Torts: Cases, Principles, and
Institutions

John Fabian Witt
Allen H. Duffy Class of 1960 Professor
Yale Law School

Karen M. Tani
Seaman Family University Professor
University of Pennsylvania

Fifth Edition
CALI eLangdell® Press 2020

Witt & Tani, TCPI

About the Authors
John Fabian Witt is Allen H. Duffy Class of 1960 Professor of Law and Head of Davenport
College at Yale University. He is the author of Lincoln’s Code: The Laws of War in American
History, which was awarded the American Bar Association’s Silver Gavel Award, was selected
for the 2013 Bancroft Prize in American history, and was a finalist for the Pulitzer Prize. He has
taught torts and other subjects for twenty years at Yale, Columbia, and Harvard. Professor Witt’s
other writings include The Accidental Republic: Crippled Workingmen, Destitute Widows, and the
Remaking of American Law (Harvard University Press, 2004), Patriots and Cosmopolitans:
Hidden Histories of American Law (Harvard University Press, 2007), and To Save the Country: A
Lost Manuscript on Martial Law (Yale University Press, 2019) (with Will Smiley). He has
authored articles on legal history and tort law in the American Historical Review, the Columbia
Law Review, the Harvard Law Review, the Yale Law Journal, and other scholarly journals. He has
written for The Atlantic, The New Republic, The New York Times, Slate, The Wall Street Journal,
and The Washington Post. He is a John Simon Guggenheim Memorial Foundation Fellow and a
fellow of the American Academy of Arts and Sciences. He served as law clerk to Judge Pierre N.
Leval on the United States Court of Appeals for the Second Circuit.
Karen M. Tani is the Seaman Family University Professor at the University of Pennsylvania, with
appointments in the University of Pennsylvania Carey Law School and the Department of History.
She 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
American Society for Legal History in 2017. Her work has also appeared in the Yale Law Journal,
the Law and History Review, and other scholarly journals. In her torts teaching, she has worked to
make the standard curriculum more attentive to race, class, gender, sexual orientation, and
disability. Prior to joining the faculty at Penn, she was a member of the law faculty at the
University of California, Berkeley, a visiting professor at Yale Law School and Columbia Law
School, and a law clerk to the Honorable Guido Calabresi of the United States Court of Appeals
for the Second Circuit.

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Notices
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What did the banana say to the judge? I’ll be sure to win my case on a peel.
August Cooper Witt, July 2017 (h/t GERONIMO STILTON, THE QUEST FOR
PARADISE: THE RETURN TO THE KINGDOM OF FANTASY 140 (2011))

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Table of Contents
About the Authors ................................................................................................................. i
Notices .................................................................................................................................... ii
About CALI eLangdell Press ............................................................................................. iii

CHAPTER 1. AN INTRODUCTION TO AMERICAN TORT LAW .... 1
A. Principles and Institutions .............................................................................................. 1
B. An Introductory Case: The Tort of Battery .................................................................. 4
1. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891) ............................................................... 4
2. Anatomy of a Torts Case ................................................................................................ 6
3. The Pervasiveness of Settlement .................................................................................... 8
4. The Size of the Tort System ......................................................................................... 10
5. Accident Rates and the Deterrence Goal ...................................................................... 14
6. Expressing Moral Judgments and Correcting Injustice ................................................ 18
7. Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955) ........................................................... 19
Notes .............................................................................................................................. 21

CHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS35
A. Trespass .......................................................................................................................... 35
1. Trespass to Land ........................................................................................................... 35
Dougherty v. Stepp ............................................................................................................ 35
Notes .............................................................................................................................. 36
2. Trespass to Chattels ...................................................................................................... 38
Intel Corp. v. Hamidi ......................................................................................................... 39
Notes .............................................................................................................................. 45
B. Beyond Battery: Causes of Action for Other Personal Injuries ................................ 47
1. Offensive Battery.......................................................................................................... 47
Fisher v. Carrousel Motor Hotel, Inc. ................................................................................ 47
Notes .............................................................................................................................. 49
2. Assault .......................................................................................................................... 50
I. de S. & Wife v. W. de S. Assizes ................................................................................... 50
Notes .............................................................................................................................. 50
Speicher v. Rajtora ............................................................................................................. 52
Note................................................................................................................................ 53
3. False Imprisonment ...................................................................................................... 54
Whittaker v. Sandford ........................................................................................................ 54
Notes .............................................................................................................................. 56
4. Intentional Infliction of Emotional Distress ................................................................. 57
GTE Southwest v. Bruce.................................................................................................... 57
Notes .............................................................................................................................. 62
C. Defenses to Intentional Torts ........................................................................................ 66
1. Self-Defense ................................................................................................................. 66
Courvoisier v. Raymond .................................................................................................... 66
Notes .............................................................................................................................. 68
2. Defense of Real Property.............................................................................................. 71
Bird v. Holbrook ................................................................................................................ 71
Notes .............................................................................................................................. 72
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3. Defense of Chattels....................................................................................................... 74
Gortarez v. Smitty’s Super Valu ........................................................................................ 74
Notes .............................................................................................................................. 76
4. Consent ......................................................................................................................... 78
Mohr v. Williams ............................................................................................................... 78
Notes .............................................................................................................................. 79
5. Necessity....................................................................................................................... 84
Ploof v. Putnam .................................................................................................................. 84
Vincent v. Lake Erie Transp. Co........................................................................................ 85
Notes .............................................................................................................................. 88

CHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY
AND INTRODUCTION ............................................................................. 94
A. Common Law Beginnings ............................................................................................. 94
Hulle v. Orynge (The Case of the Thorns)......................................................................... 95
Notes .............................................................................................................................. 97
Weaver v. Ward ................................................................................................................. 98
Notes .............................................................................................................................. 98
Scott v. Shepherd ............................................................................................................... 99
Notes ............................................................................................................................ 102
Gibbons v. Pepper ............................................................................................................ 103
Notes ............................................................................................................................ 103
Leame v. Bray .................................................................................................................. 105
Note.............................................................................................................................. 106
Williams v. Holland ......................................................................................................... 107
Notes ............................................................................................................................ 108
B. Negligence Versus Strict Liability .............................................................................. 109
Brown v. Kendall ............................................................................................................. 109
Notes ............................................................................................................................ 112
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 77, 81-96 (1881)............................ 114
Note.............................................................................................................................. 118
Fletcher v. Rylands, 159 Eng. Rep. 737 (1865) ............................................................... 118
Fletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866).................................... 120
Rylands v. Fletcher .......................................................................................................... 121
Notes ............................................................................................................................ 123
Brown v. Collins .............................................................................................................. 124
Note.............................................................................................................................. 125
Losee v. Buchanan ........................................................................................................... 125
Notes ............................................................................................................................ 126
Ives v. South Buffalo Ry. ................................................................................................. 127
Notes ............................................................................................................................ 129

CHAPTER 4. THE NEGLIGENCE STANDARD ................................ 133
A. The Reasonable Person ............................................................................................... 133
1. Introduction ................................................................................................................ 133
Vaughan v. Menlove ........................................................................................................ 133
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 107-09 (1881) ................................ 135
Notes ............................................................................................................................ 136
2. Physical Traits ............................................................................................................ 137
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Smith v. Sneller ................................................................................................................ 137
Davis v. Feinstein............................................................................................................. 138
Notes ............................................................................................................................ 139
3. Children ...................................................................................................................... 142
Dellwo v. Pearson ............................................................................................................ 142
Notes ............................................................................................................................ 144
4. Mental Illness ............................................................................................................. 147
Breunig v. American Family Ins. Co. .............................................................................. 147
Notes ............................................................................................................................ 149
Gould v. American Family Mut. Ins. Co. ........................................................................ 150
Notes ............................................................................................................................ 151
5. Unreasonable Faiths?.................................................................................................. 153
6. Sex and Gender: The Reasonable Woman? ............................................................... 154
B. Cost / Benefit Calculations and the Learned Hand Formula .................................. 158
1. Negligence Basics ...................................................................................................... 159
Stone v. Bolton................................................................................................................. 159
Bolton v. Stone................................................................................................................. 160
Notes ............................................................................................................................ 162
United States v. Carroll Towing Co. ................................................................................ 162
Notes ............................................................................................................................ 164
2. Critiques of Cost-Benefit Reasoning .......................................................................... 167
Critiques from First Principles ......................................................................................... 167
Critiques from Distributive Justice .................................................................................. 169
Critiques from Administrability ....................................................................................... 170
A Precautionary Alternative? ........................................................................................... 170
Kysar’s Constructivist Critique........................................................................................ 171
3. In Defense of Cost-Benefit Reasoning ....................................................................... 171
Robert H. Frank, Why is Cost-Benefit Analysis so Controversial?................................. 171
Cass Sunstein, Cognition and Cost-Benefit Analysis ...................................................... 172
Cass Sunstein, Moral Heuristics ...................................................................................... 173
4. The Logic of Cost-Benefit .......................................................................................... 174
Cooley v. Public Service Co. ........................................................................................... 174
Notes ............................................................................................................................ 176
Andrews v. United Airlines ............................................................................................. 181
Note.............................................................................................................................. 183
5. Claim Resolution in the Real World .......................................................................... 183
Rules of Thumb in Auto Collision Cases......................................................................... 183
The Failure of No-Fault Auto .......................................................................................... 185
C. Judges and Juries......................................................................................................... 185
Baltimore & Ohio Railroad Co. v. Goodman .................................................................. 186
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 111, 123-4 (1881) .......................... 186
Notes ............................................................................................................................ 187
Pokora v. Wabash Railroad Co. ....................................................................................... 188
Notes ............................................................................................................................ 190
D. Custom .......................................................................................................................... 196
1. The Basic Rule—and Its Functions ............................................................................ 196
The T.J. Hooper ............................................................................................................... 196
Notes ............................................................................................................................ 197
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Trimarco v. Klein ............................................................................................................. 199
Notes ............................................................................................................................ 201
2. Custom and Medical Malpractice Cases .................................................................... 202
Brune v. Belinkoff ........................................................................................................... 202
Notes ............................................................................................................................ 204
Canterbury v. Spence ....................................................................................................... 205
Notes ............................................................................................................................ 211
David M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice .... 212
Notes ............................................................................................................................ 213
E. Statutes and Regulations ............................................................................................. 216
1. Violations of Statutory Standards ............................................................................... 217
Martin v. Herzog .............................................................................................................. 217
Note.............................................................................................................................. 219
Tedla v. Ellman ................................................................................................................ 219
Notes ............................................................................................................................ 221
Gorris v. Scott .................................................................................................................. 222
The Restatement Approach .............................................................................................. 223
2. A Regulatory Compliance Defense? .......................................................................... 223
3. Torts in the Modern State: Implied Private Causes of Action .................................... 225
Uhr v. East Greenbush Central School District ............................................................... 225
Notes ............................................................................................................................ 228
F. Proof of Negligence ...................................................................................................... 231
1. The Basic Problem ..................................................................................................... 231
Howard v. Wal-Mart Stores, Inc. ..................................................................................... 231
Notes ............................................................................................................................ 233
2. Res Ipsa Loquitur ....................................................................................................... 235
Byrne v. Boadle ............................................................................................................... 235
Grajales-Romero v. American Airlines, Inc. ................................................................... 237
Notes ............................................................................................................................ 240
Ybarra v. Spangard .......................................................................................................... 241
3. Federal Constitutional Constraints on the Burden of Proof ....................................... 243
4. A Note on Settlement Mills ........................................................................................ 245
5. Aggregation and Sampling by Bellwether Trials ....................................................... 246
Samuel Issacharoff, Commentary, “Shocked” ................................................................. 246
Alexandra D. Lahav, Bellwether Trials ........................................................................... 247
Notes ............................................................................................................................ 248
G. Negligence Puzzles ....................................................................................................... 250
1. Should Wealth Matter? ............................................................................................... 250
2. Seavey’s Paradox........................................................................................................ 251
3. The Utility Monster .................................................................................................... 252

CHAPTER 5. PLAINTIFFS’ CONDUCT ............................................. 253
A. Contributory and Comparative Negligence .............................................................. 253
1. Contributory Negligence ............................................................................................ 253
Butterfield v. Forrester ..................................................................................................... 253
Notes ............................................................................................................................ 253
2. Comparative Negligence ............................................................................................ 259
Li v. Yellow Cab Company of California ........................................................................ 259
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Notes ............................................................................................................................ 263
Coleman v. Soccer Ass’n. of Columbia ........................................................................... 264
Notes ............................................................................................................................ 267
B. Assumption of Risk ...................................................................................................... 268
1. Implied Assumption of Risk ....................................................................................... 269
Murphy v. Steeplechase Amusement Co. ........................................................................ 269
Notes ............................................................................................................................ 271
Maddox v. City of New York .......................................................................................... 273
Notes ............................................................................................................................ 275
Landings Association, Inc. v. Williams ........................................................................... 277
Notes ............................................................................................................................ 279
2. Express Assumption of the Risk................................................................................. 281
Dalury v. S-K-I, Ltd. ........................................................................................................ 281
Notes ............................................................................................................................ 284
Waivers in Modern Life ................................................................................................... 288
Note.............................................................................................................................. 293

CHAPTER 6. CAUSATION .................................................................... 294
A. Causation: An Introduction ........................................................................................ 294
LeRoy Fibre Co. v. Chicago, M. & S. P. Railway ........................................................... 294
Notes ............................................................................................................................ 296
B. Causation-in-Fact......................................................................................................... 299
New York Central R.R. Co. v. Grimstad ......................................................................... 299
Notes ............................................................................................................................ 300
Stubbs v. City of Rochester.............................................................................................. 301
Notes ............................................................................................................................ 304
Zuchowicz v. United States ............................................................................................. 306
Notes ............................................................................................................................ 308
C. Lost Chances and Indeterminate Plaintiffs ............................................................... 311
Herskovits v. Group Health Coop. ................................................................................... 311
Notes ............................................................................................................................ 314
D. The Problem of Multiple Tortfeasors ........................................................................ 316
Kingston v. Chicago & N. W. R. Co................................................................................ 317
Notes ............................................................................................................................ 318
E. Alternative Liability and Indeterminate Defendants ............................................... 319
Summers v. Tice .............................................................................................................. 319
Note.............................................................................................................................. 320
Sindell v. Abbott Laboratories ......................................................................................... 320
Notes ............................................................................................................................ 326
The Substantial Factor Test Revisited ............................................................................. 329
F. Causation Beyond Torts .............................................................................................. 330
1. The Criminal Law....................................................................................................... 330
2. Employment Discrimination ...................................................................................... 331
3. Environmental Law .................................................................................................... 331
4. Securities Litigation.................................................................................................... 332
5. Psychological Conventions around Causation ........................................................... 332

CHAPTER 7. PROXIMATE (“LEGAL”) CAUSE............................... 334
A. Introduction ................................................................................................................. 334
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Ryan v. New York Central R.R. ...................................................................................... 334
Notes ............................................................................................................................ 336
Berry v. Sugar Notch Borough ........................................................................................ 338
Note.............................................................................................................................. 339
B. Unexpected Harm ........................................................................................................ 339
Benn v. Thomas ............................................................................................................... 339
Notes ............................................................................................................................ 340
In re Polemis .................................................................................................................... 342
Notes ............................................................................................................................ 343
The Wagon Mound Cases .............................................................................................. 344
Wagon Mound (No. 1) ..................................................................................................... 344
Wagon Mound (No. 2) ..................................................................................................... 345
Notes ............................................................................................................................ 346
C. Unexpected Manner .................................................................................................... 350
Brower v. New York Cent. & H.R.R. Co. ....................................................................... 350
Notes ............................................................................................................................ 351
McLaughlin v. Mine Safety Appliances Co..................................................................... 353
Note.............................................................................................................................. 355
Nallan v. Helmsley-Spear, Inc. ........................................................................................ 355
Notes ............................................................................................................................ 356
A Proximate Cause Case Study: Subsequent Negligent Medical Care .......................... 358
Rule of Thumb for No Proximate Cause? ...................................................................... 360
D. Unexpected Person ...................................................................................................... 361
Palsgraf v. Long Island R. Co. ......................................................................................... 361
Notes ............................................................................................................................ 366
Wagner v. International R. Co. ........................................................................................ 366
Notes ............................................................................................................................ 368
E. Completely Unexpected? ............................................................................................. 368
Petition of Kinsman Transit Co. (Kinsman Transit I) ...................................................... 368
Notes ............................................................................................................................ 374
F. Proximate Cause Beyond Torts .................................................................................. 377
1. Proximate Cause and Criminal Law ........................................................................... 377
2. Proximate Cause and Consequential Damages .......................................................... 377

