield federal officials from liability did not necessarily\nleave such employees exposed to judgments. Instead, they were able to seek indemnification by\npetitioning Congress to pass private bills of reimbursement. Congress would often grant such\nrequests, particularly when they stemmed from acts made in good faith fulfillment of their duties\nand without malicious intent. Indeed, roughly 60% of military officers who sought\nindemnification in the antebellum era were successful in receiving Congressional relief\xe2\x80\x94\nincluding Captain Little himself. See James E. Pfander & Jonathan L. Hunt, Public Wrongs and\nPrivate Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U.\nL. REV. 1862, 1905 (2010). This case-by-case system of indemnification didn\xe2\x80\x99t undo ex post\nreview. Instead, it gave both the courts and Congress shared responsibility in determining the\npropriety of an officer\xe2\x80\x99s acts.\nThe doctrine of immunity for common law torts committed in an official\xe2\x80\x99s course of duty\ndeveloped slowly, beginning in the latter part of the century. See Theodore P. Stein, Nixon v.\nFitzgerald: Presidential Immunity as a Constitutional Imperative, 32 CATH. U. L. REV. 759-85\n(1983). The Supreme Court first laid out the reasoning for officials\xe2\x80\x99 immunity in the case of\nBradley v. Fisher, holding that a federal judge accused of maliciously ordering a lawyer\xe2\x80\x99s\ndisbarment was absolutely immune from civil liability. 80 U.S. 335 (1871). The Court reasoned\nthat personal liability would \xe2\x80\x9cdestroy that independence without which no judiciary can be either\nrespectable or useful.\xe2\x80\x9d Id. at 347. Twenty-five years later, the Court expanded immunity to\nfederal officials in the President\xe2\x80\x99s cabinet in Spalding v. Vilas, echoing Bradley by stating cabinet\nofficer liability for acts done in the scope of their duties would \xe2\x80\x9cseriously cripple the proper . . .\n472\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nadministration of public affairs.\xe2\x80\x9d 161 U.S. 483, 499 (1896). The Warren Court expanded this\nimmunity to all federal executive officials in Barr v. Matteo, which relied on an additional policy\njustification that forcing officials to defend themselves against civil suits would \xe2\x80\x9cconsume time\nand energies which would otherwise be devoted to governmental service . . . .\xe2\x80\x9d 360 U.S. 564, 571\n(1959). In 1988, Congress legislated this immunity doctrine into law with the passage of the\nWestfall Act, whose purpose was \xe2\x80\x9cto protect federal employees from personal liability for\ncommon law torts committed within the scope of their employment . . . .\xe2\x80\x9d Federal Employees\nLiability Reform and Tort Compensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988).\n\nb. State Officials\nThe history of official immunity for state officials begins, like that of their federal\ncounterparts, with strict rules of official liability for common law torts. New York, for example,\nhad a policy of broad liability buttressed by state indemnification. See Note, Tort Liability of\nAdministrative Officers in New York, 28 ST. JOHN\xe2\x80\x99S L. REV. 265 (1954). In the early case of Hyde\nv. Melvin, 11 Johns. 521 (N.Y. Sup. Ct. 1814), the Supreme Court of New York held a state\nmilitia captain liable for improperly forcing a militia member to perform his duties, despite acting\nunder orders granting him authorization-in-fact to do so. As the 19th century unfolded, New York\ncreated absolute immunity for a limited set of officials whose duties were judicial or highly\ndiscretionary. See, e.g., Wilson v. Mayor, 1 Denio 585 (N.Y. Sup. Ct. 1845) (granting absolute\nimmunity to mayors and aldermen executing discretionary powers). After the start of the Civil\nWar, states expanded absolute immunity to low-level officials. David E. Engdahl, Immunity and\nAccountability for Positive Governmental Wrongs, 44 U. COLO. L. REV. 1, 48 (1972). For\nexample, New York expanded absolute immunity to the state highway commissioner, finding that\nwhile the statute that authorized the logging was unconstitutional, no liability existed because the\ncommissioner\xe2\x80\x99s \xe2\x80\x9cduty was to execute the law as he found it.\xe2\x80\x9d Dexter v. Alfred, 19 N. Y. Supp.\n770, 771 (N.Y. Sup. Ct. 1892).\nUnlike the federal government, however, the vast majority of states did not continue the\nexpansion of absolute immunity to all officials. See 5 F. HARPER, F. JAMES & O. GRAY, THE LAW\nOF TORTS \xc2\xa7 29.10, n. 44, at 825-26 (3d ed. 2006). Instead, states tend to shield low-level\nadministrative officials, like prosecutors, with qualified immunity, which protects officials so long\nas they (1) use discretion (2) in good faith while (3) acting in the scope of their official duties.\nSee, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Ministerial\nofficials\xe2\x80\x94those that perform their duties not according to individual choice\xe2\x80\x94are personally liable\nfor common-law torts, regardless of their good faith or lack of malice. See generally Gray, supra\nnotes 38-39, at 822-23. Many states, including New York, have enacted indemnification statues\nto relieve low-level state employees held liable for acts performed in the course of their duties.\nSee Carolyn Kearns, Tort Liability of Administrative Officers in New York, 62 ST. JOHN\xe2\x80\x99S L. REV.\n181 (1954).\n\nc. Constitutional Torts\nEven as Congress and the courts worked to immunize federal officials from liability for\ncommon law torts, the Supreme Court created a new category of constitutional torts for which\nfederal employees could be held personally liable. In Bivens v. Six Unknown Named Agents, 403\nU.S. 388 (1971), the plaintiff sought damages from federal narcotics officers who had made a\n473\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nwarrantless search of his house. The Court held that it was appropriate to hold such officials\npersonally liable for violation of constitutionally protected interests where no other federal\nremedy was available. Congress may assume any judgments resulting from such constitutional\ntorts, and indeed Congress has done just that. The federal government provides representation for\nofficials in 98% of Bivens cases where such representation is requested. Moreover,\nindemnification of officers held liable in Bivens actions is \xe2\x80\x9ca virtual certainty.\xe2\x80\x9d Cornelia T.L.\nPillard, Taking Fiction Seriously: The Strange Results of Public Officials\xe2\x80\x99 Individual Liability\nUnder Bivens, 88 GEO. L.J. 65, 76-77 (1999).\nState officials, like their federal brethren, may be held personally liable for constitutional\ntorts under a provision of the Civil Rights Act of 1871, which was passed to combat a wave of\natrocities committed by the Ku Klux Klan in the South. See Harry A. Blackmun, Section 1983\nand Federal Protection of Individual Rights\xe2\x80\x94Will the Statute Remain Alive or Fade Away?, 60\nN.Y.U. L. REV. 1, 5 (1982). Section 1 of the Act, now codified as Section 1983 of Title 42 of the\nUnited States Code, aimed to protect freedmen in the South by providing a cause of action against\nevery person who, under color of any statute, ordinance, regulation, custom, or\nusage, of any State or Territory or the District of Columbia, subjects, or causes to\nbe subjected, any citizen of the United States or other person within the jurisdiction\nthereof to the deprivation of any rights, privileges, or immunities secured by the\nConstitution and laws . . . .\nSection 1983 was narrowly construed by courts and ignored by prosecutors for nearly a century.\nBut after the Supreme Court\xe2\x80\x99s ruling in Monroe v. Pape, 365 U.S. 167 (1961), Section 1983\nbecame a viable independent federal remedy against state and local officials for violations of\nfederally protected rights.\nStates are not subject to Section 1983 actions because they are not \xe2\x80\x9cpersons\xe2\x80\x9d within the\nmeaning of the statue. Municipalities, by contrast, may be liable. But the Court has ruled that\nthere is no vicarious Section 1983 liability for the constitutional torts of municipal employees.\nMunicipal liability exists only when an official policy leads to the violation of a federally\nprotected civil right. Monell v. Dep\xe2\x80\x99t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978).\nNevertheless, municipalities routinely indemnify police officers found liable in Section 1983 suits\neven when there is no official policy. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L.\nREV. 885, 888-90 (2014); see also PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES\nFOR OFFICIAL WRONGS 85 (1983).\nDoes indemnification effectively replicate the economic structure of vicarious liability?\nOr should municipalities be vicariously liable for their employees\xe2\x80\x99 constitutional torts under\nSection 1983? What is at stake in the difference? Note that regardless how municipalities deal\nwith the question of indemnity, civil rights lawsuits seem to have served poorly as tools for\ndeterring police misconduct. Few police departments use information gleaned from tort suits to\nreshape their practices. See Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role\nof Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1032 (2010).\n\n474\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n6. Statutory Immunity\nThe Protection of Lawful Commerce in Arms Act of 2005\nCongress can get into the immunity game, too. Recently it has done so with the\nProtection of Lawful Commerce in Arms Act, immunizing arms manufacturers and sellers from a\nbroad array of potential tort liability. The Act prohibited the bringing of certain civil actions\ninvolving firearms in either the federal or the state courts. It defined those actions to include: \xe2\x80\x9ca\ncivil action or proceeding or an administrative proceeding brought by any person against a\nmanufacturer or seller of a [firearm], or a trade association, for damages, punitive damages,\ninjunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting\nfrom the criminal or unlawful misuse of a qualified product by the person or a third party.\xe2\x80\x9d The\nlegislation excluded from its immunity rule five categories of firearms injuries, as to which the\ncivil actions may still be brought:\n(i) an action brought against a transferor [knowing that the firearm will be used to\ncommit a crime of violence or drug trafficking crime], or a comparable or identical\nState felony law, by a party directly harmed by the conduct of which the transferee\nis so convicted;\n(ii) an action brought against a seller for negligent entrustment or negligence per se;\n(iii) an action in which a manufacturer or seller of a qualified product knowingly\nviolated a State or Federal statute applicable to the sale or marketing of the product,\nand the violation was a proximate cause of the harm for which relief is sought . . . ;\n(iv) an action for breach of contract or warranty in connection with the purchase of\nthe product;\n(v) an action for death, physical injuries or property damage resulting directly from\na defect in design or manufacture of the product, when used as intended or in a\nreasonably foreseeable manner, except that where the discharge of the product was\ncaused by a volitional act that constituted a criminal offense, then such act shall be\nconsidered the sole proximate cause of any resulting death, personal injuries or\nproperty damage . . . .\n15 U.S.C. \xc2\xa7 7903(5)(A).\nCity of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008)\nMINER, J.\n. . . [O]n June 20, 2000 . . . the City filed a complaint against the Firearms Suppliers\nseeking injunctive relief and abatement of the alleged public nuisance caused by the Firearms\nSuppliers\xe2\x80\x99 distribution practices. The City claimed that the Firearms Suppliers market guns to\nlegitimate buyers with the knowledge that those guns will be diverted through various\nmechanisms into illegal markets. . .\nOn October 26, 2005, the Protection of Lawful Commerce in Arms Act . . . became\nfederal law. The PLCAA provides that any \xe2\x80\x9cqualified civil liability action that is pending on\nOctober 26, 2005, shall be immediately dismissed by the court in which the action was brought or\nis currently pending.\xe2\x80\x9d . . .\n475\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nOn the day the PLCAA was enacted, the Firearms Suppliers moved to dismiss the\nAmended Complaint. . . . [T]he City argued that the Act did not bar its causes of action because\nthis case fell within an exception to the forbidden qualified civil liability actions. . . . [A] suit may\nproceed when a plaintiff adequately alleges that a \xe2\x80\x9cmanufacturer or seller of [firearms transported\nin interstate or foreign commerce] knowingly violated a State or Federal statute applicable to the\nsale or marketing of [firearms], and the violation was the proximate cause of the harm for which\nrelief is sought.\xe2\x80\x9d . . . This provision has been called the \xe2\x80\x9cpredicate exception,\xe2\x80\x9d which appellation\nwe adopt. For purposes of this opinion, a statute upon which a case is brought under the predicate\nexception is referred to as a \xe2\x80\x9cpredicate statute.\xe2\x80\x9d The predicate statute at issue in this case is New\nYork Penal Law \xc2\xa7 240.45, Criminal Nuisance in the Second Degree.5 . . .\nOn December 2, 2005, the United States District Court for the Eastern District of New\nYork (Weinstein, J.) . . . held that, \xe2\x80\x9c[b]y its plain meaning, New York [Penal Law \xc2\xa7 ] 240.45\nsatisfies the language of the predicate exception requiring a \xe2\x80\x98statute applicable to the sale or\nmarketing of [a firearm].\xe2\x80\x99\xe2\x80\x9d . . .\nThe District Court certified its December 2, 2005 order for immediate appeal to this\nCourt, pursuant to 28 U.S.C. \xc2\xa7 1292(b). Id. at 298 (\xe2\x80\x9cThere is a substantial ground for\ndisagreement about a controlling issue of law-the applicability of the Act to the present litigationand an immediate appeal may substantially advance the ultimate termination of the litigation.\xe2\x80\x9d). . .\n.\n[W]e conclude that the City\xe2\x80\x99s claim, predicated on New York Penal Law \xc2\xa7 240.45, does\nnot fall within an exception to the claim restricting provisions of the Act because that statute does\nnot fall within the contours of the Act\xe2\x80\x99s predicate exception. . . .\nWe conclude . . . that the meaning of the term \xe2\x80\x9capplicable\xe2\x80\x9d must be determined in the\ncontext of the statute. We find nothing in the statute that requires any express language regarding\nfirearms to be included in a statute in order for that statute to fall within the predicate exception. . .\n.\nWe think Congress clearly intended to protect from vicarious liability members of the\nfirearms industry who engage in the \xe2\x80\x9clawful design, manufacture, marketing, distribution,\nimportation, or sale\xe2\x80\x9d of firearms. Preceding subsection (a)(5), Congress stated that it had found\nthat \xe2\x80\x9c[t]he manufacture, importation, possession, sale, and use of firearms and ammunition in the\nUnited States are heavily regulated by Federal, State, and local laws. Such Federal laws include\nthe Gun Control Act of 1968, the National Firearms Act, and the Arms Control Act.\xe2\x80\x9d15 U.S.C. \xc2\xa7\n7901(a)(4). We think the juxtaposition of these two subsections demonstrates that Congress meant\nthat \xe2\x80\x9clawful design, manufacture, marketing, distribution, importation, or sale\xe2\x80\x9d of firearms means\n\n5\n\nN.Y. Penal Law \xc2\xa7 240.45 provides, in pertinent part:\nA person is guilty of criminal nuisance in the second degree when . . .\nBy conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly\nor recklessly creates or maintains a condition which endangers the safety or health of a\nconsiderable number of persons. . . .\n\n476\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\nsuch activities having been done in compliance with statutes like those described in subsection\n(a)(4). . . .\n[T]he legislative history of the statute supports the Firearms Suppliers\xe2\x80\x99 proffered\ninterpretation of the term \xe2\x80\x9capplicable.\xe2\x80\x9d United States Senator Larry E. Craig, a sponsor of the\nPLCAA, named the case at bar as an \xe2\x80\x9cexample . . . of exactly the type of . . . lawsuit . . . this bill\nwill eliminate.\xe2\x80\x9d . . . United States Representative Clifford B. Stearns, the sponsor of H.R. 800, the\nHouse version of the PLCAA, inserted similar comments into the PLCAA\xe2\x80\x99s legislative history so\nthat the \xe2\x80\x9cCongressional Record [would] clearly reflect some specific examples of the type of . . .\nlawsuit\xe2\x80\x9d the PLCAA would preclude. . . .\nThe case is remanded to the District Court with instructions to enter judgment dismissing\nthe case as barred by the PLCAA.\nKATZMANN, J., dissenting.\nUnlike the majority, I believe this case may be simply resolved by looking only at the\nordinary meaning of the words in the statute. . . .\nAs the district court correctly noted, 401 F.Supp.2d at 261, the ordinary meaning of the\nword \xe2\x80\x9capplicable\xe2\x80\x9d is clear; any attempt to read that word as meaning anything more than \xe2\x80\x9ccapable\nof being applied\xe2\x80\x9d is a strained effort to read an ambiguity that does not exist into the statute. . . .\n\n7. Wartime and National Security Immunities\nTort damages in wartime have received considerable attention in the past decade. There is\nno FTCA liability for claims arising out of combat activities of the U.S. armed forces, since the\nAct declined to waive sovereign immunity for such claims. 28 U.S.C. s. 2680(j). But in armed\nconflict featuring frequent collisions between U.S. armed forces and civilian populations, the\nabsence of a tort remedy has seemed to be a strategic problem in situations where American\nHumvees, tanks, and trucks inevitably run into civilians\xe2\x80\x99 homes, animals, and family members.\nSee John Fabian Witt, Form and Substance in the Law of Counterinsurgency Damages, 41 LOY.\nL. REV. 1455 (2008).\nThe Foreign Claims Act (FCA), first enacted during World War I, aims to offer a remedy\nwhere tort doesn\xe2\x80\x99t reach. The FCA authorizes the U.S. Armed Forces to pay monetary\ncompensation to the inhabitants of foreign countries for torts committed against them by the in\nnon-combat operations. A claimant seeking relief under the FCA must file a grievance with a\nForeign Claims Commission (\xe2\x80\x9cFCC\xe2\x80\x9d), a quasi-judicial body established by the Army to handle\nforeign tort claims. The FCCs, which consist of between one and three commissioned officers,\nare authorized to approve payouts of varying size, depending primarily on the number of officers\nsitting on the panel. A one-officer commission may approve damages of up to $2,500, unless that\none officer is a Judge Advocate, in which case the figure rises to $15,000. A three-officer\ncommission, however, may authorize payment of up to $50,000 for a single claim, or $100,000\nfor multiple claims arising from the same incident. The Secretary of the Army must authorize all\npayments in excess of $100,000. Alleged torts stemming from combat activities are barred from\nconsideration, and any national of a country at war with the United States must be deemed\n477\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n\xe2\x80\x9cfriendly\xe2\x80\x9d by the local military commander before becoming eligible to pursue a claim under the\nFCA. Furthermore, all claimants must file within two years of the occurrence in question.\nFCCs decide claims on the basis of prevailing local tort law for both liability and\ndamages. Once a claimant accepts the payment authorized by the FCC, the claim is considered\nsatisfied in full, and the claimant releases the United States from any further liability arising from\nthe incident at issue. If a claim is denied, the claimant may request that the commission\nreconsider the case. Failing that, the claimant may request further review by a higher military\nauthority\xe2\x80\x94either the Judge Advocate General (JAG) or the Secretary of the relevant branch of the\nmilitary (or her designee). Any mistake committed by the FCC in either law or fact permits the\nJAG or Secretary to reexamine the case and correct the error. Beyond that, however, only fraud,\nsubstantial new evidence, or an error in calculation justifies further review.\nBecause neither the FTCA nor the FCA waives sovereign immunity for torts committed\nby the United States overseas, the federal judiciary has no jurisdiction to hear claims of this sort\neither in the first instance or on appeal. Therefore, the procedure offered by the local FCC stands\nas the only recourse for individuals harmed by American forces overseas.\nAnother place where liability questions have arisen in the armed conflicts of the past\ndecade is with respect to Bivens liability for torture. In Arar v. Ashcroft, 585 F.3d 559 (2d Cir.\n2009) (en banc), the Second Circuit declined to recognize Bivens liability for torture resulting\nfrom the government\xe2\x80\x99s policy of extraordinary rendition. Maher Arar, a Syrian-born Canadian\ncitizen, was detained by the INS while on a layover at JFK Airport in New York. After twelve\ndays in custody, he was removed to Syria, where he underwent confinement and torture. Arar\nalleged, inter alia, that government officials had violated his Fifth Amendment substantive due\nprocess rights by deporting him to a foreign country to face coercive interrogation. The district\ncourt dismissed Arar\xe2\x80\x99s claim, and the Second Circuit affirmed on the grounds that extending\nBivens liability to cases involving extraordinary rendition would have the \xe2\x80\x9ctendency to affect\ndiplomacy, foreign policy, and the security of the nation.\xe2\x80\x9d Id. at 574.\nThe dissenters objected to reaching the merits of the Bivens claim and argued instead in\nfavor of deciding the case on the narrower grounds of the state secrets doctrine. They would have\nallowed Arar\xe2\x80\x99s claim to proceed, though they conceded that it would almost certainly fail once the\ngovernment asserted the state secrets privilege upon remand. Id. at 638 (Calabresi, J., dissenting)\n(\xe2\x80\x9cholding that Arar, even if all of his allegations are true, has suffered no remediable\nconstitutional harm legitimates the Government\xe2\x80\x99s actions in a way that a state secrets dismissal\nwould not\xe2\x80\x9d).\nOther circuits have been no more willing than the Second to extend Bivens liability to\ncases involving allegations of torture arising out of U.S. national security programs. Both the\nD.C. Circuit, Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011), and the Seventh Circuit, Vance\nv. Rumsfeld, 701 F.3d 193, 202 (7th Cir. 2012), have dismissed Bivens actions for post-9/11\ntorture as prohibitively threatening to important government interests. Only the Fourth Circuit,\nEl-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), has taken the approach favored by the\nArar dissenters and declined to reach the merits of the Bivens claim, relying instead the state\nsecrets doctrine in its dismissal of the case. As of yet, no federal court has recognized a Bivens\naction for damages arising from torture in the extended national security state.\n\n478\n\n\x0cWitt & Tani, TCPI 8. Duty Problem\n\n8. Immunity Reconsidered\nIf one thinks about all the areas in which common law immunities, limited common law\nduties, or special doctrines such as the rule of pure economic loss or the doctrines of negligent\ninfliction of emotional distress, it can sometimes seem as if the negligence action is hemmed in on\nall sides. At common law, injury victims found immunity doctrines blocking their path if they\nwere injured at home, at work, by the government, or when receiving medical care from charitable\nhospitals. Entire categories of harm were unrecoverable.\nFifty years ago, it seemed apparent that the historical trend was toward abolishing limited\nduties and immunities. See Robert Rabin, Tort Law in Transition: Tracing the Patterns of\nSociological Change, 23 VAL. U. L. REV. 1, 26 (1988). Beginning in the 1980s, however, that\ntrend slowed and even reversed. Today, the trend in the area of limited duties and immunities\nseems to some considerably less certain.\nAt the very same time, in the past fifty years, tort law has witnessed the important but\nuncertain expansion of a very different doctrine, one that seems to expand liability rather than\ncontracting it: liability without fault.\n\n479\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nCHAPTER 9. MODERN NON-FAULT LIABILITY?\nFor most of this book, we have been focused on torts that involve wrongful behavior,\neither intentional or unintentional. We have allocated hundreds of pages to explicating the cause\nof action for negligence. But from the very outset of the course, we have entertained the\npossibility of other, non-fault based liability standards in the law of unintentional torts. This\nchapter picks up this non-fault strand in the law and asks whether there ought to be strict liability\nfor unintended harm\xe2\x80\x94and, if so, under what circumstances?\nWe begin with a startling observation: we have actually been dealing in a form of nonfault liability for weeks. The doctrine is called respondeat superior; it establishes the vicarious\nliability of employers, without regard to the fault of the employer, for certain tortious acts of their\nemployees.\n\nA. Vicarious Liability\nIra S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968)\nFRIENDLY, J.\nWhile the United States Coast Guard vessel Tamaroa was being overhauled in a floating\ndrydock located in Brooklyn\xe2\x80\x99s Gowanus Canal, a seaman returning from shore leave late at night,\nin the condition for which seamen are famed, turned some wheels on the drydock wall. He thus\nopened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship\nlisted, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship\npartially did\xe2\x80\x94fortunately without loss of life or personal injury. The drydock owner sought and\nwas granted compensation by the District Court for the Eastern District of New York in an\namount to be determined . . . ; the United States appeals.\n...\nThe Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks\npermitting her drive shaft to be removed and repairs to be made to her hull. The contract between\nthe Government and Bushey provided in part:\n(o) The work shall, whenever practical, be performed in such manner as not to\ninterfere with the berthing and messing of personnel attached to the vessel\nundergoing repair, and provision shall be made so that personnel assigned shall have\naccess to the vessel at all times, it being understood that such personnel will not\ninterfere with the work or the contractor\xe2\x80\x99s workmen.\n\nAccess from shore to ship was provided by a route past the security guard at the gate,\nthrough the yard, up a ladder to the top of one drydock wall and along the wall to a gangway\nleading to the fantail deck, where men returning from leave reported at a quartermaster\xe2\x80\x99s shack.\n480\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nSeaman Lane, whose prior record was unblemished, returned from shore leave a little after\nmidnight on March 14. He had been drinking heavily; the quartermaster made mental note that he\nwas \xe2\x80\x9cloose.\xe2\x80\x9d For reasons not apparent to us or very likely to Lane, he took it into his head, while\nprogressing along the gangway wall, to turn each of three large wheels some twenty times;\nunhappily, as previously stated, these wheels controlled the water intake valves. After boarding\nship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had \xe2\x80\x9cturned some valves\xe2\x80\x9d and\nalso muttered something about \xe2\x80\x9cvalves\xe2\x80\x9d to another who was standing the engineering watch.\nNeither did anything; apparently Lane\xe2\x80\x99s condition was not such as to encourage proximity. At\n12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship\nbegan to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the\nvessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks\nand fell against the drydock wall.\nThe Government attacks imposition of liability on the ground that Lane\xe2\x80\x99s acts were not\nwithin the scope of his employment. It relies heavily on \xc2\xa7 228(1) of the Restatement of Agency\n2d which says that \xe2\x80\x9cconduct of a servant is within the scope of employment if, but only if: . . . (c)\nit is actuated, at least in part by a purpose to serve the master.\xe2\x80\x9d Courts have gone to considerable\nlengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand\nconcluded that a drunken boatswain who routed the plaintiff out of his bunk with a blow, saying\n\xe2\x80\x9cGet up, you big son of a bitch, and turn to,\xe2\x80\x9d and then continued to fight, might have thought he\nwas acting in the interest of the ship. . . . It would be going too far to find such a purpose here;\nwhile Lane\xe2\x80\x99s return to the Tamaroa was to serve his employer, no one has suggested how he could\nhave thought turning the wheels to be, even if\xe2\x80\x94which is by no means clear\xe2\x80\x94he was unaware of\nthe consequences.\nIn light of the highly artificial way in which the motive test has been applied, the district\njudge believed himself obliged to test the doctrine\xe2\x80\x99s continuing vitality by referring to the larger\npurposes respondeat superior is supposed to serve. He concluded that the old formulation failed\nthis test. We do not find his analysis so compelling, however, as to constitute a sufficient basis in\nitself for discarding the old doctrine. It is not at all clear, as the court below suggested, that\nexpansion of liability in the manner here suggested will lead to a more efficient allocation of\nresources. As the most astute exponent of this theory has emphasized, a more efficient allocation\ncan only be expected if there is some reason to believe that imposing a particular cost on the\nenterprise will lead it to consider whether steps should be taken to prevent a recurrence of the\naccident. Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs,\n78 HARV. L. REV. 713, 725-34 (1965). And the suggestion that imposition of liability here will\nlead to more intensive screening of employees rests on highly questionable premises, see\nComment, Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of\nHis Employees, 70 YALE L.J. 1296, 1301-04 (1961). The unsatisfactory quality of the allocation\nof resource rationale is especially striking on the facts of this case. It could well be that\napplication of the traditional rule might induce drydock owners, prodded by their insurance\ncompanies, to install locks on their valves to avoid similar incidents in the future,6 while placing\n\n6\n\nThe record reveals that most modern drydocks have automatic locks to guard against unauthorized use of\nvalves.\n\n481\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nthe burden on shipowners is much less likely to lead to accident prevention.7 It is true, of course,\nthat in many cases the plaintiff will not be in a position to insure, and so expansion of liability\nwill, at the very least, serve respondeat superior\xe2\x80\x99s loss spreading function. . . . But the fact that\nthe defendant is better able to afford damages is not alone sufficient to justify legal responsibility .\n. . , and this overarching principle must be taken into account in deciding whether to expand the\nreach of respondeat superior.\nA policy analysis thus is not sufficient to justify this proposed expansion of vicarious\nliability. This is not surprising since respondeat superior, even within its traditional limits, rests\nnot so much on policy grounds consistent with the governing principles of tort law as in a deeply\nrooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents\nwhich may fairly be said to be characteristic of its activities. It is in this light that the inadequacy\nof the motive test becomes apparent. Whatever may have been the case in the past, a doctrine that\nwould create such drastically different consequences for the actions of the drunken boatswain\nin Nelson and those of the drunken seaman here reflects a wholly unrealistic attitude toward the\nrisks characteristically attendant upon the operation of a ship. We concur in the statement of Mr.\nJustice Rutledge in a case involving violence injuring a fellow-worker, in this instance in the\ncontext of workmen\xe2\x80\x99s compensation:\nMen do not discard their personal qualities when they go to work. Into the job they\ncarry their intelligence, skill, habits of care and rectitude. Just as inevitably they\ntake along also their tendencies to carelessness and camaraderie, as well as\nemotional make-up. In bringing men together, work brings these qualities together,\ncauses frictions between them, creates occasions for lapses into carelessness, and\nfor fun-making and emotional flare-up. . . . These expressions of human nature are\nincidents inseparable from working together. They involve risks of injury and these\nrisks are inherent in the working environment.\n...\nPut another way, Lane\xe2\x80\x99s conduct was not so \xe2\x80\x9cunforeseeable\xe2\x80\x9d as to make it unfair to charge\nthe Government with responsibility. We agree with a leading treatise that \xe2\x80\x9cwhat is reasonably\nforeseeable in this context [of respondeat superior] . . . is quite a different thing from the\nforeseeably unreasonable risk of harm that spells negligence . . . . The foresight that should impel\nthe prudent man to take precautions is not the same measure as that by which he should perceive\nthe harm likely to flow from his long-run activity in spite of all reasonable precautions on his own\npart. The proper test here bears far more resemblance to that which limits liability for workmen\xe2\x80\x99s\ncompensation than to the test for negligence. The employer should be held to expect risks, to the\npublic also, which arise \xe2\x80\x98out of and in the course of\xe2\x80\x99 his employment of labor.\xe2\x80\x9d 2 HARPER &\nJAMES, THE LAW OF TORTS 1377-78 (1956). . . . Here it was foreseeable that crew members\ncrossing the drydock might do damage, negligently or even intentionally, such as pushing a\nBushey employee or kicking property into the water. Moreover, the proclivity of seamen to find\nsolace for solitude by copious resort to the bottle while ashore has been noted in opinions too\n\n7\n\nAlthough it is theoretically possible that shipowners would demand that drydock owners take appropriate\naction, see Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960), this would seem unlikely to occur in real\nlife.\n\n482\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nnumerous to warrant citation. Once all this is granted, it is immaterial that Lane\xe2\x80\x99s precise action\nwas not to be foreseen. . . .\nOne can readily think of cases that fall on the other side of the line. If Lane had set fire to\nthe bar where he had been imbibing or had caused an accident on the street while returning to the\ndrydock, the Government would not be liable; the activities of the \xe2\x80\x9centerprise\xe2\x80\x9d do not reach into\nareas where the servant does not create risks different from those attendant on the activities of the\ncommunity in general. . . . We agree with the district judge that if the seaman \xe2\x80\x9cupon returning to\nthe drydock, recognized the Bushey security guard as his wife\xe2\x80\x99s lover and shot him,\xe2\x80\x9d . . . vicarious\nliability would not follow; the incident would have related to the seaman\xe2\x80\x99s domestic life, not to\nhis seafaring activity . . . , and it would have been the most unlikely happenstance that the\nconfrontation with the paramour occurred on a drydock rather than at the traditional spot. Here\nLane had come within the closed-off area where his ship lay . . . to occupy a berth to which the\nGovernment insisted he have access, . . . and while his act is not readily explicable, at least it was\nnot shown to be due entirely to facets of his personal life. The risk that seamen going and coming\nfrom the Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise\nbear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end,\nas Judge Andrews said in a related context, \xe2\x80\x9cit is all a question [of expediency,] * * * of fair\njudgment, always keeping in mind the fact that we endeavor to make a rule in each case that will\nbe practical and in keeping with the general understanding of mankind.\xe2\x80\x9d Palsgraf v. Long Island\nR.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (dissenting opinion).\n...\nAffirmed.\n\nNotes\n\n1. Why respondeat superior? The Ira Bushey case takes for granted the well-established\nproposition that employers are liable for the torts of their employees so long as those torts arise\nwithin the scope of the employment, properly defined. Why should this be so? Note that we are\nnot talking about cases where an employer negligently supervises its employees, or fails to use\nreasonable care in making hiring decisions. These would be independent grounds for suing the\nemployer in negligence. The distinctive feature of vicarious liability is that the employer is liable\nwithout regard to whether the employer did anything unreasonable or otherwise tortious.\nObserve also that employers\xe2\x80\x99 vicarious liability does not vitiate employee liability: Ira\nBushey & Sons could have sued Seaman Lane instead of, or in addition to, his employer.\nSimilarly, the United States (as Lane\xe2\x80\x99s employer) could have pursued an indemnification claim\nagainst Seaman Lane for the damages it had to pay out to Ira Bushey & Sons. But employers\nrarely pursue such claims against their employees. For one thing, individual employees often lack\nassets or the appropriate insurance; in other words, they are frequently judgment proof and so not\nworth suing. In addition, bringing damages claims against one\xe2\x80\x99s own employees can have\nnegative effects on workplace morale. Employers typically decide that it is better simply to bear\nthe burden of the damages they incur from their employees\xe2\x80\x99 conduct.\n\n483\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n2. The Restatement approach. Judge Friendly focuses on one piece of the Restatement test\nfor the scope of employment\xe2\x80\x94the requirement that the conduct of the servant be \xe2\x80\x9cactuated, at\nleast in part, by a purpose to serve the master.\xe2\x80\x9d Section 228(1) of The Restatement (Second) of\nAgency further provides that conduct is within the scope of employment only if \xe2\x80\x9cit is of the kind\nhe is employed to perform\xe2\x80\x9d and \xe2\x80\x9cit occurs substantially within the authorized time and space\nlimits.\xe2\x80\x9d In cases of intentional violence by one servant against another, such violence is only\nwithin the scope of employment if \xe2\x80\x9cthe use of force is not unexpectable by the master.\xe2\x80\x9d\nRESTATEMENT (SECOND) OF AGENCY \xc2\xa7 228(1) (1958).\n\n3. The back-story to Ira Bushey. In the district court opinion, District Judge Jack B.\nWeinstein took a different approach than Judge Friendly: instead of rejecting law and economics\nin his decision, Judge Weinstein used a \xe2\x80\x9claw and economics analysis\xe2\x80\x9d to impose liability on the\nUnited States. DAVID M. DORSEN, HENRY FRIENDLY, GREATEST JUDGE OF HIS ERA 264 (2012).\nCiting then-Professor Guido Calabresi, Judge Weinstein held that liability should be imposed on\nthe employer because the employer can \xe2\x80\x9cobtain insurance more cheaply than those who may be\ninjured.\xe2\x80\x9d Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp. 518, 530 (E.D.N.Y. 1967).\nOn appeal, while Judge Friendly was uncharacteristically out of the office, his law clerk, a\nrecent Yale Law School graduate named Bruce Ackerman (now a professor at Yale) drafted an\nopinion affirming the economic approach adopted by Judge Weinstein and drawing on the\neconomics of his torts teacher, Guido Calabresi. As the story goes, Judge Friendly returned from\nthe office, rewrote the opinion, and soundly rejected the Calabresian approach to imposing\nliability. All that remained of the substance of the law clerk\xe2\x80\x99s draft was the opinion\xe2\x80\x99s dismissive\ndiscussion of the economic approach the draft had taken.\nWhen later asked about Judge Friendly\xe2\x80\x99s opinion, Calabresi remarked, \xe2\x80\x9c[The] irony is that\nFriendly got it right and Bruce [Ackerman] got it wrong. I cite the case as a great judge\xe2\x80\x99s\nresponse to academic theory on the basis of his own experience and intuition.\xe2\x80\x9d DORSEN, HENRY\nFRIENDLY, at 266. Is that right? What is the basis on which our \xe2\x80\x9cdeeply rooted sentiments,\xe2\x80\x9d as\nFriendly describes them, lead us to decide that the costs in question are characteristic of being an\nemployer of seamen rather than characteristic of being a dry dock?\n\n4. Vicarious liability and tort theory. Vicarious liability is pervasive. As one recent\ncommentator puts it, \xe2\x80\x9cmost tort suits are filed against businesses, and most businesses . . . are sued\nfor the acts of their employees.\xe2\x80\x9d See Alan Calnan, The Distorted Reality of Civil Recourse Theory,\n60 CLEVELAND L. REV. 159, 181 (2012). Though we have not paused to notice, the doctrine has\nbeen involved in many of the cases we have read in this book to this point. It is necessarily\ninvolved in every tort case against a corporate defendant, since corporations can only act through\ntheir agents. Virtually every products liability case is a respondeat superior case. Every municipal\nliability case is. Most cases arising out of economic activity seem to be vicarious liability cases,\nsince so much economic activity is collective or group activity in one way or another.\nThe prevalence of vicarious liability may have important implications for the basic logic\nof tort law. For although the field is often conceived of as a law of wrongs, vicarious liability\nmeans that many and perhaps even most tort defendants have not done anything wrong at all.\n484\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nOnly their employees have acted wrongfully. And yet we hold these blameless employers liable\nnonetheless. If we add this to the fact that most cases against non-corporate defendants feature\nliability insurance in which the insurer\xe2\x80\x94not the defendant himself or herself\xe2\x80\x94will pay the\ndamages, if any, we can only conclude that virtually all tort damages are paid by a party whom no\none thinks has acted in a wrongful manner. Gary T. Schwartz, The Hidden and Fundamental\nIssue of Employer Vicarious Liability, 69 S. CAL. L. REV. 1739, 1754 (1996).\n\n5. Vicarious liability in sexual abuse cases. Professor Martha Chamallas argues that courts\napply the doctrine of vicarious liability inconsistently in sexual abuse cases:\n[E]mployers are automatically liable for torts committed by their employees \xe2\x80\x9cin the\ncourse and scope of their employment.\xe2\x80\x9d . . . In sexual abuse cases, however, the\n\xe2\x80\x9ccourse and scope of employment\xe2\x80\x9d test has been applied much more restrictively.\nCourts are far less likely to hold employers vicariously liable for sexual abuse\ncommitted by employees, even as compared to other cases of non-sexual,\nintentional torts.\nMartha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 VAL. U. L. REV. 133, 136\n(2013). For example, in Lisa M. v. Henry Mayo Newhall Memorial Hosp., 907 P.2d 358 (Cal.\n1995), the California Supreme Court refused to hold a hospital vicariously liable when its medical\ntechnician molested a nineteen-year-old pregnant woman during the performance an ultrasound.\nThe court also refused to hold a school district liable for a teacher\xe2\x80\x99s molestation of a ninth grader\nduring an extra-curricular activity sanctioned by school. John R. v. Oakland Unified Sch. Dist.,\n769 P.2d 948 (Cal. 1989).\nChamallas argues that such cases reflect a misguided notion that sexual misconduct is\nunique and a tendency to fixate on the psychological state of the offender, while ignoring the\nsignificance of situational factors. Cases such as Lisa M. and John R., Chamallas argues, frame\nthe sex offender as an outsider, when, in significant part, the individual offender is part of the\ninstitution or enterprise.\nChamallas recommends a different approach to sexual abuse cases, inspired by the\nCanadian Supreme Court\xe2\x80\x99s decision in Bazley v. Curry, [1999] 2.S.C.R. 534 (Can. B.C.). In\nBazley, the court held liable a non-profit organization\xe2\x80\x94which operated treatment facilities for\nemotionally disturbed children\xe2\x80\x94for its employee\xe2\x80\x99s abuse of children under its care. The court\nbased its ruling on the finding that the abuse constituted a risk characteristic of the enterprise.\nAnd thus, Chamallas proposes the following rule: \xe2\x80\x9cVicarious liability shall be imposed if an\nemployer materially increases the risk of tortious action either by conferring power or authority\non its employees over vulnerable persons or by regularly placing its employees in situations of\nintimate or personal contact with clients, customers, or other potential victims.\xe2\x80\x9d Chamallas,\nsupra, at 187 (emphasis in original). For a counterargument skeptical of the claim that sex cases\nhave been treated differently in the doctrine, see John Goldberg, When is Sexual Abuse Within the\nScope of Employment?, JOTWELL (November 21, 2014), https://perma.cc/FKY7-JA3W.\n\n485\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nB. Wild and Abnormally Dangerous Animals\nRhodes v. MacHugh, 361 P.3d 260 (Wash. 2015)\nSIDDOWAY, C.J.\nComments to \xc2\xa7 23 of the Restatement (Third) of Torts, which deals with strict liability\nimposed on the owners of abnormally dangerous animals, observe that the common law has been\nsatisfied overall with the generalization that livestock are not excessively dangerous, but \xe2\x80\x9c[i]n the\nfuture, courts might wish to give consideration to particular genders ... of a species that involve\ndanger levels uncommon for the species itself.\xe2\x80\x9d Restatement (Third) of Torts: Liability for\nPhysical and Emotional Harm \xc2\xa7 23 cmt. e (2010) (emphasis added). In this case, Jay Rhodes asks\nus to hold the owner of a ram (a male sheep) strictly liable for harm caused by the ram on account\nof the ram\xe2\x80\x99s gender-based dangerousness, rather than any abnormal dangerousness of which the\nowner was aware.\n...\nFACTS AND PROCEDURAL BACKGROUND\nJay Rhodes and Rodney MacHugh are longtime friends and neighbors. Both men live in\nRichland and have farmed for decades. Mr. Rhodes has raised cows, horses, and occasionally\npigs and goats, but he described the summer of 2012 as \xe2\x80\x9cmy first excursion with sheep. And an\nunfortunate one.\xe2\x80\x9d Mr. MacHugh has bred sheep for over 30 years. Because Mr. MacHugh\xe2\x80\x99s land\nis prone to flooding, Mr. Rhodes has allowed Mr. MacHugh to keep some of his livestock on Mr.\nRhodes\xe2\x80\x99s property.\nIn the summer of 2012, Mr. MacHugh and Mr. Rhodes went to a livestock yard in\nLewiston, Idaho, where Mr. MacHugh purchased a ram to replace his existing ram . . . .The\nreplacement ram was eight or nine months old and weighed in the neighborhood of 150 pounds.\nIt showed no vicious tendencies. The men took it directly to Mr. Rhodes\xe2\x80\x99s property where, for the\nfollowing month, it caused no problems. In the weeks before Mr. MacHugh put the ram in with\newes, Mr. Rhodes described it as \xe2\x80\x9creal friendly. He\xe2\x80\x99d come up to me several times when I was\nchanging water, and I\xe2\x80\x99d pet him.\xe2\x80\x9d\nOn August 20, 2012, Mr. Rhodes went into his yard to turn on his sprinklers. By that\ntime, Mr. MacHugh had put several ewes in the pasture with the ram. Mr. Rhodes walked past\nthem and toward the five-foot sprinklers in the pasture. Just as he touched the valve at the top of\nthe sprinklers, the ram butted him from behind, knocking him to the ground. According to Mr.\nRhodes, the ram continued to \xe2\x80\x9cjump up in the air and then he\xe2\x80\x99d hit me with his head,\xe2\x80\x9d knocking\nhim out \xe2\x80\x9ca couple of times,\xe2\x80\x9d for as much as 30 minutes. Fortunately, a neighbor who stopped by\nto bring Mr. Rhodes some cantaloupes saw what was going on. . . . [S]he began throwing her\ncantaloupes at the ram, which was sufficiently distracted that Mr. Rhodes was able to crawl to the\ngate. She helped him out and slammed the gate on the charging ram. Mr. Rhodes, then 82 years\nold, suffered a concussion, five broken ribs, and a broken sternum and shoulder. He was\nhospitalized for 16 days.\nMr. Rhodes filed this action in an effort to recover for his injuries. He did not contend\n486\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nthat the ram was abnormally dangerous, and he refused to accuse his friend of negligence,\ntestifying, \xe2\x80\x9cI don\xe2\x80\x99t think Mr. MacHugh thought there was anything wrong\xe2\x80\x9d with the ram. For his\npart, Mr. MacHugh admitted that he had owned as many as three \xe2\x80\x9cmean\xe2\x80\x9d rams over the years, but\nthat \xe2\x80\x9con my place, if they\xe2\x80\x99re the least bit mean, they go real quick.\xe2\x80\x9d He testified that he had\nselected this ram because it was the \xe2\x80\x9cfriendliest\xe2\x80\x9d of three that the seller had raised on a bottle after\ntheir mother died.\nBecause Mr. Rhodes relied exclusively on a theory of strict liability that he asked the\ncourt to extend to the owners of all rams, not just those known to be abnormally dangerous, the\nparties presented the legal issue to the trial court on summary judgment. Mr. MacHugh\xe2\x80\x99s motion\nfor summary judgment dismissing the claim was granted. Mr. Rhodes appeals.\nANALYSIS\nThe sole issue on appeal is whether summary judgment in favor of Mr. MacHugh was\nproper because he is not strictly liable for harm caused by a ram he did not know to be abnormally\ndangerous. . . .\nFor more than a century, the rule in Washington regarding liability for harm caused by a\ndomestic animal [defined by the Restatement (Second) of Torts as one \xe2\x80\x9cthat is by custom devoted\nto the service of mankind at the time and in the place in which it is kept.\xe2\x80\x9d Restatement (Second)\nof Torts \xc2\xa7 506(2) (1977)] has been:\n\xe2\x80\x9cThe owner or keeper of a domestic animal not naturally inclined to commit\nmischief, while bound to exercise ordinary care to prevent injury being done by it\nto another, is not liable for such injury if the animal be rightfully in the place when\nthe mischief is done, unless it is affirmatively shown, not only that the animal was\nvicious, but that the owner or keeper had knowledge of the fact. When such scienter\nexists, the owner or keeper is accountable for all the injury such animal may do,\nwithout proof of any negligence or fault in the keeping, and regardless of his\nendeavors to so keep the animal as to prevent the mischief.\xe2\x80\x9d\n....\nWashington cases are consistent with the Restatement (Second) of Torts (1977). In Arnold\nv. Laird, 94 Wash.2d 867, 871, 621 P.2d 138 (1980), our Supreme Court noted that the\nRestatement (Second) \xe2\x80\x9crecognizes two separate causes of action\xe2\x80\x9d against the owner of a domestic\nanimal that causes injury. Under section 509, strict liability applies where the animal \xe2\x80\x9chas known\ndangerous propensities abnormal to its class.\xe2\x80\x9d Section 518, on the other hand, \xe2\x80\x9cprovides that if\nthere are no known abnormally dangerous propensities, the owner is liable only if he is negligent\nin failing to prevent the harm. The amount of care required is commensurate with the character of\nthe animal.\xe2\x80\x9d\nMr. Rhodes concedes that rams have not historically been regarded as being inherently\ndangerous animals. . . . Nevertheless, relying on a comment to \xc2\xa7 23 of the most recent\nRestatement, he asks that we recognize that \xe2\x80\x9c[t]he dangerous propensities of rams are well-known\nand strict liability should attach, and this whether the animal is \xe2\x80\x98domestic\xe2\x80\x99 or otherwise.\xe2\x80\x9d\nThe language of \xc2\xa7 23 of the Restatement (Third) is similar to that of Restatement (Second)\n\xc2\xa7 509 [\xe2\x80\x9cAn owner or possessor of an animal that the owner or possessor knows or has reason to\n487\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nknow has dangerous tendencies abnormal for the animal\xe2\x80\x99s category is subject to strict liability for\nphysical harm caused by the animal if the harm ensues from that dangerous tendency.\xe2\x80\x9d\nRestatement (Third) \xc2\xa7 23, at 303 (2010)], yet the comments to \xc2\xa7 23 propose a possible gender-or\nbreed-based modification of the general rule treating domestic animals as not excessively\ndangerous. Comment e states, in part:\nOverall, the common law has been satisfied with the generalization that livestock\nand dogs are not excessively dangerous and has applied this generalization to all\nlivestock and dogs. In the future, courts might wish to give consideration to\nparticular genders or breeds of a species that involve danger levels uncommon for\nthe species itself. If so, it might be appropriate to impose strict liability, without\nindividualized scienter, on the owner of such an animal.\nRestatement (Third) \xc2\xa7 23 cmt. e (emphasis added). Mr. Rhodes asks us to act on this\nacknowledgment and common knowledge that while ewes may be timid, rams are known to be\ndangerous.\nPrior versions of the Restatement have not overlooked the different temperament of male\ndomestic animals . . . . But historically the framework of liability for negligence has been viewed\nas adequate to address gender differences, and refusing to broaden strict liability has also been\njustified by policy reasons.\nThe Restatement (Second) recognizes the relatively dangerous propensities of male\ndomestic animals such as bulls, stallions, and rams but characterizes them as normal to their class.\nAs the comments to \xc2\xa7 509 observe, \xe2\x80\x9c[T]hese animals have been kept for stud purposes from time\nimmemorial so that the particular danger involved in their dangerous tendencies has become a\nnormal incident of civilized life.\xe2\x80\x9d Restatement (Second) \xc2\xa7 509 cmt. e; . . . . In other words, a ram\nhas not been considered \xe2\x80\x9cabnormally\xe2\x80\x9d dangerous for purposes of applying strict liability under \xc2\xa7\n509 because its dangerous propensities are \xe2\x80\x9cnormal\xe2\x80\x9d for its species.\nIt is also for policy reasons that owners of male domestic animals have not been held to a\nstandard of strict liability, because often it is the very characteristics that cause the males to be\ndangerous that make them useful to society. The comments to \xc2\xa7 518 of the Restatement (Second)\nobserve that \xe2\x80\x9c[t]he high temper normal to stud animals is so inseparable from their usefulness for\nbreeding purposes that they are not kept at the risk of the liability stated in \xc2\xa7 509.\xe2\x80\x9d Restatement\n(Second) \xc2\xa7 518 cmt. f. . . .\nThe law is not oblivious to the greater risk posed by male livestock used for breeding in\nthe context of liability for negligence, and greater precautions are typically required in light of\ntheir characteristics. . . . As the comments to \xc2\xa7 518 explain, \xe2\x80\x9cthe keeper of a bull or stallion is\nrequired to take greater precautions to confine it to the land on which it is kept and to keep it\nunder effective control when it is taken from the land than would be required of the keeper of a\ncow or gelding.\xe2\x80\x9d Restatement (Second) \xc2\xa7 518 cmt. g.\n\xe2\x80\x9cRules of law ... should not be changed for light or transient causes; but, when time and\nevents prove the need for a change, changed they must be.\xe2\x80\x9d Here, the utility of domestic animals\nremains undiminished. Those who raise them and face the greatest exposure to relatively more\ndangerous genders or breeds will be familiar with their characteristics. Third parties continue to\nhave recourse for an owner\xe2\x80\x99s negligence, and owners are required to take greater precautions to\n488\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nconfine and control animals in light of their characteristics. Mr. Rhodes\xe2\x80\x99s unfortunate excursion\nwith Mr. MacHugh\xe2\x80\x99s ram does not persuade us that the limited scope of strict liability that\nWashington has historically imposed on the owners of domestic animals should be enlarged.4\nAffirmed.\n\nNote\n\n1. Wild animals. Tort law holds possessors of wild animals to the same level of\nresponsibility as possessors of abnormally dangerous animals. In the Restatement formulation:\n\xe2\x80\x9cA possessor of a wild animal is subject to liability to another for harm done by the animal to the\nother, his person, land or chattels, although the possessor has exercised the utmost care to confine\nthe animal, or otherwise prevent it from doing harm.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7\n507(1) (1977). Note that as with abnormally dangerous animals, the possessor of a wild animal is\nnot strictly liable for any harm that the animal causes\xe2\x80\x94only \xe2\x80\x9charm that results from a dangerous\npropensity that is characteristic of wild animals of the particular class, or of which the possessor\nknows or has reason to know.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 507(2) (1977). Can you\nimagine a concrete scenario in which this language would allow a possessor of a wild animal to\navoid being held strictly liable for an injury the animal caused?\n\nC. Abnormally Dangerous Activities\nSpano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969)\nFULD, C.J.\nThe principal question posed on this appeal is whether a person who has sustained\nproperty damage caused by blasting on nearby property can maintain an action for damages\nwithout a showing that the blaster was negligent. Since 1893, when this court decided the case of\nBooth v. Rome, Watertown and Ogdensburg Terminal Railroad, 140 N.Y. 267 (1893), it has been\nthe law of this State that proof of negligence was required unless the blast was accompanied by an\nactual physical invasion of the damaged property\xe2\x80\x94for example, by rocks or other material being\ncast upon the premises. We are now asked to reconsider that rule.\nThe plaintiff Spano is the owner of a garage in Brooklyn which was wrecked by a blast\noccurring on November 27, 1962. There was then in that garage, for repairs, an automobile owned\nby the plaintiff Davis which he also claims was damaged by the blasting. Each of the\nplaintiffs brought suit against the two defendants who, as joint venturers, were engaged in\nconstructing a tunnel in the vicinity pursuant to a contract with the City of New York. The two\ncases were tried together, without a jury, in the Civil Court of the City of New York, New York\nCounty, and judgments were rendered in favor of the plaintiffs. The judgments were reversed by\nthe Appellate Term and the Appellate Division affirmed that order, granting leave to appeal to this\ncourt.\n\n489\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nIt is undisputed that, on the day in question (November 27, 1962), the defendants had set\noff a total of 194 sticks of dynamite at a construction site which was only 125 feet away from the\ndamaged premises. Although both plaintiffs alleged negligence in their complaints, no attempt\nwas made to show that the defendants had failed to exercise reasonable care or to take necessary\nprecautions when they were blasting. Instead, they chose to rely, upon the trial, solely on the\nprinciple of absolute liability either on a tort theory or on the basis of their being third-party\nbeneficiaries of the defendants\xe2\x80\x99 contract with the city. At the close of the plaintiff Spano\xe2\x80\x99s case,\nwhen defendants\xe2\x80\x99 attorney moved to dismiss the action on the ground, among others, that no\nnegligence had been proved, the trial judge expressed the view that the defendants could be held\nliable even though they were not shown to have been careless. The case then proceeded, with\nevidence being introduced solely on the question of damages and proximate cause. Following the\ntrial, the court awarded damages of some $ 4,400 to Spano and of $329 to Davis.\nOn appeal, a divided Appellate Term reversed that judgment, declaring that it deemed\nitself concluded by the established rule in this State requiring proof of negligence. . . .\nIn our view, the time has come for this court to make that \xe2\x80\x9cannouncement\xe2\x80\x9d and declare\nthat one who engages in blasting must assume responsibility, and be liable without fault, for any\ninjury he causes to neighboring property.\nThe concept of absolute liability in blasting cases is hardly a novel one. The\noverwhelming majority of American jurisdictions have adopted such a rule. (See PROSSER, TORTS\n[2d ed.], \xc2\xa7 59, p. 336; RESTATEMENT (THIRD) TORTS, \xc2\xa7\xc2\xa7 519, 520, comment e; Ann.) Indeed, this\ncourt itself, several years ago, noted that a change in our law would \xe2\x80\x9cconform to the more widely\n(indeed almost universally) approved doctrine that a blaster is absolutely liable for any damages\nhe causes, with or without trespass.