CHAPTER 8. THE DUTY PROBLEM .................................................. 379
A. Is There a Duty to Rescue? ......................................................................................... 379
1. Cases ........................................................................................................................... 380
Farwell v. Keaton ............................................................................................................. 380
Harper v. Herman............................................................................................................. 381
Notes ............................................................................................................................ 383
2. Liability for Good Samaritans? .................................................................................. 388
Swenson v. Waseca Mutual Insurance Co. ...................................................................... 389
B. Landowners and Occupiers ........................................................................................ 390
United Zinc & Chemical Co. v. Britt ............................................................................... 390
Notes ............................................................................................................................ 391
Banker v. McLaughlin ..................................................................................................... 392
Note.............................................................................................................................. 394
Rowland v. Christian ....................................................................................................... 395
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Notes ............................................................................................................................ 398
C. Negligent Infliction of Emotional Distress................................................................. 400
Mitchell v. Rochester Railway ......................................................................................... 400
Notes ............................................................................................................................ 401
Falzone v. Busch .............................................................................................................. 402
Notes ............................................................................................................................ 404
Dillon v. Legg .................................................................................................................. 405
Notes ............................................................................................................................ 408
Metro-North Commuter Railroad Co. v. Buckley ........................................................... 411
Notes ............................................................................................................................ 414
D. To Whom Does a Defendant Owe a Duty? ................................................................ 416
1. The Duty Debate (Part 1) ........................................................................................... 416
William L. Prosser, Handbook of the Law of Torts......................................................... 416
John Goldberg & Benjamin Zipursky, The Moral of MacPherson.................................. 417
2. Cases and Materials .................................................................................................... 418
Strauss v. Belle Realty Co. .............................................................................................. 418
Notes ............................................................................................................................ 420
Kline v. 1500 Massachusetts Ave. Apartment Corp. ....................................................... 422
Notes ............................................................................................................................ 426
Ennabe v. Manosa ............................................................................................................ 427
Note.............................................................................................................................. 430
Tarasoff v. Regents of the University of California......................................................... 431
Notes ............................................................................................................................ 433
In re September 11 Litigation .......................................................................................... 436
Notes ............................................................................................................................ 440
3. The Duty Debate (Part 2) ........................................................................................... 441
E. Pure Economic Loss..................................................................................................... 442
People Express Airlines, Inc. v. Consolidated Rail Corporation ..................................... 442
Note.............................................................................................................................. 446
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ............................. 446
Notes ............................................................................................................................ 449
F. Relational Interests ...................................................................................................... 451
1. Spouses ....................................................................................................................... 451
2. Children ...................................................................................................................... 453
3. Unmarried Partners ..................................................................................................... 454
G. Tort Immunities ........................................................................................................... 455
1. Intrafamilial Immunities ............................................................................................. 456
2. Charitable Immunity ................................................................................................... 457
3. Employers’ Immunity ................................................................................................. 457
4. Sovereign Immunity ................................................................................................... 458
Baum v. U.S. .................................................................................................................... 459
Notes ............................................................................................................................ 463
Riss v. City of New York ................................................................................................. 466
Notes ............................................................................................................................ 470
5. Government Officer Immunity ................................................................................... 472
a. Federal Officials ........................................................................................................... 472
b. State Officials............................................................................................................... 473
c. Constitutional Torts ...................................................................................................... 473
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6. Statutory Immunity ..................................................................................................... 475
The Protection of Lawful Commerce in Arms Act of 2005 ............................................ 475
City of New York v. Beretta U.S.A. Corp. ...................................................................... 475
7. Wartime and National Security Immunities ............................................................... 477
8. Immunity Reconsidered.............................................................................................. 479

CHAPTER 9. MODERN NON-FAULT LIABILITY?......................... 480
A. Vicarious Liability ....................................................................................................... 480
Ira S. Bushey & Sons, Inc. v. United States..................................................................... 480
Notes ............................................................................................................................ 483
B. Wild and Abnormally Dangerous Animals ............................................................... 486
Rhodes v. MacHugh......................................................................................................... 486
Note.............................................................................................................................. 489
C. Abnormally Dangerous Activities .............................................................................. 489
Spano v. Perini Corp. ....................................................................................................... 489
Notes ............................................................................................................................ 492
Indiana Harbor Belt R.R. v. American Cyanamid Co. .................................................... 494
Notes ............................................................................................................................ 499
D. Nuisance ........................................................................................................................ 500
1. Private Nuisance ......................................................................................................... 500
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. ........................................... 500
Notes ............................................................................................................................ 502
Ensign v. Walls ................................................................................................................ 505
Notes ............................................................................................................................ 506
Boomer v. Atlantic Cement Co. ....................................................................................... 510
Notes ............................................................................................................................ 512
Spur Industries v. Del Webb Development Co. ............................................................... 515
Notes ............................................................................................................................ 517
2. Public Nuisance .......................................................................................................... 519
Leo v. General Electric Co............................................................................................... 519
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center ..................................... 521
Notes ............................................................................................................................ 522
Lead Paint and Public Nuisance: Two Stories ................................................................. 523
Peter B. Lord, 3 companies found liable in lead-paint nuisance suit, PROVIDENCE J. . 523
Joe Nocera, The Pursuit of Justice, or Money?, N.Y. TIMES ...................................... 524
Peter B. Lord, R.I. high court overturns lead-paint verdict, PROVIDENCE J.. ............... 524
Rhode Island v. Lead Industries Association ................................................................... 525
Note.............................................................................................................................. 528
Cty. of Santa Clara v. Atl. Richfield Co. ......................................................................... 528
Note.............................................................................................................................. 530
Camden County v. Beretta ............................................................................................... 530
Note.............................................................................................................................. 533
E. Strict Liability for Products? ...................................................................................... 534
1. Beginnings .................................................................................................................. 534
Winterbottom v. Wright ................................................................................................... 534
Notes ............................................................................................................................ 535
MacPherson v. Buick Motor Company............................................................................ 536
Notes ............................................................................................................................ 539
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Escola v. Coca Cola Bottling Co. of Fresno .................................................................... 541
Notes ............................................................................................................................ 544
Temple v. Wean United, Inc. ........................................................................................... 546
Notes ............................................................................................................................ 548
2. Manufacturing Defects ............................................................................................... 549
Speller v. Sears, Roebuck and Co. ................................................................................... 550
Notes ............................................................................................................................ 551
3. Design Defects............................................................................................................ 554
Barker v. Lull Engineering Company, Inc. ...................................................................... 554
Notes ............................................................................................................................ 558
Wright v. Brooke Group, Ltd. .......................................................................................... 561
Notes ............................................................................................................................ 565
4. Warning Defects ......................................................................................................... 566
Liriano v. Hobart Corp. (“Liriano I”) .............................................................................. 567
Liriano v. Hobart Corp. (“Liriano II”) ............................................................................. 571
Note.............................................................................................................................. 574
Liriano v. Hobart Corp. (“Liriano III”) ............................................................................ 574
Notes ............................................................................................................................ 578
Hood v. Ryobi Am. Corp. ................................................................................................ 580
Notes ............................................................................................................................ 582
5. Plaintiff’s Conduct...................................................................................................... 583
Daly v. Gen. Motors Corp................................................................................................ 583
Notes ............................................................................................................................ 587
6. The Preemption Question ........................................................................................... 588
Geier v. American Honda Motor Co................................................................................ 588
Notes ............................................................................................................................ 592
Wyeth v. Levine ............................................................................................................... 593
Notes ............................................................................................................................ 599
PLIVA, Inc. v. Mensing ................................................................................................... 602
Notes ............................................................................................................................ 606

CHAPTER 10. DAMAGES ..................................................................... 609
A. Compensatory Damages.............................................................................................. 610
1. Pecuniary Damages .................................................................................................... 610
O’Shea v. Riverway Towing Co. ..................................................................................... 610
Notes ............................................................................................................................ 614
Feldman v. Allegheny Airlines ........................................................................................ 616
Notes ............................................................................................................................ 619
2. Nonpecuniary Damages.............................................................................................. 623
The Rise of Pain and Suffering ........................................................................................ 623
McDougald v. Garber ...................................................................................................... 626
Notes ............................................................................................................................ 631
3. Environmental Damages ............................................................................................ 636
United States v. CB & I Constructors, Inc. ...................................................................... 636
Note.............................................................................................................................. 638
4. Death Cases ................................................................................................................ 639
Wrongful Death Actions .................................................................................................. 639
Survival Actions............................................................................................................... 640
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Death Cases and Family Structure ................................................................................... 640
The Death Case Paradox .................................................................................................. 641
B. Damages in Practice..................................................................................................... 641
1. Plaintiffs’ Lawyers and the Contingency Fee ............................................................ 641
2. The Role of Defendants’ Insurance ............................................................................ 645
3. Subrogation; or, The Role of Plaintiffs’ Insurance .................................................... 646
4. The “Bronx Jury” Effect ............................................................................................. 648
5. Beyond Dollars ........................................................................................................... 650
6. The Death of Liability? .............................................................................................. 651
C. Mass Settlements.......................................................................................................... 654
1. The September 11th Victim Compensation Fund ...................................................... 654
2. Aggregation: Class Actions and their Limits ............................................................. 656
3. The Vioxx Settlement ................................................................................................. 658
4. The BP Oil Spill ......................................................................................................... 661
5. State Attorneys General .............................................................................................. 663
D. Punitive Damages ........................................................................................................ 663
Kemezy v. Peters ............................................................................................................. 664
Notes ............................................................................................................................ 666
State Farm Mut. Auto. Ins. Co. v. Campbell ................................................................... 669
Notes ............................................................................................................................ 673
Philip Morris USA v. Williams ....................................................................................... 674
Notes ............................................................................................................................ 679

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CHAPTER 1. AN INTRODUCTION TO AMERICAN TORT LAW
A. Principles and Institutions
Tort law is the common law of civil wrongs not arising out of contract. Torts books often
start with a definition because tort law, unlike other mainstays of the first year in the American
law school curriculum, can seem strange and unfamiliar to the new law student. Terms like
“contracts,” “procedure,” “property,” and “criminal law,” are relatively familiar to students long
before they arrive for the first day of classes. “Constitutional law” will resonate with the law
student who has even a passing interest in politics or public policy. Alone among first year
subjects, “torts” has not made much headway into lay usage. Indeed, the situation is even worse
than this suggests, for to the extent the term has made its way into popular usage, the results have
often been terrible misuse and misunderstanding.
So let’s start with a definition: Tort law is the common law of civil wrongs not arising out
of contract. Let’s now take that definition piece by piece.
We call tort law a common law field because it arises out of the body of legal norms and
institutions inherited by the United States from England more than two centuries ago, when the
United States won independence from the British Empire. In England, the common law was the
law of the King’s courts in the centuries after the Norman Conquest in 1066. (The common law
was the law common to those courts, as opposed to the church courts, borough courts, and the
courts of the local nobility, each of which had its own law through the medieval and early modern
periods.) Today, to say that a body of law is made up of common law principles is to say that it is
mostly judge-made law, though not necessarily exclusively so. State legislatures and the U.S.
Congress increasingly alter the common law of torts. The Federal Constitution and its state-level
counterparts largely (but not entirely) give the Congress and state legislatures power to make such
alterations, though as we shall see constitutional constraints touch tort law in several different
ways. Nonetheless, it is still fair to call torts a common law field. And as a common law field,
torts is made up predominantly of state law, rather than federal law, though federal law has always
played a role, especially in the past century, and even more so in the last two decades. To the
extent that torts remains a subject of state law, its basic norms will vary from state to state, though
usually with a wide area of consensus at its core.
Tort law deals with civil wrongs as opposed to violations of the criminal law. This means
that tort law’s norms and institutions exhibit a cluster of features characteristic of civil
proceedings, not criminal proceedings. Private parties, not public prosecutors, typically initiate
tort litigation (though the government may be a claimant in tort cases when certain harms befall
government property). The array of procedural protections for criminal defendants (many of them
constitutionally required) typically does not apply to defendants in torts cases. There is no
privilege not to testify on the grounds that you might concede liability, for example. There are no
Miranda warnings in torts. And there is no constitutionally protected right to confront witnesses.
The Federal Constitution does not require states to offer jury trials in tort cases, though most
states do anyway. The standard of proof is a “preponderance of the evidence” rather than the high
threshold of “beyond a reasonable doubt.” Parties without lawyers are not usually offered free
court-appointed counsel. Most importantly, perhaps, the fact that tort law is the law of civil
wrongs means that, with one exception, tort law does not aim to punish. Punishment is a principal
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function of the criminal justice system. The remedies in a torts case aim not to punish the
defendant, but to compensate the plaintiff, almost always through a monetary award, aimed at
making up for losses, and sometimes (though much less often) through an order by a court
requiring that a defendant cease some ongoing course of conduct. The exception to this rule is the
doctrine of punitive damages, which consist of monetary sums awarded by a judge or jury for the
purpose of punishing tort defendants, and which are awardable in torts cases involving some
especially outrageous or reckless conduct. As we shall see, even though punitive damages are
rare, they have attracted considerable attention because of concerns that they punish without the
institutional protections offered to criminal defendants. The United States Supreme Court has
significantly constrained the size of possible punitive damages awards in recent years.
Tort law is a field not merely of civil law: it is a field of civil law wrongs. The term “tort”
comes from the Latin meaning bend or twist. (It shares the same root as the word “torture.”) For
centuries, tort law has thus been connected indelibly to the moral concept of wrongfulness. Most
areas of tort doctrine thus ask about the wrongfulness of the parties’ conduct. Some domains of
tort law purport to do away with the concept of wrongfulness. Since at least the middle of the
nineteenth century, important areas of the law (urged on by prominent jurists and commentators)
have embraced so-called strict or no-fault liability doctrines that ostensibly allocate accident costs
without regard to questions of wrongfulness. In the field of product-related injuries, for example,
which we will spend considerable time discussing later in this book, doctrine has moved toward
eliminating fault or wrongdoing from the analysis. Such “no fault” approaches remain the
exception to the rule.
Last, tort law is a common law field of civil wrongs not arising out of contract. This
means that, as a conceptual matter, the obligations that tort law recognizes exist independent of
any agreement between the parties. For a person to have a legal obligation to another arising out
of tort law, they need not have promised the other person anything. The law of torts itself, not the
terms of any agreement, specifies the contours of the obligations it enforces.
Yet this final piece of our definition, like each element of the definition that has preceded
it, comes with caveats and exceptions, two of which are worth noting here. First, many and
perhaps even most torts cases do arise out of the interactions of parties who are in contractual
relationships with one another, or at least in relationships akin to contracts. Consumers of
products contract with sellers to buy those products, but if they sue for product-related injuries,
they often sue in tort law. Patients of doctors enter into contracts to purchase medical services,
but if they sue when those services go awry, they usually sue in tort law. And even when there is
no formal contract, there are often relationships or social roles that could be construed as setting
the terms of the parties’ interactions. Social settings such as classrooms or playgrounds, as we
shall soon see, typically come with informal conventions and codes of conduct. Such conventions
and agreements are crucially important in modern tort law. They require that we decide whether
and when tort law should defer to private agreements and when it should override them, especially
when they purport to abolish tort obligations altogether.
Second, and just as significant, contracts are vital for the resolution of tort claims because
in the real world virtually every successful tort claim is resolved by a special kind of contract
called settlement. Contracts of settlement discharge the underlying tort obligation and render it a
contractual obligation to pay some or all of the damages the plaintiff sought. In the everyday
practice of tort law, such settlement contracts are pervasive. No one really knows what
percentage of tort claims settle, but the percentage is thought to be stunningly high, probably well
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above ninety-five percent of those tort claims that lead to monetary transfers. Settlement is thus at
the heart of how American tort law works. And it offers us a segue to a central theme in this
book. For settlement is one of the wide array of social practices and institutions that constitute
American tort law and that make it more than merely a formal legal definition or a dry and dusty
concept in the doctrinal analysis of the law. Tort law in the United States is a vast and highly
distinctive socio-regulatory system.
****
Tort law in the United States consists of a sprawling set of social institutions and
practices. One way to see this is to observe that formal definitions of tort law do not differ much
from one legal order to another. But the institutions and sociology of tort law differ radically
from legal system to legal system. In this book, we will attend to formal definitions and doctrines.
But we will keep an especially close eye on three features of American tort law that breathe life
into the field and give it a distinctive twenty-first-century character.
First, tort law’s doctrines and principles embody the law’s basic norms of interpersonal
obligation. The principles underlying those norms are subject to fierce debate, of course. Tort
jurists have argued for many decades about these principles, about what they are and what they
ought to be. For example, some see tort law as an opportunity for utilitarianism in action. In this
view, tort law aims to maximize the aggregate welfare of the relevant society. Others see in tort
law a commitment to the moral philosophy of corrective justice or civil recourse; in this view, tort
law recognizes the obligation of a wrongdoer to repair wrongful losses. Still others understand
tort law’s motivating principle to be constructing and maintaining the basic norms of a
community, or shoring up the dignity and social standing of people whose injuries might
otherwise degrade them in the eyes of fellow community members. Ideas about the principles
underlying tort law are as varied as ideas about how society should be organized. This book will
introduce you to, but will not adjudicate for you, the basic controversies over tort law’s
commitments. These controversies represent live debates in practical moral philosophy. They
also help us decide the hardest cutting-edge cases in the field, cases in which there is no obvious
existing answer in the doctrine and for which lawyers, judges, and juries will need to rely on the
law’s underlying principles.
Second, tort law in the United States is the starting point for a vast and far-flung set of
exceedingly important social practices, ranging from contingency fee representations and highway
billboard advertising, to class action litigation and claims adjustment, to contracting and risk
assessment. We can barely even begin to evaluate the law of torts and its virtues and defects
without taking these social practices into account. We will aim to take account of the tort system
by referring to statistics and numbers and through the leading sociological, game-theoretical, and
historical accounts. Indeed, to understand the distinctive features of tort law in the United States
as opposed to in other legal systems, where tort law operates quite differently, these perspectives
will be decisive for illuminating the real stakes in long-running controversies.
Third, American tort law shapes and is shaped by an important array of institutions,
among them insurance companies, the administrative state, state-subsidized and state-provided
social welfare programs, the jury, social customs, cost-benefit analysis, the plaintiff’s bar, and
more. These institutions, along with the practices noted above, powerfully influence the law of
torts in the United States. We cannot understand the law without them. Indeed, we cannot
understand contemporary American law more generally without placing these institutions front
and center, and once we see tort law this way, the field serves as an ideal introduction to the
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central features of our vast and multifarious legal system.
Here, then, is the theory of this book: understanding the characteristic features of
American tort law requires exploring the field’s principles, practices, and institutions. The benefit
of approaching tort law this way is not only that we understand torts better, though that would be
no small thing. The further payoff is that this approach allows us to turn the study of tort law into
more than an obligatory first-year purgatory of fusty and old-fashioned common law rules.
Instead, we take up the law of civil wrongs as an introduction to some of the most important
problems faced by twenty-first-century American lawyers and lawmakers more generally.
Thankfully, we can begin to think in these ways by exploring one of the field’s simplest and bestknown cases, a case that began as a classroom interaction between two boys in nineteenth-century
Wisconsin.