\xe2\x80\x9d\nWe need not rely solely, however, upon out-of-state decisions in order to attain our\nresult. In . . . Hay v. Cohoes Co., 2 N.Y. 159 . . . , for example, the defendant was engaged in\nblasting an excavation for a canal and the force of the blasts caused large quantities of earth and\nstones to be thrown against the plaintiff\xe2\x80\x99s house, knocking down his stoop and part of his\nchimney. The court held the defendant absolutely liable for the damage caused, stating:\nIt is an elementary principle in reference to private rights, that every individual is\nentitled to the undisturbed possession and lawful enjoyment of his own property.\nThe mode of enjoyment is necessarily limited by the rights of others\xe2\x80\x94otherwise it\nmight be made destructive of their rights altogether. Hence the maxim sic utere tuo,\n&c. The defendants had the right to dig the canal. The plaintiff the right to the\nundisturbed possession of his property. If these rights conflict, the former must\nyield to the latter, as the more important of the two, since, upon grounds of public\npolicy, it is better that one man should surrender a particular use of his land, than\nthat another should be deprived of the beneficial use of his property altogether,\nwhich might be the consequence if the privilege of the former should be wholly\nunrestricted. The case before us illustrates this principle. For if the defendants in\nexcavating their canal, in itself a lawful use of their land, could, in the manner\nmentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they\nmight, for the same purpose, on the exercise of reasonable care, demolish his house,\nand thus deprive him of all use of his property.\n490\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nAlthough the court in Booth drew a distinction between a situation\xe2\x80\x94such as was\npresented in the Hay case\xe2\x80\x94where there was \xe2\x80\x9ca physical invasion\xe2\x80\x9d of, or trespass on, the\nplaintiff\xe2\x80\x99s property and one in which the damage was caused by \xe2\x80\x9csetting the air in motion, or in\nsome other unexplained way\xe2\x80\x9d (140 N. Y., at 279, 280), it is clear that the court, in the earlier\ncases, was not concerned with the particular manner by which the damage was caused but by the\nsimple fact that any explosion in a built-up area was likely to cause damage. Thus, in\nHeeg v. Licht, 80 N. Y. 579 . . . , the court held that there should be absolute liability where the\ndamage was caused by the accidental explosion of stored gunpowder, even in the absence of a\nphysical trespass:\n\xe2\x80\x9cThe defendant had erected a building and stored materials therein, which from their\ncharacter were liable to and actually did explode, causing injury to the plaintiff. The\nfact that the explosion took place tends to establish that the magazine was dangerous\nand liable to cause damage to the property of persons residing in the vicinity. . . .\nThe fact that the magazine was liable to such a contingency, which could not be\nguarded against or averted by the greatest degree of care and vigilance, evinces its\ndangerous character, . . . In such a case, the rule which exonerates a party engaged\nin a lawful business, when free from negligence, has no application.\xe2\x80\x9d\nSuch reasoning should, we venture, have led to the conclusion that the intentional setting\noff of explosives\xe2\x80\x94that is, blasting\xe2\x80\x94in an area in which it was likely to cause harm to\nneighboring property similarly results in absolute liability. However, the court in the Booth case\nrejected such an extension of the rule for the reason that \xe2\x80\x9c[to] exclude the defendant from blasting\nto adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a\ncompromise between conflicting rights, but an extinguishment of the right of the one for the\nbenefit of the other.\xe2\x80\x9d 140 N. Y., at 281. The court expanded on this by stating, \xe2\x80\x9cThis sacrifice, we\nthink, the law does not exact. Public policy is promoted by the building up of towns and cities\nand the improvement of property. Any unnecessary restraint on freedom of action of a property\nowner hinders this.\xe2\x80\x9d\nThis rationale cannot withstand analysis. The plaintiff in Booth was not seeking, as the\ncourt implied, to \xe2\x80\x9cexclude the defendant from blasting\xe2\x80\x9d and thus prevent desirable improvements\nto the latter\xe2\x80\x99s property. Rather, he was merely seeking compensation for the damage which was\ninflicted upon his own property as a result of that blasting. The question, in other words, was\nnot whether it was lawful or proper to engage in blasting but who should bear the cost of any\nresulting damage\xe2\x80\x94the person who engaged in the dangerous activity or the innocent neighbor\ninjured thereby. Viewed in such a light, it clearly appears that Booth was wrongly decided and\nshould be forthrightly overruled.\nIn more recent cases, our court has already gone far toward mitigating the harsh effect of\nthe rule laid down in the Booth case. Thus, we have held that negligence can properly be inferred\nfrom the mere fact that a blast has caused extensive damage, even where the plaintiff is unable to\nshow \xe2\x80\x9cthe method of blasting or the strength of the charges or the character of the soil or rock.\xe2\x80\x9d . .\n. But, even under this liberal interpretation . . . , it would still remain possible for a defendant who\nengages in blasting operations\xe2\x80\x94which he realizes are likely to cause injury\xe2\x80\x94to avoid liability by\nshowing that he exercised reasonable care. Since blasting involves a substantial risk of harm no\nmatter the degree of care exercised, we perceive no reason for ever permitting a person who\n\n491\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nengages in such an activity to impose this risk upon nearby persons or property without assuming\nresponsibility therefor.\n. . . The principle thrust of [defendants\xe2\x80\x99] argument is directed not to the requisite standard\nof care to be used but, rather, to . . . the proof adduced on the issue of causation.\n. . . Although the evidence adduced by the plaintiffs on th[e] question [of causation] was\nentirely circumstantial, it may not be said that it was insufficient as a matter of law. The\nplaintiffs\xe2\x80\x99 principal witness was a contractor who had leased a portion of the premises from\nSpano. It was his testimony that there was no damage on or to the premises prior to November 27;\nthat he had heard an explosion at about noon on that day while he was working some three blocks\naway and that, when he returned a few hours later, the building \xe2\x80\x9cwas cracked in the wall . . . the\nwindow broke, and the cement floor all pop up.\xe2\x80\x9d In addition, an insurance adjuster, an expert\nwith wide experience in handling explosion claims, who inspected the damage to Davis\xe2\x80\x99s car,\ntestified that the damage was evidently \xe2\x80\x9ccaused by a concussion of one form or another.\xe2\x80\x9d The\ndefendants\xe2\x80\x99 expert attributed the damage to another cause\xe2\x80\x94poor maintenance and building\ndeterioration\xe2\x80\x94but, admittedly, the defendants were engaged in blasting operations in the area at\nthe time and, as the Appellate Term expressly found, the inference that this was the cause of the\ndamage could properly be drawn. Even though the proof was not insufficient as a matter of law,\nhowever, the Appellate Division affirmed on the sole ground that no negligence had been proven\nagainst the defendants and thus had no occasion to consider the question whether, in fact, the\nblasting caused the damage. That being so, we must remit the case to the Appellate Division so\nthat it may pass upon the weight of the evidence. . . .\nThe order appealed from should be reversed, with costs, and the matter remitted to the\nAppellate Division for further proceedings in accordance with this opinion.\nOrder reversed. . . .\n\nNotes\n\n1. What is an abnormally dangerous activity? As the Spano court indicates, the blasting rule\nhas been extended in the Restatement to include abnormally dangerous activities more generally.\nThe standard view is that abnormally dangerous activities include explosives and \xe2\x80\x9chigh-energy\nactivities.\xe2\x80\x9d See DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, DOBBS\xe2\x80\x99 LAW OF TORTs \xc2\xa7\n443 (2d ed. 2014). Courts have ruled that the category encompasses gasoline explosions, Nat\xe2\x80\x99l\nSteel Serv. Ctr, Inc. v. Gibbons, 319 N.W.2d 269 (Iowa 1982), and fireworks injuries, Klein v.\nPyrodyne Corp., 810 P.2d 917 (Wash. 1991). Courts, however, do not consider gasoline and\nrelated fuels to be abnormally dangerous when they are stored, McLane v. Nw. Nat\xe2\x80\x99l Gas Co., 467\nP.2d 635 (Or. 1970), or used as fuels, Allison v. Ideal Laundry & Cleaners, 55 S.E.2d 281 (S.C.\n1949). Courts similarly do not consider electricity to be abnormally dangerous when it is\ntransported over uninsulated or insulated powerlines. Kent v. Gulf States Utils. Co., 418 So. 2d\n493 (La. 1982).\nCourts have held that using toxic materials to kill pests may be an abnormally dangerous\nactivity. Luthringer v. Moore, 190 P.2d 1 (Cal. 1948). The same is true with using toxic\n492\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nsubstances to protect crops. See Loe v. Lenhardt, 362 P.2d 312 (Or. 1961). At least one court has\nheld that storing radioactive material may be considered an abnormally dangerous activity. See In\nre Hanford Nuclear Reservation Litigation, 534 F.3d 986 (9th Cir. 2008) (amended opinion).\nA number of recent academic articles have argued that hydraulic fracturing (or \xe2\x80\x9cfracking\xe2\x80\x9d)\nshould be considered an abnormally dangerous activity. See, e.g., Leonard S. Rubin, Frack to the\nFuture: Considering a Strict Liability Standard for Hydraulic Fracturing Activities, 3 GEO.\nWASH. J. ENERGY & ENVIRO. L. 117 (2012). Some have blamed fracking for explosions,\ngroundwater contamination, and even flammable tap water. See, e.g., Abrahm Lustgarten, Does\nNatural Gas Drilling Make Water Burn?, SCI. AM., Apr. 27, 2009. The courts have been less\nenthusiastic. Kansas has explicitly refused to categorize fracking as abnormally dangerous,\nWilliams v. Amoco Prod. Co., 734 P.2d 1113 (Kan. 1987). Wyoming has held all oil and gas\ndrilling to be abnormally dangerous, Hull v. Chevron, U.S.A., Inc., 812 F.2d 584, 589 (10th Cir.\n1987). But as of the summer of 2017, no state had applied the doctrine to fracking in particular.\n\n2. The Restatements. Both the Restatement (Second) and (Third) of Torts impose strict\nliability on abnormally dangerous activities. The two Restatements, however, have different\ndefinitions of \xe2\x80\x9cabnormally dangerous activities.\xe2\x80\x9d The Restatement (Third) classifies an activity as\nabnormally dangerous if \xe2\x80\x9c(1) the activity creates a foreseeable and highly significant risk of\nphysical harm even when reasonable care is exercised by all actors; and (2) the activity is not one\nof common usage.\xe2\x80\x9d RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM \xc2\xa7\n20(b)(1)-(2) (2010). By contrast, the Restatement (Second) laid out a series of factors to be\nconsidered in classifying an activity as abnormally dangerous. Those factors include: (a) a \xe2\x80\x9chigh\ndegree of risk of some harm\xe2\x80\x9d to others; (b) a likelihood that such harm would be great; (c) an\n\xe2\x80\x9cinability to eliminate the risk by the exercise of reasonable care\xe2\x80\x9d; (d) the \xe2\x80\x9cextent to which the\nactivity is not a matter of common usage\xe2\x80\x9d; (e) the \xe2\x80\x9cinappropriateness\xe2\x80\x9d of the setting in which the\nactivity takes place; and (f) the extent to which the activity\xe2\x80\x99s dangerousness outweighs its \xe2\x80\x9cvalue\nto the community.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 520 (1977).\n\n3. The case of the cannibal minks. In 1942, the Utah Supreme Court decided Madsen v. East\nJordan Irrigation Co., 125 P.2d 794 (Utah 1942). The case arose when the defendant, in repairing\nits canal, \xe2\x80\x9cblasted with explosives, causing vibrations and noises which frightened the mother\nmink and caused 108 of them to kill 230 of their \xe2\x80\x98kittens.\xe2\x80\x99\xe2\x80\x9d The plaintiff sued for damages,\narguing that the defendant was strictly liable for the lost mink kittens. The court rejected the\nclaim and explained that even though Utah law did not require any concussive effect to invoke the\ndoctrine of strict liability for blasting, still a blaster was not liable for all damages caused by its\nactivities:\n[H]e who fires explosives is not liable for every occurrence following the explosion\nwhich has a semblance of connection to it. Jake\xe2\x80\x99s horse might become so excited\nthat he would run next door and kick a few ribs out of Cy\xe2\x80\x99s jersey cow, but is such\na thing to be anticipated from an explosion? Whether the cases are concussion or\nnonconcussion, the results chargeable to the nonnegligent user of explosives are\nthose things ordinarily resulting from an explosion. Shock, air vibrations, thrown\nmissiles are all illustrative of the anticipated results of explosives; they are physical\nas distinguished from mental in character. The famous Squib case does not mitigate\n493\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nwhat has been said in the preceding lines. That was a case where the mental reaction\nwas to be anticipated as an instinctive matter of self-preservation. In the instant\ncase, the killing of their kittens was not an act of self-preservation on the part of the\nmother mink but a peculiarity of disposition which was not within the realm of\nmatters to be anticipated. Had a squib been thrown and suddenly picked up by a\ndog, in fun, and carried near another, it is ventured that we would not have had a\nfamous Squib case, as such a result would not have been within the realm of\nanticipation.\nMadsen, 125 P.2d at 795. Does the question of the relative risk reduction capacity of the parties\nhelp to explain the outcome in Madsen? If Madsen is correctly decided, is Spano? Isn\xe2\x80\x99t the\nSpano v. Perini Corp. garage the equivalent of the cannibal mink in Madsen? When a plaintiff\xe2\x80\x99s\nproperty is damaged by percussive force and vibrations is it as likely, as it is in cases of physical\nimpact, that the defendant blaster was better positioned to reduce the risks than the plaintiff\nproperty owner?\n\n4. A notice principle. Contrast Madsen with Wadsworth v. Marshall, 34 A. 30 (Me. 1896).\nIn Wadsworth, a blast from the defendant\xe2\x80\x99s mine frightened the plaintiff\xe2\x80\x99s horse, thereby injuring\nthe plaintiff. A state statute required that \xe2\x80\x9cpersons engaged in blasting . . . give . . . notice\xe2\x80\x9d to\nparties that were in close proximity to the blasting, but the defendant failed to do so. Because the\ndefendant failed to abide by the statute, the court held the defendant \xe2\x80\x9cliable for the consequences\nof his negligence, if no negligence of the plaintiff contributed to the injury. If it did, plaintiff\ncannot recover. The established doctrine of contributory negligence, as a defense, applies to this\nclass of actions.\xe2\x80\x9d Id. at 32.\n\nIndiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990)\nPOSNER, J.\nAmerican Cyanamid Company, the defendant in this diversity tort suit governed by\nIllinois law, is a major manufacturer of chemicals, including acrylonitrile, a chemical used in\nlarge quantities in making acrylic fibers, plastics, dyes, pharmaceutical chemicals, and other\nintermediate and final goods. On January 2, 1979, at its manufacturing plant in Louisiana,\nCyanamid loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car that it had leased\nfrom the North American Car Corporation. The next day, a train of the Missouri Pacific Railroad\npicked up the car at Cyanamid\xe2\x80\x99s siding. The car\xe2\x80\x99s ultimate destination was a Cyanamid plant in\nNew Jersey served by Conrail rather than by Missouri Pacific. The Missouri Pacific train carried\nthe car north to the Blue Island railroad yard of Indiana Harbor Belt Railroad, the plaintiff in this\ncase, a small switching line that has a contract with Conrail to switch cars from other lines to\nConrail, in this case for travel east. The Blue Island yard is in the Village of Riverdale, which is\njust south of Chicago and part of the Chicago metropolitan area.\nThe car arrived in the Blue Island yard on the morning of January 9, 1979. Several hours\nafter it arrived, employees of the switching line noticed fluid gushing from the bottom outlet of\nthe car. The lid on the outlet was broken. After two hours, the line\xe2\x80\x99s supervisor of equipment was\nable to stop the leak by closing a shut-off valve controlled from the top of the car. No one was\n494\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nsure at the time just how much of the contents of the car had leaked, but it was feared that all\n20,000 gallons had, and since acrylonitrile is flammable at a temperature of 30 degrees Fahrenheit\nor above, highly toxic, and possibly carcinogenic . . . the local authorities ordered the homes near\nthe yard evacuated. The evacuation lasted only a few hours, until the car was moved to a remote\npart of the yard and it was discovered that only about a quarter of the acrylonitrile had leaked.\nConcerned nevertheless that there had been some contamination of soil and water, the Illinois\nDepartment of Environmental Protection ordered the switching line to take decontamination\nmeasures that cost the line $981,022.75, which it sought to recover by this suit.\nOne count of the two-count complaint charges Cyanamid with having maintained the\nleased tank car negligently. The other count asserts that the transportation of acrylonitrile in bulk\nthrough the Chicago metropolitan area is an abnormally dangerous activity, for the consequences\nof which the shipper (Cyanamid) is strictly liable to the switching line . . . . After the district judge\ndenied Cyanamid\xe2\x80\x99s motion to dismiss the strict liability count . . . the switching line moved for\nsummary judgment on that count\xe2\x80\x94 and won. . . . [The district judge then awarded the switching\nline plaintiff $981.022.75 in damages and dismissed the plaintiff\xe2\x80\x99s negligence claim with\nprejudice. Cyanamid appealed the entry of judgment on the abnormally dangerous strict liability\nclaim and the switching line cross-appealed, challenging the dismissal of the negligence count.]\nThe question whether the shipper of a hazardous chemical by rail should be strictly liable\nfor the consequences of a spill or other accident to the shipment en route is a novel one in Illinois .\n...\nThe key provision is section 520 [of the Restatement (Second) of Torts], which sets forth\nsix factors to be considered in deciding whether an activity is abnormally dangerous and the actor\ntherefore strictly liable.\nThe roots of section 520 are in nineteenth-century cases. The most famous one is Rylands\nv. Fletcher, . . . but a more illuminating one in the present context is Guille v. Swan. . . . In Guille,\na man took off in a hot-air balloon and landed, without intending to, in a vegetable garden in New\nYork City. A crowd that had been anxiously watching his involuntary descent trampled the\nvegetables in their endeavor to rescue him when he landed. The owner of the garden sued the\nballoonist for the resulting damage, and won. Yet the balloonist had not been careless. In the\nthen-state of ballooning it was impossible to make a pinpoint landing.\nGuille is a paradigmatic case for strict liability. (a) The risk (probability) of harm was\ngreat, and (b) the harm that would ensue if the risk materialized could be, although luckily was\nnot, great (the balloonist could have crashed into the crowd rather than into the vegetables). The\nconfluence of these two factors established the urgency of seeking to prevent such accidents. (c)\nYet such accidents could not be prevented by the exercise of due care; the technology of care in\nballooning was insufficiently developed. (d) The activity was not a matter of common usage, so\nthere was no presumption that it was a highly valuable activity despite its unavoidable riskiness.\n(e) The activity was inappropriate to the place in which it took place\xe2\x80\x94densely populated New\nYork City. The risk of serious harm to others (other than the balloonist himself, that is) could\nhave been reduced by shifting the activity to the sparsely inhabited areas that surrounded the city\nin those days. (f) Reinforcing (d), the value to the community of the activity of recreational\nballooning did not appear to be great enough to offset its unavoidable risks.\n\n495\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nThese are, of course, the six factors in section 520. They are related to each other in that\neach is a different facet of a common quest for a proper legal regime to govern accidents that\nnegligence liability cannot adequately control. The interrelations might be more perspicuous if\nthe six factors were reordered. One might for example start with (c), inability to eliminate the risk\nof accident by the exercise of due care. . . . The baseline common law regime of tort liability is\nnegligence. When it is a workable regime, because the hazards of an activity can be avoided by\nbeing careful (which is to say, nonnegligent), there is no need to switch to strict liability.\nSometimes, however, a particular type of accident cannot be prevented by taking care but can be\navoided, or its consequences minimized, by shifting the activity in which the accident occurs to\nanother locale, where the risk or harm of an accident will be less ((e)), or by reducing the scale of\nthe activity in order to minimize the number of accidents caused by it ((f)). . . . Shavell, Strict\nLiability versus Negligence, 9 J. LEGAL STUD. 1 (1980). By making the actor strictly liable\xe2\x80\x94by\ndenying him in other words an excuse based on his inability to avoid accidents by being more\ncareful\xe2\x80\x94we give him an incentive, missing in a negligence regime, to experiment with methods\nof preventing accidents that involve not greater exertions of care, assumed to be futile, but instead\nrelocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the\naccident. . . . The greater the risk of an accident ((a)) and the costs of an accident if one occurs\n((b)), the more we want the actor to consider the possibility of making accident-reducing activity\nchanges; the stronger, therefore, is the case for strict liability. Finally, if an activity is extremely\ncommon ((d)), like driving an automobile, it is unlikely either that its hazards are perceived as\ngreat or that there is no technology of care available to minimize them; so the case for strict\nliability is weakened.\nThe largest class of cases in which strict liability has been imposed under the standard\ncodified in the Second Restatement of Torts involves the use of dynamite and other explosives for\ndemolition in residential or urban areas. RESTATEMENT, supra, \xc2\xa7 519, cmt. d. . . . Explosives are\ndangerous even when handled carefully, and we therefore want blasters to choose the location of\nthe activity with care and also to explore the feasibility of using safer substitutes (such as a\nwrecking ball), as well as to be careful in the blasting itself. Blasting is not a commonplace\nactivity like driving a car, or so superior to substitute methods of demolition that the imposition of\nliability is unlikely to have any effect except to raise the activity\xe2\x80\x99s costs.\nAgainst this background we turn to the particulars of acrylonitrile. [W]e have been given\nno reason . . . for believing that a negligence regime is not perfectly adequate to remedy and deter,\nat reasonable cost, the accidental spillage of acrylonitrile from rail cars. . . . [A]lthough\nacrylonitrile is flammable even at relatively low temperatures, and toxic, it is not so corrosive or\notherwise destructive that it will eat through or otherwise damage or weaken a tank car\xe2\x80\x99s valves\nalthough they are maintained with due (which essentially means, with average) care. No one\nsuggests, therefore, that the leak in this case was caused by the inherent properties of\nacrylonitrile. It was caused by carelessness\xe2\x80\x94whether that of the North American Car Corporation\nin failing to maintain or inspect the car properly, or that of Cyanamid in failing to maintain or\ninspect it, or that of the Missouri Pacific when it had custody of the car, or that of the switching\nline itself in failing to notice the ruptured lid, or some combination of these possible failures of\ncare. Accidents that are due to a lack of care can be prevented by taking care; and when a lack of\ncare can . . . be shown in court, such accidents are adequately deterred by the threat of liability for\nnegligence.\nIt is true that the district court purported to find as a fact that there is an inevitable risk of\nderailment or other calamity in transporting \xe2\x80\x9clarge quantities of anything.\xe2\x80\x9d . . . This is not a\n496\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nfinding of fact, but a truism: anything can happen. The question is, how likely is this type of\naccident if the actor uses due care? For all that appears from the record of the case or any other\nsources of information that we have found, if a tank car is carefully maintained the danger of a\nspill of acrylonitrile is negligible. If this is right, there is no compelling reason to move to a\nregime of strict liability, especially one that might embrace all other hazardous materials shipped\nby rail as well. This also means, however, that the amici curiae who have filed briefs in support\nof Cyanamid cry wolf in predicting \xe2\x80\x9cdevastating\xe2\x80\x9d effects on the chemical industry if the district\ncourt\xe2\x80\x99s decision is affirmed. If the vast majority of chemical spills by railroads are preventable by\ndue care, the imposition of strict liability should cause only a slight, not as they argue a\nsubstantial, rise in liability insurance rates, because the incremental liability should be slight. The\namici have momentarily lost sight of the fact that the feasibility of avoiding accidents simply by\nbeing careful is an argument against strict liability. . . .\nThe district judge and the plaintiff\xe2\x80\x99s lawyer make much of the fact that the spill occurred\nin a densely inhabited metropolitan area. Only 4,000 gallons spilled; what if all 20,000 had done\nso? Isn\xe2\x80\x99t the risk that this might happen even if everybody were careful sufficient to warrant\ngiving the shipper an incentive to explore alternative routes? Strict liability would supply that\nincentive. But this argument overlooks the fact that, like other transportation networks, the\nrailroad network is a hub-and-spoke system. And the hubs are in metropolitan areas. Chicago is\none of the nation\xe2\x80\x99s largest railroad hubs. In 1983, the latest date for which we have figures,\nChicago\xe2\x80\x99s railroad yards handled the third highest volume of hazardous-material shipments in the\nnation. East St. Louis, which is also in Illinois, handled the second highest volume. . . . With most\nhazardous chemicals (by volume of shipments) being at least as hazardous as acrylonitrile, it is\nunlikely\xe2\x80\x94and certainly not demonstrated by the plaintiff\xe2\x80\x94that they can be rerouted around all\nthe metropolitan areas in the country, except at prohibitive cost. Even if it were feasible to reroute\nthem one would hardly expect shippers, as distinct from carriers, to be the firms best situated to\ndo the rerouting. Granted, the usual view is that common carriers are not subject to strict liability\nfor the carriage of materials that make the transportation of them abnormally dangerous, because a\ncommon carrier cannot refuse service to a shipper of a lawful commodity. RESTATEMENT, supra, \xc2\xa7\n521. Two courts, however, have rejected the common carrier exception. . . . If it were rejected in\nIllinois, this would weaken still further the case for imposing strict liability on shippers whose\ngoods pass through the densely inhabited portions of the state.\nThe difference between shipper and carrier points to a deep flaw in the plaintiff\xe2\x80\x99s case.\nUnlike Guille . . . and unlike the storage cases, beginning with Rylands itself, here it is not the\nactors\xe2\x80\x94that is, the transporters of acrylonitrile and other chemicals\xe2\x80\x94but the manufacturers, who\nare sought to be held strictly liable. . . . A shipper can . . . designate the route of his shipment if he\nlikes, . . . but is it realistic to suppose that shippers will become students of railroading in order to\nlay out the safest route by which to ship their goods? Anyway, rerouting is no panacea. Often it\nwill increase the length of the journey, or compel the use of poorer track, or both. When this\nhappens, the probability of an accident is increased, even if the consequences of an accident if one\noccurs are reduced; so the expected accident cost, being the product of the probability of an\naccident and the harm if the accident occurs, may rise. . . . It is easy to see how the accident in this\ncase might have been prevented at reasonable cost by greater care on the part of those who\nhandled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at\nreasonable cost by a change in the activity of transporting the chemical. This is therefore not an\napt case for strict liability. . . .\n\n497\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n[T]he plaintiff overlooks the fact that ultrahazardousness or abnormal dangerousness is, in\nthe contemplation of the law at least, a property not of substances, but of activities: not of\nacrylonitrile, but of the transportation of acrylonitrile by rail through populated areas. . . . Natural\ngas is both flammable and poisonous, but the operation of a natural gas well is not an\nultrahazardous activity. . . . [T]he manufacturer of a product is not considered to be engaged in an\nabnormally dangerous activity merely because the product becomes dangerous when it is handled\nor used in some way after it leaves his premises, even if the danger is foreseeable. . . . The\nplaintiff does not suggest that Cyanamid should switch to making some less hazardous chemical\nthat would substitute for acrylonitrile in the textiles and other goods in which acrylonitrile is used.\nWere this a feasible method of accident avoidance, there would be an argument for making\nmanufacturers strictly liable for accidents that occur during the shipment of their products (how\nstrong an argument we need not decide). Apparently it is not a feasible method.