B. An Introductory Case: The Tort of Battery
1. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891)
The action was brought to recover damages for an assault and battery, alleged to have
been committed by the defendant upon the plaintiff on February 20, 1889. . . . At the date of the
alleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less
than 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon
the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in
Waukesha, during school hours, both parties being pupils in the school. A former trial of the
cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from
such judgment to this court, and the same was reversed for error, and a new trial awarded.
[The opinion of the court in the initial appeal provides the following additional facts:
“The plaintiff was about 14 years of age, and the defendant about 11 years of age. On the
20th day of February, 1889, they were sitting opposite to each other across an aisle in the high
school of the village of Waukesha. The defendant reached across the aisle with his foot, and hit
with his toe the shin of the right leg of the plaintiff. The touch was slight. The plaintiff did not
feel it, either on account of its being so slight or of loss of sensation produced by the shock. In a
few moments he felt a violent pain in that place, which caused him to cry out loudly. The next
day he was sick, and had to be helped to school. On the fourth day he was vomiting, and Dr.
Bacon was sent for, but could not come, and he sent medicine to stop the vomiting, and came to
see him the next day, on the 25th. There was a slight discoloration of the skin entirely over the
inner surface of the tibia an inch below the bend of the knee. The doctor applied fomentations,
and gave him anodynes to quiet the pain. This treatment was continued, and the swelling so
increased by the 5th day of March that counsel was called, and on the 8th of March an operation
was performed on the limb by making an incision, and a moderate amount of pus escaped. A
drainage tube was inserted, and an iodoform dressing put on. On the sixth day after this, another
incision was made to the bone, and it was found that destruction was going on in the bone, and so
it has continued exfoliating pieces of bone. He will never recover the use of his limb. There were
black and blue spots on the shin bone, indicating that there had been a blow. On the 1st day of
January before, the plaintiff received an injury just above the knee of the same leg by coasting,
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which appeared to be healing up and drying down at the time of the last injury. The theory of at
least one of the medical witnesses was that the limb was in a diseased condition when this touch
or kick was given, caused by microbes entering in through the wound above the knee, and which
were revivified by the touch, and that the touch was the exciting or remote cause of the
destruction of the bone, or of the plaintiff’s injury. It does not appear that there was any visible
mark made or left by this touch or kick of the defendant’s foot, or any appearance of injury until
the black and blue spots were discovered by the physician several days afterwards, and then there
were more spots than one. There was no proof of any other hurt, and the medical testimony seems
to have been agreed that this touch or kick was the exciting cause of the injury to the plaintiff.
The jury rendered a verdict for the plaintiff of $2,800. The learned circuit judge said to the jury:
‘It is a peculiar case, an unfortunate case, a case, I think I am at liberty to say that ought not to
have come into court. The parents of these children ought, in some way, if possible, to have
adjusted it between themselves.’ We have much of the same feeling about the case.”]
The case has been again tried in the circuit court, and the trial resulted in a verdict for
plaintiff for $2,500. . . . On the last trial the jury found a special verdict, as follows: “(1) Had the
plaintiff during the month of January, 1889, received an injury just above the knee, which became
inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February,
1889, nearly healed at the point of the injury? A. Yes. (3) Was the plaintiff, before said 20th of
February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff’s right leg
become inflamed or diseased to some extent before he received the blow or kick from the
defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff’s leg? A. Kick.
(6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No.
(7) At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars.”
The defendant moved for judgment in his favor on the verdict, and also for a new trial. The
plaintiff moved for judgment on the verdict in his favor. The motions of defendant were
overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff, for $2,500 damages
and costs of suit, was duly entered. The defendant appeals from the judgment.
LYON, J.
...
The jury having found that the defendant, in touching the plaintiff with his foot, did not
intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of
action, and that defendant’s motion for judgment on the special verdict should have been granted.
In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that “the intention to
do harm is of the essence of an assault.” Such is the rule, no doubt, in actions or prosecutions for
mere assaults. But this is an action to recover damages for an alleged assault and battery. In such
case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must
show either that the intention was unlawful, or that the defendant is in fault. If the intended act is
unlawful, the intention to commit it must necessarily be unlawful. Hence, as applied to this case,
if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to
kick him was also unlawful.
Had the parties been upon the play-grounds of the school, engaged in the usual boyish
sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to
plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he
could be held liable in this action. Some consideration is due to the implied license of the play5

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grounds. But it appears that the injury was inflicted in the school, after it had been called to order
by the teacher, and after the regular exercises of the school had commenced. Under these
circumstances, no implied license to do the act complained of existed, and such act was a
violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the
opinion that, under the evidence and verdict, the action may be sustained.
...
Certain questions were proposed on behalf of defendant to be submitted to the jury,
founded upon the theory that only such damages could be recovered as the defendant might
reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff.
The court refused to submit such questions to the jury. The ruling was correct. The rule of
damages in actions for torts [is] that the wrongdoer is liable for all injuries resulting directly from
the wrongful act, whether they could or could not have been foreseen by him. [The court
explained that in a cause of action “ex contractu” and not “ex delicto,” a different rule of damages
would be applicable in which unforeseeable damages would not be recoverable.]
[Despite upholding the plaintiff’s verdict in these two critical respects, the court nonetheless ruled
in a separate part of its opinion that the trial court had erroneously overruled the defendant’s
objection to one of plaintiff’s counsel’s questions. Accordingly, the court sent the case back to
the trial court for another new trial.]

2. Anatomy of a Torts Case
Vosburg v. Putney was a simple case. By now, it is an old case. But getting to the bottom
of it reveals much about the complexities of American tort law right up to the present day.
At an elementary level, the case presents two kinds of questions that will run through the
rest of this book and that are omnipresent in legal analysis: questions of fact and questions of law.
There are, for example, questions of fact about causation. What caused the injuries to the leg?
Would those injuries have come about anyway if Putney had not made contact with Vosburg on
the 20th of February? There are also questions of fact about Putney’s intent: what did he mean to
accomplish when he reached out and kicked his classmate?
The questions of law are different. They ask not what happened, but rather what the law
is—or what it ought to be. For example, what kind of mental state does the law require for
holding Putney liable? Is it sufficient that he intended to make a certain kind of contact with
Vosburg? Or does Vosburg need to show that Putney further intended to harm him? Questions of
law about Putney’s causal relationship to Vosburg’s leg injury would ask whether it is sufficient
for Vosburg to show that Putney’s kick increased the likelihood of leg damage that was already in
motion, or that Putney’s kick accelerated that damage.
Once we bring in some of the context for the court’s opinion, this little case from long-ago
Wisconsin also serves as a remarkable introduction to the sociology, economics, and functions of
tort law. Andrew Vosburg was a slight boy whose father, Seth (a Civil War veteran), worked as a
teamster at a local lumber company. According to Professor Zigurds Zile of the University of
Wisconsin Law School,
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Witt & Tani, TCPI 1. Introduction

Vosburg was frequently bedridden with a succession of childhood illnesses. He
caught scarlet fever at the age of eight and had two or three bouts with the measles.
Yet he was raised as an ordinary country boy, obliged to do the customary chores
around the homestead, endure discomfort and face the usual hazards associated with
rural life. Bumps, bruises and lacerations were part of his workaday experience.
Accidents just happened to Andrew; or perhaps they happened to him more often
because he lacked the strength and dexterity the rigors of his environment demanded
....
Zigurds L. Zile, Vosburg v. Putney: A Centennial Story, 1992 WIS. L. REV. 877, 879. George
Putney, by contrast, was the only son of a prominent and prosperous local family. Zile reports
that George Putney was described by a contemporary as “a sucker of a boy” with “a bad temper.”
Id. at 882. In fact, George had a minor altercation with Andrew a couple weeks prior to the
incident at the center of the litigation when George inexplicably prevented Andrew from
retrieving his textbook before an exam.
The Vosburg family also initiated a criminal case against Putney. Passions, it seems, ran
high in 1889 in Waukesha. Andrew’s father went to the town justice of the peace to file a
criminal complaint against George on October 19, 1889. The justice of the peace issued a warrant
to apprehend George, and a trial ensued. (This was the era before special criminal procedures for
juveniles.) After witness testimony and cross-examination, the court found George guilty as
charged in the complaint. He was ordered to pay a fine of $10, plus costs, amounting to a total of
$28.19. The conviction was later overturned on appeal.
The civil and criminal cases arising out of the schoolboy’s kick soon involved substantial
time and expenses. During the first jury trial in the civil suit, witnesses included Andrew, George,
the boys’ teacher, and Andrew’s doctors. When the case was retried in the December term of
1890, the plaintiff subpoenaed eight witnesses and the defendant subpoenaed eleven. The third
trial for Andrew’s case seemed imminent until September 1893, when the circuit court dismissed
the case for the plaintiff’s failure to pay overdue court costs. In still another proceeding,
Andrew’s father brought a claim against George Putney for the loss of his son’s services. A jury
awarded Seth $1200 in damages against George, which the Wisconsin Supreme Court later
affirmed. But even then, it does not seem that the Vosburgs ever collected any damages from the
Putneys, perhaps because parents are not liable for the torts of their children. At the end of this
long litigation process, there is no evidence that the parties ever exchanged any money.
All told, the dispute between these families lasted for four and a half years and never
produced even a dollar in actual damages changing hands. The litigation was expensive, too. Zile
estimated that the Vosburgs “would have incurred costs in the amount of $263 in order to get
nothing.” Their lawyers probably spent considerably more in time and money in hopes of
recovering a portion, usually a third, of the winnings. The Putneys probably paid at least $560 in
lawyers’ fees and incurred additional costs summing to a further $677. Zile, supra, at 977.
The outsized expenses of the Vosburg case are not unusual in American tort law, at least
not in the narrow slice of cases that go forward to trial. Observers estimate the administrative
costs of the tort system—lawyers’ fees, expert witness fees, court costs, etc.—amount to between
fifty and seventy cents for every dollar transferred from defendants to plaintiffs. The Vosburg
case’s costs were almost exactly in this range: the parties together incurred some $1500 in costs in
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Witt & Tani, TCPI 1. Introduction

a dispute over two claims that juries seemed to value at around $3700 (a $2500 claim for Andrew
plus the $1200 claim for Seth). The Vosburgs’ lawyers would have eaten up another one-third of
whatever money the Putneys paid, for a total of around $2700 in costs on $3700 worth of tort
claims. The Vosburgs would only have recovered $2500 after subtracting their lawyers’ fees.
This is equivalent to a costs-to-value ratio of more than 1, a figure that is vastly higher than the
administrative cost ratios that attach to, say, disability claims in the Social Security system, where
costs are typically closer to ten percent of the value of the claim. Tort administrative costs are
vastly higher than first-party insurance administrative costs, too: victims of injuries can much
more cheaply process claims for covered injuries from their own insurance companies than they
can prosecute tort claims through the courts.

3. The Pervasiveness of Settlement
Given how counter-productive the litigation was, one great mystery in Vosburg is why the
families did not reach a settlement. The initial trial judge seems to have thought the matter ought
to have been resolved before trial. The original appeals panel agreed. And there were settlement
negotiations. By the early fall of 1889, the Vosburgs had already incurred substantial medical
costs and were facing another year and a half of care, eventually costing at least $475. After the
Vosburg family retained a lawyer,
Seth and Janet Vosburg and one of their attorneys called on Henry Putney [George’s
father] at his store, and the incident “was talked over amongst [them].” The Putneys
offered to pay Dr. Bacon’s bills [about $125 accrued to date] and an additional
amount of $125 towards medical and other needs in return for releasing George
from any liability arising out of the February 20 incident. The Vosburgs, however,
were not willing to settle for less than $700, which to them was a paltry sum, barely
sufficient to meet the financial obligations already accrued, to set aside a reserve
against outlays associated with Andrew’s convalescence and potential
complications, like the amputation of Andrew’s diseased leg, and to pay the lawyers
for negotiating the settlement. To the Putneys, by contrast, particularly if they
looked at George’s role as peripheral, the sum of $250 might have seemed a
generous price for the nuisance value of a threatened lawsuit.
Zile, supra, at 894.
The startling thing is that in hindsight any one of the proposals by either defendant or
plaintiff would have been in the interest of the parties. Simply dropping the litigation in return for
nothing would have been better than proceeding. Given the array of choices before them,
litigating the claims to judgment seems to have been the worst choice available to the parties, and
yet each of them chose to litigate rather than to accept settlement offers from the other side that
(again, in hindsight) were vastly better than the alternative of trial.
So why didn’t the Vosburgs and Putneys settle if it was in their interest to do so? The
mystery deepens when we see that virtually all cases end in settlement. One of the most important
institutional features of American tort law is that it is almost entirely party-driven. The parties to
a lawsuit have virtually complete autonomy in deciding whether to bring claims, how to manage

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those claims, and whether to withdraw from prosecuting them. The result is that almost all parties
settle their disputes before trial.
Settlement has been widespread in American tort law for as long as modern tort law has
existed, for more than a century and a half, and there is reason to think settlement is growing even
more common in the past fifty years. In 2003, the American Bar Association Litigation Section
held a symposium titled The Vanishing Trial, which concluded that the “portion of federal civil
cases resolved by federal trial fell from 11.5 percent [of all filings] in 1962 to 1.8 percent in
2002.” Marc Galanter, The Vanishing Trial: An Examination of Trials and Related Matters in
Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 459 (2004). Between 2008 and 2012,
a mere “0.56 percent or slightly more than one-half of one percent of all terminations” occurred
by civil jury trials. Charles S. Coody, Vanishing Trial Skills, A.B.A. (May 22, 2013),
https://perma.cc/QE5C-LPNS. The following chart, compiled by Marc Galanter, who led the
ABA study, and his co-author, shows the stark picture of settlement in civil litigation generally:

Percentage of Civil Terminations During or After Trial, U.S. District Courts, 1962-2010

Source: Marc Galanter & Angela Frozena, The Continuing Decline of Civil Trials in American Courts, POUND
CIVIL JUSTICE INST. 1, 3 (2011), https://perma.cc/9NFE-AP2M.

Parties settle because, as the Vosburgs and Putneys learned, litigation is expensive and
time-consuming. Many parties are risk-averse; they have a preference for the certainty that
settlement offers. Moreover, there is reason to think that on the plaintiffs’ side, lawyers paid on a
contingency basis, as a percentage of any settlement or award, will have an interest in avoiding
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long drawn-out proceedings. Settlement minimizes their workload, allows them to take on
additional claims, and often allows them to maximize their imputed hourly wage.
Given the incentives for the parties and for the plaintiffs’ lawyers, why is it then that some
parties like the Vosburgs and Putneys don’t settle? Looked at this way, the question is not why
there are so few trials. The question is why there are any trials at all! Why doesn’t everyone
settle?
One especially influential view is that where a case proceeds to judgment, at least one of
the two parties, and perhaps both, must have incorrectly estimated the likely value of the claim.
In this account, which was first offered by George Priest and Benjamin Klein, trials are errors.
See George Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. LEGAL STUD.
1 (1984). Consistent with this view, some observers suggest that the trend toward settlement
since the middle of the twentieth century, at least in the federal courts, has been driven by the
enactment of the Federal Rules of Civil Procedure (FRCP) in 1938, which authorized pre-trial
discovery and deposition procedures that allow each side to learn virtually everything about the
facts of the case in advance of the trial itself. Lawyers are thus able to develop quite accurate
estimates of the value of the claim—much better estimates than pre-FRCP lawyers were able to
form—which in turn allow the parties to settle their cases before trial.
Another view is that parties do not settle because there is something other than dollars and
cents at stake in tort disputes. Parties persist, in this view, as a matter of principle. And many
argue that we should encourage them to do so. In this latter view, articulated memorably by
scholars like Owen Fiss and Judith Resnik, trials are not errors. They are the public forums in
which we work out our social commitments and hold our ideals up for testing. See Owen Fiss,
Against Settlement, 93 YALE L.J. 1073 (1984); Judith Resnik, Whither and Whether
Adjudication?, 86 B.U. L. REV. 1101 (2006). Of course, if trials are intrinsically valuable as
public fora, then settlement rates are startlingly high. For it appears that something about the tort
system—and indeed, civil litigation generally—produces vast numbers of settlements and very
few judgments.