\nThe relevant activity is transportation, not manufacturing and shipping. This essential\ndistinction the plaintiff ignores. But even if the plaintiff is treated as a transporter and not merely\na shipper, it has not shown that the transportation of acrylonitrile in bulk by rail through populated\nareas is so hazardous an activity, even when due care is exercised, that the law should seek to\ncreate\xe2\x80\x94perhaps quixotically\xe2\x80\x94incentives to relocate the activity to nonpopulated areas, or to\nreduce the scale of the activity, or to switch to transporting acrylonitrile by road rather than by\nrail. . . . It is no more realistic to propose to reroute the shipment of all hazardous materials around\nChicago than it is to propose the relocation of homes adjacent to the Blue Island switching yard to\nmore distant suburbs. It may be less realistic. Brutal though it may seem to say it, the\ninappropriate use to which land is being put in the Blue Island yard and neighborhood may be, not\nthe transportation of hazardous chemicals, but residential living. The analogy is to building your\nhome between the runways at O\xe2\x80\x99Hare.\nThe briefs hew closely to the Restatement, whose approach to the issue of strict liability is\nmainly allocative rather than distributive. By this we mean that the emphasis is on picking a\nliability regime (negligence or strict liability) that will control the particular class of accidents in\nquestion most effectively, rather than on finding the deepest pocket and placing liability there. At\nargument, however, the plaintiff\xe2\x80\x99s lawyer invoked distributive considerations by pointing out that\nCyanamid is a huge firm and the Indiana Harbor Belt Railroad a fifty-mile-long switching line\nthat almost went broke in the winter of 1979, when the accident occurred. Well, so what? A\ncorporation is not a living person but a set of contracts the terms of which determine who will\nbear the brunt of liability. Tracing the incidence of a cost is a complex undertaking which the\nplaintiff sensibly has made no effort to assume, since its legal relevance would be dubious. We\nadd only that however small the plaintiff may be, it has mighty parents: it is a jointly owned\nsubsidiary of Conrail and the Soo line. . . .\nThe judgment is reversed . . . and the case remanded for further proceedings, consistent\nwith this opinion, on the plaintiff\xe2\x80\x99s claim for negligence.\nReversed and remanded, with directions.\n\n498\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nNotes\n\n1. Commentary on Indiana Harbor Belt Railroad. A number of scholars have weighed in on\nJudge Posner\xe2\x80\x99s decision. According to Professor David Rosenberg, Judge Posner took an\nunnecessarily narrow view of strict liability\xe2\x80\x99s potential benefits. Instead of recognizing that strict\nliability could \xe2\x80\x9creduce the frequency and amount of risky activity,\xe2\x80\x9d Judge Posner only focused on\nstrict liability\xe2\x80\x99s ability to end dangerous activities, thus \xe2\x80\x9cdismissing strict liability\xe2\x80\x99s potential\nbenefits.\xe2\x80\x9d David Rosenberg, The Judicial Posner on Negligence Versus Strict Liability: Indiana\nHarbor Belt Railroad Co. v. American Cyanamid Co., 120 HARV. L. REV. 1210, 1216 (2007).\nAccording to Professor Alan Sykes, Judge Posner could have held that the appellant,\nIndiana Harbor Belt Railroad, assumed the risk by accepting shipments from the appellee,\nAmerican Cyanamid Company. Alan O. Sykes, Strict Liability Versus Negligence in Indiana\nHarbor, 74 U. CHI. L. REV. 1911, 1928-29 (2007). According to the Restatement (Second) of\nTorts, assumption of risk is a defense against liability arising from abnormally dangerous\nactivities. RESTATEMENT (SECOND) OF TORTS \xc2\xa7 523 (1977). According to Professor Sykes, such\nan approach would have been \xe2\x80\x9ca simpler way to dispose of the case than the questionable analysis\nof the Restatement factors to which Judge Posner devoted most of his opinion.\xe2\x80\x9d Id. at 1929.\nAccording to Professor Klass, Indiana Harbor Belt Railroad establishes an\ninsurmountable standard for plaintiffs pleading strict liability in the Seventh Circuit:\nBy [Indiana Harbor Belt Railroad], the Seventh Circuit . . . set out a very narrow\nrole for strict liability in modern tort law\xe2\x80\x94one that puts a significant burden on\nplaintiffs to bring in statistical, historical, and technical expert evidence to\nessentially prove an impossible hypothetical: that no amount of care under any\ncircumstances would allow the particular activity to be performed safely.\nAlexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law\nStrict Liability Environmental Claims, 39 WAKE FOREST L. REV. 903, 960 (2004).\n2. The \xe2\x80\x9cshale revolution.\xe2\x80\x9d The transformation in the American natural gas industry and the\nboom in the oil and gas business in places like North Dakota has arguably made Indiana Harbor\nBelt Railroad\xe2\x80\x99s holding more significant than ever. Rail shipments of oil are steadily increasing.\nMoreover, oil companies prefer shipping by rail to shipping via pipeline because pipeline\nconstruction is more capital-intensive and controversial.\nThe increase in rail shipping, however, has led to a spate of accidents. In July 2013, a\ntrain carrying North Dakota oil through Quebec derailed and exploded, killing 47 people and\ndestroying virtually an entire small town. In November 2013, a train carrying crude oil derailed in\nAlabama. A month later, a train carrying crude oil collided with a derailed train carrying grain,\nforcing the evacuation of Casselton, North Dakota. Although no one was hurt in the explosion,\nexperts believe that the explosion was relatively harmless only because of luck; had the train\nexploded near a \xe2\x80\x9cmore populated town,\xe2\x80\x9d people would have been injured. In January and\nFebruary 2014, two derailments took place in Pennsylvania, one in the remote western part of the\nstate, the other in densely populated Philadelphia. At the end of April 2014, an oil train derailed\n499\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nand burst into flames near Lynchburg, Virginia, spilling 30,000 gallons of crude oil into the James\nRiver.\nThe U.S. Department of Transportation has called the transporting of crude oil by rail \xe2\x80\x9can\nimminent hazard\xe2\x80\x9d to the public. Jad Mouwad, U.S. issues Safety Alert for Oil Trains, N.Y. TIMES,\nMay 7, 2014. According to the Association of American Railroads, however, \xe2\x80\x9c99.9977% of rail\nhazmat shipments . . . reach their destination without a spill.\xe2\x80\x9d In the last decade, the Association\ncontends, \xe2\x80\x9cpipelines have spilled 474,441 barrels of oil,\xe2\x80\x9d but rail cars have only spilled 2,268\nbarrels of oil. Bryan Walsh, North Dakota Derailment Shows Dark Side of America\xe2\x80\x99s Oil Boom,\nTIME, Dec. 31, 2013, available at https://perma.cc/5Y5C-LQPK.\nShould an increase in shipments of dangerous chemicals on the nation\xe2\x80\x99s railroads change\nthe way we think about Judge Posner\xe2\x80\x99s Indiana Harbor Belt Railroad opinion?\n\nD. Nuisance\nNuisance is one of the most amorphous and protean areas of the law of torts. Classically,\nthe common law divides up the law of nuisance into two categories: private and public. Private\nnuisances are unreasonable interferences with the use and enjoyment of land. Public nuisances\nare unreasonable interferences with a right of the general public. Both doctrines rely heavily on\nconceptions of what counts as reasonable under the circumstances. In this sense, both doctrines\nshare a lot in common with the law of negligence. But as we shall see, both doctrines also contain\nsignificant domains of strict or ostensibly strict liability.\n\n1. Private Nuisance\nFontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. App. 1959)\nPER CURIAM.\nThis is an interlocutory appeal from an order temporarily enjoining the appellants from\ncontinuing with the construction of a fourteen-story addition to the Fontainebleau Hotel, owned\nand operated by the appellants. Appellee, plaintiff below, owns the Eden Roc Hotel, which was\nconstructed in 1955, about a year after the Fontainebleau, and adjoins the Fontainebleau on the\nnorth. Both are luxury hotels, facing the Atlantic Ocean. The proposed addition to the\nFontainebleau is being constructed twenty feet from its north property line, 130 feet from the\nmean high water mark of the Atlantic Ocean, and 76 feet 8 inches from the ocean bulkhead line.\nThe 14-story tower will extend 160 feet above grade in height and is 416 feet long from east to\nwest. During the winter months, from around two o\xe2\x80\x99clock in the afternoon for the remainder of\nthe day, the shadow of the addition will extend over the cabana, swimming pool, and sunbathing\nareas of the Eden Roc, which are located in the southern portion of its property.\nIn this action, plaintiff-appellee sought to enjoin the defendants-appellants from\nproceeding with the construction of the addition to the Fontainebleau (it appears to have been\nroughly eight stories high at the time suit was filed), alleging that the construction would interfere\nwith the light and air on the beach in front of the Eden Roc and cast a shadow of such size as to\n500\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nrender the beach wholly unfitted for the use and enjoyment of its guests, to the irreparable injury\nof the plaintiff; [and] further, that the construction of such addition on the north side of\ndefendants\xe2\x80\x99 property, rather than the south side, was actuated by malice and ill will on the part of\nthe defendants\xe2\x80\x99 president toward the plaintiff\xe2\x80\x99s president . . . . It was also alleged that the\nconstruction would interfere with the easements of light and air enjoyed by plaintiff and its\npredecessors in title for more than twenty years [which is the length of Florida\xe2\x80\x99s rule of property\nrights by so-called \xe2\x80\x9cadverse possession,\xe2\x80\x9d or possession by claim of right]. . . .\nThe chancellor heard considerable testimony on the issues made by the complaint and the\nanswer and, as noted, entered a temporary injunction restraining the defendants from continuing\nwith the construction of the addition. His reason for so doing was stated by him . . . as follows:\nThe ruling is not based on any alleged presumptive title nor prescriptive right of the\nplaintiff to light and air . . . . It is not based on any zoning ordinance nor on any\nprovision of the building code of the City of Miami Beach . . . . It is based solely on\nthe proposition that no one has a right to use his property to the injury of another.\nIn this case it is clear from the evidence that the proposed use by the Fontainebleau\nwill materially damage the Eden Roc. There is evidence indicating that the\nconstruction of the proposed annex by the Fontainebleau is malicious or deliberate\nfor the purpose of injuring the Eden Roc, but it is scarcely sufficient, standing alone,\nto afford a basis for equitable relief.\nThis is indeed a novel application of the maxim sic utere tuo ut alienum non laedas. This\nmaxim does not mean that one must never use his own property in such a way as to do any injury\nto his neighbor. . . . It means only that one must use his property so as not to injure the lawful\nrights of another. . . .\nNo American decision has been cited, and independent research has revealed none, in\nwhich it has been held that\xe2\x80\x94in the absence of some contractual or statutory obligation\xe2\x80\x94a\nlandowner has a legal right to the free flow of light and air across the adjoining land of his\nneighbor. Even at common law, the landowner had no legal right, in the absence of an easement\nor uninterrupted use and enjoyment for a period of 20 years, to unobstructed light and air from the\nadjoining land. . . . And the English doctrine of \xe2\x80\x9cancient lights\xe2\x80\x9d has been unanimously repudiated\nin this country. . . .\nThere being, then, no legal right to the free flow of light and air from the adjoining land, it\nis universally held that where a structure serves a useful and beneficial purpose, it does not give\nrise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut\nalienum non laedas, even though it causes injury to another by cutting off the light and air and\ninterfering with the view that would otherwise be available over adjoining land in its natural state,\nregardless of the fact that the structure may have been erected partly for spite. . . .\nWe see no reason for departing from this universal rule. If, as contended on behalf of\nplaintiff, public policy demands that a landowner in the Miami Beach area refrain from\nconstructing buildings on his premises that will cast a shadow on the adjoining premises, an\namendment of its comprehensive planning and zoning ordinance, applicable to the public as a\nwhole, is the means by which such purpose should be achieved. . . . But to change the universal\nrule\xe2\x80\x94and the custom followed in this state since its inception\xe2\x80\x94that adjoining landowners have an\n501\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nequal right under the law to build to the line of their respective tracts and to such a height as is\ndesired by them (in in absence, of course, of building restrictions or regulations) amounts, in our\nopinion, to judicial legislation. . . .\nSince it affirmatively appears that the plaintiff has not established a cause of action\nagainst the defendants by reason of the structure here in question, the order granting a temporary\ninjunction should be and it is hereby reversed with directions to dismiss the complaint.\nReversed with directions.\n\nNotes\n\n1. The doctrine of ancient lights. According to William Blackstone, the ancient lights\ndoctrine prohibits one from \xe2\x80\x9cerect[ing] a house or other building . . . [that] obstructs [others\xe2\x80\x99]\nancient lights and windows.\xe2\x80\x9d 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF\nENGLAND 216-17. In England, the ancient lights doctrine enabled landowners to enforce their\nright to light by bringing a nuisance claim against alleged tortfeasors.\nIn contrast to English courts, American courts have refused to apply the doctrine of\nancient lights. Why has American jurisprudence diverged from English jurisprudence?\nAccording to one court, American judges have rejected the ancient lights doctrine to encourage\neconomic development. See Parker v. Foote, 19 Wend. 309, 318 (N.Y. Sup. Ct. 1838) (noting\nthat the doctrine could not \xe2\x80\x9cbe applied in growing cities and villages of this country without\nworking the most mischievous consequences\xe2\x80\x9d); see also Klein v. Gehrung, 25 Tex. Supp. 232,\n238 (1860) (\xe2\x80\x9cThe doctrine of ancient lights is not much relished in this country, owing to the rapid\nchanges and improvements in our cities and villages.\xe2\x80\x9d).\n\n2. A malice exception? Although American courts have repudiated the doctrine of ancient\nlights, malice is one of the few exceptions that some courts recognize to the ancient lights doctrine\nin the United States. Daniel B. Kelly, Strategic Spillovers, 111 COLUM. L. REV. 1641, 1667-68\n(2011). Thus, courts regularly prohibit a defendant from building a \xe2\x80\x9cspite wall\xe2\x80\x9d or \xe2\x80\x9cspite fence\xe2\x80\x9d if\nthe \xe2\x80\x9cstructure interferes with a neighbor\xe2\x80\x99s access to light, air, or a view if the [defendant\xe2\x80\x99s]\nmotivation is . . . malicious.\xe2\x80\x9d Id. at 1668. Courts that recognize the malice rule typically require\nplaintiffs to show that malice was the sole, if not predominant, motivation for the defendants\xe2\x80\x99\nactions. Wilson v. Handley, 119 Cal. Rptr. 2d 263 (Ct. App. 2002).\nWhy does the Florida court in the Fontainebleau case reject the malice rule and permit the\nspite wall?\n\n3. The epic battle between the Fontainebleau and the Eden Roc. The spite wall in\nFontainebleau, pictured below, was built by the angered owner of the Fontainebleau Hotel when\nhis business partner defected to a competitor and built a new hotel\xe2\x80\x94the Eden Roc\xe2\x80\x94directly to his\nnorth. Both hotels aimed to set new standards for luxury in the Miami hotel trade. Leading\ncelebrities of the 1950s, including Elizabeth Taylor and Lucille Ball, appeared regularly at the\n502\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nEden Roc. Frank Sinatra filmed movies at the Fontainebleau and spent long stays there in the\n1960s.\nIn the image below, the curved building and accompanying S-shaped beach structure form\nthe original Fontainebleau. The white structure in the far lower right-hand corner is the Eden Roc\nHotel. The spite wall forms the northern face of the long tower running east to west along the\nnorthern property line of the Fontainebleau. The shadow cast on the Eden Roc pool area was\nespecially pronounced in the popular winter months.\n\nSource: Florida State Photographic Collection, Florida Memory, https://perma.cc/NF2T-VYCE.\n\n503\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nHere is another image, which makes the effects of the wall on the Eden Roc pool especially clear:\n\nSource: Florida State Photographic Collection, Florida Memory, https://perma.cc/9PJP-4NB6.\n\nAfter losing in its litigation effort, the Eden Roc made renovations to lessen the effects of\nthe spite wall. In the summer of 1960, the Eden Roc built a new pool area on a raised platform 20\nfeet off the ground on the far northeastern corner of its property so as to minimize the shadow cast\nduring the winter height of the season. The sun, announced the Miami News, would once again\n\xe2\x80\x9cshine on the Eden Roc the year around.\xe2\x80\x9d Herb Kelly, Eden Roc to Start on Pool, MIAMI NEWS,\nJune 28, 1960, at 28. Today, the spite wall no longer blocks sunlight at the Eden Roc Hotel\xe2\x80\x99s\npool. In 2011, during a course of renovations, the Eden Roc constructed a twenty-one-story tower\ndirectly along the north face of the spite wall.\n\n4. Reasonable interferences? The Florida court resolved the Fontainebleau case by finding\nthat the Eden Roc had no protectable interest in the light and air crossing over its neighbor\xe2\x80\x99s\nproperty. The case was thus concluded without taking into account the character of the\ninterference with the Eden Roc\xe2\x80\x99s property interests. Suppose, however, the court had concluded\nthat the Eden Roc did have a protectable interest? At this point, the question would be a classic\n504\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nnuisance question: does the defendant\xe2\x80\x99s infringement on the plaintiff\xe2\x80\x99s property interest constitute\nan actionable infringement?\nIn the law of private nuisance,\none is subject to liability for a private nuisance if his conduct is a legal cause of the\ninvasion of the interest in the private use and enjoyment of land and such invasion\nis (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under\nthe rules governing liability for abnormally dangerous conditions or activities.\nCopart Industries, Inc. v. Consolidated Edison Co., 362 N.E.2d 968, 971 (N.Y. 1977). The view\nof the Second Restatement is essentially identical. See RESTATEMENT (SECOND) OF TORTS \xc2\xa7 822.\nWhen is an invasion of private use and enjoyment of land unreasonable? The Restatement\ntakes the position that an intentional invasion of another\xe2\x80\x99s interest in land is unreasonable if (a)\n\xe2\x80\x9cthe gravity of the harm outweighs the utility of the actor\xe2\x80\x99s conduct\xe2\x80\x9d or (b) \xe2\x80\x9cthe harm caused by\nthe conduct is serious and the financial burden of compensating for this and similar harm to others\nwould not make the continuation of the conduct not feasible.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS\n\xc2\xa7 826.\nWhat part of this definition of private nuisance, if any, amounts to liability without fault?\n\nEnsign v. Walls, 34 N.W.2d 549 (Mich. 1948)\nCARR, J.\nDefendant herein has for some years past carried on at 13949 Dacosta Street, in the city of\nDetroit, the business of raising, breeding and boarding St. Bernard dogs. Plaintiffs are property\nowners and residents in the immediate neighborhood. Claiming that the business conducted by\ndefendant constituted a nuisance as to them and their property, plaintiffs brought suit for\ninjunctive relief. The bill of complaint alleged that obnoxious odors came from defendant\xe2\x80\x99s\npremises at all times, that the continual barking of the dogs interfered with and disturbed plaintiffs\nin the use and enjoyment of their respective properties, that the premises were infested with rats\nand flies, and that on occasions dogs escaped from defendant\xe2\x80\x99s premises and roamed about the\nneighborhood. Defendant in her answer denied that her business was conducted in such a manner\nas to constitute a nuisance, and claimed further that she had carried on the business at the premises\nin question since 1926, that she had invested a considerable sum of money in the purchase of the\nproperty and in the subsequent erection of buildings thereon, and that under the circumstances\nplaintiffs were not entitled to the relief sought.\nOn the trial of the case testimony was offered on behalf of the parties tending to\nsubstantiate their respective claims as set forth in the pleadings. . . . The trial judge inspected the\npremises of the defendant, and it appears from the record that his observations confirmed, in many\nrespects at least, the proofs offered by plaintiffs with reference to the existing conditions. Decree\nwas entered enjoining the carrying on of the business at the location in question after the\nexpiration of 90 days from the entry of the decree, and requiring defendant to abate, within the\nperiod of time stated, the nuisance found to exist. . . .\n505\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nThe record discloses that the plaintiffs, or the majority of them at least, have moved into\nthe neighborhood in recent years. In view of this situation it is claimed by defendant that,\ninasmuch as she was carrying on her business of raising, breeding and boarding dogs on her\npremises at the time plaintiffs established their residences in the neighborhood, they cannot now\nbe heard to complain. Such circumstance may properly be taken into account in a proceeding of\nthis nature in determining whether the relief sought ought, in equity and good conscience, to be\ngranted. Doubtless under such circumstances courts of equity are more reluctant to restrain the\ncontinued operation of a lawful business than in instances where it is sought to begin in a\nresidential district a business of such character that it will constitute a nuisance. . . .\nDefendant cites and relies on prior decisions of this Court in each of which consideration\nwas given to the circumstance that the parties seeking relief had established residences near the\nbusiness the operation of which was sought to be enjoined. That such a circumstance may\nproperly be considered in any case of this character in determining whether equitable relief should\nbe granted is scarcely open to question. However it is not necessarily controlling. Looking to all\nthe facts and circumstances involved, the question invariably presented is whether the discretion\nof the court should be exercised in favor of the parties seeking relief. In the case at bar the trial\ncourt came to the conclusion that the nuisance found by him to exist ought to be abated, and that\nsuch action was necessary in order to protect the plaintiffs in their rights and in the use and\nenjoyment of their homes. It may be assumed that new residences will be built in the community\nin the future, as they have been in the past, and that in consequence the community will become\nmore and more thickly populated. This means of course that the injurious results of the carrying\non of defendant\xe2\x80\x99s business, if the nuisance is not abated, will be greater in the future than it has\nbeen in the past. Such was obviously the view of the trial judge, and we cannot say that he abused\nhis discretion in granting relief. . . .\nThe decree of the circuit is affirmed. Plaintiffs may have costs.\n\nNotes\n\n1. The logic of collective action. Why did the court think it necessary to enjoin the defendant\nin Ensign v. Walls? Why not simply put the homeowners to the burden of purchasing the property\nif they did not like its use as a kennel? More concretely, the homeowners could have paid the\nproperty owner to cease operations and to write into the property deed a restriction on any similar\nuse of the property in the future.\nThe problem comes into view if we look at the surrounding properties from above. Go\nahead, use the satellite function in Google Maps on a laptop or a handheld or some such device.\nUse it to look at 13949 Dacosta Street, Detroit, Michigan, zip code 48223. The defendant\xe2\x80\x99s\nproperty, located in the middle of the Google Earth image below, had been encroached on such\nthat by the time of the litigation it was ringed by a circle of new homes\xe2\x80\x94homes that had arrived\nthanks to the mid-century boom in the Detroit auto industry, which had in turn caused the\nfootprint of Detroit to grow considerably, sending new homes for auto workers further and further\nout into what had been rural and remote land only a short time previously.\n\n506\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nSource: Google Satellite image of 13949 Dacosta Street, Detroit, Michigan 48223.\n\nImagine that the new homeowners ringing the defendant at 13949 Dacosta did in fact\nsuffer greatly from the noise and smell and side effects of the kennel. Imagine further that they\nwould in the aggregate have been willing to pay the defendant property owner an amount that she\nwould have found sufficient to induce her to part with the right to operate a kennel on the\nproperty. There is nonetheless good reason to think that this transaction will not happen even\nwhere all the parties would be, by hypothesis and by their own lights, made better off by it. The\ndifficulty is that no one of the new homeowners can capture the benefits of purchasing the\nproperty owner\xe2\x80\x99s right to operate a kennel or other noxious business. Those benefits will be\nshared with all the new homeowners in the ring. But each one of those homeowners would prefer\nthat one of their neighbors be the one to make the payment that will benefit them all. The result is\na classic collective action problem: absent some powerful mechanism for promoting cooperation\namong the homeowners, it is very likely that the surrender of the 13949 Dacosta owner\xe2\x80\x99s right to\ncertain noxious uses will not take place. See generally MANCUR OLSON, THE LOGIC OF\nCOLLECTIVE ACTION (1965).\nPut in the terms adopted by Ronald Coase, which we first encountered in Chapter 2, the\ncollective action problem here is a kind of transaction cost that is obstructing the allocation in the\n507\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nmarket of entitlements to their highest value users. The court\xe2\x80\x99s injunction cuts through the failure\nof the market and imposes the socially optimal outcome.\nOr, at least what it hopes is the socially optimal outcome. Note that the existence of the\ncollective action problem means that the court had better be right in its judgment of what the right\noutcome is. Once the entitlement is allocated to the neighbors, the owner of 13949 Dacosta is\nunlikely to be able to buy it back, even if for some reason she values being a kennel owner in that\nlot more highly than her neighbors value being free from the noise and smells and inconveniences.\nThe problem is the flip side of the same collective action problem that would have hindered the\nneighbors from buying the right to run the kennel from her in the first place. If each neighbor\nretains the right to enjoin her from running the kennel, she will have to acquire the right to run the\nkennel from all the neighbors. But each neighbor will have a powerful incentive to hold out and\nbecome the last obstacle to the kennel. The last hold out is in a powerful position to extract\nvirtually all the value of the project as a condition to his or her permission.\nCollective action problems here mean that a mistake by the court will not likely be\nremedied by the marketplace.\n\n2. Coming to the nuisance. In nuisance cases, courts give priority in time significant weight.\nFor example, defendants who \xe2\x80\x9cmove[] hog production to an established residential neighborhood\xe2\x80\x9d\nare unlikely to escape liability. Similarly, a plaintiff who moves into \xe2\x80\x9ca neighborhood of small\nfactories\xe2\x80\x9d is unlikely to bring a successful nuisance claim. DOBBS, HAYDEN & BUBLICK, DOBBS\xe2\x80\x99\nLAW OF TORTS \xc2\xa7 401 (2014). Priority in time, however, is not dispositive in nuisance cases. See\nRESTATEMENT (SECOND) OF TORTS \xc2\xa7 840D (1979) (\xe2\x80\x9cThe fact that the plaintiff has acquired or\nimproved his land after a nuisance interfering with it has come into existence is not in itself\nsufficient to bar his action, but it is a factor to be considered in determining whether the nuisance\nis actionable.\xe2\x80\x9d). As Ensign v. Walls illustrates, plaintiffs in nuisance cases may still recover if\nthey come to the nuisance (i.e., they move or acquire land after the alleged nuisance has come into\nexistence).\nAccording to Professor Robert Ellickson, a majority of jurisdictions may award plaintiffs\ndamages or injunctive relief even though plaintiffs came to the nuisance. Ellickson observes that\nremedies in such cases may be inappropriate where plaintiffs who build residences in close\nproximity to a factory or feedlot have thereby \xe2\x80\x9cfailed to mitigate damages.\xe2\x80\x9d On the other hand,\nthe rationale for remedies is that the existence of a first in time rule creates a race to develop lest\nthe use of Parcel A preclude certain uses of neighboring Parcel B. See Robert C. Ellickson,\nAlternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI.\nL. REV. 681, 759 (1973).\n\n3. Social policy in a decentralized regime. Subsequent events suggest that the court\xe2\x80\x99s\nsolution in Ensign was tragically but unforeseeably short-sighted. Not long after Ensign was\ndecided, Congress authorized funds to build an interstate highway near Dacosta Street. See\nFederal-Aid Highway Act of 1956, 23 U.S.C. 48 (2012). Look back at the Google Maps image\nyou visited above. The interstate that resulted, known as I-96, passes within 200 feet of 13949\nDacosta Street. The noise and smell from the kennel would soon have been completely\noverwhelmed by the noises and smells of massive eighteen-wheel trucks carrying the products of\nindustrial Detroit to the great American post war markets.\n508\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nSource: Google Maps image of 13949 Dacosta Street, Detroit, Michigan 48223.\n\nWe might think of this as a cost of the decentralized structure of American policymaking.\nState courts do not\xe2\x80\x94and realistically cannot\xe2\x80\x94coordinate with Congress when developing\nregulatory solutions to collective action problems.\n\n4. Doing market failure one better? The great problem in cases like Dacosta is that the court\nseems to be left with the obligation to make an extraordinarily all-things-considered judgment as\nto which use for 13949 Dacosta is better: simple quiet residential use, or a semi-industrial kennel\nuse? The likelihood that markets will fail to rectify an improper initial allocation of the\nentitlement looms. But what if we could identify a solution, at least in some cases, that would put\nthe ball back in the hands of the parties themselves? This is what the innovation in the next case\ntries to accomplish.\n\n509\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nBoomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970)\nBERGAN, J.\nDefendant operates a large cement plant near Albany. These are actions for injunction\nand damages by neighboring land owners alleging injury to property from dirt, smoke and\nvibration emanating from the plant. A nuisance has been found after trial, temporary damages\nhave been allowed; but an injunction has been denied. . . .\nThe threshold question raised by the division of view on this appeal is whether the court\nshould resolve the litigation between the parties now before it as equitably as seems possible; or\nwhether, seeking promotion of the general public welfare, it should channel private litigation into\nbroad public objectives.\nA court performs its essential function when it decides the rights of parties before it. Its\ndecision of private controversies may sometimes greatly affect public issues. Large questions of\nlaw are often resolved by the manner in which private litigation is decided. But this is normally\nan incident to the court\xe2\x80\x99s main function to settle controversy. It is a rare exercise of judicial\npower to use a decision in private litigation as a purposeful mechanism to achieve direct public\nobjectives greatly beyond the rights and interests before the court.\nEffective control of air pollution is a problem presently far from solution even with the\nfull public and financial powers of government. In large measure adequate technical procedures\nare yet to be developed and some that appear possible may be economically impracticable. It\nseems apparent that the amelioration of air pollution will depend on technical research in great\ndepth; on a carefully balanced consideration of the economic impact of close regulation; and of\nthe actual effect on public health. It is likely to require massive public expenditure and to demand\nmore than any local community can accomplish and to depend on regional and interstate controls.\nA court should not try to do this on its own as a by-product of private litigation and it\nseems manifest that the judicial establishment is neither equipped in the limited nature of any\njudgment it can pronounce nor prepared to lay down and implement an effective policy for the\nelimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is\na direct responsibility for government and should not thus be undertaken as an incident to solving\na dispute between property owners and a single cement plant\xe2\x80\x94one of many\xe2\x80\x94in the Hudson River\nvalley.\nThe cement making operations of defendant have been found by the court at Special Term\nto have damaged the nearby properties of plaintiffs in these two actions. That court, as it has been\nnoted, accordingly found defendant maintained a nuisance and this has been affirmed at the\nAppellate Division. The total damage to plaintiffs\xe2\x80\x99 properties is, however, relatively small in\ncomparison with the value of defendant\xe2\x80\x99s operation and with the consequences of the injunction\nwhich plaintiffs seek.\nThe ground for the denial of injunction, notwithstanding the finding both that there is a\nnuisance and that plaintiffs have been damaged substantially, is the large disparity in economic\nconsequences of the nuisance and of the injunction. This theory cannot, however, be sustained\nwithout overruling a doctrine which has been consistently reaffirmed in several leading cases in\n510\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nthis court and which has never been disavowed here, namely that where a nuisance has been\nfound and where there has been any substantial damage shown by the party complaining an\ninjunction will be granted.\nThe rule in New York has been that such a nuisance will be enjoined although marked\ndisparity be shown in economic consequence between the effect of the injunction and the effect of\nthe nuisance.\nThe problem of disparity in economic consequence was sharply in focus in Whalen v.\nUnion Bag & Paper Co. A pulp mill entailing an investment of more than a million dollars\npolluted a stream in which plaintiff, who owned a farm, was \xe2\x80\x9ca lower riparian owner.\xe2\x80\x9d The\neconomic loss to plaintiff from this pollution was small. This court, reversing the Appellate\nDivision, reinstated the injunction granted by the Special Term against the argument of the mill\nowner that in view of \xe2\x80\x9cthe slight advantage to plaintiff and the great loss that will be inflicted on\ndefendant\xe2\x80\x9d an injunction should not be granted. \xe2\x80\x9cSuch a balancing of injuries cannot be justified\nby the circumstances of this case,\xe2\x80\x9d Judge Werner noted. He continued: \xe2\x80\x9cAlthough the damage to\nthe plaintiff may be slight as compared with the defendant\xe2\x80\x99s expense of abating the condition that\nis not a good reason for refusing an injunction.\xe2\x80\x9d\nThus the unconditional injunction granted at Special Term was reinstated. The rule laid\ndown in that case, then, is that whenever the damage resulting from a nuisance is found not\n\xe2\x80\x9cunsubstantial,\xe2\x80\x9d . . . injunction would follow. This states a rule that had been followed in this\ncourt with marked consistency. . . .\nAlthough the court at Special Term and the Appellate Division held that injunction should\nbe denied, it was found that plaintiffs had been damaged in various specific amounts up to the\ntime of the trial and damages to the respective plaintiffs were awarded for those amounts. The\neffect of this was, injunction having been denied, plaintiffs could maintain successive actions at\nlaw for damages thereafter as further damage was incurred.\nThe court at Special Term also found the amount of permanent damage attributable to\neach plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and\nacceptance of such permanent damage as a settlement of all the controversies among the parties.\nThe total of permanent damages to all plaintiffs thus found was $185,000. This basis of\nadjustment has not resulted in any stipulation by the parties.\nThis result at Special Term and at the Appellate Division is a departure from a rule that\nhas become settled; but to follow the rule literally in these cases would be to close down the plant\nat once. This court is fully agreed to avoid that immediately drastic remedy; the difference in\nview is how best to avoid it.\nOne alternative is to grant the injunction but postpone its effect to a specified future date\nto give opportunity for technical advances to permit defendant to eliminate the nuisance; another\nis to grant the injunction conditioned on the payment of permanent damages to plaintiffs which\nwould compensate them for the total economic loss to their property present and future caused by\ndefendant\xe2\x80\x99s operations. . . . [T]he court chooses the latter alternative. . . .\n[T]o grant the injunction unless defendant pays plaintiffs such permanent damages as may\nbe fixed by the court seems to do justice between the contending parties. All of the attributions of\n511\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\neconomic loss to the properties on which plaintiffs\xe2\x80\x99 complaints are based will have been\nredressed.\nThe nuisance complained of by these plaintiffs may have other public or private\nconsequences, but these particular parties are the only ones who have sought remedies and the\njudgment proposed will fully redress them. The limitation of relief granted is a limitation only\nwithin the four corners of these actions and does not foreclose public health or other public\nagencies from seeking proper relief in a proper court.\nIt seems reasonable to think that the risk of being required to pay permanent damages to\ninjured property owners by cement plant owners would itself be a reasonable effective spur to\nresearch for improved techniques to minimize nuisance. . . .\nThe orders should be reversed, without costs, and the cases remitted to Supreme Court,\nAlbany County to grant an injunction which shall be vacated upon payment by defendant of such\namounts of permanent damage to the respective plaintiffs as shall for this purpose be determined\nby the court.\n\nNotes\n\n1. Collective action problems redux. In Boomer, as in Ensign, it is highly likely that the\nmarket will not be able to resolve the problem in a manner that achieves the socially optimal\noutcome. An injunction to the plaintiffs would allow any one plaintiff to shut down the plant by\nrefusing consent. Just as in Ensign, every plaintiff will thus have an incentive to hold out to\nextract as much value from the plant as possible. The difference in Boomer, however, is that the\nconditional injunction dischargeable by a payment of permanent damages allocates the\nentitlement to the plaintiffs\xe2\x80\x94but allows the defendant to reacquire that entitlement, if it chooses,\nat a price set by the court. Unlike in Ensign, the court\xe2\x80\x99s initial allocation is not determinative of\nthe allocation of the entitlement. Why? Because the court\xe2\x80\x99s setting of a price at which the\ndefendant can force the plaintiffs into parting with their entitlement means that no plaintiff can\nhold out. In the event that the value of the cement plant is not sufficient to justify paying for the\nright to operate the plant, then the entitlement will stay with the plaintiffs and the plant will shut\ndown, at least until some better technology comes on board that allows the plant to operate\nwithout causing a nuisance, or that reduces the damages sufficiently so as to make paying for the\nright to operate worthwhile. For the general conceptual framework, see Guido Calabresi & A.\nDouglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,\n85 HARV. L. REV. 1089, 1106-07 (1972).\n\n2. The secret logic of tort law? Calabresi and Melamed take the analysis of Boomer a step\nfurther. The injunction in cases like Ensign, they say, allocates the entitlement in question to the\nplaintiffs and protects that entitlement with a property rule. The damages remedy in Boomer also\nallocates the entitlement in question to the plaintiffs. But it protects that entitlement with a\ndifferent remedy, namely a liability rule. The difference is that the liability rule allows others to\nseparate the entitlement holder from the entitlement at a price set by the court without gaining the\nconsent of the entitlement holder.\n512\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nWhy would one select a liability rule rather than a property rule as the better remedy?\nCalabresi and Melamed focus on transaction costs. In those settings in which we think that\ntransaction costs are low enough that the market will allocate resources to their highest value\nusers, property rules will be perfectly adequate. But when transaction costs lead us to think that\nthe market will not allocate resources to their highest value users, liability rules allow actors to\ndecide to go ahead with conduct so long as that conduct can pay its way.\nAt this stage, Calabresi and Melamed make a breathtaking claim. They contend that the\nongoing character of the injury in nuisance cases, and the availability of the injunction remedy for\nsuch ongoing cases, reveal for us a logic underlying tort cases more generally. In those cases, too,\nthe tort remedy is simply a substitute for the marketplace. Cases of completed injuries between\nstrangers, they suggest, are essentially cases in which the transaction costs were sufficiently high\nthat we allowed the defendant to impose the risk and indeed injury on the plaintiff without her\nconsent, at the cost of having to pay damages after the fact. We could of course protect plaintiffs\xe2\x80\x99\ninterests in their bodily integrity or property as against negligent conduct by a property rule; such\na regime might lead to punitive damages or perhaps even criminal punishment in order to force\nactors to negotiate up front with possible victims. But we don\xe2\x80\x99t adopt this approach. In tort law,\nwe allow people to impose risk and injury on others\xe2\x80\x94so long as they are willing to pay for it.\nCalabresi and Melamed\xe2\x80\x99s \xe2\x80\x9cView of the Cathedral\xe2\x80\x9d (to echo the title of their classic article)\nposits a logic for private law generally\xe2\x80\x94for the law of contract, property, and tort. In this logic,\ntort law\xe2\x80\x99s liability rules substitute for the entitlements of property law when market failures\nprevent the law of contract from achieving the right social outcomes. Tort law, in other words,\nallows actors like the cement plant in Boomer or a driver in an ordinary automobile accident case\nto compel others to bear some of the risks generated by their activity in return for a price set by\nthe courts. And it typically does so in areas in which the transaction cost obstacles to getting\nconsent up front are simply too great, either because the consent would have to come from\nunreachable strangers (the highway case) or because collective action problems and strategic\nbehavior are likely to prevent an actor from gaining consent.\n3. Tort and contract in \xe2\x80\x9cthe Cathedral.\xe2\x80\x9d Some say that the Calabresi / Melamed view of tort\nreduces tort law to a sort of contract law substitute: one designed to recreate contract\xe2\x80\x99s virtues in\nthose areas that contracts and the market are otherwise unable to reach. How plausible a reading\nof the law of torts is this? Consider the cases and materials we have reviewed in the past nine\nchapters. What, for example, would the Calabresi / Melamed theory hold for relational cases, i.e.,\ncases where there is a contract or relationship between the parties such that transaction costs have\nnot been insuperable? Are these cases in which the terms of the contract itself ought to govern the\ntorts resolution? Would tort be swallowed up into contract in such cases? Or does tort law supply\nsomething independent in such cases such that it is not simply reduceable to contract?\n\n4. Markets and inequality. One critique of the Cathedral is that market-mimicking liability\nrules may reflect and reproduce economic inequality. In the context of pollution, if liability rules\nare imposed, polluting defendants are incentivized to relocate to poorer neighborhoods where the\ndamages to the neighbors will be less. Even more troublingly, it may sometimes be the case that\nthe residents of poorer neighborhoods will accept lower monetary compensation for putting up\nwith pollution. Imagining for the moment that this is so, should we respect such deals?\n513\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nNote further that even if the Cathedral\xe2\x80\x99s liability rules reflect economic inequality in this\nway, they do so no more than ordinary tort law does. As we will see in Chapter 10, ordinary tort\nlaw takes correction of the status quo ante as its goal, without regard to the distributive justice or\nlack thereof of the regime requiring repair.\nMoreover, one should ask what the alternatives are. The alternative to compulsory\ntransactions is not that pollution will magically be allocated fairly among all members of society.\nThe alternative is that pollution siting will be a product of the political process \xe2\x80\x93 a process that\ntends to privilege the wealthy and powerful. Looking around America\xe2\x80\x99s cities today, who can say\nthat the pollution-causing facilities have been sited fairly as between poor and wealthy\nneighborhoods? At the very least, the Cathedral approach would provide compensation to those\nliving in the affected areas\xe2\x80\x94something the political process can rarely say for itself.\n\n5. A long history for the Cathedral? Although Boomer treats the doctrine of undue hardship\nas an innovation in New York tort law, Professor Douglas Laycock notes that the nuisance\ndefense of undue hardship was \xe2\x80\x9clong established in New York and elsewhere.\xe2\x80\x9d Douglas Laycock,\nThe Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic\nCement) 1 (Univ. of Va. Law Sch. Pub. Law & Legal Theory Research Paper Series No. 2012-27,\n2012), https://perma.cc/2LZS-YMEY; see also Louise A. Halper, Nuisance, Courts and Markets\nin the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301 (1990) (noting that several\nNew York cases that were not recognized in Boomer balanced remedies at the hardship stage).\nThe undue hardship doctrine allowed a nuisance defendant to convert an injunction against its\nactivities into a damages obligation to the victims of pollution or other nuisance effects. In New\nYork in particular, the defense of undue hardship had been considered at the remedy stage in other\ncases. E.g., Squaw Island Freight Terminal Co. v. City of Buffalo, 7 N.E.2d 10, 14 (N.Y.1937)\n(allowing the City of Buffalo to continue dumping sewage on the condition that it pay plaintiffs\npermanent damages for the injury caused by the sewage).\n\n6. The Calabresi / Melamed 2x2 Matrix. The three cases we have read so far in this section\ncan be summarized on the matrix below, with entitlements running down the left column and\nremedies running across the top row:\n\nEntitlement to Plaintiff\n\nEntitlement to Defendant\n\nInjunction (Property Rule)\n\nDamages (Liability\nRule)\n\nEnsign v. Walls\n\nBoomer\n\nFontainebleau Hotel Corp.\n\nBox 4\n\nSource: Adapted from James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules:\nThe Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 444 (1995).\n\n514\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nWhat about the lower right quadrant? The so-called \xe2\x80\x9cBox 4\xe2\x80\x9d seemed likely to remain\nempty until just as Calabresi and Melamed were publishing their article, the Supreme Court of\nArizona decided a case that seemed to match Box 4 perfectly:\n\nSpur Industries v. Del Webb Development Co., 494 P.2d 700 (Ariz. 1972)\nCAMERON, J.\nFrom a judgment permanently enjoining the defendant, Spur Industries, Inc., from\noperating a cattle feedlot near the plaintiff Del E. Webb Development Company\xe2\x80\x99s Sun City, Spur\nappeals. Webb cross-appeals. Although numerous issues are raised, we feel that it is necessary to\nanswer only two questions. They are:\n1. Where the operation of a business, such as a cattle feedlot is lawful in the first instance,\nbut becomes a nuisance by reason of a nearby residential area, may the feedlot operation be\nenjoined in an action brought by the developer of the residential area?\n2. Assuming that the nuisance may be enjoined, may the developer of a completely new\ntown or urban area in a previously agricultural area be required to indemnify the operator of the\nfeedlot who must move or cease operation because of the presence of the residential area created\nby the developer?\nThe facts necessary for a determination of this matter on appeal are as follows. The area\nin question is located in Maricopa County, Arizona, some 14 to 15 miles west of the urban area of\nPhoenix, on the Phoenix-Wickenburg Highway . . . .\nFarming started in this area about 1911. In 1929, with the completion of the Carl Pleasant\nDam, gravity flow water became available to the property located to the west of the Agua Fria\nRiver, though land to the east remained dependent upon well water for irrigation. By 1950, the\nonly urban areas in the vicinity were the agriculturally related communities . . . .\nIn 1956, Spur\xe2\x80\x99s predecessors in interest, H. Marion Welborn and the Northside Hay Mill\nand Trading Company, developed feedlots . . . . The area is well suited for cattle feeding and in\n1959, there were 25 cattle feeding pens or dairy operations within a 7 mile radius of the location\ndeveloped by Spur\xe2\x80\x99s predecessors. In April and May of 1959, the Northside Hay Mill was\nfeeding between 6,000 and 7,000 head of cattle and Welborn approximately 1,500 head on a\ncombined area of 35 acres.\nIn May of 1959, Del Webb began to plan the development of an urban area to be known\nas Sun City. For this purpose, the Marinette and the Santa Fe Ranches, some 20,000 acres of\nfarmland, were purchased for $ 15,000,000 or $ 750.00 per acre. This price was considerably less\nthan the price of land located near the urban area of Phoenix, and along with the success of\nYoungtown was a factor influencing the decision to purchase the property in question.\nBy September 1959, Del Webb had started construction of a golf course south of Grand\nAvenue and Spur\xe2\x80\x99s predecessors had started to level ground for more feedlot area. In 1960, Spur\npurchased the property in question and began a rebuilding and expansion program extending both\n515\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nto the north and south of the original facilities. By 1962, Spur\xe2\x80\x99s expansion program was\ncompleted and had expanded from approximately 35 acres to 114 acres. See Exhibit A above.\nAccompanied by an extensive advertising campaign, homes were first offered by Del\nWebb in January 1960 and the first unit to be completed was south of Grand Avenue and\napproximately 2 1/2 miles north of Spur. By 2 May 1960, there were 450 to 500 houses\ncompleted or under construction. At this time, Del Webb did not consider odors from the Spur\nfeed pens a problem and Del Webb continued to develop in a southerly direction, until sales\nresistance became so great that the parcels were difficult if not impossible to sell. . . .\nDel Webb filed its original complaint alleging that in excess of 1,300 lots in the southwest\nportion were unfit for development for sale as residential lots because of the operation of the Spur\nfeedlot. . . . The testimony indicated that cattle in a commercial feedlot will produce 35 to 40\npounds of wet manure per day, per head, or over a million pounds of wet manure per day for\n30,000 head of cattle, and that despite the admittedly good feedlot management and good\nhousekeeping practices by Spur, the resulting odor and flies produced an annoying if not\nunhealthy situation as far as the senior citizens of southern Sun City were concerned.\n[The court concluded that the operations of Spur Industries constituted an enjoinable\nnuisance. But that did not end the inquiry:]\nA suit to enjoin a nuisance sounds in equity and the courts have long recognized a special\nresponsibility to the public when acting as a court of equity . . . . In addition to protecting the\npublic interest . . . courts of equity are concerned with protecting the operator of a lawfully, albeit\nnoxious, business from the result of a knowing and willful encroachment by others near his\nbusiness.\nIn the so-called \xe2\x80\x9ccoming to the nuisance\xe2\x80\x9d cases, the courts have held that the\nresidential landowner may not have relief if he knowingly came into a neighborhood reserved for\nindustrial or agricultural endeavors and has been damaged thereby:\nPlaintiffs chose to live in an area uncontrolled by zoning laws or restrictive\ncovenants and remote from urban development. In such an area plaintiffs cannot\ncomplain that legitimate agricultural pursuits are being carried on in the vicinity,\nnor can plaintiffs, having chosen to build in an agricultural area, complain that the\nagricultural pursuits carried on in the area depreciate the value of their homes. The\narea being primarily agricultural, any opinion reflecting the value of such property\nmust take this factor into account. . . .\nPeople employed in a city who build their homes in suburban areas of the county\nbeyond the limits of a city and zoning regulations do so for a reason. . . . But with\nall these advantages in going beyond the area which is zoned and restricted to\nprotect them in their homes, they must be prepared to take the disadvantages. Dill\nv. Excel Packing Company . . . .\n\xe2\x80\x9c. . . [A] party cannot justly call upon the law to make that place suitable for his residence\nwhich was not so when he selected it. . . .\xe2\x80\x9d Gilbert v. Showerman.\n\n516\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nWere Webb the only party injured, we would feel justified in holding that the doctrine of\n\xe2\x80\x9ccoming to the nuisance\xe2\x80\x9d would have been a bar to the relief asked by Webb, and, on the other\nhand, had Spur located the feedlot near the outskirts of a city and had the city grown toward the\nfeedlot, Spur would have to suffer the cost of abating the nuisance as to those people locating\nwithin the growth pattern of the expanding city. . . .\nThere was no indication in the instant case at the time Spur and its predecessors located in\nwestern Maricopa County that a new city would spring up, full-blown, alongside the feeding\noperation and that the developer of that city would ask the court to order Spur to move because of\nthe new city. Spur is required to move not because of any wrongdoing on the part of Spur, but\nbecause of a proper and legitimate regard of the courts for the rights and interests of the public.\nDel Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction),\nnot because Webb is blameless, but because of the damage to the people who have been\nencouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that\nWebb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been\nthe cause of the damage Spur has sustained. It does not seem harsh to require a developer, who\nhas taken advantage of the lesser land values in a rural area as well as the availability of large\ntracts of land on which to build and develop a new town or city in the area, to indemnify those\nwho are forced to leave as a result.\nHaving brought people to the nuisance to the foreseeable detriment of Spur, Webb must\nindemnify Spur for a reasonable amount of the cost of moving or shutting down. It should be\nnoted that this relief to Spur is limited to a case wherein a developer has, with foreseeability,\nbrought into a previously agricultural or industrial area the population which makes necessary the\ngranting of an injunction against a lawful business and for which the business has no adequate\nrelief.\nIt is therefore the decision of this court that the matter be remanded to the trial court for a\nhearing upon the damages sustained by the defendant Spur as a reasonable and direct result of the\ngranting of the permanent injunction. Since the result of the appeal may appear novel and both\nsides have obtained a measure of relief, it is ordered that each side will bear its own costs.\nAffirmed in part, reversed in part, and remanded for further proceedings consistent with this\nopinion.\n\nNotes\n\n1. Filling in Box 4. The Spur Industries case filled in the formerly empty Box 4 of the\nmatrix in the notes above. The court allocated the entitlement to the defendant Spur Industries\xe2\x80\x94\nbut protected that entitlement with a liability rule rather than a property rule. That is to say, the\ncourt allowed the developer to seize the entitlement from the feedlot owner without the latter\xe2\x80\x99s\nconsent in return for a payment of damages set not in the marketplace but by the court.\n\n517\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nEntitlement to Plaintiff\n\nEntitlement to Defendant\n\nInjunction (Property Rule)\n\nDamages\n(Liability Rule)\n\nEnsign v. Walls\n\nBoomer\n\nFontainebleau Hotel Corp.\n\nSpur Industries\n\nSource: Adapted from James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules:\nThe Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 444 (1995).\n\nOne question here is why authorize the developer to force a transaction on the feedlot\nowner? After all, a Coasean observer might object that if real estate development is preferable to\nfeedlot operations, then the parties will reallocate the entitlement accordingly. Under such\ncircumstances, the developer and the feedlot owner might be expected to enter into a transaction\nin which the developer pays the feedlot owner to get the latter to cease its noxious operations.\nThere are no transaction impediments to finding one another, as there are in a typical highway\ncase. And there are no multi-party collective action problems causing individual rationality to\ndiverge from social rationality.\nOne possible answer is that this is a case of \xe2\x80\x9cbilateral monopoly\xe2\x80\x9d in which there is only\none possible buyer and one possible seller of the right to engage in noxious operations on the\nfeedlot in question. Economists have long observed that settings of bilateral monopoly such as a\nunionized labor force and a monopsonist employer often entail considerable friction\xe2\x80\x94for\nexample, labor strikes\xe2\x80\x94as the parties struggle for control of the surplus value that any such\ntransaction would generate. In such settings, perhaps the idea is that the courts can step in and cut\noff the friction that would otherwise transpire as the parties battled over the right price. Perhaps\nin the Spur Industries case, such friction would be especially undesirable because it would come\nat the expense of the third-party homeowners who are suffering the effects of the feedlot\xe2\x80\x99s\ncontinued operations.\nNote that the rarity of the Spur Industries case is that the beneficiaries of the injunction\nwere represented by a single entity, the developer, who was in a position to make payments to\nacquire the entitlement from the feedlot owner. Had the homeowners been a class of plaintiffs in\ntheir individual capacities, it is not clear how such a remedy would work.\n\n2. The thin edge of the wedge? Some scholars disagree with the holding in Spur Industries.\nFor example, Professor Richard Epstein contends that the outcome in Spur Industries suggests\nthat \xe2\x80\x9cthe polluter has property rights in the activities that generated the pollution.\xe2\x80\x9d Richard A.\nEpstein, A Clear View of The Cathedral: The Dominance of Property Rules, 106 YALE L.J. 2091,\n2104 (1997). Instead of paying the polluter, Professor Epstein argues that the plaintiff should be\nable to obtain an injunction without having to \xe2\x80\x9cpurchase it.\xe2\x80\x9d According to Professor Epstein,\n\xe2\x80\x9cthere is no reason why the plaintiff should have to buy for a second time land that she purchased\nbefore.\xe2\x80\x9d Id. at 2105.