4. The Size of the Tort System
One way to glimpse the tort system in the aggregate is to look at the total amount of
money passing through the American tort system each year. It is here that little cases like
Vosburg connect up to the heated political controversies over tort law in the past several decades.
Insurers estimate that the money transferred in the tort system amounts to more than $260
billion per year. This is a huge amount of money, comparable to the amount the United States
spends annually on old age pensions in the Social Security system. Moreover, if we look at the
amount of money flowing through the tort system, we can see that it has increased sharply over
the past sixty years, though that growth has slowed (and by some measures has been reversed)
since the middle of the 1990s.

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Witt & Tani, TCPI 1. Introduction

United States Tort Costs

Year

U.S.
Population
(millions)

Adjusted
Tort Costs
(billions)
(2010)

Tort Costs as
Percentage of
GDP

1950
1960
1970
1980
1990
2000
2010

152
181
205
228
249
281
309

16
40
78
113
217
227
265

0.62%
1.03%
1.34%
1.53%
2.24%
1.80%
1.82%

Source: Towers-Watson, 2011 Update on U.S. Tort Cost Trends,
https://perma.cc/4EGK-VXBY.

Tort Costs (billions) Adjusted for Inflation
300
250
200
150
100
50
0
1950

1960

1970

1980

1990

2000

Source: Towers-Watson data, adjusted by the Consumer Price Index.

11

2010

Witt & Tani, TCPI 1. Introduction

Tort Costs as Percentage of GDP
2.50%

2.00%

1.50%

1.00%

0.50%

0.00%
1950

1960

1970

1980

1990

2000

2010

Source: Towers-Watson data.

Even with the slower growth of recent years, the figures for transfers and administrative
costs in tort law are far higher in the United States than in any comparable legal system or
economy.

Comparative Tort Costs as a Percentage of GDP in 2000
U.S.
Italy
Germany
Spain
Belgium
Japan
Switzerland
U.K.
France
Denmark
Poland
0

0.5

1

1.5

2

2.5

Source: Tillinghast-Towers Perrin, U.S. Tort Costs and Cross-Border Perspectives: 2005
Update.

12

Witt & Tani, TCPI 1. Introduction

There is at least one country where tort costs as a percentage of GDP are near zero: New
Zealand simply abolished tort law for virtually all injuries forty years ago, replacing it with a
system of social insurance.
One of the things we will want to be able to make sense of by the end of this book is why
the tort system is so much bigger in the United States than it is in other countries. The answer, it
turns out, is not about the substantive doctrines of American tort law, which more or less resemble
the substantive tort doctrines of other developed legal systems. The real difference in American
tort law lies in its institutions and procedures: jury trials, discovery, a plaintiffs’ bar whose fees
are contingent percentages of the plaintiff’s ultimate recovery, and relatively restrictive programs
of social provision. One recent study of 24 countries, for example, finds a strong negative
relationship between the generosity of government social programs, on the one hand, and tort
liability, on the other, after controlling for income, accident rates, and other factors. See Dana A.
Kerr, Yu-Luen Ma, & Joan T. Schmit, A Cross-National Study of Government Social Insurance as
an Alternative to Tort Liability Compensation, 76 J. RISK & INSURANCE 367 (2009).
It is worth noting that the data cited above, regarding torts costs in the U.S., is hotly
controversial: it comes from a consultant to the insurance industry now named Towers-Watson,
formerly Tillinghast or Towers-Perrin. Critics contend that the Towers-Watson data is misleading
and tendentious and that the insurance industry aims to use it to promote legislation that would
reduce tort costs and thus serve the interests of insurers and the tort defendants they insure. See,
e.g., Lawrence Chimerine & Ross Eisenbrey, The Frivolous Case for Tort Law Change, ECON.
POL’Y INST. (May 16, 2005), https://perma.cc/6BRJ-UYP5. The critics complain both that certain
elements of the cost calculation, such as insurance executive compensation, ought to be excluded,
and that Towers-Watson and its predecessors misstate the concept of costs in the tort system.
Both critiques have some force. The latter critique in particular has obvious merit. Why, after all,
call the monetary transfers in the tort system the “costs” of tort law? The costs might much better
be described as the underlying injuries plus avoidance costs plus the costs of administering claims
when injuries happen. Is it a “cost” when tort law transfers money from wrongdoer to victim? Or
is it a “cost” when a wrongdoer injured the victim in the first place? For a general theory of the
sum of accident costs, see GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970).
Despite the criticisms, however, there is also a good reason to use the insurers’ data as a
basic measure of the tort system. For the startling thing about tort law in the United States is that
insurers’ private information is the only way we can even possibly begin to grasp the full size and
scope of the tort system. This is worth emphasizing again: the biggest insurers and only the
biggest insurers are in a position to see the macro trends in the field. The reason is that the
pervasiveness of private settlement ensures that there is no public repository of information about
the fate of most tort claims, sometimes virtually all tort claims. Nothing in the law of torts or in
the law of settlement contracts even requires that a claim be filed with a court before it is
contractually extinguished in a settlement agreement. To the contrary, the parties can save money
on the cost of drafting and filing a complaint and share those savings between them if they settle
before filing the claim in a courthouse. There is thus often not even a single trace in the public
record of a tort claim, even one that produces a substantial settlement. Indeed, many plaintiffs
receive higher settlement awards precisely in return for their promise to keep the terms of the
settlement and even the fact of their claim confidential—promises that are enforceable under
current law, despite the protests of many well-positioned observers.

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Witt & Tani, TCPI 1. Introduction

In short, the only institutions that could possibly know the overall size of the American
tort 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
the tort lawyer with an important challenge: What goals or moral projects could possibly be so
important as to make U.S. tort law worth its stunningly high costs?

5. Accident Rates and the Deterrence Goal
One goal tort jurists often advance is the deterrence of unreasonably dangerous conduct.
The logic here is simple and intuitively attractive. Tort law raises the price of injurious behavior.
As a result, the logic goes, the prospect of tort liability should decrease the amount of injurious
behavior in the world. Deterrence theory has further implications and wrinkles. We will return to
these at a number of junctures later in the book. But the important point for now is that the risk of
tort damages ought to lead rational parties to take into account the costs of their behavior in a way
they might not, absent tort liability.
Of course, tort law is one of many regulatory mechanisms that aim to accomplish the goal
of improving safety standards. Consider, for example, state inspection regimes for everything
from housing code compliance to factory employment standards. The federal Food and Drug
Administration seeks to guarantee the safety of pharmaceuticals and food products. The Federal
Highway Administration’s Office of Safety issues regulations and guidelines with an eye toward
automobile accidents. The Consumer Product Safety Commission does the same for consumer
goods. Even aside from regulators, the market itself creates many incentives for safety on the part
of market actors seeking to attract buyers, passengers, or clients.
Does tort law add to the deterrence function played by these other regulatory institutions?
Formal evidence is considerably more difficult to come by, in no small part because of the
difficulties described above in obtaining good information about the size and significance of tort
costs. Nonetheless, anecdotal evidence suggests that in the United States tort law does shape
behavior around risk and safety. We routinely read news stories about firms that claim to have
made some decision—often an unpopular one—on the basis of the risk of litigation.
Consider the big picture trends in accidental and violent injuries over time. For the past
half-century and more—precisely the time during which tort costs have soared—rates of
accidental death have declined substantially. This is not to say that tort law has caused that
decline. It might be the case that causation runs in the other direction: improvements in safety
may have generated higher expectations of safety and thus led to heightened standards in tort law.
Either way, the trend is striking. Since 1960, accidental deaths in the United States have fallen by
nearly half.

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Witt & Tani, TCPI 1. Introduction

Source: Statistical Abstracts of the U.S. (2014).

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Witt & Tani, TCPI 1. Introduction

Much of this change continues a trend that began long before 1960. Excluding motor
vehicle accidents, accidental deaths fell from around a hundred per 100,000 people in the
population annually to less than thirty by 1975.

Even motor vehicle accidental death rates have dropped during the past sixty years.

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Witt & Tani, TCPI 1. Introduction

Age-adjusted Death Rates for Unintentional Injuries and Motor-vehicle-related Injuries:
United States, selected years 1950-2010 (per 100,000 population)
90.0
80.0
70.0
60.0
50.0

Unintentional
injuries..........................

40.0

Motor vehicle-related
injuries................

30.0
20.0
10.0
0.0
1950

1960

1970

1980

1990

2000

2010

Source: Center for Disease Control and Prevention, https://perma.cc/V87X-9W64.

If we adjust motor vehicle accidental death rates by miles traveled, the drop in motor
vehicle traffic fatalities has been even more pronounced.

Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles
Traveled), 1899-2009

Source: National Highway Traffic Safety Administration, An Analysis of the Significant Decline in Motor
Vehicle Traffic Fatalities in 2008, U.S. DEP’T TRANSP. 12, (June 2010), https://perma.cc/F5SV-FKAV.

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Witt & Tani, TCPI 1. Introduction

Yet if our goal in tort law is to deter unreasonably dangerous actions, as many observers
argue it is or at least ought to be, the connections between deterrence and a case like Vosburg are
not at all clear. Is it reasonable to think that the prospect of tort damages payments—or even the
prospect of interminable tort litigation—will alter the behavior of children in a classroom? In this
domain, at least, using tort law to induce appropriately safe behavior by children seems a fool’s
errand, at least so long as we are trying to alter the behavior of children with monetary sanctions
aimed at the children themselves. (Monetary awards against the school or the teachers might be
far more effective, even if controversial for other reasons.)
Many scholars believe that the notion of tort damages shaping behavior is unlikely even in
other domains where it might seem more plausible than in the middle-school classroom. We will
return to this problem repeatedly in this book. For now, it is sufficient to observe that the critics
point to a myriad of factors that they say get in the way of translating prospective tort damages
into a safer behavior. Some parties are not susceptible to being incentivized in the relevant
respect by cash. Others act irrationally. Still others act rationally and are responsive to monetary
incentives, but are protected from tort damages by third parties who will pay the damages, such as
liability insurers or employers. Some may be sheltered from the threat of paying tort damages
because they have time horizons shorter than the 4-plus years that it took Vosburg to conclude.
This is not to say that deterrence is an impossible goal, or that deterrence ought not be
thought of as an important function of tort law. We will see considerable support for the idea that
tort damages do shape behavior in many contexts. Nonetheless, the effort to shape behavior and
induce safety offers at best a partial justification for tort law.

6. Expressing Moral Judgments and Correcting Injustice
Another way we could defend tort law in light of its high costs would be to describe it as
expressing our moral judgments about wrongful behavior and calling wrongdoers to account.
Judgments of liability signify that a defendant has wronged a plaintiff—and, further, that the
community sees and acknowledges that wrong. They also call upon the defendant to repair the
damage done.
If we understand tort law this way, we might care much less about the behavioral effects
of particular legal rules or judgments, because deterrence would not be the most important goal.
Stating that a particular course of conduct crossed the line has a value that is separable from
discouraging the conduct in the first instance. We also might think differently about cost: it might
be worth a lot to pursue the questions of right and wrong that torts cases commonly raise, both for
the actors involved and for society. And it might not be surprising that inquiries into such
questions are considerably more complex (and costly) than the kinds of inquiries Social Security
claims administrators or insurance claims adjusters need to make.
As with the deterrence goal, we will continue to discuss expressive values and corrective
justice throughout this book. For now it is important to observe that these ideas may play an
especially powerful role in accounting for the distinctive features of intentional torts. These are
often distinctively wrongful acts, arising out of conduct that has little or no social value. Our law
of intentional torts helps mark out such acts as wrongful, reinforcing our moral commitments
while providing wronged parties recognition and repair.
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Witt & Tani, TCPI 1. Introduction

Later in the book, we will often find ourselves wondering what, if anything, makes an
actor’s conduct wrongful. Where that line is unclear, ideas about expressing moral judgment and
correcting injustice are less helpful, for they come with no internal metric for distinguishing
wrongful conduct from conduct that is justified. In this discussion of battery, however, we face
no such conundrum. Here, wrongfulness arises out of the relationship between the defendant’s
intentionality and the plaintiff’s injury. A plaintiff in an intentional tort suit is essentially saying,
“The defendant meant to hurt me!” That meaning—that intent—makes the conduct wrongful.
The next case and the following notes take up intent with more specificity. What does it
mean to act intentionally in the world of tort law?

7. Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955)
HILL, J.
Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a
sister of the plaintiff, Ruth Garratt, likewise an adult, in the back yard of the plaintiff’s home, on
July 16, 1951. It is plaintiff’s contention that she came out into the back yard to talk with Naomi
and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it
out from under her. The only one of the three persons present so testifying was Naomi Garratt.
(Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to
accept this testimony, adopted instead Brian Dailey’s version of what happened, and made the
following findings:
III. . . . [T]hat while Naomi Garratt and Brian Dailey were in the back yard the
plaintiff, Ruth Garratt, came out of her house into the back yard. Some time
subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and
canvas lawn chair which was then and there located in the back yard of the above
described premises, moved it sideways a few feet and seated himself therein, at
which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place
where the lawn chair had formerly been, at which time he hurriedly got up from the
chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the
chair; that due to the defendant’s small size and lack of dexterity he was unable to
get the lawn chair under the plaintiff in time to prevent her from falling to the
ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other
injuries and damages as hereinafter set forth.
IV. That the preponderance of the evidence in this case establishes that when the
defendant, Brian Dailey, moved the chair in question he did not have any willful or
unlawful purpose in doing so; that he did not have any intent to injure the plaintiff,
or any intent to bring about any unauthorized or offensive contact with her person
or any objects appurtenant thereto; that the circumstances which immediately
preceded the fall of the plaintiff established that the defendant, Brian Dailey, did
not have purpose, intent or design to perform a prank or to effect an assault and
battery upon the person of the plaintiff. (Italics ours, for a purpose hereinafter
indicated.)
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Witt & Tani, TCPI 1. Introduction

It is conceded that Ruth Garratt’s fall resulted in a fractured hip and other painful and
serious injuries. To obviate the necessity of a retrial in the event this court determines that she
was entitled to a judgment against Brian Dailey, the amount of her damage was found to be
$11,000. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a
judgment in that amount or a new trial.
...
It is urged that Brian’s action in moving the chair constituted a battery. A definition (not
all-inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful
bodily contact upon another. The rule that determines liability for battery is given in 1
Restatement, Torts, 29, § 13 [1934], as:
An act which, directly or indirectly, is the legal cause of a harmful contact with
another’s person makes the actor liable to the other, if
(a) the act is done with the intention of bringing about a harmful or offensive
contact or an apprehension thereof to the other or a third person, and
(b) the contact is not consented to by the other or the other’s consent thereto is
procured by fraud or duress, and
(c) the contact is not otherwise privileged.
We have in this case no question of consent or privilege. We therefore proceed to an immediate
consideration of intent and its place in the law of battery. In the comment on clause (a), the
Restatement says:
Character of actor’s intention. In order that an act may be done with the intention
of bringing about a harmful or offensive contact or an apprehension thereof to a
particular person, either the other or a third person, the act must be done for the
purpose of causing the contact or apprehension or with knowledge on the part of the
actor that such contact or apprehension is substantially certain to be produced . . . .
We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff
proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of
sitting down, Brian’s action would patently have been for the purpose or with the intent of causing
the plaintiff’s bodily contact with the ground, and she would be entitled to a judgment against him
for the resulting damages. Vosburg v. Putney, supra.
The plaintiff based her case on that theory, and the trial court held that she failed in her
proof and accepted Brian’s version of the facts rather than that given by the eyewitness who
testified for the plaintiff. After the trial court determined that the plaintiff had not established her
theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was
in the act of sitting down), it then became concerned with whether a battery was established under
the facts as it found them to be.
In this connection, we quote another portion of the comment on the ‘Character of actor’s
intention,’ relating to clause (a) of the rule from the Restatement heretofore set forth:
It is not enough that the act itself is intentionally done and this, even though the
actor realizes or should realize that it contains a very grave risk of bringing about
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Witt & Tani, TCPI 1. Introduction

the contact or apprehension. Such realization may make the actor’s conduct
negligent or even reckless but unless he realizes that to a substantial certainty, the
contact or apprehension will result, the actor has not that intention which is
necessary to make him liable under the rule stated in this section.
A battery would be established if, in addition to plaintiff’s fall, it was proved that, when Brian
moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down
where the chair had been. If Brian had any of the intents which the trial court found, in the
italicized portions of the findings of fact quoted above, that he did not have, he would of course
have had the knowledge to which we have referred. The mere absence of any intent to injure the
plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her
would not absolve him from liability if in fact he had such knowledge. . . . Without such
knowledge, there would be nothing wrongful about Brian’s act in moving the chair and, there
being no wrongful act, there would be no liability.
While a finding that Brian had no such knowledge can be inferred from the findings made,
we believe that before the plaintiff’s action in such a case should be dismissed there should be no
question but that the trial court had passed upon that issue; hence, the case should be remanded for
clarification of the findings to specifically cover the question of Brian’s knowledge, because
intent could be inferred therefrom. If the court finds that he had such knowledge the necessary
intent will be established and the plaintiff will be entitled to recover, even though there was no
purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such
knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a
battery was not established.
...
The cause is remanded for clarification, with instructions to make definite findings on the
issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to
sit down where the chair which he moved had been, and to change the judgment if the findings
warrant it.