\n518\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n3. The empirics of bargaining around injunctions. Do parties in the real world behave as the\nCalabresi / Melamed model suggests? Dean Ward Farnsworth at the University of Texas at\nAustin studied twenty cases litigated to judgment and resulting in injunctions. Professor\nFarnsworth found that parties in private nuisance cases are often acrimonious and do not prefer\nmoney damages; thus, these parties were unwilling to bargain around the injunction. Crucially,\nthey were perfectly able to bargain. There were no transaction costs preventing them from doing\nso. But they declined to do so. Ward Farnsworth, Do Parties to Nuisance Cases Bargain After\nJudgment? A Glimpse Inside The Cathedral, 66 U. CHI. L. REV. 1, 30 (1999).\nDoes Dean Farnsworth\xe2\x80\x99s study suggest that parties to suits are not bargainers as the\nCathedral model posits? One response is to observe that Farnsworth examined cases that were\nlitigated to judgment\xe2\x80\x94not cases that were settled. But almost all cases are settled. Recall our\ndiscussion of settlement back in Chapter 1. Who doesn\xe2\x80\x99t settle? Parties peculiarly committed, or\njust mistakenly committed, to idiosyncratic values in the underlying dispute. So it should hardly\nbe surprising that the cases in Farnsworth\xe2\x80\x99s sample didn\xe2\x80\x99t reach deals after injunctions issued.\nThey had ample opportunity to reach such deals long before the final stage of the litigation, and\nthose few who had been unwilling to make a deal in the run-up to the final judgment should\nhardly have been expected to enter into one thereafter.\n\n2. Public Nuisance\nThe Restatement (Second) of Torts defines public nuisance as \xe2\x80\x9can unreasonable\ninterference with a right common to the general public.\xe2\x80\x9d Whether an interference with a \xe2\x80\x9cright\ncommon to the public\xe2\x80\x9d is unreasonable depends on whether it significantly interferes with \xe2\x80\x9cthe\npublic health, the public safety, the public peace, the public comfort or the public convenience\xe2\x80\x9d;\nwhether it is \xe2\x80\x9cproscribed by a statute, ordinance or administrative regulation\xe2\x80\x9d; and whether it is\n\xe2\x80\x9cof a continuing nature or has produced a permanent or long-lasting effect.\xe2\x80\x9d RESTATEMENT\n(SECOND) OF TORTS \xc2\xa7 821B (1979).\nBoth government entities and private individuals may bring claims for public nuisance. A\ngovernment entity bringing a claim must have \xe2\x80\x9cauthority as a public official or public agency to\nrepresent the state or a political subdivision in the matter.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7\n821C (1979).\nPrivate individuals bringing public nuisance claims must make a further showing. They\nmust show that they \xe2\x80\x9csuffered harm of a kind different from that suffered by other members of\nthe public. . . .\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 821C (1979). How do courts determine\nwhether a private plaintiff\xe2\x80\x99s harm is different in kind? Consider the following two cases:\n\nLeo v. General Electric Co., 538 N.Y.S.2d 844 (N.Y. App. Div. 1989)\nHARWOOD, J.\nWe are called upon to determine whether commercial fishermen and their representative\nassociations are aggrieved by the discharge of pollutants into public waters, resulting, for reasons\n519\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nof public safety, in a ban by the New York State Department of Environmental Conservation\n(hereinafter DEC) on the sale of striped bass throughout New York State. We hold that the\nplaintiffs have standing to maintain the instant action. . . . We therefore conclude that the Supreme\nCourt properly declined to dismiss the complaint.\nIt is not disputed that over a 30-year period the defendant discharged a total of at least\n500,000 pounds of polychlorinated biphenyls (hereinafter PCBs) from two of its manufacturing\nplants into the Hudson River. The PCBs collected on the river floor and were absorbed by the\nmarine life, including the striped bass, a species which returns to the Hudson River each year to\nspawn. When the defendant became aware of the highly toxic effect of PCBs is one of the issues\nto be determined in this litigation. In 1975 the DEC commenced a proceeding to enforce various\nprovisions of the Environmental Conservation Law against the defendant and to enjoin or limit its\ndischarge of PCBs. Following an interim finding that defendant was responsible for the presence\nof PCBs in the Hudson River and its marine life, that proceeding was settled and, apparently in\n1977, the defendant ceased all discharge of PCBs into the Hudson River. Subsequent studies\nshowed that excessively high levels of PCBs had been absorbed by the striped bass, and, in 1985,\nthe DEC imposed a ban on the sale of striped bass fished from the lower Hudson and western\nLong Island waters. . . . It appears that the ban will remain in effect for some time to come.\nMethods for removal of PCBs from the Hudson River are still under study by the DEC and the\nUnited States Environmental Protection Agency.\nThe individual plaintiffs, each a member of one of the plaintiff associations, are\ncommercial fishermen who, as a means of earning a livelihood, fish the Hudson River or the\nwaters of Long Island. The plaintiffs allege in their complaint that the defendant intentionally\ndischarged PCBs into the river in spite of its awareness of their toxicity and in reckless disregard\nof the consequences. They also allege that the defendant negligently allowed PCBs to enter the\nriver through percolation and runoff from contaminated earth used by the defendant as a dumping\nground, and that the defendant intentionally or recklessly failed to adopt effective means for the\nremoval of PCBs from the river. The plaintiffs claim that the sale of striped bass accounted for a\nsubstantial part of a commercial fisherman\xe2\x80\x99s income, that as commercial fishermen they have a\nspecial interest in use of public waters, that this special interest was invaded by the defendant\xe2\x80\x99s\npollution of the water and contamination of the fish and, in effect, that the defendant\xe2\x80\x99s creation of\na public nuisance had and will continue to have a devastating effect upon the individual plaintiffs\xe2\x80\x99\nability to earn a living. As indicated, they seek damages and injunctive relief.\nPollution of navigable public waters which causes death to or contamination of fish\nconstitutes a public nuisance. It is settled law in this State that, in the absence of special damage,\na public nuisance is subject to correction only by a public authority. . . . If there is some injury\npeculiar to a plaintiff, a private action premised on a public nuisance may be maintained. . . .\nAllegations of pecuniary injury may be sufficient to satisfy the peculiar injury test . . . so long as\nthe injuries involved are not common to the entire community exercising the same public right. . .\n.\n[A]ssuming the allegations of the complaint to be true, as we must on a motion to dismiss,\nthe breadth and depth of the tragedy do not preclude a determination that a peculiar or special\nharm has also been done to these plaintiffs: diminution or loss of livelihood is not suffered by\nevery person who fishes in the Hudson River or waters of Long Island . . . ; the harm alleged is\n\n520\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\npeculiar to the individual plaintiffs in their capacity as commercial fishermen and goes beyond the\nharm done them as members of the community at large. . . .\nAccordingly, the order should be affirmed . . . .\n\n532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, 750 N.E.2d 1097 (N.Y. 2001)\nKAYE, C.J.\n[Recall the facts of 532 Madison Ave. from Chapter 8 above, where we looked at the part\nof the opinion dealing with the pure economic loss rule. The case arose out of a building collapse\nin midtown Manhattan. In addition to a cause of action for negligence and economic loss, the\nplaintiffs in several underlying cases\xe2\x80\x94including a law firm and several retailers\xe2\x80\x94brought claims\nfor public nuisance:]\nPlaintiffs contend that they stated valid causes of action for public nuisance, alleging that\nthe collapses forced closure of their establishments, causing special damages beyond those\nsuffered by the public.\nA public nuisance exists for conduct that amounts to a substantial interference with the\nexercise of a common right of the public, thereby offending public morals, interfering with the use\nby the public of a public place or endangering or injuring the property, health, safety or comfort of\na considerable number of persons. A public nuisance is a violation against the State and is subject\nto abatement or prosecution by the proper governmental authority. . . .\nA public nuisance is actionable by a private person only if it is shown that the person\nsuffered special injury beyond that suffered by the community at large. . . . This principle\nrecognizes the necessity of guarding against the multiplicity of lawsuits that would follow if\neveryone were permitted to seek redress for a wrong common to the public . . . .\nA nuisance is the actual invasion of interests in land, and it may arise from varying types\nof conduct. . . . In the cases before us, the right to use the public space around Madison Avenue\nand Times Square was invaded not only by the building collapses but also by the City\xe2\x80\x99s decision,\nin the interest of public safety, to close off those areas. Unlawful obstruction of a public street is a\npublic nuisance, and a person who as a consequence sustains a special loss may maintain an\naction for public nuisance. . . . Indeed, \xe2\x80\x9cin a populous city, whatever unlawfully turns the tide of\ntravel from the sidewalk directly in front of a retail store to the opposite side of the street is\npresumed to cause special damage to the proprietor of that store, because diversion of trade\ninevitably follows diversion of travel.\xe2\x80\x9d\nThe question here is whether plaintiffs have suffered a special injury beyond that of the\ncommunity so as to support their damages claims for public nuisance. We conclude that they\nhave not.\nIn Burns Jackson we refused to permit a public nuisance cause of action by two law firms\nseeking damages for increased expenses and lost profits resulting from the closure of the New\nYork City transit system during a labor strike. We concluded that, because the strike was so\n521\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nwidespread, every person, firm and corporation conducting a business or profession in the City\nsuffered similar damage and thus the plaintiffs could not establish an injury different from that of\nthe public at large.\nWhile not as widespread as the transit strike, the Madison Avenue and Times Square\nclosures caused the same sort of injury to the communities that live and work in those\nextraordinarily populous areas. As the trial court in [one of the underlying cases] pointed out,\nthough different in degree, the hot dog vendor and taxi driver suffered the same kind of injury as\nthe plaintiff law firm. Each was impacted in the ability to conduct business, resulting in financial\nloss. When business interference and ensuing pecuniary damage is \xe2\x80\x9cso general and widespread as\nto affect a whole community, or a very wide area within it, the line is drawn.\xe2\x80\x9d While the degree\nof harm to the named plaintiffs may have been greater than to the window washer, per diem\nemployee or neighborhood resident unable to reach the premises, in kind the harm was the same.\nLeo v General Elec. Co. . . . is inapposite. . . . Plaintiffs were able to establish that their\ninjuries were special and different in kind, not merely in degree: a loss of livelihood was not\nsuffered by every person who fished the Hudson. By contrast, every person who maintained a\nbusiness, profession or residence in the heavily populated areas of Times Square and Madison\nAvenue was exposed to similar economic loss during the closure periods. Thus, in that the\neconomic loss was \xe2\x80\x9ccommon to an entire community and the plaintiff[s] suffer[ed] it only in a\ngreater degree than others, it is not a different kind of harm and the plaintiff[s] cannot recover for\nthe invasion of the public right.\xe2\x80\x9d RESTATEMENT (SECOND) OF TORTS \xc2\xa7 821C, cmt. h.\n\nNotes\n\n1. Private attorneys general in public nuisance? Should private individuals be able to bring\nclaims for public nuisance? According to Professor Thomas Merrill, the rule that allows private\nparties to bring public nuisance claims arose out of a \xe2\x80\x9cmistaken reading of an old precedent.\xe2\x80\x9d\nProfessor Merrill writes that the doctrine rests on a sixteenth-century English case that Merrill\ncontends correctly refused to allow a private party to bring an action for public nuisance:\nIn a separate opinion, one of the judges, Fitzherbert, argued that under certain\ncircumstances private persons should be allowed to sue for what would otherwise\nconstitute a public nuisance. He offered the hypothetical of a defendant who digs a\ntrench across a highway, causing injury to a horse and rider. The obstruction of the\nhighway would be a public nuisance, subject to indictment in local criminal court\n(the \xe2\x80\x9cleet\xe2\x80\x9d). Fitzherbert thought that the injured rider would nevertheless also have\nan action \xe2\x80\x9cto recover his damages that he had by reason of this special hurt.\xe2\x80\x9d\nFitzherbert\xe2\x80\x99s hypothetical was cited much later by English and American courts and\nby the authors of the Restatement, to mean that the injured rider could sue for public\nnuisance. What Fitzherbert more likely meant was that the action for public\nnuisance did not preclude the rider from bringing a separate action for damages\nbased on what in his day was called an action on the case or what we would today\ncall negligence. In other words, digging the trench in the road gave rise to two\n\n522\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\ncauses of action: a public action to abate the injury to the general public, and a\nprivate action to recover damages for personal injury.\nMerrill contends that the action that Fitzherbert\xe2\x80\x99s hypothetical contemplated was not an action on\nthe public nuisance but rather a simple action for negligence. Thomas W. Merrill, Is Public\nNuisance a Tort?, 4 J. TORT L. 1, 13-14 (2011).\n\n2. Private lawyers and public nuisance. Even where there is no special injury to a particular\nplaintiff or class of plaintiffs, the private torts bar has become deeply involved in recent years in\nthe pursuit of public nuisance claims. State attorneys general and city corporation counsel\xe2\x80\x99s\noffices have hired private lawyers, typically on a contingency fee, to prosecute high-stakes public\nnuisance claims on behalf of the public. The law firms bringing these cases have the high-octane\nmotivation of the contingent fees in what are often very high-value claims. But they do not face\nthe obstacles that private litigants face when bringing public nuisance claims. On the\nphenomenon generally, see Margaret H. Lemos, Privatizing Government Litigation, 104 GEO. L.J.\n515 (2016); Eric Lipton, Lawyers Create Big Paydays by Coaxing Attorneys General to Sue,\nN.Y. TIMES, Dec. 18, 2014.\nThe Rhode Island lead paint litigation described below was precisely such a case: litigated\nby private plaintiffs\xe2\x80\x99 lawyers on behalf of the state itself as the party to the litigation. In Rhode\nIsland the lead paint case ended poorly for the plaintiffs\xe2\x80\x99 lawyers. A more recent litigation in\nCalifornia has ended very differently.\n\nLead Paint and Public Nuisance: Two Stories\nPeter B. Lord, 3 companies found liable in lead-paint nuisance suit, PROVIDENCE J., February\n23, 2006\nPROVIDENCE \xe2\x80\x94 Six Rhode Islanders yesterday made up the first jury in the country to find\nmajor corporations liable for creating a public nuisance by making lead-based paints that have\npoisoned thousands of children. The verdict may cost the companies billions of dollars.\nThe jury ordered Sherwin Williams Co., Millennium Holdings and NL Industries to abate,\nor clean up, the paints that were used generations ago on thousands of Rhode Island homes. . . .\nThe value of Sherwin Williams stock began to plummet within moments of the verdict.\nBy the end of the day, the value of the company\xe2\x80\x99s shares dropped by nearly 18 percent\xe2\x80\x94a loss\ntotaling $1.3 billion. The value of NL Industries stock dropped by 8 percent, for a total loss of\n$642 million. . . .\nThe biggest potential expenditures are the abatement costs. The state argued that 240,000\nhouses in Rhode Island have lead paint on them that must be removed. Assuming an average\nexpense of $10,000 per house, the total cost would be about $2.4 billion.\n\n523\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n. . . Attorney General Patrick C. Lynch . . . . pointed out that children continue to be\npoisoned by lead paints and there were victims in nearly every community in Rhode Island last\nyear. . . .\nThe losing companies had little to say. They issued a statement from spokesperson\nBonnie Campbell that said, \xe2\x80\x9cThis is but one step in a lengthy process and there are a number of\nissues still to be decided by the Court.\xe2\x80\x9d\nJoe Nocera, The Pursuit of Justice, or Money?, N.Y. TIMES, December 8, 2007\n\xe2\x80\x9cIf I don\xe2\x80\x99t bring the lead paint industry to its knees in three years, I will give them my\nboat.\xe2\x80\x9d\nSo declared Ronald L. Motley to The Dallas Morning News in the fall of 1999\xe2\x80\x94and why\nnot? In addition to being the owner of a very large yacht, Mr. Motley is also one of the country\xe2\x80\x99s\npre-eminent plaintiffs\xe2\x80\x99 lawyers, the titular head of the 70-lawyer firm Motley Rice, based in\nCharleston, S.C. . . .\nThe state [of Rhode Island], with the help of its friends at Motley Rice, recently unveiled\nan abatement plan that would require the companies to pay for the inspection of a staggering\n240,000 homes as well as thousands of other structures like hospitals and day care centers, and\nremove lead from most of them. The estimated cost for doing this\xe2\x80\x94almost surely understated\xe2\x80\x94is\n$2.4 billion, with a hefty chunk of that going to the lawyers, of course. Never mind that for the\nvast majority of homes, the far better and cheaper solution is simply to keep them maintained. . . .\nOne thing I couldn\xe2\x80\x99t help wondering was why the gasoline makers weren\xe2\x80\x99t subject to\nthese kinds of lawsuits. After all, gasoline, not pigment, was the primary cause of elevated blood\nlead levels back in the day. When I mentioned this to David Rosner, a Columbia professor who\nhas served as an expert witness for the plaintiffs, he reassured me.\n\xe2\x80\x9cI think there might be a suit like that filed next week,\xe2\x80\x9d he said.\nPeter B. Lord, R.I. high court overturns lead-paint verdict, PROVIDENCE J., July 2, 2008\nPROVIDENCE \xe2\x80\x94 The Rhode Island Supreme Court yesterday brought an abrupt end to the\nstate\xe2\x80\x99s nine-year campaign to force some of the nation\xe2\x80\x99s major corporations to clean up the leadbased paints that the state believes poisoned tens of thousands of Rhode Island children.\nIn a unanimous 4 to 0 ruling, the court overturned a string of decisions by Superior Court\nJudge Michael A. Silverstein and a verdict by a six-person jury that found the companies created a\npublic nuisance by making and selling the paints. . . .\nBy day\xe2\x80\x99s end, the price of Sherwin Williams\xe2\x80\x99 stock rose 6.4 percent, while NL Industries\nwas up 4.6 percent.\n524\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nRhode Island v. Lead Industries Association, 951 A.2d 428 (R.I. 2008)\n. . . We agree with defendants that the public nuisance claim should have been dismissed\nat the outset because the state has not and cannot allege that defendants\xe2\x80\x99 conduct interfered with a\npublic right or that defendants were in control of lead pigment at the time it caused harm to\nchildren in Rhode Island. We reach this conclusion with a keen realization of how limited the\njudicial system often is. We believe that the following recent observation by this Court in another\ncase is equally applicable to this case:\n\xe2\x80\x9cThe American judicial system as it exists today is admirable: it is the product of\nmany decades of fine-tuning of an already excellent substantive and procedural\nconstruct which this country took with it when it parted ways with England.\nNevertheless, our judicial system is not a panacea that can satisfy everyone who has\nrecourse to it. Some wrongs and injuries do not lend themselves to full redressment\nby the judicial system.\xe2\x80\x9d Ryan v. Roman Catholic Bishop of Providence, 941 A.2d\n174, 188 (R.I.2008).\n1 History of Public Nuisance\n. . . \xe2\x80\x9cAt common law public nuisance came to cover a large, miscellaneous and\ndiversified group of minor offenses . . .\xe2\x80\x9d RESTATEMENT (SECOND) TORTS \xc2\xa7 821B, cmt. b at 40.\nNotably, all these offenses involved an \xe2\x80\x9cinterference with the interests of the community at largeinterests that were recognized as rights of the general public entitled to protection.\xe2\x80\x9d Id.\nPublic nuisance as it existed in English common law made its way to Colonial America\nwithout change. . . . In time, public nuisance became better known as a tort, and its criminal\ncounterpart began to fade away in American jurisprudence. As state legislatures started enacting\nstatutes prohibiting particular conduct and setting forth criminal penalties there was little need for\nthe broad, vague, and anachronistic crime of nuisance. RESTATEMENT (SECOND) TORTS \xc2\xa7 821B,\ncmt. c at 88. . . .\n2 Public Nuisance in Rhode Island\nAs the law of public nuisance began to take hold in Rhode Island, it reflected the principle\n\xe2\x80\x9cso long ago laid down by Lord Holt, that \xe2\x80\x98in every case where a statute enacts or prohibits a thing\nfor the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for\nhis advantage, or for the recompense of the wrong done to him contrary to the said law.\xe2\x80\x99\xe2\x80\x9d Aldrich\nv. Howard, 7 R.I. 199, 213 (1862) (quoting Couch v. Steel, 3 Ellis and Blackburn, (77 Eng.\nC.L.R.) 411). Some of Rhode Island\xe2\x80\x99s earliest cases involved activities designated as \xe2\x80\x9ccommon\nnuisances\xe2\x80\x9d by the General Assembly. Those cases recognized that \xe2\x80\x9c\xe2\x80\x98a public nuisance becomes a\nprivate one to him who is specially and in some particular way inconvenienced thereby * * *.\xe2\x80\x99\xe2\x80\x9d\nState v. Keeran, 5 R.I. 497, 511 (1858). See also State v. Paul, 5 R.I. 185, 194 (1858) (an action\nfor abatement of a public nuisance may be brought \xe2\x80\x9cby those who are specially injured or\nobstructed\xe2\x80\x9d).\nIn Rhode Island, actions to abate public nuisances originally were brought in the form of\nan indictment. Keeran, 5 R.I. at 511; Paul, 5 R.I. at 194. Today, the state Attorney General is\nempowered to bring actions to abate public nuisances. See G.L. 1956 \xc2\xa7 42-9-2 (vesting the\nAttorney General with the power to commence a public nuisance suit) and G.L. 1956 \xc2\xa7 10-1-1\n525\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n(providing that \xe2\x80\x9c[w]henever a nuisance is alleged to exist, the attorney general . . . may bring an\naction in the name of the state . . . to abate the nuisance\xe2\x80\x9d).\n...\nThis Court has defined public nuisance as \xe2\x80\x9can unreasonable interference with a right\ncommon to the general public.\xe2\x80\x9d . . . \xe2\x80\x9c[I]t is behavior that unreasonably interferes with the health,\nsafety, peace, comfort or convenience of the general community.\xe2\x80\x9d . . . Put another way, \xe2\x80\x9cpublic\nnuisance is an act or omission which obstructs or causes inconvenience or damage to the public in\nthe exercise of rights common to all.\xe2\x80\x9d . . .\nThis Court recognizes three principal elements that are essential to establish public\nnuisance: (1) an unreasonable interference; (2) with a right common to the general public; (3) by a\nperson or people with control over the instrumentality alleged to have created the nuisance when\nthe damage occurred. . . .\nA necessary element of public nuisance is an interference with a public right\xe2\x80\x94those\nindivisible resources shared by the public at large, such as air, water, or public rights of way. The\ninterference must deprive all members of the community of a right to some resource to which they\notherwise are entitled. See RESTATEMENT (SECOND) TORTS \xc2\xa7 821B, cmt. g at 92. The\nRestatement (Second) provides much guidance in ascertaining the fine distinction between a\npublic right and an aggregation of private rights. \xe2\x80\x9cConduct does not become a public nuisance\nmerely because it interferes with the use and enjoyment of land by a large number of persons.\xe2\x80\x9d\nId. . . .\nAlthough the state asserts that the public\xe2\x80\x99s right to be free from the hazards of unabated\nlead had been infringed, this contention falls far short of alleging an interference with a public\nright as that term traditionally has been understood in the law of public nuisance. The state\xe2\x80\x99s\nallegation that defendants have interfered with the \xe2\x80\x9chealth, safety, peace, comfort or convenience\nof the residents of the [s]tate\xe2\x80\x9d standing alone does not constitute an allegation of interference with\na public right. . . . The term public right is reserved more appropriately for those indivisible\nresources shared by the public at large, such as air, water, or public rights of way. . . . Expanding\nthe definition of public right based on the allegations in the complaint would be antithetical to the\ncommon law and would lead to a widespread expansion of public nuisance law that never was\nintended, as we discuss infra. In declining to adopt such a widespread expansion of the law, we\nare mindful of the words of Edmund Burke that \xe2\x80\x9cbad laws are the worst sort of tyranny.\xe2\x80\x9d 1\nEdmund Burke, The Works of Edmund Burke: With a Memoir 318 (1860).\n...\nThe enormous leap that the state urges us to take is wholly inconsistent with the widely\nrecognized principle that the evolution of the common law should occur gradually, predictably,\nand incrementally. Were we to hold otherwise, we would change the meaning of public right to\nencompass all behavior that causes a widespread interference with the private rights of numerous\nindividuals.\nThe Illinois Supreme Court recently hypothesized on the effect of a broader recognition of\npublic right. In Beretta, the Illinois Supreme Court considered whether there was a public right to\nbe \xe2\x80\x9cfree from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats\n526\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nof danger to person and property, caused by the presence of illegal weapons in the city of\nChicago.\xe2\x80\x9d Beretta U.S.A. Corp., 290 Ill. Dec. 525, 821 N.E.2d at 1114. In concluding that there\nwas not, the court acknowledged the far-reaching effects of a decision otherwise. Id. 290 Ill. Dec.\n525, 821 N.E.2d at 1116. The court speculated that\n\xe2\x80\x9c[i]f there is public right to be free from the threat that others may use a lawful\nproduct to break the law, that right would include the right to drive upon the\nhighways, free from the risk of injury posed by drunk drivers. This public right to\nsafe passage on the highways would provide the basis for public nuisance claims\nagainst brewers and distillers, distributing companies, and proprietors of bars,\ntaverns, liquor stores, and restaurants with liquor licenses, all of whom could be said\nto contribute to an interference with the public right.\xe2\x80\x9d Id.\nIn taking the analogy a step further, the court considered the effect of other product\nmisuse, stating:\n\xe2\x80\x9cSimilarly, cell phones, DVD players, and other lawful products may be misused\nby drivers, creating a risk of harm to others. In an increasing number of\njurisdictions, state legislatures have acted to ban the use of these otherwise legal\nproducts while driving. A public right to be free from the threat that other drivers\nmay defy these laws would permit nuisance liability to be imposed on an endless\nlist of manufacturers, distributors, and retailers of manufactured products that are\nintended to be, or are likely to be, used by drivers, distracting them and causing\ninjury to others.\xe2\x80\x9d Id.\nLike the Beretta court, we see no reason to depart from the long-standing principle that a\npublic right is a right of the public to shared resources such as air, water, or public rights of way.\nEven had the state adequately alleged an interference with a right common to the general\npublic, which we conclude it did not, the state\xe2\x80\x99s complaint also fails to allege any facts that would\nsupport a conclusion that defendants were in control of the lead pigment at the time it harmed\nRhode Island\xe2\x80\x99s children.\nThe state filed suit against defendants in their capacity \xe2\x80\x9ceither as the manufacturer of . . .\nlead pigment . . . or as the successors in interest to such manufacturers\xe2\x80\x9d for \xe2\x80\x9cthe cumulative\npresence of lead pigment in paints and coatings in or on buildings throughout the [s]tate of Rhode\nIsland.\xe2\x80\x9d For the alleged public nuisance to be actionable, the state would have had to assert that\ndefendants not only manufactured the lead pigment but also controlled that pigment at the time it\ncaused injury to children in Rhode Island\xe2\x80\x94and there is no allegation of such control.\nThe New Jersey Supreme Court applied these same elements to the lead paint litigation in\nthat jurisdiction and likewise held that public nuisance was an improper cause of action. The\ncourt emphasized that were it \xe2\x80\x9cto permit these complaints to proceed, [it] would stretch the\nconcept of public nuisance far beyond recognition and would create a new and entirely unbounded\ntort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.\xe2\x80\x9d\nIn re Lead Paint Litigation, 924 A.2d at 494. We agree.\n\n527\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nNote\n\n1. Not with a bang but a whimper. Many critics have contended that this is for the good.\nLead-poisoning rates, they observe, have declined sharply over the past two decades. \xe2\x80\x9cIn 1998,\n3,437 children tested before they entered school in Rhode Island had elevated lead levels, which\ncan cause neurological problems ranging from loss of intelligence to behavior and attention\nproblems.\xe2\x80\x9d More recent studies found that the \xe2\x80\x9cthe number of new cases dropped to 614.\xe2\x80\x9d\nMoreover, \xe2\x80\x9c[d]uring that period, state, federal and local governments have spent millions of\ndollars cleaning up lead paints.