Notes

1. Intentionality: the Restatement view. What counts as an intention with respect to some
consequence? One answer comes from the authors of the influential Restatement of Torts, an
authoritative account of the common law published by leading lawyers in a century-old private
organization known as the American Law Institute (ALI) based in Philadelphia. The ALI
published the first Torts Restatement in 1934. Thirty years later, the organization published an
update known as the Second Restatement. A third Restatement has been coming out in pieces for
the past decade. The ALI Restatements have been highly influential in torts, and each
Restatement has adopted its own distinctive approach. Today, lawyers and judges commonly cite
both the Second and Third Restatements.
Section 1 of the Restatement (Third) of Torts: Liability for Physical & Emotional Harm,
published in 2010, offers an updated definition of the intent required for battery—one that is
largely similar to the definition adopted in the First Restatement in 1934 and quoted in Garratt v.
21

Witt & Tani, TCPI 1. Introduction

Dailey, 279 P.2d 1091 (Wash. 1955). According to the Third Restatement, “A person acts with
the intent to produce a consequence if: (a) the person acts with the purpose of producing that
consequence; or (b) the person acts knowing that the consequence is substantially certain to
result.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 1 (2010).

2. Knowledge with substantial certainty as intent. The Restatement’s position on
knowledge of the substantial certainty that a consequence will result raises important questions
about the boundaries of intentional torts. When does knowledge of the likelihood of a
consequence amount to substantial certainty? Consider, for example, an employer who employs
many employees in work with known hazards. Is the employer substantially certain that injury to
one or more employees will result? It follows from the law of large numbers that a certain
number of injuries will occur in such situations. Some courts have held that being aware of the
risk of harm is not the same as knowing that harm will occur with substantial certainty. See
Tomeo 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
defendant-employer’s awareness of the inherent risks in operating a snow blower to establish
substantial certainty). The Tomeo Court held that “mere knowledge and appreciation of risk—
something short of substantial certainty—is not intent.” Id. (internal quotation marks omitted).
Courts in other jurisdictions have echoed Tomeo’s holding. See, e.g., Adams v. Time Saver Stores,
615 So. 2d 460, 462 (La. Ct. App. 1993) (holding that the mere foreseeability of an injury does
not establish substantial certainty).
Other cases, however, have approached the issue differently. For example, in Laidlow v.
Hariton Machinery Co., 790 A.2d 884 (N.J. 2002), the plaintiff-employee successfully established
that the defendant-employer acted with substantial certainty of the consequences of injury to the
plaintiff where the defendant disabled a safety device and enabled it only when OSHA inspectors
were present.
The more common position, consistent with cases like Tomeo, was adopted in Shaw v.
Brown & 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’s cigarette manufacturer for
battery by smoke. The Shaw case also raised a different aspect of intent: its supposed
“transferability.” It is well accepted that the law of battery will allow for transferred intent: when
A intentionally strikes at B and hits B’s companion C instead, the error does not undercut A’s
battery liability to C. If the common law recognizes a theory of transferred intent, why not also a
doctrine of transferred intent on a larger scale where the defendant knew to a certainty that its
smoke would come into contact with many third parties? District Judge Walter E. Black, Sr.,
rejected the extension of the transferred intent doctrine to the more general smoking context:
Brown & Williamson did not know with a substantial degree of certainty that
second-hand smoke would touch any particular non-smoker. While it may have had
knowledge that second-hand smoke would reach some non-smokers, the Court finds
that such generalized knowledge is insufficient to satisfy the intent requirement for
battery. Indeed, as defendant points out, a finding that Brown & Williamson has
committed a battery by manufacturing cigarettes would be tantamount to holding
manufacturers of handguns liable in battery for exposing third parties to gunfire.
Such a finding would expose the courts to a flood of farfetched and nebulous
litigation concerning the tort of battery.
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Witt & Tani, TCPI 1. Introduction

973 F. Supp. at 548. The Restatement authors agree with Judge Black. The substantial certainty
doctrine, the Restatement asserts, should be limited to cases in which “the defendant has
knowledge to a substantial certainty that the conduct will bring about harm to a particular victim
or to someone within a small class of potential victims within a localized area.” RESTATEMENT
(THIRD) OF TORTS: PHYS. & EMOT. HARM § 1 cmt. e (2010) (emphasis added). Why limit the tort
of battery in this way?

3. Is intentionality intuitive? The famed Supreme Court justice Oliver Wendell Holmes, Jr.,
once claimed that “even a dog knows the difference between being kicked and being stumbled
over.” OLIVER WENDELL HOLMES, JR., THE COMMON LAW 3 (1881). Yet research from
developmental psychology paints a more complicated picture.
It is true that the ability to distinguish intentional from unintentional action is a
foundational skill that emerges early in development. Chimpanzees, orangutans, and eightmonth-old human infants can reliably discriminate between purposeful and accidental action.
Josep Call & Michael Tomasello, Distinguishing Intentional from Accidental Actions in
Orangutans (Pongo Pygmaeus) and Chimpanzees (Pan Troglodytes) and Human Children, 122 J.
COMP. PSYCHOL. 192 (1998). This faculty plays an essential role in helping children acquire
language and develop interpersonal skills. In fact, preschoolers whose ability to infer others’
intentions is disrupted, often due to maltreatment or physical abuse, are at heightened risk for later
social maladjustment and behavioral problems. See Kenneth A. Dodge, John E. Bates & Gregory
S. Petit, Mechanisms in the Cycle of Violence, 250 SCIENCE 1678 (1990). Indeed, some have
argued that our ability to identify unintentional harms as accidents and to respond with
forgiveness is what allows for the evolution of cooperative societies in which individuals
coordinate their behavior to maximize collective welfare. E.g., Drew Fudenberg, David G. Rand
& Anna Dreber, Slow to Anger and Fast to Forgive: Cooperation in an Uncertain World, 102
AM. ECON. REV. 720 (2012).
Yet while the distinction between intentional and accidental behavior is intuitive for apes
and babies alike, we do not always use this distinction when forming moral judgments. For
instance, the celebrated developmental psychologist Jean Piaget observed in 1932 that young
children consider it morally worse (“naughtier”) for a child to make a large ink stain accidentally
than to make a small stain intentionally. Older children, he noticed, felt just the opposite. Since
Piaget’s discovery, this developmental trajectory has been extensively documented. Preschoolers
tend to judge the moral valence of an act by focusing on its outcome and largely ignoring the
agent’s beliefs and intentions. By around age 6, children begin to condemn actions on the basis of
the agent’s 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
Sheketoff, Sophie Wharton & Susan Carey, The Development of Intent-Based Moral Judgment,
127 COGNITION 6 (2013).
Under some circumstances, adults will also exhibit a tendency to focus on outcomes rather
than intentions when judging actions that result in harm. Research from cognitive psychology
demonstrates that adults who are placed under time pressure and asked to make hurried moral
judgments show a systematic bias toward judging actions as intentional. In their haste, these
decision-makers will say that harms were intentional. Given more time to make their decisions,
they revert to saying that harms were unintentional. Evelyn Rosset, It’s No Accident: Our Bias
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Witt & Tani, TCPI 1. Introduction

for Intentional Explanations, 108 COGNITION 771 (2008). This work suggests that we tend to
adopt a default assumption that actions are undertaken intentionally and that it takes mental effort
to persuade ourselves to abandon our initial stance. This finding is consistent with the
developmental pattern showing that sensitivity to harm is relatively automatic, manifests early in
childhood, and is continuous throughout development, while sensitivity to intentions emerges
later and requires more cognitive resources.

4. Intent to be harmful or offend? In cases where a defendant has the requisite mental state
with respect to the consequences of a volitional act—the movement of his foot, culminating in
contact with another’s leg—there is still a question of whether the defendant’s mental state must
extend not only to the fact of the contact but also to its harmfulness or offensiveness. Need the
plaintiff show that the defendant intended a harmful or offensive contact, with specific intent to do
harm or cause offense? Or is it sufficient to establish that the defendant intended a contact, where
the contact is properly deemed harmful or offensive by the community? By whose standards must
a contact have been harmful or offensive? The defendant’s or the court’s? Vosburg sheds a little
light on this question, but not much. Judge Lyon held that the plaintiff need not establish that a
defendant intended to harm him, but merely that the defendant intended to make an “unlawful”
contact. But Judge Lyon’s formulation is decidedly unhelpful, since, after all, what we want to
know is what kinds of contact the law rules out. Telling us that the law will sanction unlawful
contacts gets us nowhere!
The Utah Supreme Court took on precisely this question in Wagner v. State, 122 P. 3d 599
(Utah 2005), involving a mentally disabled person who, while out at a K-Mart store with
caretakers, allegedly grabbed another shopper by the head and hair and threw her to the ground.
If it was true, as one party to the litigation argued, that the person who inflicted the harm did not
have the capacity to appreciate the harmful or offensive nature of his actions, could the intent
requirement for battery be established? The Court offered the following discussion:
The Restatement defines a battery as having occurred where “[an actor] acts
intending to cause a harmful or offensive contact.” Restatement (Second) of Torts
§ 13. The comments to the definition of battery refer the reader to the definition of
intent in section 8A. Id. § 13 cmt. c. Section 8A reads:
The word “intent” is used throughout the Restatement of this Subject to denote
that the actor desires to cause the consequences of his act, or that he believes
that the consequences are substantially certain to result from it.
Id. § 8A (emphasis added).
Although this language might not immediately seem to further inform our analysis,
the comments to this section do illustrate the difference between an intentional act
and an unintentional one: the existence of intent as to the contact that results from
the act. Because much of the confusion surrounding the intent element required in
an intentional tort arises from erroneously conflating the act with the consequence
intended, we must clarify these basic terms as they are used in our law before we
analyze the legal significance of intent as to an act versus intent as to the
consequences of that act.
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Section 2 of the Restatement (Second) of Torts defines the term “act” as “an external
manifestation of the actor’s will and does not include any of its results, even the
most direct, immediate, and intended.” Id. § 2. To illustrate this point, the
comments clarify that when an actor points a pistol at another person and pulls the
trigger, the act is the pulling of the trigger. Id. at cmt. c. The consequence of that
act is the “impingement of the bullet upon the other’s person.” Id. It would be
improper to describe the act as “the shooting,” since the shooting is actually the
conflation of the act with the consequence. For another example, the act that has
taken place when one intentionally strikes another with his fist “is only the
movement of the actor’s hand and not the contact with the others body immediately
established.” Id. Thus, presuming that the movement was voluntary rather than
spastic, whether an actor has committed an intentional or negligent contact with
another, and thus a tort sounding in battery or negligence, depends not upon whether
he intended to move his hand, but upon whether he intended to make contact
thereby.
The example the Restatement sets forth to illustrate this point is that of an actor
firing a gun into the Mojave Desert. Restatement (Second of Torts) § 8A cmt. a. In
both accidental and intentional shootings, the actor intended to pull the trigger. Id.
Battery liability, rather than liability sounding in negligence, will attach only when
the actor pulled the trigger in order to shoot another person, or knowing that it was
substantially likely that pulling the trigger would lead to that result. Id. § 8A cmts.
a & b. An actor who intentionally fires a bullet, but who does not realize that the
bullet would make contact with another person, as when “the bullet hits a person
who is present in the desert without the actor’s knowledge,” is not liable for an
intentional tort. Id.
A hunter, for example, may intentionally fire his gun in an attempt to shoot a bird,
but may accidentally shoot a person whom he had no reason to know was in the
vicinity. He intended his act, pulling the trigger, but not the contact between his
bullet and the body of another that resulted from that act. Thus, he intended the act
but not the consequence. It is the consequential contact with the other person that
the actor must either intend or be substantially certain would result, not the act—
pulling the trigger—itself. He is therefore not liable for an intentional tort because
his intentional act resulted in an unintended contact. On the other hand, the actor is
liable for an intentional tort if he pulled the trigger intending that the bullet released
thereby would strike someone, or knowing that it was substantially likely to strike
someone as a result of his act. Id. at cmts. a & b.
Can an actor who acknowledges that he intentionally pulled the trigger, and did so
with the intent that the bullet make contact with the person of another, defeat a
battery charge if he can show that he did so only as a joke, or did not intend that the
contact between the bullet and the body of the person would cause harm or offense
to that person?
No, the court answered, he may not. “The linchpin to liability for battery is not a guilty mind, but
rather an intent to make a contact the law forbids. The actor need not appreciate that his contact is
forbidden; he need only intend the contact, and the contact must, in fact, be forbidden.” Id. at 60405.
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As for what kind of contact is “in fact, forbidden,” the Wagner court offered the following
guidance:
A harmful or offensive contact is simply one to which the recipient of the contact
has not consented either directly or by implication. Prosser [and Keeton on the
Law of Torts], supra, § 9, at 41–42. Under this definition, harmful or offensive
contact is not limited to that which is medically injurious or perpetrated with the
intent to cause some form of psychological or physical injury. Instead, it includes
all physical contacts that the individual either expressly communicates are
unwanted, or those contacts to which no reasonable person would consent.
What is not included in this definition are the uncommunicated idiosyncratic
preferences of individuals not to be touched in ways considered normal and
customary in our culture. Instead, the law assumes consent to contacts “according
to the usages of decent society,” and unless an individual expressly states that he
does not want to shake hands, for example, someone who shakes his hand against
his silent wishes has not committed a harmful or offensive contact. Id. § 9, at 42.
As Prosser notes in his analysis on the subject, “in a crowded world, a certain
amount of personal contact is inevitable, and must be accepted. Absent expression
to the contrary, consent is assumed to all those ordinary contacts which are
customary and reasonably necessary to the common intercourse of life.” Id.
Among the contacts Prosser noted as part of this common intercourse were: “a tap
on the shoulder,” “a friendly grasp of the arm,” and “a casual jostling to make a
passage.” Id. Thus, the tort of battery seeks to strike a balance between preserving
the bodily integrity of others and recognizing and accommodating the realities of
our physical world.
Because the law defines “harmful and offensive” with reference to the mores of
polite society, and protects against invasions of bodily integrity perpetrated outside
those bounds, whether consent is assumed also depends upon who is making the
contact. For example, it seems clear that “the usages of a decent society” and
“polite manners” are in nowise offended when a baby reaches out to perform the
non-medically injurious act of stroking the hair of a nearby stranger. Such
encounters with babies are “customary ... in the course of life.” Id. § 9, at 42.
Thus, we can include this type of contact from babies in the category of contacts
for which we are assumed to have consented. A grown man, on the other hand,
perpetrating the same act for equally complimentary reasons, would not enjoy the
same privilege, for his behavior would not be considered by reasonable people to
be a customary contact in decent society to which members consent.
Id. at 609. How does this discussion of harmfulness and offensiveness square with the court’s
opinion in Vosburg? Does it capture Judge Lyon’s sense of what is “unlawful”?
Note that not all jurisdictions agree with the Wagner court’s holding on the nature of the
intent requirement for battery. Some tolerate a body of case law that, when examined closely, is
ambiguous and inconsistent. And some go the other way, affirmatively embracing the “dual
intent” formulation that the Wagner court rejected. See, e.g., White v. University of Idaho, 595
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P.2d 108 (Idaho 1990). For these dual intent jurisdictions, the plaintiff must prove that the
defendant (1) intended to make contact with another person, and (2) understood that the contact
would be harmful or offensive.
In many cases, this difference in interpretation will not produce different outcomes. But
sometimes it will. The following note raises implications for persons with mental, intellectual, or
cognitive impairments. In what other kinds of scenarios might this interpretive difference (single
intent versus dual intent) prove determinative?

5. Capacity, ability, and the intent requirement. Should it have mattered in Wagner that the
person who allegedly struck the plaintiff had “the mental age of a small infant,” according to one
party? 122 P.3d at 604. Should such a divergence from typical adult mental functioning preclude
a finding of intent? The Wagner court rejected this argument. It was true, the court noted, that
such a person’s mental capacity might “insulate him from criminal liability,” given the criminal
law’s stricter mens rea requirements. Id. at 610. But civil liability is different. Here, the
ultimate question is who should bear the cost of the plaintiff’s injuries, and according to the
Wagner court, it should be the person who inflicted the harm, or that person’s caretaker(s). The
court also noted that “lawmakers ha[d] specifically declined to exempt mentally handicapped or
insane individuals from the list of possible perpetrators of this tort for the express reason that they
would prefer that the caretakers of such individuals feel heightened responsibility to ensure that
their charges do not attack or otherwise injure members of the public.” Id.
An oft-cited decision with a similar underlying fact pattern is McGuire v. Almy, 8 N.E.2d
760 (Mass. 1937), in which the plaintiff, a private nurse, sued her patient, described by the court
as “an insane person,” for injuries that the defendant inflicted on the plaintiff during a violent
outburst. On appeal from a judgment in the plaintiff’s favor, the defendant’s lawyer argued that
the defendant’s insanity should have precluded a finding of intent. According to the court,
however, the great weight of authority cut the other way—not so much because the “underlying
principles of civil liability” dictated this result but because of “public policy” concerns and “a
popular view of the requirements of essential justice”:
Thus it is said that a rule imposing liability tends to make more watchful those
persons who have charge of the defendant and who may be supposed to have some
interest in preserving his property; that as an insane person must pay for his support,
if he is financially able, so he ought also to pay for the damage which he does; that
an insane person with abundant wealth ought not to continue in unimpaired
enjoyment of the comfort which it brings while his victim bears the burden
unaided; and there is also a suggestion that courts are loath to introduce into the
great body of civil litigation the difficulties in determining mental capacity which
it has been found impossible to avoid in the criminal field.
Id. at 327. Applying the dominant rule to this case, the court found that the jury could reasonably
have concluded “that the defendant was capable of entertaining and that she did entertain an intent
to strike and to injure the plaintiff and that she acted upon that intent.” Id. at 329. Whether some
“delusion or other consequence of h[er] affliction” caused her to do so was not relevant and would
not prevent the court from holding her financially responsible. Id. at 328. What does the
reasoning in Wagner and McGuire suggest about the underlying goals or functions of tort law?
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Do these decisions vindicate utilitarian aims? Do you see in them corrective justice? What
message do these decisions send about the community’s values and commitments?
For a contrasting, more recent opinion, see White v. Muniz, 999 P.2d 814 (Colo. 2000), in
which a plaintiff caretaker alleged battery by an elderly patient with senile dementia. Asked to
review the trial court’s instructions to the jury on the intent requirement, the Colorado Supreme
Court emphasized Colorado’s embrace of the dual intent approach and described insanity as “a
characteristic, like infancy, that may make it more difficult to prove” that a defendant “intended
offensive or harmful consequences.” Id. at 818. The court then reinstated the jury’s verdict in the
defendant’s favor. Given tort law’s concern with wrongfulness, should courts be even more
forgiving of people who cannot appreciate the wrongfulness of their conduct? Should the law of
intentional torts treat mental illness or mental incapacity as a complete defense?

6. The boundaries of intentionality. As we puzzle through the boundary between the
intentional torts cause of action and other potential causes of action, one important question is
what is at stake in guarding this boundary. As we will see in later chapters in this book, plaintiffs
in cases such as Tomeo and Laidlow, described in Note 2, supra, would ordinarily have claims for
unintentional torts available to them. Why then did their lawyers seek to advance an intentional
tort theory instead? Most likely, the plaintiffs’ attorneys in Tomeo and Laidlow were trying to
circumvent the workers’ compensation statutes that provide modest compensation for workplace
injuries but also prohibit employees from suing their employers in tort for most unintentional
injuries arising in the course of their work. See, e.g., N.J. STAT. ANN. § 34:15-8 (West 2013).
The lawyers for Ruth Garratt were probably also trying to get around a legal obstacle when they
characterized Brian Dailey’s act as an intentional tort rather than as the kind of unintentional but
negligent act for which, as we shall see in later chapters, plaintiffs may also obtain damages. For
Ms. Garratt, the problem was very likely that in an unintentional torts case, Dailey would have
been held to a lenient standard of conduct measured by reference to children of like age and
experience.
In other domains, by contrast, plaintiffs have powerful incentives not to characterize their
injuries as intentional torts. One force that creates such an incentive is liability insurance: it
usually does not cover intentional torts; as a result, a plaintiff who alleges an intentional tort rather
than a tortious accident may ultimately never be able to collect on the resulting judgment. See
Catherine M. Sharkey, Revisiting the Noninsurable Costs of Accidents, 64 MD. L. REV. 409
(2005). In suits against employers for the torts of their employees, plaintiffs face similar
incentives to avoid intentional torts claims, since the intentionally caused injuries are often less
likely to be ruled within the scope of an employer’s responsibility than unintentional but
negligently caused harms. Finally, state law often applies a shorter statute of limitations period to
intentional torts, making it less likely that plaintiffs will bring intentional tort claims in a timely
manner and more likely that plaintiffs will have to find a different way of framing their claims.
Compare N.Y. C.P.L.R. § 215 (McKinney 2006) (providing a one-year statute of limitations for
assault, battery, false imprisonment, libel, and slander), with N.Y. C.P.L.R. § 214 (McKinney
1986) (providing a three-year statute of limitations for unintentional personal injury and property
damage cases).
The boundary between intentional and unintentional torts is important for the law to police
for another, more theoretical, reason as well. For unintentionally inflicted injuries, the law
sometimes allows defendants to draw on utilitarian arguments to escape responsibility for the
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damage they have caused—to say, in essence, “Yes, I created a risk of harm, and, in fact, I
harmed you, but I should not have to pay for your injuries because my conduct improved the
welfare of society.” In the law of intentional torts, by contrast, utilitarian defenses to
unconsented-to intentional acts are very narrowly cabined. If the law aims to preserve the
distinctiveness of these two domains at the case-by-case level—utilitarian balancing for
unintentional torts, on one hand, and its absence for intentional torts, on the other—then the law
has to maintain the boundary between intentional and unintentional torts.

7. Battery for the Era of #MeToo: possibilities and pitfalls. The #MeToo movement has
made clear that unwelcome sexual contact is common; that people of all gender identities and
sexual orientations experience it; and that for many people, the criminal justice system appears to
be, or has proven to be, an unreliable ally. Might tort law, and specifically, the tort of battery,
offer an alternative or complementary path toward justice? Why are tort actions not as salient a
part of the public debate over sex assault, and especially campus sex assault, as one might expect?
There are a number of possible reasons. First, the time it takes to litigate is a powerful
disincentive. Even if the aggrieved party files right away, at a time when all the evidence is fresh,
a tort action can take years to complete, extending and perhaps exacerbating the trauma that many
survivors experience in the wake of assault. Second, the broad discovery available in civil actions
means that private and personal information about the plaintiff’s life, including possibly
information about past sexual conduct, can become public. (Cross examination during a trial is
often crafted to discredit the plaintiff.) Third, common misconceptions about sexual violence
have led many people to believe that sexual assault cases somehow belong, uniquely, to the
criminal law; where a plaintiff pursues a tort action against an alleged perpetrator before the state
prosecutes, the plaintiff may fear—rightfully—that the fact of the civil suit will hurt the chances
of success in the criminal case, by imputing to the plaintiff a financial motive. Fourth, a tort suit
may not make financial sense. A person who has experienced sexual assault and is grappling with
its aftermath might not want to spend valuable resources on a lawyer, and lawyers may be
unwilling to take a case where the defendant would not be able to pay damages sufficient to
provide a worthwhile contingent fee. Note that expensive criminal cases can exhaust a putative
assailant’s financial resources before a plaintiff has the chance to collect, and in campus sexual
assault cases, putative defendants will typically be young and therefore less likely to have
substantial assets. In theory, a damages judgment could be used to collect against future assets.
In practice, judgment debtors will likely discharge personal injury debt in bankruptcy. See
generally Ellen Bublick, Torts Suits Filed by Rape and Sexual Assault Victims in Civil Courts:
Lessons for Courts, Classrooms, and Constituencies, 59 SMU L. REV. 55 (2006); Ellen Bublick,
Civil Tort Actions Filed by Victims of Sexual Assault: Promise and Perils, NATIONAL ONLINE
RESOURCE 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
Campus Sexual Assault Debate, 64 U. KAN. L. REV. 963 (2016) (documenting and explaining the
absence of tort law from public conversations about campus sexual assault). Last but not least,
and as discussed in greater depth in the following pages, almost any plaintiff who files an
intentional tort suit for sexual assault will run into arguments about consent, and with them a body
of case law that includes controversial assumptions about the circumstances under which consent
to sexual contact may be presumed or inferred.
Nevertheless, pursuing justice via tort law has advantages, especially as compared to a
criminal case. In a civil tort case, as we shall see later in this book, the plaintiff’s burden of proof
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is a “preponderance of the evidence”; proof in a criminal trial requires that the jury be convinced
under the higher standard of “beyond a reasonable doubt,” a standard that is often impossible to
meet in sexual assault cases. Moreover, in a civil case the plaintiff controls the course of the
litigation and pursues private satisfaction (perhaps in the form of money damages, but also
perhaps in the form of an apology or an agreement to stay away from previously shared spaces).
This is distinct from a criminal case, in which a public prosecutor controls the litigation in pursuit
of a public punishment. See generally Ellen Bublick, Torts Suits Filed by Rape and Sexual
Assault Victims in Civil Courts, 59 S.M.U. L. REV. 55 (2006).
Research suggests that tort suits against alleged assailants have been rising over the past
several decades. One headline-grabbing example was pop star Taylor Swift’s battery suit against
a radio talk show host. Swift claimed he lifted her dress and groped her during a pre-concert
meet-and-greet. A jury believed Swift and awarded her the symbolic $1 she sought. Emily Yahr,
Jury Says Taylor Swift Was Groped by Radio DJ, Awards Her a Symbolic $1 Verdict, WASH.
POST, Aug. 14, 2007. Recovery of more substantial damages in such suits appears infrequent,
though settlement practices obscure much from view. Tort actions for sexual assault and battery
against third parties are more visibly successful, at least when such third parties bear some
responsibility for the assailant’s actions. Survivors of sexual abuse by Michigan State University
sports physician Lawrence Nassar sued the university on the theory that it was vicariously liable
as employer for its employee Nassar’s battery. Later in the book we will take up the subject of
employers’ liability for the torts of their employees. For now, the important point is that the
plaintiffs’ complaint raised a classic battery cause of action, alleging that Nassar “intended to
cause harmful or offensive contact with Plaintiff’s person, or intended to put Plaintiff in imminent
apprehension of such contact.” Complaint at 20, Jane JD Doe v. Doe 1 (Cal. Super. Ct.
Sacramento 2016) (No. 34-2016-00200075), available at https://perma.cc/97RS-SS69. In the
spring of 2018, Michigan State agreed to a $500 million dollar settlement with 332 plaintiffs.
Later the same spring, a civil jury in Georgia awarded a rape victim an astounding $1 billion in
damages against the security firm that employed a guard who assaulted the plaintiff in her friend’s
apartment complex. For more on tort suits against third parties for sexual violence and
misconduct, see Ellen Bublick, Torts Suits Filed by Rape and Sexual Assault Victims, supra;
Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39 (2018).
Despite, or perhaps because of such large awards, it is worth asking whether money
damages are the right way to address the harms of sexual assault. (Are such awards collectible?
Who pays? We will return to such questions in a subsequent chapter of this book.) Are people
who experience the harm of sexual assault well-served by having to characterize their claims as
“batteries”—a generic term for all types of harmful and offensive contact—rather than as
something more specific, something that better expresses the nature of the injury? Should there
be a tort called rape? See Scott Hershovitz, Treating Wrongs as Wrongs: An Expressive Argument
for Tort Law, 10 J. TORT LAW 1, 61-62 (2017). If you were able to craft such a tort from scratch,
what would be its elements?

8. The Knobe Effect. The philosopher Joshua Knobe has studied people’s intuitions about
the distinction between intentional and unintentional effects. He makes an important finding,
known in the literature as the Knobe Effect: people label certain foreseen outcomes intentional
and others unintentional on the basis of value judgments about the outcome. In particular, people
are much more likely to attribute intentional responsibility to actors who foresaw (but did not care
about) bad outcomes than to those who foresaw (but did not care about) good ones. So, for
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example, people attribute intentionality to the harms caused by a chief executive officer (CEO)
who approves a moneymaking plan that he knows will harm the environment, but do not attribute
intentionality to the benefits caused by a CEO who approves a moneymaking plan that he knows
will help the environment. See Joshua Knobe, Intentional Action and Side Effects in Ordinary
Language, 63 ANALYSIS 190-93 (2003).
The Knobe Effect is interesting in its own right. But it also suggests that our ostensibly
factual descriptions of the world are often, if not always, shot through with value-laden intuitions
and influences. We speak of intent as if doing so will help us reach a reasoned outcome in
analyzing a case before us. But it turns out that the very tool with which we reason (“intent”) is
already saturated by the value judgments we hope such tools will help us make! We have already
seen how awkwardly circular it was in Vosburg to try to use the idea of “unlawful contact” as a
doctrinal tool. The Knobe Effect suggests that the circularity problem may be much deeper: the
descriptions of the world on which our prescriptive analyses purport to be based may already be
shaped by normative intuitions.

9. The dispute pyramid. Before we move on, it is worth noting an important feature of the
cases we have read so far, and, indeed, of every case we will read in this book. Not every
schoolroom injury becomes a dispute. Not every dispute produces a claim. Not every claim is
filed. And, as Note 3 above observes, virtually every claim that is filed settles before trial.
Galanter posits the dispute pyramid as an effective way to conceptualize our system:
We can imagine a bottom layer consisting of all the events in which . . . [i]n a small
fraction . . . someone gets hurt. Let us call this layer injuries. Some of these injuries
go unperceived; in other instances someone thinks he is injured, even though he is
not. Thus we have a layer of perceived injuries . . . . In many cases, those who
perceive injuries blame themselves or ascribe the injury to fate or chance. But some
blame some human agency, a person, a corporation, or the government. To dispute
analysts, these are grievances. Among those with grievances, many do nothing
further. . . . But some go on to complain, typically to the person or agency thought
to be responsible. This is the level of claims. Some of these claims are granted in
whole or in part . . . . When claims are denied, they are denominated disputes. Some
of these are abandoned without further action, but some disputes are pursued
further. . . . [T]ypically this would be accomplished by taking the dispute to a
lawyer. In analyzing such disputes, therefore, we call the next layer lawyers. Of
the disputes that get to lawyers, some are abandoned, some are resolved, and some
end up as filings in court. Let us call this the filings layer. Most cases that are filed
eventually result in settlement. Typically only a small fraction reach the next layer
of trials, and a small portion of these go on to become appeals.
Marc Galanter, Real World Torts: An Antidote to Anecdote, 55 MD. L. REV. 1093, 1099-1101
(1996).
The dispute pyramid conveys the fact that very few events and perceived injuries are
resolved inside a courtroom. Galanter presents some real-world dispute pyramids:

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Common Dispute Pyramids

Source: Galanter, supra, at 1101.

What this means is that the cases in this casebook—cases that have reached an appellate
court at the very top of the torts dispute pyramid—are virtually all atypical, and even bizarre.
Indeed, as in Vosburg, these are cases in which the disputants are jointly almost always
economically worse off than they would have been had they found some other way to resolve
their dispute. Professor Samuel Issacharoff elaborates:
[A]s soon as disputants enter the litigation process, they are clear losers. Whatever
the stakes in a dispute between two parties, there is only one way in which they can
preserve their joint welfare. Any division of the stake between them, whether it be
one side taking all, or half-and-half or anything in between, leaves the parties jointly
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in the same position as when they begin their dispute: however they slice it, they
will still have the entire pie to share. It is only by bringing lawyers into the mix and
by subjecting themselves to the inevitable costs of litigation that the parties consign
themselves to being worse off. Once lawyers and courts and filing fees and
witnesses and depositions and all the rest are brought into the picture, the pie starts
getting smaller and smaller. Because this is perfectly obvious, and perfectly
obvious to all rational disputants right from the get go, the penchant of our casebook
warriors to litigate requires some explanation.
Samuel Issacharoff, The Content of Our Casebooks: Why do Cases Get Litigated?, 29 FLA. ST. U.
L. REV. 1265, 1265-66 (2001).
Are parties who choose litigation over settlement irrational actors, as the passage by
Professor Issacharoff suggests? Are these disputants short-sighted fools? Or are they principled
zealots? What about their lawyers? How about the Vosburgs and Putneys or Ms. Garratt and
young Brian Dailey?

10. Empathy and the case method. What is the effect of learning tort law through the case
method? How does approaching torts through the lens of individual stories alter our thinking
about overarching principles?
Many students—and presumably many jurors—cannot help but feel moved when they
read cases about heinous injuries and destroyed livelihoods. Yet the psychologist Paul Bloom
argues that empathy is a poor guide for making law or setting policy. Empathy can lead us to
neglect the systemic perspective in favor of attending to a particular suffering person. PAUL
BLOOM, AGAINST EMPATHY 9 (2016). Approaching tort law through individual cases may
marginalize the interests of diffuse, non-present stakeholders who are unrepresented—the
unnamed masses who will be affected by the liability rule going forward.
Psychologists have identified several features of empathy that make it vulnerable to
manipulation. First, our affective reactions are roused by vivid, concrete examples, not by
abstract, hypothetical, or distant concepts. As the Nobel laureate Thomas Schelling observed in
1968: “Let a six-year-old girl with brown hair need thousands of dollars for an operation that will
prolong her life until Christmas, and the post office will be swamped with nickels and dimes to
save her. But let it be reported that without a sales tax the hospital facilities of Massachusetts will
deteriorate and cause a barely perceptible increase in preventable deaths—not many will drop a
tear or reach for their checkbook.” Thomas C. Schelling, The Life You Save May Be Your Own, in
PROBLEMS IN PUBLIC EXPENDITURE ANALYSIS: STUDIES OF GOVERNMENT FINANCE (Samuel B.
Chase ed., 1968). The same dynamic may arise when there is a six-year-old brown-haired girl
who has been injured and to whom the tort system can give resources, on the one hand, and a
systemic social policy question about the optimal liability rule, on the other hand.
A second feature of empathy is that it does not scale. We feel impelled to come to the aid
of a single needy person, but we experience diminished motivation in response to large numbers
of victims, a phenomenon known as “psychic numbing.” Paul Slovic, “If I Look at the Mass I
Will Never Act”: Psychic Numbing and Genocide, 2 JUDGMENT & DECISION-MAKING 79 (2007).

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Sometimes tort law doesn’t scale either. This is often because (as we shall see) courts cut
off liability when damages seem uncontrolled. Even if judges do not cut off liability, the
resources of defendants to pay is limited.
Rationalists like Bloom would like to see laws and policy set based on system-level logic
rather than case-level logic. Does the case method disable Bloom’s system-level view?