\xe2\x80\x9d Lord, \xe2\x80\x9cR.I. high court overturns lead-paint verdict,\xe2\x80\x9d supra.\nThe California litigation brought under much the same theory has had a different fate:\n\nCty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292 (2006)\nMIHARA, J.\nA group of governmental entities acting for themselves, as class representatives, and on\nbehalf of the People of the State of California, filed a class action against a group of lead\nmanufacturers. The governmental entities alleged that the manufacturers . . . should be required\nto abate the public nuisance created by lead paint. . . . The superior court sustained the\nmanufacturers\xe2\x80\x99 demurrers to the public nuisance causes of action. . . .\nWe conclude that the superior court\xe2\x80\x99s rulings were erroneous as to plaintiffs\xe2\x80\x99 public\nnuisance . . . cause[] of action. We therefore reverse the judgment. . . .\nThe public nuisance cause of action . . . . alleged that the People had \xe2\x80\x9ca common right to\nbe free from the detrimental [e]ffects . . . of Lead in homes, buildings, and property in the State of\nCalifornia.\xe2\x80\x9d Yet \xe2\x80\x9cLead is present on large numbers of homes, buildings, and other property\nthroughout the State of California,\xe2\x80\x9d \xe2\x80\x9cis injurious to the health of the public\xe2\x80\x9d and constitutes a\nnuisance. \xe2\x80\x9cDefendants are liable in public nuisance in that they created and/or contributed to the\ncreation of and/or assisted in the creation and/or were a substantial contributing factor in the\ncreation of the public nuisance\xe2\x80\x9d by: \xe2\x80\x9c[e]ngaging in a massive campaign to promote the use of\nLead on the interiors and exteriors of private residences and public and private buildings and for\nuse on furniture and toys;\xe2\x80\x9d failing to warn the public about the dangers of lead; selling, promoting\nand distributing lead; trying to discredit evidence linking lead poisoning to lead; trying to stop\nregulation and restrictions on lead; and trying to increase the market for lead. Plaintiffs alleged\nthat the lead distributed by defendants \xe2\x80\x9cinevitably has deteriorated and/or is deteriorating and/or\nwill deteriorate thereby contaminating these homes, buildings, and property\xe2\x80\x9d and exposing people\nto lead. The remedy sought was abatement \xe2\x80\x9cfrom all public and private homes and property so\naffected throughout the State of California.\xe2\x80\x9d\nDefendants . . . . claim that no public nuisance cause of action may be pleaded against a\nmanufacturer of a product that creates a health hazard because such hazards are remediable solely\nthrough products liability. . . . [T]hey claim that, even where the facts would otherwise constitute\na public nuisance, a cause of action does not lie because the underlying cause of the public\nnuisance is a product for which only a products liability cause of action will lie.\n528\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\n\xe2\x80\x9cAnything which is injurious to health . . . or is indecent or offensive to the senses, or an\nobstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or\nproperty . . . is a nuisance.\xe2\x80\x9d Cal. Civ. Code, \xc2\xa7 3479 (italics added). \xe2\x80\x9cA public nuisance is one\nwhich affects at the same time an entire community or neighborhood, or any considerable number\nof persons . . . .\xe2\x80\x9d Cal. Civ. Code, \xc2\xa7 3480. . . .\n\xe2\x80\x9c[P]ublic nuisances are offenses against, or interferences with, the exercise of rights\ncommon to the public.\xe2\x80\x9d People ex rel. Gallo v. Acuna[, 929 P.2d 596 (Cal. 1997)]. \xe2\x80\x9cOf course,\nnot every interference with collective social interests constitutes a public nuisance. To qualify,\nand thus be enjoinable [or abatable], the interference must be both substantial and unreasonable.\xe2\x80\x9d\nId. It is substantial if it causes significant harm and unreasonable if its social utility is outweighed\nby the gravity of the harm inflicted. Id.\nSanta Clara, SF, and Oakland . . . alleged that lead causes grave harm, is injurious to\nhealth, and interferes with the comfortable enjoyment of life and property. Clearly their\ncomplaint was adequate to allege the existence of a public nuisance . . . . The next question was\nwhether defendants could be held responsible for this public nuisance.\n\xe2\x80\x9c[L]iability for nuisance does not hinge on whether the defendant owns, possesses or\ncontrols the property, nor on whether he is in a position to abate the nuisance; the critical question\nis whether the defendant created or assisted in the creation of the nuisance.\xe2\x80\x9d (City of Modesto\nRedevelopment Agency v. Superior Court, 119 Cal. App. 4th 28, 39 [Cal. Ct. App. 2004] . . .)\nHere, Santa Clara, SF, and Oakland alleged that defendants assisted in the creation of this\nnuisance by concealing the dangers of lead, mounting a campaign against regulation of lead, and\npromoting lead paint for interior use even though defendants had known for nearly a century that\nsuch a use of lead paint was hazardous to human beings. . . .\nYet defendants claim that they may not be held liable on a public nuisance cause of action\nbecause two Court of Appeal opinions have held that public nuisance is an inappropriate cause of\naction against a product manufacturer for a nuisance caused by the product. They rely on the\nSecond District Court of Appeal\xe2\x80\x99s decision in City of San Diego v. U.S. Gypsum Co.[ 30 Cal.\nApp. 4th 575 (Cal. Ct. App. 1995)] and the First District Court of Appeal\xe2\x80\x99s decision in Modesto. .\n..\nSan Diego and Modesto are distinguishable from the case before us. Here, the\nrepresentative cause of action is a public nuisance action brought on behalf of the People seeking\nabatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or\nthe cost of remediating their property. Liability is not based merely on production of a product or\nfailure to warn. Instead, liability is premised on defendants\xe2\x80\x99 promotion of lead paint for interior\nuse with knowledge of the hazard that such use would create. This conduct is distinct from and far\nmore egregious than simply producing a defective product or failing to warn of a defective\nproduct . . . .\nA representative public nuisance cause of action seeking abatement of a hazard created by\naffirmative and knowing promotion of a product for a hazardous use is not \xe2\x80\x9cessentially\xe2\x80\x9d a\nproducts liability action \xe2\x80\x9cin the guise of a nuisance action\xe2\x80\x9d and does not threaten to permit public\nnuisance to \xe2\x80\x9c\xe2\x80\x98become a monster that would devour in one gulp the entire law of tort . . . .\xe2\x80\x99\xe2\x80\x9d\n529\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nThe judgment is reversed. The superior court is directed to (1) vacate its order sustaining\nthe demurrer to the representative public nuisance cause of action in the third amended complaint\nand enter a new order overruling the demurrer to that cause of action. . . . Plaintiffs shall recover\ntheir costs on appeal.\n\nNote\n\n1. In December 2013, a California trial court awarded damages to the plaintiffs in the\namount of $1.1 billion, later increased to $1.5 billion. An intermediate California appellate court\naffirmed most of the judgment in November 2017. People v. Conagra Grocery Products Co., 17\nCal. App. 5th 51 (Cal. App. 6th Dist. 2017). The California Supreme Court declined to review the\ncase in February 2018. In October 2018, the U.S. Supreme Court denied certiorari, putting an end\nto nearly two decades of litigation and leaving in place the damages award, including a $409\nmillion abatement fund. ConAgra Grocery Prod. Co. v. California, 139 S. Ct. 377 (2018); see\nalso Greg Stohr, Supreme Court Rejects Lead-Paint Maker Appeals in $400 Million Case,\nBLOOMBERG, Oct. 15, 2018.\nFew other efforts to deploy the public nuisance doctrine for broad social policy ends have\nhad as much success as the California lead paint case. The next case, arising out of a creative\neffort to deploy public nuisance in New Jersey, is more typical of the outcomes of such cases.\n\nCamden County v. Beretta, 273 F.3d 536 (3d Cir. 2001)\nPER CURIAM.\nThe Camden County Board of Chosen Freeholders (hereinafter \xe2\x80\x9cCamden County\xe2\x80\x9d)\ncontends that handgun manufacturers, because of their marketing and distribution policies and\npractices, are liable under a public nuisance theory for the governmental costs associated with the\ncriminal use of handguns in Camden County. The District Court, in a 53-page opinion, dismissed\nthe complaint. . . . We affirm the order of the District Court.\nI\nIn its Second Amended Complaint, Camden County alleged that Defendants\xe2\x80\x99 conduct\xe2\x80\x94\nthe marketing and distribution of handguns\xe2\x80\x94created and contributed to the widespread criminal\nuse of handguns in the County. . . . The County invoked three theories of liability: negligence,\nnegligent entrustment, and public nuisance. The County requested several forms of relief,\nincluding compensation for the additional costs incurred by the County to abate the alleged public\nnuisance (costs borne by the County\xe2\x80\x99s prosecutor, sheriff, medical examiner, park police,\ncorrectional facility, and courts) . . . and other compensatory and punitive damages. The\nmanufacturers countered that the County had failed to state claims on which relief could be\ngranted and that, in any event, damages were barred by the municipal cost recovery rule.\nMoreover, the manufacturers contended that the claims were barred by New Jersey\xe2\x80\x99s product\nliability statute, the Dormant Commerce Clause, and the Due Process Clause.\n\n530\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nThe District Court rejected all three of Camden County\xe2\x80\x99s theories of liability and granted\nthe defendants\xe2\x80\x99 motion to dismiss the complaint. It dismissed the two negligence claims after its\nthorough six-factor analysis found proximate cause lacking. . . . It also found that the public\nnuisance claim was defective because the County had not alleged \xe2\x80\x9cthe required element that the\ndefendants exercised control over the nuisance to be abated.\xe2\x80\x9d\nOn appeal, Camden County has dropped the two negligence claims and pursues only the\npublic nuisance claim. The County alleges that the manufacturers\xe2\x80\x99 conduct endangered public\nsafety, health, and peace, and imposed inordinate financial burdens on the County\xe2\x80\x99s fisc. It argues\nthat the defendants \xe2\x80\x9cknowingly facilitated, participated in, and maintain a handgun distribution\nsystem that provides criminals and youth easy access to handguns.\xe2\x80\x9d Appellant\xe2\x80\x99s Brief at 2.\nRelying on general data about the marketing and distribution of handguns, the County argues that\nDefendants knowingly created the public nuisance of \xe2\x80\x9ccriminals and youth with handguns.\xe2\x80\x9d\nAppellant\xe2\x80\x99s Brief at 3 (emphasis in original).\nThe County makes the following pertinent factual allegations: the manufacturers release\ninto the market substantially more handguns than they expect to sell to law-abiding purchasers;\nthe manufacturers continue to use certain distribution channels, despite knowing (often from\nspecific crime-gun trace reports produced by the federal Bureau of Alcohol, Tobacco, and\nFirearms) that those channels regularly yield criminal end-users; the manufacturers do not limit\nthe number, purpose, or frequency of handgun purchases and do not supervise these sales or\nrequire their distributors to do so; the manufacturers\xe2\x80\x99 contracts with distributors do not penalize\ndistributor practices that facilitate criminal access to handguns; the manufacturers design,\nproduce, and advertise handguns in ways that facilitate sales to and use by criminals; the\nmanufacturers receive significant revenue from the crime market, which in turn generates more\nsales to law-abiding persons wishing to protect themselves; and the manufacturers fail to take\nreasonable measures to mitigate the harm to Camden County. Appellant\xe2\x80\x99s Brief at 4-5. The\nCounty makes no allegation that any manufacturer violated any federal or state statute or\nregulation governing the manufacture and distribution of firearms, and no direct link is alleged\nbetween any manufacturer and any specific criminal act.\nThe manufacturers respond that the County\xe2\x80\x99s factual allegations amount to the following\nattenuated chain of events: (1) the manufacturers produce firearms at their places of business; (2)\nthey sell the firearms to federally licensed distributors; (3) those distributors sell them to federally\nlicensed dealers; (4) some of the firearms are later diverted by unnamed third parties into an\nillegal gun market, which spills into Camden County; (5) the diverted firearms are obtained by\nunnamed third parties who are not entitled to own or possess them; (6) these firearms are then\nused in criminal acts that kill and wound County residents; and (7) this harm causes the County to\nexpend resources to prevent or respond to those crimes. Appellees\xe2\x80\x99 Brief at 3. The manufacturers\nnote that in this chain, they are six steps removed from the criminal end-users. Moreover, the\nfourth link in this chain consists of acts committed by intervening third parties who divert some\nhandguns into an illegal market.\nII\nBecause this appeal presents a question of state law, we do not find it necessary to write at\nlength. In brief, we agree with the District Court that the County has failed to state a valid public\nnuisance claim under New Jersey law.\n531\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nA\nA public nuisance is \xe2\x80\x9c\xe2\x80\x98an unreasonable interference with a right common to the general\npublic.\xe2\x80\x99\xe2\x80\x9d Philadelphia Elec. Co. v. Hercules, Inc.[, 762 F.2d 303, 315 (3d Cir. 1985)] . . . . For the\ninterference to be actionable, the defendant must exert a certain degree of control over its source.\nTraditionally, the scope of nuisance claims has been limited to interference connected\nwith real property or infringement of public rights. See PROSSER & KEETON ON TORTS \xc2\xa7 86 at\n617-18 (5th ed. 1984). In this 1984 edition of the hornbook, the authors lamented that \xe2\x80\x9cthere is\nperhaps no more impenetrable jungle in the entire law than that which surrounds the word\n\xe2\x80\x98nuisance.\xe2\x80\x99 It has meant all things to all people, and has been applied indiscriminately to\neverything from an alarming advertisement to a cockroach baked in a pie. \xe2\x80\x9d Id. at 616. They\nrecommended dismissal of nuisance claims \xe2\x80\x9cnot connected with land or with any public right, as\nmere aberration, adding to the vagueness of an already uncertain word. Unless the facts can be\nbrought within one of the two categories mentioned, there is not, with any accurate use of the\nterm, a nuisance.\xe2\x80\x9d Id. at 618-19. Since that edition, the scope of nuisance law appears to have\nreturned to its more narrow focus on these two traditional areas, as courts \xe2\x80\x9cacross the nation have\nbegun to refine the types of cases amenable to a nuisance theory.\xe2\x80\x9d City of Philadelphia v. Beretta,\n126 F. Supp. 2d 882, 909 (E.D. Pa. 2000).\nWhatever the precise scope of public nuisance law in New Jersey may be, no New Jersey\ncourt has ever allowed a public nuisance claim to proceed against manufacturers for lawful\nproducts that are lawfully placed in the stream of commerce. On the contrary, the courts have\nenforced the boundary between the well-developed body of product liability law and public\nnuisance law. Otherwise, if public nuisance law were permitted to encompass product liability,\nnuisance law \xe2\x80\x9cwould become a monster that would devour in one gulp the entire law of\ntort.\xe2\x80\x9d Tioga Public Sch. Dist. v. U.S. Gypsum Co.[, 984 F.2d 915, 921 (8th Cir. 1993)]. . . . If\ndefective products are not a public nuisance as a matter of law, then the non-defective, lawful\nproducts at issue in this case cannot be a nuisance without straining the law to absurdity.\nB\nWithin the narrower context of similar tort actions against handgun manufacturers around\nthe country, a majority of courts have rejected these claims as a matter of law. In a few other\ncourts, the claim was not dismissed outright, but each such case is distinguishable from the instant\ncase. To extend public nuisance law to embrace the manufacture of handguns would be\nunprecedented under New Jersey state law and unprecedented nationwide for an appellate court.\nSee City of Philadelphia, 126 F. Supp. 2d at 910.\nEven if public nuisance law could be stretched far enough to encompass the lawful\ndistribution of lawful products, the County has failed to allege that the manufacturers exercise\nsufficient control over the source of the interference with the public right. The District Court\nfound this to be the \xe2\x80\x9cfatal defect\xe2\x80\x9d of the County\xe2\x80\x99s claim . . . . The County argues that proximate\ncause, remoteness, and control are not essential to a public nuisance claim, i.e., that conduct that\nmerely contributes to the source of the interference can be sufficient. But the relevant case law\nshows that, even if the requisite element is not always termed \xe2\x80\x9ccontrol,\xe2\x80\x9d the New Jersey courts in\nfact require a degree of control by the defendant over the source of the interference that is absent\nhere.\n532\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nTo connect the manufacture of handguns with municipal crime-fighting costs requires, as\nnoted above, a chain of seven links. This causal chain is simply too attenuated to attribute\nsufficient control to the manufacturers to make out a public nuisance claim. In the initial steps,\nthe manufacturers produce lawful handguns and make lawful sales to federally licensed gun\ndistributors, who in turn lawfully sell those handguns to federally licensed dealers. Further down\nthe chain, independent third parties, over whom the manufacturers have no control, divert\nhandguns to unauthorized owners and criminal use. The manufacturers may not be held\nresponsible \xe2\x80\x9cwithout a more tangible showing that the defendants were a direct link the causal\nchain that resulted in the plaintiffs\xe2\x80\x99 injuries, and that the defendants were realistically in a position\nto prevent the wrongs.\xe2\x80\x9d Hamilton v. Beretta U.S.A. Corp. et al.[, 264 F.3d 21 (2d Cir. 2001)] . .\n(finding no duty because gun manufacturers did not control criminals with guns, and injuries were\ntoo remote).\nA public-nuisance defendant can bring its own conduct or activities at a particular\nphysical site under control. But the limited ability of a defendant to exercise control beyond its\nsphere of immediate activity may explain why public nuisance law has traditionally been confined\nto real property and violations of public rights. In the negligence context, this Court recently held\nthat a defendant has no duty to control the misconduct of third parties. . . . We agree with the\nDistrict Court that this logic is equally compelling when applied in the public nuisance context. . .\n. If independent third parties cause the nuisance, parties that have not controlled or created the\nnuisance are not liable. . . .\nPublic nuisance is a matter of state law, and the role of a federal court ruling on a matter\nof state law in a diversity case is to follow the precedents of the state\xe2\x80\x99s highest court and predict\nhow that court would decide the issue presented. It is not the role of a federal court to expand or\nnarrow state law in ways not foreshadowed by state precedent. Here, no New Jersey precedents\nsupport the County\xe2\x80\x99s public nuisance claim or provide a sound basis for predicting that the\nSupreme Court of New Jersey would find that claim to be valid. While it is of course conceivable\nthat the Supreme Court of New Jersey may someday choose to expand state public nuisance law\nin the manner that the County urges, we cannot predict at this time that it will do so.\nIII\nBecause Camden County failed to state a cognizable public nuisance claim against the gun\nmanufacturers under New Jersey law, the District Court\xe2\x80\x99s order dismissing the County\xe2\x80\x99s\ncomplaint is AFFIRMED.\n\nNote\n\n1. Critics object that the use of public nuisance as a policy-making tool puts far too much\nauthority in the hands of the judiciary. Judges, as the critics see it, are asked in public nuisance\ncases to make impossibly open-ended decisions, balancing a wide array of interests. Such\ndecisions, critics insist, are better made by democratically accountable legislatures or by expert\nadministrative agencies. Defenders of the nuisance causes of action, by contrast, observe that\nvindicating rights as against injury is a quintessential judicial function.\n\n533\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nE. Strict Liability for Products?\n1. Beginnings\nFew areas of twenty-first-century tort law are more important than the law of products\nliability. Products cases typically involve deep-pocket defendants. But proving product defects,\nespecially in the design of a product, can be exceedingly difficult\xe2\x80\x94and exceedingly expensive\xe2\x80\x94\nto do.\nFor most of the history of modern tort law, products cases presented limited- or no-duty\nrules insulating product manufacturers from liability for injuries to the ultimate users of their\nproducts. Today, however, the doctrine contains strict liability principles. Partly in response to\nthe difficulty of proving defects, the law holds certain product sellers and manufacturers liable\nwithout regard to fault for injuries arising out of product defects. But traditional negligence\nprinciples persist in the law of products liability as well. Note, for example, that a plaintiff\nseeking to invoke strict liability for a product injury still needs to show that the product was\ndefective. Very often, that showing requires recourse to principles similar to those in the\nnegligence standard.\nBut we are getting ahead of ourselves and starting with the end of the story. For a\ncentury, the leading case for the old rule of no-duty was the English decision in Winterbottom v.\nWright.\n\nWinterbottom v. Wright, 152 Eng. Rep. 402 (Exch. of Pleas. 1842)\n[Defendant was a contractor for the supply of mail-coaches to the Postmaster-General\nwhose agreement with the Postmaster-General specified that defendant would keep the coaches in\n\xe2\x80\x9ca fit, proper, safe, and secure state and condition.\xe2\x80\x9d Plaintiff was a mail coachman employed by a\nsecond contractor who had agreed to supply horses and coachmen. Plaintiff\xe2\x80\x99s declaration alleged\nthat the mail-coach \xe2\x80\x9cbeing then in a frail, weak, and infirm, and dangerous state and condition,\xe2\x80\x9d\ngave way while he was driving it, that the accident threw him from the coach, that \xe2\x80\x9cno other\ncause, circumstance matter or thing whatsoever\xe2\x80\x9d caused the accident, and that he was thereby left\n\xe2\x80\x9clame for life.\xe2\x80\x9d]\nLORD ABINGER, C.B. I am clearly of opinion that the defendant is entitled to our judgment. We\nought not to permit a doubt to rest upon this subject, for our doing so might be the means of\nletting in upon us an infinity of actions. . . . [T]he action is brought simply because the defendant\nwas a contractor with a third person; and it is contended that thereupon he became liable to every\nbody who might use the carriage. If there had been any ground for such an action, there certainly\nwould have been some precedent of it; but with the exception of actions against innkeepers, and\nsome few other persons, no case of a similar nature has occurred in practice. That is a strong\ncircumstance, and is of itself a great authority against its maintenance. It is contended, that this\ncontract being made on the behalf of the public by the Postmaster-General, no action could be\nmaintained against him, and therefore the plaintiff must have a remedy against the defendant. But\nthat is by no means a necessary consequence\xe2\x80\x94he may be remediless altogether. There is no\nprivity of contract between these parties; and if the plaintiff can sue, every passenger, or even any\n534\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nperson passing along the road, who was injured by the upsetting of the coach, might bring a\nsimilar action. Unless we confine the operation of such contracts as this to the parties who\nentered into them, the most absurd and outrageous consequences, to which I can see no limit,\nwould ensue. Where a party becomes responsible to the public, by undertaking a public duty, he\nis liable, though the injury may have arisen from the negligence of his servant or agent. So, in\ncases of public nuisances, whether the act was done by the party as a servant, or in any other\ncapacity, you are liable to an action at the suit of any person who suffers. Those, however, are\ncases where the real ground of the liability is the public duty, or the commission of the public\nnuisance. There is also a class of cases in which the law permits a contract to be turned into a tort;\nbut unless there has been some public duty undertaken, or public nuisance committed, they are all\ncases in which an action might have been maintained upon the contract. Thus, a carrier may be\nsued either in assumpsit or case; but there is no instance in which a party, who was not privy to\nthe contract entered into with him, can maintain any such action. The plaintiff in this case could\nnot have brought an action on the contract; if he could have done so, what would have been his\nsituation, supposing the Postmaster-General had released the defendant? That would, at all\nevents, have defeated his claim altogether. By permitting this action, we should be working this\ninjustice, that after the defendant had done everything to the satisfaction of his employer, and after\nall matters between them had been adjusted, and all accounts settled on the footing of their\ncontract, we should subject them to be ripped open by this action of tort being brought against\nhim.\nALDERSON, B. I am of the same opinion. The contract in this case was made with the PostmasterGeneral alone . . . . If we were to hold that the plaintiff could sue in such a case, there is no point\nat which such actions would stop. The only safe rule is to confine the right to recover to those\nwho enter into the contract: if we go one step beyond that, there is no reason why we should not\ngo fifty. . . .\nGURNEY, B., concurred.\nROLFE, B. . . . This is one of those unfortunate cases in which there certainly has been damnum,\nbut it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a\nremedy, but by that consideration we ought not to be influenced. Hard cases, it has been\nfrequently observed, are apt to introduce bad law.\nJudgment for the defendant.\n\nNotes\n\n1. Liability by contract? The Winterbottom regime was not a regime of no liability for\ninjuries arising out of products. It was a regime of liability by contract\xe2\x80\x94and liability by contract\nonly. Had the plaintiff in Winterbottom made an arrangement by contract with his employer for\ncompensation in the event of injury arising out of work, including injury caused by the negligence\nof the coach-maker, he would have had an action for damages under the contract.\nWhy limit damages to actions on contracts? Are there things to be said for such a\nlimitation? Note that the existence of tort liability for products is still controversial today. Some\nscholars contend that tort liability for products is misguided and that we would be better off in the\n535\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nregime of Winterbottom against Wright. Professors Polinsky and Shavell, for example, argue that\nproduct sellers and manufacturers are motivated to produce safe products by market forces:\nconsumer products that are unreasonably dangerous will go unsold. They observe further that\nmany products, such as pharmaceuticals, are designed, manufactured, and marketed under strict\nregulations.\nConsequently, product liability might not exert a significant additional influence on\nproduct safety for many products\xe2\x80\x94and empirical studies of several widely sold\nproducts lend support to this hypothesis. A second benefit of product liability is\nthat it can improve consumer purchase decisions by causing product prices to\nincrease to reflect product risks. But because of litigation costs and other factors,\nproduct liability may raise prices excessively and undesirably chill purchases. A\nthird benefit of product liability is that it compensates victims of product-related\naccidents for their losses. Yet this benefit is only partial, for accident victims are\nfrequently compensated by insurers for some or all of their losses. . . . Opposing the\nbenefits of product liability are its costs, which are great.\nA. Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. L.\nREV. 1437 (2010).\n\n2. The bystander problem. What would the Winterbottom rule mean for injured bystanders\nand other injured third parties? Take for example a bystander to the coach accident in\nWinterbottom who is injured by the collapsing coach. Should such a person have an action\nagainst the coach-maker for injuries caused by the coach-maker\xe2\x80\x99s negligence? If not, why not?\nThe answer cannot be that such plaintiffs ought to have protected themselves by contract. These\npeople were not in a position to demand contractual protection against the risk of injury. They\ncould, of course, purchase insurance against general risks of accident and injury. But why should\nthe injured bystander bear these costs as a general matter rather than the coach-maker?\nRegardless of the merits, the caselaw on product injuries began to develop certain\nexceptions to the Winterbottom privity rule. Eventually, the exceptions culminated in a decision\nby Judge Cardozo in the New York Court of Appeals.\n\nMacPherson v. Buick Motor Company, 111 N.E. 1050 (N.Y. 1916)\nCARDOZO, J.\nThe defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer.\nThe retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed.\nHe was thrown out and injured. One of the wheels was made of defective wood, and its spokes\ncrumbled into fragments. The wheel was not made by the defendant; it was bought from another\nmanufacturer. There is evidence, however, that its defects could have been discovered by\nreasonable inspection, and that inspection was omitted. There is no claim that the defendant knew\nof the defect and willfully concealed it. . . . The charge is one, not of fraud, but of negligence.\nThe question to be determined is whether the defendant owed a duty of care and vigilance to any\none but the immediate purchaser.\n\n536\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nThe foundations of this branch of the law, at least in this state, were laid in Thomas v.\nWinchester [6 N.Y. 397 (1852)]. A poison was falsely labeled. The sale was made to a druggist,\nwho in turn sold to a customer. The customer recovered damages from the seller who affixed the\nlabel. \xe2\x80\x98The defendant\xe2\x80\x99s negligence,\xe2\x80\x99 it was said, \xe2\x80\x98put human life in imminent danger.\xe2\x80\x99 A poison\nfalsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there\nis a duty to avoid the injury. . . .\nThomas v. Winchester became quickly a landmark of the law. In the application of its\nprinciple there may at times have been uncertainty or even error. There has never in this state\nbeen doubt or disavowal of the principle itself. The chief cases are well known, yet to recall some\nof them will be helpful. Loop v. Litchfield is the earliest. It was the case of a defect in a small\nbalance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who\nwished a cheap article and was ready to assume the risk. The risk can hardly have been an\nimminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had\nmade a lease of the machinery. It was held that the manufacturer was not answerable to the\nlessee. . . .\nThese early cases suggest a narrow construction of the rule. Later cases, however, evince\na more liberal spirit. First in importance is Devlin v. Smith. The defendant, a contractor, built a\nscaffold for a painter. The painter\xe2\x80\x99s servants were injured. The contractor was held liable. He\nknew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was\nto be used by the workmen. He was building it for that very purpose. Building it for their use, he\nowed them a duty, irrespective of his contract with their master, to build it with care.\nFrom Devlin v. Smith we pass over intermediate cases and turn to the latest case in this\ncourt in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co., [88 N.E.\n1063 (N.Y. 1909)]. The defendant manufactured a large coffee urn. It was installed in a\nrestaurant. When heated, the urn exploded and injured the plaintiff. We held that the\nmanufacturer was liable. We said that the urn \xe2\x80\x98was of such a character inherently that, when\napplied to the purposes for which it was designed, it was liable to become a source of great danger\nto many people if not carefully and properly constructed.\xe2\x80\x99 It may be that Devlin v. Smith and\nStatler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is\ncommitted to the extension. The defendant argues that things imminently dangerous to life are\npoisons, explosives, deadly weapons\xe2\x80\x94things whose normal function it is to injure or destroy. But\nwhatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted\nmeaning. A large coffee urn . . . may have within itself, if negligently made, the potency of\ndanger, yet no one thinks of it as an implement whose normal function is destruction. . . .\nWe hold, then, that the principle of Thomas v. Winchester is not limited to poisons,\nexplosives, and things of like nature, to things which in their normal operation are implements of\ndestruction. If the nature of a thing is such that it is reasonably certain to place [a] limb in peril\nwhen negligently made, it is then a thing of danger. Its nature gives warning of the consequences\nto be expected. If to the element of danger there is added knowledge that the thing will be used\nby persons other than the purchaser, and used without new tests then, irrespective of contract, the\nmanufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are\nrequired to go for the decision of this case. There must be knowledge of a danger, not merely\npossible, but probable. It is possible to use almost anything in a way that will make it dangerous\nif defective. That is not enough to charge the manufacturer with a duty independent of his\ncontract.\n537\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nWhether a given thing is dangerous may be sometimes a question for the court and\nsometimes a question for the jury. There must also be knowledge that in the usual course of\nevents the danger will be shared by others than the buyer. Such knowledge may often be inferred\nfrom the nature of the transaction. But it is possible that even knowledge of the danger and of the\nuse will not always be enough. The proximity or remoteness of the relation is a factor to be\nconsidered. We are dealing now with the liability of the manufacturer of the finished product,\nwho puts it on the market to be used without inspection by his customers. If he is negligent,\nwhere danger is to be foreseen, a liability will follow. We are not required at this time to say that\nit is legitimate to go back of the manufacturer of the finished product and hold the manufacturers\nof the component parts. To make their negligence a cause of imminent danger, an independent\ncause must often intervene; the manufacturer of the finished product must also fail in his duty of\ninspection. It may be that in those circumstances the negligence of the earlier members of the\nseries as too remote to constitute, as to the ultimate user, an actionable wrong. . . . We have put\naside the notion that the duty to safeguard life and limb, when the consequences of negligence\nmay be foreseen, grows out of contract and nothing else. We have put the source of the obligation\nwhere it ought to be. We have put its source in the law.\nFrom this survey of the decisions, there thus emerges a definition of the duty of a\nmanufacturer which enables us to measure this defendant\xe2\x80\x99s liability. Beyond all question, the\nnature of an automobile gives warning of probable danger if its construction is defective. This\nautomobile was designed to go fifty miles an hour. Unless its wheels were sound and strong,\ninjury was almost certain. It was as much a thing of danger as a defective engine for a railroad.\nThe defendant knew the danger. It knew also that the care would be used by persons other than\nthe buyer. This was apparent from its size; there were seats for three persons. It was apparent\nalso from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car\nsupplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v.\nSmith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one\nperson of whom it might be said with some approach to certainly that by him the car would not be\nused. Yet the defendant would have us say that he was the one person whom it was under a legal\nduty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn\nfrom the days of travel by stage coach do not fit the conditions of travel today. The principle that\nthe danger must be imminent does not change, but the things subject to the principle do change.\nThey are whatever the needs of life in a developing civilization require them to be. . . .\nWe think the defendant was not absolved from a duty of inspection because it bought the\nwheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a\nmanufacturer of automobiles. It was responsible for the finished product. It was not at liberty to\nput the finished product on the market without subjecting the component parts to ordinary and\nsimple tests. Under the charge of the trial judge nothing more was required of it. The obligation\nto inspect must vary with the nature of the thing to be inspected. The more probable the danger,\nthe greater the need of caution. . . .\nThe judgment should be affirmed.\n\nBARTLETT, C.J., dissenting. . . .\nI do not see how we can uphold the judgment in the present case without overruling what\nhas been so often said by this court and other courts of like authority in reference to the absence of\n538\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nany liability for negligence on the part of the original vendor of an ordinary carriage to any one\nexcept his immediate vendee. The absence of such liability was the very point actually decided in\nthe English case of Winterbottom v. Wright, and the . . . opinion of Chief Judge Ruggles in\nThomas v. Winchester assumes that the law on the subject was so plain that the statement would\nbe accepted almost as a matter of course. In the case at bar the defective wheel on an automobile\nmoving only eight miles an hour was not any more dangerous to the occupants of the car than a\nsimilarly defective wheel would be to the occupants of a carriage drawn by a horse at the same\nspeed; and yet unless the courts have been all wrong on this question up to the present time there\nwould be no liability to strangers to the original sale in the case of the horse-drawn carriage.\nHISCOCK, CHASE and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN, J., concurs in result;\nWILLARD BARTLETT, C.J., reads dissenting opinion; POUND, J., not voting.\n\nNotes\n\n1. The dawn of the automobile. So many of the founding moments in tort law arise out of\nthe railroad. In MacPherson, we see a critical moment in the early development of the automobile\neconomy. The Buick automobile in question probably resembled the Buick featured in the\nfollowing image:\n\n539\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nSource: Library of Congress, Prints and Photographs Division.\n\nAs the caption to the image suggests, reliability was much discussed in the early days of\nthe automobile.\n\n2. How radical is MacPherson? One view of the MacPherson case is that it utterly rejects\nthe old privity rule of Winterbottom. After the exceptions of Devlin and Statler, Cardozo seems to\nsay, the old privity rule has given way to the kind of reasonable foreseeability test we saw in\nChapter 8 in cases like Rowland v. Christian, 443 P.2d 561 (Cal. 1968) (replacing the common\nlaw rules for trespassers, licensees, and invitees in landowner and occupier liability with a\nreasonable foreseeability standard) and Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (replacing the\n540\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\ncommon law bar on actions for the infliction of negligent emotional distress with a reasonable\nforeseeability standard).\nBut other observers contend that Cardozo\xe2\x80\x99s opinion does not substitute what Holmes\ncalled \xe2\x80\x9cthe featureless generality\xe2\x80\x9d of the reasonableness standard for the old crystal clarity of the\nprivity rule. In this latter view, the MacPherson case aims to craft a new approach to the duty of\nthe product manufacturer, one that does not abandon Winterbottom\xe2\x80\x99s effort to be attentive to the\nspecific moral obligations arising out of the particular kind of relationship at issue in products\ncases:\nFor Cardozo . . . the resolution . . . turned on the duty issue . . . [that] itself had\nmeaning for him apart from the question of liability. Moreover, its meaning did not\nconcern whether a manufacturer does, or should, have a duty to compensate such a\nplaintiff. The questions, according to the court, were whether Buick had a \xe2\x80\x9cduty of\nvigilance,\xe2\x80\x9d whether it bore an \xe2\x80\x9cobligation to inspect,\xe2\x80\x9d how great was the \xe2\x80\x9cneed of\ncaution,\xe2\x80\x9d and how \xe2\x80\x9cstrict[ ]\xe2\x80\x9d was the duty to which Buick had to conform its\nconduct.\nJohn C. P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV.\n1733, 1813 (1998). The answer to these questions, argue Goldberg and Zipursky, is not reducible\nto the kind of public policy functions that modern tort jurists often attribute to open-ended\nreasonableness tests.\nMany, however, argued that neither of these interpretations of Cardozo\xe2\x80\x99s opinion in\nMacPherson went far enough. What was the basis for incursions on the Winterbottom rule?\nPresumably the ground for the proliferation of exceptions to the privity rule was a felt sense that\nthe manufacturer should bear the costs of many of the injuries arising out of the modern consumer\neconomy. If this was the intuition or policy ground behind the new approach, then why should a\nplaintiff in such a case have to show the defendant\xe2\x80\x99s negligence or fault? A California Supreme\nCourt decision in 1944 extending the res ipsa loquitor doctrine in the products area seemed to\nembrace this policy intuition. And one justice, in his concurring opinion, took the idea a step\nfurther:\n\nEscola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 (1944)\nGIBSON, C.J.\nPlaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her\nhand. . . . This appeal is from a judgment upon a jury verdict in favor of plaintiff.\nDefendant\xe2\x80\x99s driver delivered several cases of Coca Cola to the restaurant, placing them on\nthe floor, one on top of the other, under and behind the counter, where they remained at least\nthirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon\na near-by ice cream cabinet in front of and about three feet from the refrigerator. She then\nproceeded to take the bottles from the case with her right hand, one at a time, and put them into\nthe refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had\nmoved the fourth bottle about 18 inches from the case \xe2\x80\x98it exploded in my hand.\xe2\x80\x99 The bottle broke\ninto two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and\n541\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nmuscles of the thumb and palm of the hand.\n[Plaintiff submitted evidence that the bottle had exploded and that carbonated bottled\nbeverages can explode when improperly filled.] Plaintiff then rested her case, having announced\nto the court that being unable to show any specific acts of negligence she relied completely on the\ndoctrine of res ipsa loquitur. . . .\nUpon an examination of the record, the evidence appears sufficient to support a\nreasonable inference that the bottle here involved was not damaged by any extraneous force after\ndelivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner\ndefective at the time defendant relinquished control, because sound and properly prepared bottles\nof carbonated liquids do not ordinarily explode when carefully handled. . . .\nIt is true that defendant presented evidence tending to show that it exercised considerable\nprecaution by carefully regulating and checking the pressure in the bottles and by making visual\ninspections for defects in the glass at several stages during the bottling process. It is well settled,\nhowever, that when a defendant produces evidence to rebut the inference of negligence which\narises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the\njury to determine whether the inference has been dispelled.\nThe judgment is affirmed.\nTRAYNOR, J.\nI concur in the judgment, but I believe the manufacturer\xe2\x80\x99s negligence should no longer be\nsingled out as the basis of a plaintiff\xe2\x80\x99s right to recover in cases like the present one. In my\nopinion it should now be recognized that a manufacturer incurs an absolute liability when an\narticle that he has placed on the market, knowing that it is to be used without inspection, proves to\nhave a defect that causes injury to human beings. MacPherson v. Buick established the principle,\nrecognized by this court, that irrespective of privity of contract, the manufacturer is responsible\nfor an injury caused by such an article to any person who comes in lawful contact with it. In these\ncases the source of the manufacturer\xe2\x80\x99s liability was his negligence in the manufacturing process or\nin the inspection of component parts supplied by others. Even if there is no negligence, however,\npublic policy demands that responsibility be fixed wherever it will most effectively reduce the\nhazards to life and health inherent in defective products that reach the market. It is evident that\nthe manufacturer can anticipate some hazards and guard against the recurrence of others, as the\npublic cannot. Those who suffer injury from defective products are unprepared to meet its\nconsequences. The cost of an injury and the loss of time or health may be an overwhelming\nmisfortune to the person injured, and a needless one, for the risk of injury can be insured by the\nmanufacturer and distributed among the public as a cost of doing business. It is to the public\ninterest to discourage the marketing of products having defects that are a menace to the public. If\nsuch products nevertheless find their way into the market it is to the public interest to place the\nresponsibility for whatever injury they may cause upon the manufacturer, who, even if he is not\nnegligent in the manufacture of the product, is responsible for its reaching the market. However\nintermittently such injuries may occur and however haphazardly they may strike, the risk of their\noccurrence is a constant risk and a general one. Against such a risk there should be general and\nconstant protection and the manufacturer is best situated to afford such protection.\nThe injury from a defective product does not become a matter of indifference because the\ndefect arises from causes other than the negligence of the manufacturer, such as negligence of a\n542\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nsubmanufacturer of a component part whose defects could not be revealed by inspection . . . or\nunknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of\nthe manufacturer. The inference of negligence may be dispelled by an affirmative showing of\nproper care. If the evidence against the fact inferred is \xe2\x80\x98clear, positive, uncontradicted, and of\nsuch a nature that it can not rationally be disbelieved, the court must instruct the jury that the\nnonexistence of the fact has been established as a matter of law.\xe2\x80\x99 An injured person, however, is\nnot ordinarily in a position to refute such evidence or identify the cause of the defect, for he can\nhardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to\nthe jury to decide whether the inference has been dispelled, regardless of the evidence against it,\nthe negligence rule approaches the rule of strict liability. It is needlessly circuitous to make\nnegligence the basis of recovery and impose what is in reality liability without negligence. If\npublic policy demands that a manufacturer of goods be responsible for their quality regardless of\nnegligence there is no reason not to fix that responsibility openly.\n[Traynor goes on to discuss a state statute that criminalizes, without proof of fault, the\n\xe2\x80\x9cmanufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale,\nor advertising within the state, of any adulterated food.\xe2\x80\x9d The result is a kind of strict liability for\nmanufacturers.]\nThe retailer, even though not equipped to test a product, is under an absolute liability to\nhis customer, for the implied warranties of fitness for proposed use and merchantable quality\ninclude a warranty of safety of the product. This warranty is not necessarily a contractual one, for\npublic policy requires that the buyer be insured at the seller\xe2\x80\x99s expense against injury. . . . The\ncourts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him\nto recoup any losses by means of the warranty of safety attending the wholesaler\xe2\x80\x99s or\nmanufacturer\xe2\x80\x99s sale to him. . . . Such a procedure, however, is needlessly circuitous and engenders\nwasteful litigation. Much would be gained if the injured person could base his action directly on\nthe manufacturer\xe2\x80\x99s warranty.\nThe liability of the manufacturer to an immediate buyer injured by a defective product\nfollows without proof of negligence from the implied warranty of safety attending the sale.\nOrdinarily, however, the immediate buyer is a dealer who does not intend to use the product\nhimself, and if the warranty of safety is to serve the purpose of protecting health and safety it must\ngive rights to others than the dealer. . . .\nAs handicrafts have been replaced by mass production with its great markets and\ntransportation facilities, the close relationship between the producer and consumer of a product\nhas been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either\ninaccessible to or beyond the ken of the general public. The consumer no longer has means or\nskill enough to investigate for himself the soundness of a product, even when it is not contained in\na sealed package, and his erstwhile vigilance has been lulled by the steady efforts of\nmanufacturers to build up confidence by advertising and marketing devices such as trade-marks.\nConsumers no longer approach products warily but accept them on faith, relying on the reputation\nof the manufacturer or the trade mark. Manufacturers have sought to justify that faith by\nincreasingly high standards of inspection and a readiness to make good on defective products by\nway of replacements and refunds. The manufacturer\xe2\x80\x99s obligation to the consumer must keep pace\nwith the changing relationship between them; it cannot be escaped because the marketing of a\nproduct has become so complicated as to require one or more intermediaries. Certainly there is\ngreater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a\n543\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nproduct that he is not himself able to test.\nThe manufacturer\xe2\x80\x99s liability should, of course, be defined in terms of the safety of the\nproduct in normal and proper use, and should not extend to injuries that cannot be traced to the\nproduct as it reached the market.\nRehearing denied; EDMONDS, J., dissenting.\n\nNotes\n\n1. Justice Traynor\xe2\x80\x99s concurring opinion in Escola proposed to go a good deal further than\nJudge Cardozo had in MacPherson. What features of products cases would warrant such a step?\n\n2. Henningsen v. Bloomfield Motors. One reason Traynor may have been skeptical of the\nnegligence cause of action in the products context emerged in Henningsen v. Bloomfield Motors\ndecided in New Jersey in 1960. In Henningsen, husband and wife purchased a new Plymouth\nfrom a dealer in 1955. Ten days later, while Mrs. Henningsen was driving the vehicle, it made a\nloud cracking noise, the steering wheel spun, and the car veered off the roadway and into a brick\nwall. When the Henningsens sued for damages, however, they were hard-pressed to present\nevidence of a defect in the automobile or of any negligence by either the dealer or the\nmanufacturer. At the close of evidence, the trial judge awarded judgment to the defendant on the\nnegligence claim.\nPlaintiffs had also brought an action for breach of warranty. New Jersey, like many states,\nauthorizes damages for personal injuries arising from breach of warranty. And such actions do\nnot require any showing of negligence or fault on the part of the seller of a product, merely that\nthe product not satisfy the warranties of fitness and merchantability. But the plaintiffs\xe2\x80\x99 warranty\naction faced an obstacle of its own. In fine print, the back of the sales agreement provided that\nthere were \xe2\x80\x9cno warranties, express or implied\xe2\x80\x9d other than that \xe2\x80\x9cthe manufacturer agrees to replace\ndefective parts for 90 days after the sale or until the car has been driven 4,000 miles, whichever is\nfirst to occur.\xe2\x80\x9d Moreover, defendants contended that the warranty only created obligations to the\nbuyer, Mr. Henningsen, not to Mrs. Henningsen, who was not a party to the contract. Warranty\nliability, they contended, still required the privity that Cardozo had abolished in negligence\nactions in MacPherson.\nThe Henningsen court smashed through both of these obstacles. First, it held that third\nparties could bring actions on the warranty:\nUnder modern conditions the ordinary layman, on responding to the importuning of\ncolorful advertising, has neither the opportunity nor the capacity to inspect or to\ndetermine the fitness of an automobile for use; he must rely on the manufacturer\nwho has control of its construction, and to some degree on the dealer who, to the\nlimited extent called for by the manufacturer\xe2\x80\x99s instructions, inspects and services it\nbefore delivery. In such a marketing milieu his remedies and those of persons who\nproperly claim through him should not depend upon the intricacies of the law of\n544\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nsales. The obligation of the manufacturer should not be based alone on privity of\ncontract. It should rest, as was once said, upon the demands of social justice.\nHenningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 83 (N.J. 1960) (quotations and citations\nomitted). Then the court held that the warranty of merchantability was not disclaimable.\n\xe2\x80\x9cAutomobile manufacturers,\xe2\x80\x9d the court observed, \xe2\x80\x9cundertake large scale advertising programs\nover television, radio, in newspapers, magazines and all media of communication in order to\npersuade the public to buy their products,\xe2\x80\x9d and \xe2\x80\x9cwhen a manufacturer engages in advertising in\norder to bring his goods and their quality to the attention of the public and thus to create consumer\ndemand, the representations made constitute an express warranty running directly to a buyer who\npurchases in reliance thereon.\xe2\x80\x9d Id. at 84. Citing \xe2\x80\x9cthe gross inequality of bargaining position\noccupied by the consumer in the automobile industry\xe2\x80\x9d and claiming that \xe2\x80\x9cthere is no competition\namong the motor vehicle manufacturers with respect to the scope of protection guaranteed to the\nbuyer,\xe2\x80\x9d the court struck the express disclaimer of the warranty and allowed the plaintiffs to\nrecover on an implied warranty of merchantability. Id. at 87.\nAfter Henningsen, plaintiffs could bring warranty actions for personal injury without\nshowing negligence even if the seller or manufacturer had attempted to disclaim the warranty.\nSuch a warranty action was a species of contract claim. That meant that liability could only be\nhad for injuries arising out of failures of the product to perform as impliedly or expressly\nwarranted. But many observed that this warranty liability looked a lot like strict liability in tort.\nMeanwhile, back in California, Justice Traynor\xe2\x80\x99s idea in Escola soon made its way into a majority\nopinion in tort.\n\n3. Greenman v. Yuba Power Products. Traynor had the opportunity to convert his Escola\nconcurrence into the law of California in 1963. Plaintiff William Greenman, whose wife\npurchased him a power tool, was injured when the tool caused a piece of wood to strike him in the\nforehead. He brought implied and express warranty claims, as well as negligence claims, against\nboth the retailer and the manufacturer. The defendants objected, however, that he had failed to\ngive notice of the breach of warranty in reasonable time, as required in the law of warranties.\nJustice Traynor responded that \xe2\x80\x9c[t]he remedies of injured consumers ought not to be made to\ndepend upon the intricacies of the law of sales,\xe2\x80\x9d and he held that injured consumers were not\nsubject to the notice requirement of the traditional law of warranties. Greenman v. Yuba Power\nProducts, Inc., 377 P.2d 897, 901 (Cal. 1963). Once warranty actions had been allowed by thirdparties and once warranties were no longer disclaimable, Traynor insisted that the basic\ndistinctions between the warranty and tort causes of action had been abolished:\nThe purpose of such liability is to insure that the costs of injuries resulting from\ndefective products are borne by the manufacturers that put such products on the\nmarket rather than by the injured persons who are powerless to protect themselves.\nId.\n\n4. Corrective justice without fault? The Escola case and the rise of strict liability raises a\nquestion about whether corrective justice adequately accounts for the modern law of torts. If tort\nlaw is a law of wrongs, as the corrective justice view has it, how can there be liability without\nwrongful harm, as there seems to be in non-fault liability regimes? Gregory C. Keating has\n545\n\n\x0cWitt & Tani, TCPI 9. Liability without Fault?\n\nrecently suggested one answer: that strict liability torts involve a \xe2\x80\x9cdistinctive wrong,\xe2\x80\x9d namely, the\nwrong of \xe2\x80\x9charming-without-repairing.\xe2\x80\x9d Gregory C. Keating, Strict Liability Wrongs, in\nPHILOSOPHICAL FOUNDATIONS OF THE LAW OF TORTS 292 (2014); see also Jules L. Coleman, Some\nReflections on Richard Brooks\xe2\x80\x99s \xe2\x80\x9cEfficient Performance Hypothesis,\xe2\x80\x9d 116 YALE L.J. POCKET\nPART 416 (2007), https://perma.cc/T9DT-57GX (arguing that strict liability falls in the category\nof tort liability in which the relevant wrong arises not merely out of injuring but out of injuring\nwithout providing compensation).\nJohn Goldberg and Benjamin Zipursky justify the modern doctrine of strict liability by\narguing that sometimes we simply owe duties to refrain from injuring others. In this view, a\ndefendant acts wrongly when she fails to live up to her obligation not to injure. John C.P.\nGoldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 918-19 (2010).\n\n5. The Second Restatement Revolution. Torts scholar William Prosser at the University of\nCalifornia, Berkeley called cases like Henningsen and Greenman an \xe2\x80\x9cassault on the citadel\xe2\x80\x9d of\nprivity and negligence in products cases. William L. Prosser, The Assault Upon the Citadel, 69\nYALE L.J. 1099, 1124-34 (1960). Prosser himself led the charge forward in 1965, when the\nAmerican Law Institute published the Second Restatement of the law of torts\xe2\x80\x94a restatement for\nwhich Prosser was the reporter. In section 402A, the Restatement set out a new account of the\nlaw of a seller\xe2\x80\x99s liability for physical injuries to a user or consumer. Consider the next case, in\nwhich Ohio, like many states around the country in the 1960s and 1970s, adopted the Restatement\napproach.\nPay special attention to the Restatement section (Section 402A) set out by the court in\nfootnote 2.\n\nTemple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977)\nCELEBREZZE, J.\nOn January 25, 1972, appellant, Beverly A. Temple, was operating a Warco 75 ton power\npunch press in the course of her employment at Superior Metal Products, Inc. (Superior). As Mrs.\nTemple placed an aluminum extrusion into the back die of the press, an unknown number of\nextrusions fell from the bolster plate, in front of her, onto the dual operating buttons, causing the\npress to close on her arms. As a result, Mrs. Temple\xe2\x80\x99s hands and forearms were crushed,\nrequiring amputation of both arms just below the elbow.\n. . . The press was manufactured and sold in 1954 by Federal Machine & Welder\nCompany, now Wean United, Inc. (Wean), to a division of the General Motors Corporation (G.\nM.). At the time of manufacture two hand-operated \xe2\x80\x9crun\xe2\x80\x9d buttons were mounted on the uprights\nof the press, at shoulder level. In July of 1971, t
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