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CHAPTER 2. INTENTIONALLY INFLICTED PHYSICAL HARMS
The first chapter offered an introduction to tort law through the law of battery, the
paradigmatic intentional tort with respect to people’s bodies. Now we pursue the law of
intentional torts against property, including real property (which is to say, land and any fixtures
thereupon) and personal property (which is to say, everything else). The chapter then takes up
four causes of action that respond to less tangible but no less significant personal injuries: to one’s
dignity (offensive battery), to one’s sense of physical safety and bodily integrity (assault), to one’s
freedom of movement (false imprisonment), and to one’s psychological and emotional well-being
(intentional infliction of emotional distress). Finally, we end the chapter with a discussion of
defenses to liability for intentional torts.

A. Trespass
1. Trespass to Land
Dougherty v. Stepp, 18 N.C. 371 (1835)
The only proof introduced by the plaintiff to establish an act of trespass, was, that the
defendant had entered on the unenclosed land of the plaintiff, with a surveyor and chain carriers,
and actually surveyed a part of it, claiming it as his own, but without marking trees or cutting
bushes. This, his Honor held not to be a trespass, and the jury under his instructions, found a
verdict for the defendant, and the plaintiff appealed. . . .
RUFFIN, C.J.
In the opinion of the Court, there is error in the instructions given to the jury. The amount
of damages may depend on the acts done on the land, and the extent of injury to it therefrom. But
it is an elementary principle, that every unauthorised, and therefore unlawful entry, into the close
of another, is a trespass. From every such entry against the will of the possessor, the law infers
some damage; if nothing more, the treading down the grass or the herbage, or as here, the
shrubbery. Had the locus in quo been under cultivation or enclosed, there would have been no
doubt of the plaintiff’s right to recover. Now our Courts have for a long time past held that if
there be no adverse possession, the title makes the land the owner’s close. Making the survey and
marking trees, or making it without marking, differ only in the degree, and not in the nature of the
injury. It is the entry that constitutes the trespass. There is no statute, nor rule of reason, that will
make a wilful entry into the land of another, upon an unfounded claim of right, innocent, which
one, who sat up no title to the land, could not justify or excuse. On the contrary, the pretended
ownership aggravates the wrong. Let the judgment be reversed, and a new trial granted.
Judgment Reversed.

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Notes
1. Special rules for real property? Why is there “no statute, nor rule of reason” that will
excuse trespass to real property under the common law? Recall that if Putney had kicked Vosburg
on a playground as opposed to in the classroom, he might not have been held liable for the
damages to the smaller boy’s leg. The circumstances mattered. Judge Ruffin, by contrast, seems
to say that in trespass to real property, circumstances are irrelevant. Why would that be?
Moreover, why does the law of trespass to real property dispense with the requirement that the
defendant’s act cause damages? To make out a cause of action in battery, as we saw in Chapter 1,
the plaintiff must show that the defendant’s act was harmful or offensive. Not so in trespass to
real property.
One view is that an important function of the law of trespass to property, at least in some
cases, is determining who owns what. In early modern England, trespass actions (often trumped
up by the parties collusively) became a principal vehicle for settling underlying disputes over who
owned a particular piece of land. In such cases, damages really were irrelevant and would merely
have gotten in the way of the determination that both parties desired. See W. PAGE KEETON, DAN
B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE LAW OF TORTS
67-68 (5th ed. 1984). Another view holds that trespass actions developed primarily to protect the
owners of real property in a medieval feudal regime in which rights in land were the foundation of
the social structure; on this view, the absence of a damages requirement reflected the special and
privileged place of property in medieval and early modern England. See STUART M. SPEISER,
CHARLES F. KRAUSE & ALFRED W. GANS, THE AMERICAN LAW OF TORTS § 23:1, at 840 (2011).
Which of these justifications, if either, is compelling in the law today? Are there other possible
rationales? What is the justification for treating owners of land differently from plaintiffs in
battery cases making claims for injuries to their body?

2. Thomas Ruffin. Judge Thomas Ruffin (author of the opinion in Dougherty) served as the
Chief Justice of the North Carolina Supreme Court from 1833 to 1852, and on that court generally
from 1829 to 1852, and again from 1858 to 1859. A century later, in 1936, the legendary Dean
Roscoe Pound of Harvard Law School named Ruffin one of the ten greatest jurists of American
history. Ruffin was also an especially brutal owner of enslaved people and the silent partner in a
slave-trading business specializing in selling people away from their birthplaces in the Upper
South to new owners in the newly-opened cotton lands of the Deep South and the old Southwest.
See Eric Muller & Sally Greene, His Pro-Slavery Rhetoric Was Extreme, THE NEWS & OBSERVER
[Raleigh-Durham], Oct. 25, 2018.
Ruffin is best remembered for the terrible case of State v. Mann, in which he held that it
was not a crime for a master to kill one of his slaves. His opinion asserted no rule of reason in the
master-slave relationship:
The power of the master must be absolute, to render the submission of the slave
perfect. I most freely confess my sense of the harshness of this proposition, I feel
it as deeply as any man can. And as a principle of moral right, every person in his
retirement must repudiate it. But in the actual condition of things, it must be so.
There is no remedy. This discipline belongs to the state of slavery. They cannot be
disunited, without abrogating at once the rights of the master, and absolving the
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slave from his subjection. It constitutes the curse of slavery to both the bond and
free portions of our population. But it is inherent in the relation of master and slave.
State v. Mann, 13 N.C. 263, 266-67 (1829). Ruffin’s opinion in State v. Mann became
sufficiently notorious as to mobilize a generation of abolitionists before the Civil War.
Nonetheless, as of June 2020, Ruffin’s portrait still hung above the bench of the North Carolina
Supreme Court. A statue of him stands in an alcove outside the State Court of Appeals building.
The state Supreme Court has been reviewing the status of the portrait since October 2018. See
Martha Waggoner, Court Portrait of Writer of Notorious Slave Ruling Reviewed, A.P. NEWS, Jan.
18, 2020.
Suffice it to say, American law did not allow tort actions by a person whom the law
defined as a slave against a person whom the law defined as the slave’s master. Injuries to
enslaved persons did form the basis for a substantial body of tort law in the American South, but
these cases involved enslaved persons who had been hired out by their owners; the plaintiffs in
such cases were the owners, seeking compensation for something they understood as property
damage, not the enslaved persons who had experienced bodily harm. See THOMAS MORRIS,
SOUTHERN SLAVERY AND THE LAW, 1619-1860 (1996).

3. Intangible trespass. Traditionally, trespass actions were limited to physical intrusions. In
Michigan, for example, dust, noise, and vibrations crossing from the defendant’s mining activities
onto a plaintiff’s property do not constitute a trespass. See Adams v. Cleveland-Cliffs Iron Co.,
602 N.W.2d 215 (Mich. App. 1999). In other jurisdictions, courts have allowed that such
intangible crossings over a property line may produce liability for trespass. But even in these
jurisdictions, there is a significant difference between intangible trespass and tangible trespass.
The former only creates liability in tort if accompanied by actual damages. To put it in Judge
Ruffin’s terms, there is a rule of reason for intangible trespasses, and that rule of reason provides
that trespasses without injury are not actionable as trespasses. (Many such cases raise questions in
the doctrine of nuisance, which we will turn to in Chapter 9.)
Why place this additional requirement on actions for intangible trespass to real property?
In Colorado, in a trespass action brought for sound waves, radiation, and electromagnetic fields
from a public utility, the state Supreme Court held that intangible trespass actions may succeed
“only if an aggrieved party is able to prove physical damage to the property.” The Court
explained:
The requirement that the intangible intrusion be intentional, and that a plaintiff
prove physical damage caused by the intrusion, safeguards against the concern that
allowing trespass claims against intangible intrusions would produce too much
liability. . . . Moreover, a property owner forced to prove damage will be further
limited to seeking redress in cases of serious or substantial invasions. The difficulty
in proving a connection between a minor damage and an intangible intrusion is too
great to support mass litigiousness on the part of pestered property owners.
Public Service Co. of Colorado v. Van Wyck, 27 P.3d 377, 390 (Colo. 2001). What about flashes
of light communicated through buried fiber-optic cables? Should these be treated as trespassing
on the property in which the cables are buried? See In re WorldCom, Inc., 546 F.3d 211, 217-18
(2d Cir. 2008) (Sotomayor, J.).
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4. Aerial trespass. English common law traditionally held that property rights extended
upward to the heavens. In William Blackstone’s words, “Land hath also, in its legal signification,
an indefinite extent, upwards as well as downwards. Cujus est solum, ejus est usque ad coelom, is
the maxim of the law, upwards.” 2 WILLIAM BLACKSTONE, COMMENTARIES *18. The
development of the airplane, however, began a decades long struggle to determine the relationship
between airspace rights and trespass to land, a struggle that culminated in the 1946 Supreme Court
decision United States v. Causby. Justice William O. Douglas’s opinion for the Court held that
the ad coelom doctrine “has no place in the modern world.” United States v. Causby, 328 U.S.
256, 260-61 (1946). The court held a landowner “owns at least as much of the space above the
ground as he can occupy or use in connection with the land.” Id. at 264. See generally STUART
BANNER, WHO OWNS THE SKY?: THE STRUGGLE TO CONTROL AIRSPACE FROM THE WRIGHT
BROTHERS ON (2008).
Judicial approaches to airspace property determinations ran alongside legislative and
regulatory attempts to establish boundaries between private and public airspace. The 1938 Civil
Aeronautics Act provided “a public right of freedom of transit in air commerce through the
navigable air space of the United States.” Civil Aeronautics Act of 1938, Pub. L. No. 75-706 § 3,
52 Stat. 973, 980. The Federal Aviation Agency (FAA), in turn, defines navigable airspace by
reference to the minimum safe operating altitudes of various aircraft. See 14 C.F.R. § 91.119
(2002).
What about unmanned aircraft systems, commonly called drones? In 2012 Congress
instructed the FAA to “develop a comprehensive plan to safely accelerate the integration of civil
unmanned aircraft systems into the national airspace system.” See FAA Modernization and
Reform Act of 2012, Pub. L. No. 112-95, § 332(a)(1), 126 Stat. 11, 73. The law included a
requirement to “define the acceptable standards for operation.” Id. at § 332(a)(2)(A)(i). The
integration is mandated “as soon as practicable, but not later than September 30, 2015.” Id. at §
332(a)(3). At least some pieces of the FAA’s efforts, however, have been wrapped up in
litigation. See Taylor v. Huerta, No. 15-1495 (D. C. Cir., May 19, 2017).
If the FAA were to allow drones substantial freedom to navigate the air close to ground
level, could such a determination amount to a Fifth Amendment taking of private property? See
Troy A. Rule, Airspace and the Takings Clause, 90 WASH. U. L. REV. 421 (2013).

2. Trespass to Chattels
Traditionally, reported cases of trespass to chattels have been few and far between and of
relatively little legal significance, at least in the grand scheme of things. Typical cases of trespass
to chattels in the traditional sense include Jones v. Boswell, 250 S.W.3d 140 (Tex. App. 2008), in
which the court found that an action of trespass to chattels would lie where the defendant who
repaired the plaintiffs’ bulldozer refused to return the bulldozer before he received payment for
his services, or Kirschbaum v. McLaurin Parking Co., 188 N.C. App. 782, 656 S.E.2d 683 (2008),
in which a court held that the defendant was not liable for trespass to chattels when it placed a
“boot” (an immobilization device that attaches to, and restricts the movement of, the wheel of a
vehicle) on the defendant’s car while the defendant was illegally parked in a private lot.
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Common law jurisdictions typically hold that a person is liable for trespass to chattels
only if her interference with the chattel either causes dispossession or causes injury to the
possessor. See, e.g., RESTATEMENT (SECOND) OF TORTS § 218 (1965). In other words, the
common law imposes the same kind of injury or damage requirement that appeared in the law of
intangible trespasses and in the law of battery, but which is not typically present in the law of
trespass to real property. Whether the property interest in question is real or personal can thus
have determinative significance for the outcome of a case.
Yet, the difference between the two formal categories of property—and thus the
difference between the two trespass causes of action—can be difficult to discern. Consider
Blondell v. Consolidated Gas Co., where the plaintiff natural gas supplier sued defendants for
attaching a device known as a “governor” to the plaintiff’s meters, pipes, and connections inside
the buildings of the plaintiffs’ customers for the purpose of reducing gas consumption by the
customers. Defendants replied by denying that their governors caused any damage to the
plaintiff’s meters, pipes, and connections. The meters, pipes, and connections belonged to the
plaintiff; they were not fixtures on the real property (the buildings) of the customers.
Nonetheless, the court applied the trespass standard as if the property in question was real rather
than personal:
The meter is a device for measuring the consumption of gas, which the law requires
to be used by the plaintiff as a part of its system, while the governor which the
defendants claim the right to affix thereto is a device designed for the purpose of
regulating the pressure of the gas after it passes through the meter. Now, it seems
to us that the large mass of testimony contained in the record, showing on the one
hand that the affixing of the governor was, and on the other hand that it was not,
injurious to the meter and its connections, is entirely beside the question; for,
whether the alleged acts were or were not productive of injury, they were, in the eye
of the law, trespasses, if, as we have said, the meters are the plaintiff’s property.
43 A. 817, 819 (Md. 1908). Is the property at issue in Blondell real or personal? In each scenario,
which party would be most likely to prevail?
Lately, this once sleepy area of the law has generated more excitement. Without anyone
quite anticipating what would take place, the law of trespass to chattels has become central to a
crucial question in the brave new world of digital interactions. What about trespass in
cyberspace?

Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003)
WERDEGAR, J.
...
Intel Corporation (Intel) maintains an electronic mail system, connected to the Internet,
through which messages between employees and those outside the company can be sent and
received, and permits its employees to make reasonable nonbusiness use of this system. On six
occasions over almost two years, Kourosh Kenneth Hamidi, a former Intel employee, sent e-mails
criticizing Intel’s employment practices to numerous current employees on Intel’s electronic mail
system. Hamidi breached no computer security barriers in order to communicate with Intel
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employees. He offered to, and did, remove from his mailing list any recipient who so wished.
[Intel itself sent Hamidi several cease and desist letters, demanding that he stop sending emails to
addresses on its servers, but Hamidi asserted a right to communicate with willing Intel employees
and resumed his electronic mailings.] Hamidi’s communications to individual Intel employees
caused neither physical damage nor functional disruption to the company’s computers, nor did
they at any time deprive Intel of the use of its computers. The contents of the messages, however,
caused discussion among employees and managers.
On these facts, Intel brought suit, claiming that by communicating with its employees over
the company’s e-mail system Hamidi committed the tort of trespass to chattels. The trial court
granted Intel’s motion for summary judgment and enjoined Hamidi from any further mailings. [A
preliminary injunction had been entered in November 1998; the permanent injunction followed in
June 1999.] A divided Court of Appeal affirmed.
[W]e conclude that under California law the tort does not encompass, and should not be
extended to encompass, an electronic communication that neither damages the recipient computer
system nor impairs its functioning. Such an electronic communication does not constitute an
actionable trespass to personal property, i.e., the computer system, because it does not interfere
with the possessor’s use or possession of, or any other legally protected interest in, the personal
property itself. . . .
I. Current California Tort Law
Dubbed by Prosser the “little brother of conversion,” the tort of trespass to chattels allows
recovery for interferences with possession of personal property “not sufficiently important to be
classed as conversion, and so to compel the defendant to pay the full value of the thing with which
he has interfered.” (Prosser & Keeton, Torts (5th ed.1984) § 14, pp. 85–86.)
Though not amounting to conversion, the defendant’s interference must, to be actionable,
have caused some injury to the chattel or to the plaintiff’s rights in it. Under California law,
trespass to chattels “lies where an intentional interference with the possession of personal property
has proximately caused injury.” (Thrifty-Tel, Inc. v. Bezenek (1996) . . . ). . . .
The Restatement, too, makes clear that some actual injury must have occurred in order for
a trespass to chattels to be actionable. Under section 218 of the Restatement Second of Torts,
dispossession alone, without further damages, is actionable, but other forms of interference
require some additional harm to the personal property or the possessor’s interests in it. . . . [A]s
Prosser explains, modern day trespass to chattels differs . . . from the action for trespass to land:
. . . Where the defendant merely interferes without doing any harm—as where, for
example, he merely lays hands upon the plaintiff’s horse, or sits in his car—there
has been a division of opinion among the writers, and a surprising dearth of
authority. By analogy to trespass to land there might be a technical tort in such a
case. . . . Such scanty authority as there is, however, has considered that the
dignitary interest in the inviolability of chattels, unlike that as to land, is not
sufficiently important to require any greater defense than the privilege of using
reasonable force when necessary to protect them. Accordingly it has been held that
nominal damages will not be awarded, and that in the absence of any actual damage
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the action will not lie.”
PROSSER & KEETON, TORTS [s. 14, p. 87]. . . .
Intel suggests that the requirement of actual harm does not apply here because it sought
only injunctive relief, as protection from future injuries. But as Justice Kolkey, dissenting below,
observed, “[t]he fact the relief sought is injunctive does not excuse a showing of injury, whether
actual or threatened.” Indeed, in order to obtain injunctive relief the plaintiff must ordinarily
show that the defendant’s wrongful acts threaten to cause irreparable injuries, ones that cannot be
adequately compensated in damages. . . . [T]o issue an injunction without a showing of likely
irreparable injury in an action for trespass to chattels, in which injury to the personal property or
the possessor’s interest in it is an element of the action, would make little legal sense.
The dispositive issue in this case, therefore, is whether the undisputed facts demonstrate
Hamidi’s actions caused or threatened to cause damage to Intel’s computer system, or injury to its
rights in that personal property, such as to entitle Intel to judgment as a matter of law. . . . Intel
contends that, while its computers were not damaged by receiving Hamidi’s messages, its interest
in the “physical condition, quality or value” (Rest.2d Torts, s. 218 . . . ) of the computers was
harmed. We disagree. . . .
In Thrifty-Tel, Inc. v. Bezenek, supra . . ., the California Court of Appeal held that
evidence of automated searching of a telephone carrier’s system for authorization codes supported
a cause of action for trespass to chattels. The defendant’s automated dialing program
“overburdened the [plaintiff’s] system, denying some subscribers access to phone lines,” showing
the requisite injury.
Following Thrifty-Tel, a series of federal district court decisions held that sending
[unsolicited commercial bulk email (“UCE”)] through an [internet service provider’s (“ISP’s”)]
equipment may constitute trespass to the ISP’s computer system. . . .
In each of these spamming cases, the plaintiff showed, or was prepared to show, some
interference with the efficient functioning of its computer system. . . . In [CompuServe, Inc. v.
Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio, 1997)], the plaintiff ISP’s mail equipment
monitor stated that mass UCE mailings, especially from nonexistent addresses such as those used
by the defendant, placed “a tremendous burden” on the ISP’s equipment, using “disk space and
drain[ing] the processing power,” making those resources unavailable to serve subscribers.
Building on the spamming cases, in particular CompuServe, . . . recent district court
decisions addressed whether unauthorized robotic data collection from a company’s publicly
accessible Web site is a trespass on the company’s computer system. . . . In the leading case,
[eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000)], the defendant Bidder’s
Edge operating an auction aggregation site, accessed the eBay Web site about 100,000 times per
day, accounting for between 1 and 2 percent of the information requests received by eBay and a
slightly smaller percentage of the data transferred by eBay. The district court rejected eBay’s
claim that it was entitled to injunctive relief because of the defendant’s unauthorized presence
alone, or because of the incremental cost the defendant had imposed on operation of the eBay site,
but found sufficient proof of threatened harm in the potential for others to imitate the defendant’s
activity . . . .
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That Intel does not claim the type of functional impact that spammers and robots have
been alleged to cause is not surprising in light of the differences between Hamidi’s activities and
those of a commercial enterprise that uses sheer quantity of messages as its communications
strategy. Though Hamidi sent thousands of copies of the same message on six occasions over 21
months, that number is minuscule compared to the amounts of mail sent by commercial
operations. . . .
In addition to impairment of system functionality, CompuServe and its progeny also refer
to the ISP’s loss of business reputation and customer goodwill, resulting from the inconvenience
and cost that spam causes to its members, as harm to the ISP’s legally protected interests in its
personal property. Intel argues that its own interest in employee productivity, assertedly disrupted
by Hamidi’s messages, is a comparable protected interest in its computer system. We disagree. . .
.
Intel’s workers . . . were allegedly distracted from their work not because of the frequency
or quantity of Hamidi’s messages, but because of assertions and opinions the messages conveyed.
Intel’s complaint is thus about the contents of the messages rather than the functioning of the
company’s e-mail system. . . . Intel’s position represents a further extension of the trespass to
chattels tort, fictionally recharacterizing the allegedly injurious effect of a communication’s
contents on recipients as an impairment to the device which transmitted the message.
This theory of “impairment by content” (Burk, The Trouble with Trespass . . . , 4 J. Small
& Emerging Bus.L. at p. 37) threatens to stretch trespass law to cover injuries far afield from the
harms to possession the tort evolved to protect. . . .
Nor may Intel appropriately assert a property interest in its employees’ time. “The
Restatement test clearly speaks in the first instance to the impairment of the chattel. . . . But
employees are not chattels (at least not in the legal sense of the term).” (Burk, The Trouble with
Trespass, supra, 4 J. Small & Emerging Bus.L. at p. 36.)
II. Proposed Extension of California Tort Law
...
Writing on behalf of several industry groups appearing as amici curiae, Professor Richard
A. Epstein of the University of Chicago urges us to excuse the required showing of injury to
personal property in cases of unauthorized electronic contact between computers, “extending the
rules of trespass to real property to all interactive Web sites and servers.” The court is thus urged
to recognize, for owners of a particular species of personal property, computer servers, the same
interest in inviolability as is generally accorded a possessor of land. In effect, Professor Epstein
suggests that a company’s server should be its castle, upon which any unauthorized intrusion,
however harmless, is a trespass.
Epstein’s argument derives, in part, from the familiar metaphor of the Internet as a
physical space, reflected in much of the language that has been used to describe it: “cyberspace,”
“the information superhighway,” e-mail “addresses,” and the like. Of course, the Internet is also
frequently called simply the “Net,” a term, Hamidi points out, “evoking a fisherman’s chattel.” A
major component of the Internet is the World Wide “Web,” a descriptive term suggesting neither
personal nor real property, and “cyberspace” itself has come to be known by the oxymoronic
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phrase “virtual reality,” which would suggest that any real property “located” in “cyberspace”
must be “virtually real” property. Metaphor is a two-edged sword.
Indeed, the metaphorical application of real property rules would not, by itself, transform
a physically harmless electronic intrusion on a computer server into a trespass. That is because,
under California law, intangible intrusions on land, including electromagnetic transmissions, are
not actionable as trespasses (though they may be as nuisances) unless they cause physical damage
to the real property. (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893,
936–937, 55 Cal.Rptr.2d 724, 920 P.2d 669.) Since Intel does not claim Hamidi’s electronically
transmitted messages physically damaged its servers, it could not prove a trespass to land even
were we to treat the computers as a type of real property. Some further extension of the conceit
would be required, under which the electronic signals Hamidi sent would be recast as tangible
intruders, perhaps as tiny messengers rushing through the “hallways” of Intel’s computers and
bursting out of employees’ computers to read them Hamidi’s missives. But such fictions promise
more confusion than clarity in the law. . . .
The plain fact is that computers, even those making up the Internet, are—like such older
communications equipment as telephones and fax machines—personal property, not realty.
Professor Epstein observes that “[a]lthough servers may be moved in real space, they cannot be
moved in cyberspace,” because an Internet server must, to be useful, be accessible at a known
address. But the same is true of the telephone: to be useful for incoming communication, the
telephone must remain constantly linked to the same number (or, when the number is changed, the
system must include some forwarding or notification capability, a qualification that also applies to
computer addresses). Does this suggest that an unwelcome message delivered through a
telephone or fax machine should be viewed as a trespass to a type of real property? We think not:
As already discussed, the contents of a telephone communication may cause a variety of injuries
and may be the basis for a variety of tort actions (e.g., defamation, intentional infliction of
emotional distress, invasion of privacy), but the injuries are not to an interest in property, much
less real property, and the appropriate tort is not trespass.
More substantively, Professor Epstein argues that a rule of computer server inviolability
will, through the formation or extension of a market in computer-to-computer access, create “the
right social result.” In most circumstances, he predicts, companies with computers on the Internet
will continue to authorize transmission of information through e-mail, Web site searching, and
page linking because they benefit by that open access. When a Web site owner does deny access
to a particular sending, searching, or linking computer, a system of “simple one-on-one
negotiations” will arise to provide the necessary individual licenses.
Other scholars are less optimistic about such a complete propertization of the Internet.
Professor Mark Lemley . . . writing on behalf of an amici curiae group of professors of intellectual
property and computer law, observes that under a property rule of server inviolability, “each of
the hundreds of millions of [Internet] users must get permission in advance from anyone with
whom they want to communicate and anyone who owns a server through which their message
may travel.” The consequence for e-mail could be a substantial reduction in the freedom of
electronic communication, as the owner of each computer through which an electronic message
passes could impose its own limitations on message content or source. . . .
A leading scholar of internet law and policy, Professor Lawrence Lessig . . . , has
criticized Professor Epstein’s theory of the computer server as quasi-real property . . . on the
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ground that it ignores the costs to society in the loss of network benefits: “eBay benefits greatly
from a network that is open and where access is free. It is this general feature of the Net that
makes the Net so valuable to users and a source of great innovation. And to the extent that
individual sites begin to impose their own rules of exclusion, the value of the network as a
network declines. If machines must negotiate before entering any individual site, then the costs of
using the network climb.” LESSIG, THE FUTURE OF IDEAS: THE FATE OF THE COMMONS IN A
CONNECTED WORLD 171 (2001) . . . .
We discuss this debate among the amici curiae and academic writers only to note its
existence and contours, not to attempt its resolution. Creating an absolute property right to
exclude undesired communications from one’s e-mail and Web servers might help force
spammers to internalize the costs they impose on ISP’s and their customers. But such a property
rule might also create substantial new costs, to e-mail and e-commerce users and to society
generally, in lost ease and openness of communication and in lost network benefits. In light of the
unresolved controversy, we would be acting rashly to adopt a rule treating computer servers as
real property for purposes of trespass law. . . .

III. Constitutional Considerations
[The Court’s opinion declined to reach possible First Amendment claims on both sides,
but it did observe that injunctions barring communications “must comply with First Amendment
limits.” The majority strongly suggested that Hamidi’s emails were the modern-day equivalent of
protected speech, asserting that Hamidi “no more invaded Intel’s property than does a protester
holding a sign or shouting through a bullhorn outside corporate headquarters, posting a letter
through the mail, or telephoning to complain of a corporate practice.” And the majority dismissed
Intel’s own constitutional claims of a “right not to listen” on the grounds that the actual recipients
of the emails was not Intel but its individual employees.]

Dissenting Opinion of BROWN, J.
. . . . Intel has invested millions of dollars to develop and maintain a computer system. It
did this not to act as a public forum but to enhance the productivity of its employees. . . . The time
required to review and delete Hamidi’s messages diverted employees from productive tasks and
undermined the utility of the computer system. . . .
Hamidi concedes Intel’s legal entitlement to block the unwanted messages. The problem
is that although Intel has resorted to the cyberspace version of reasonable force, it has so far been
unsuccessful in determining how to resist the unwanted use of its system. Thus, while Intel has
the legal right to exclude Hamidi from its system, it does not have the physical ability. It may
forbid Hamidi’s use, but it cannot prevent it.
To the majority, Hamidi’s ability to outwit Intel’s cyber defenses justifies denial of Intel’s
claim to exclusive use of its property. Under this reasoning, it is not right but might that
determines the extent of a party’s possessory interest. Although the world often works this way,
the legal system should not. . . .
Dissenting Opinion by MOSK, J.
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. . .The majority fail to distinguish open communication in the public “commons” of the
Internet from unauthorized intermeddling on a private, proprietary intranet. Hamidi is not
communicating in the equivalent of a town square or of an unsolicited “junk” mailing through the
United States Postal Service. His action, in crossing from the public Internet into a private
intranet, is more like intruding into a private office mailroom, commandeering the mail cart, and
dropping off unwanted broadsides on 30,000 desks. Because Intel’s security measures have been
circumvented by Hamidi, the majority leave Intel, which has exercised all reasonable self-help
efforts, with no recourse unless he causes a malfunction or systems “crash.” . . .
Intel correctly expects protection from an intruder who misuses its proprietary system, its
nonpublic directories, and its supposedly controlled connection to the Internet to achieve his bulk
mailing objectives—incidentally, without even having to pay postage.

Notes

1. Thrifty-Tel, Inc. v. Bezenek (1996). Thrifty-Tel was one of the first cases to apply
trespass to chattels principles to electronic communication. Thrifty-Tel, a long-distance telephone
company sued the parents of minors who used computers to crack the company’s authorization
codes, and to make long-distance calls without paying. In holding that trespass to chattels “lies
where an intentional interference with the possession of personal property has proximately caused
injury,” the Thrifty-Tel court found that the defendants’ hacking substantially interfered with
Thrifty-Tel’s operations, sufficiently to give rise to a common law trespass to chattels cause of
action. Thrifty-Tel, 54 Cal. Rptr. 2d at 473.
Around the same time, CompuServe Inc., an early internet service provider, brought an
action against Cyber Promotions Inc. for sending CompuServe users unsolicited advertisements
through CompuServe’s servers. The court in CompuServe Inc. v. Cyber Promotions, Inc., 962 F.
Supp. 1015, 1022 (S.D. Ohio 1997) found that defendants were guilty of trespass to chattels
because “multitudinous electronic mailings demand the disk space and drain the processing power
of plaintiff’s computer equipment,” and because the defendants’ actions caused customers to
complain, resulting in a loss of good will toward CompuServe.
In Ticketmaster Corp. v. Tickets.com Inc., 2000 WL 525390 (C.D. Cal. Mar. 27, 2000),
Ticketmaster filed suit against Tickets.com for their practice of providing hyperlinks to
Ticketmaster.com, and for copying event information from Ticketmaster’s webpage and placing it
on the Tickets.com web page. The court found that providing a hyperlink to, and copying purely
factual information from, a publicly available website did not (absent more) establish a claim of
trespass.
A few months after the Ticketmaster decision, a federal judge in the Northern District of
California held that the gathering of publicly accessible auction information from eBay.com by an
auction services firm called Bidder’s Edge constituted a trespass to chattels. Bidder’s Edge used
electronic “spiders” to crawl through bidding information on eBay and other auction sites and
used the information it collected to allow its customers to compare goods and prices across
bidding websites. Does it matter that eBay’s database was publicly accessible, or that it posted a
notice purporting to forbid the use of information collecting spiders? Part of the threat to eBay
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was that Bidder’s Edge allowed users to access the eBay site without encountering eBay’s
advertising. Note that eBay said that it was willing to sell Bidder’s Edge a license to collect the
information for a charge. See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal.
2000).

2. The property analogy? Did the Hamidi court err in grounding its ruling in trespass to
chattels principles? For an argument that property analogies (either chattel or real) wrongly
govern virtual space, see Shyamkrishna Balganesh, Common Law Property Metaphors on the
Internet: The Real Problem with the Doctrine of Cyber Trespass, 12 MICH. TELECOMM. TECH. L.
REV. 265 (2006). Richard Epstein, in contrast, has argued that the Hamidi ruling’s refusal to
adopt 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:
The Role of Self-help in Cyberspace?, 1 J.L. ECON. & POL’Y 147 (2005) for an extended critique
of Intel Corp. v. Hamidi. For an argument that courts should chart a middle path requiring that
plaintiffs show sufficient recourse to self-help measures as a condition for awarding civil relief,
see Catherine M. Sharkey, Trespass Torts and Self-Help for an Electronic Age, 44 TULSA L. REV.
677 (2008). Why not simply adopt a narrowly-tailored opt-out regime that would allow harmless
cyber interaction unless and until a party has been asked specifically to cease and desist?
How far can trespass principles be applied? Consider the case of United States v. Jones,
565 U.S. 400 (2012), where police placed a GPS tracking device on the defendant’s vehicle
without a warrant. The Government introduced aggregated GPS data at trial that connected Jones
(the defendant) with a cocaine stash house. Delivering the opinion of the Court, Justice Antonin
Scalia reasoned that the question of whether placing the device on the plaintiff’s vehicle amounted
to a constitutionally regulated search and seizure turned on whether the government’s action
would have constituted a trespass at common law. Justice Sonia Sotomayor concurred, but
worried that “[i]n cases of electronic or other novel modes of surveillance that do not depend upon
a physical invasion on property, the majority opinion’s trespassory test may provide little
guidance.” 565 U.S. at 415. Did placing the GPS device on the defendant’s personal property
constitute a common law trespass if it caused no damage to the property?

3. Anti-spamming legislation. Although the California Supreme Court declined to censure
Mr. Hamidi’s emailing in Intel Corp. v. Hamidi, Congress and many state legislatures have passed
anti-spamming laws. In 2003, Congress passed the Controlling the Assault of Non-Solicited
Pornography and Marketing (or CAN-SPAM) Act. Broadly, the act protects against fraud, and
misleading commercial emails. CAN-SPAM also requires that commercial senders allow email
recipients to opt out of receiving future messages and establishes a national “Do-Not-Email”
registry on which they can do so. See 15 U.S.C.A §§ 7701-13. Many states, including California,
have passed state anti-spam statutes as well, though CAN-SPAM has preempted much of the
content of the state statutes. Interestingly, in recent years, private email distributers have begun
adding additional safeguards for consumer privacy beyond those required by CAN-SPAM and its
state analogues. The widely-used digital distribution and marketing firm MailChimp, for
example, includes in its terms of use a commitment that their users “won’t send Spam!”
MailChimp reserves the right to enforce this provision by dropping clients who violate it. Terms
of Use, MAILCHIMP.COM, https://perma.cc/K3D2-9X3Y (last visited Apr. 8, 2014). Does
MailChimp’s policy suggest that some combination of market reputation on the part of
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distributors and self-help by potential recipients would evolve toward protections against
spamming regardless of what the law does?

B. Beyond Battery: Causes of Action for Other Personal Injuries
1. Offensive Battery
Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)
GREENHILL, J.
This is a suit for actual and exemplary damages growing out of an alleged assault and
battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the
Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly
called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in
Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn [who
managed the Brass Ring, on Carrousel’s behalf, and who died before the trial]. Trial was to a jury
which found for the plaintiff Fisher. The trial court rendered judgment for the defendants
notwithstanding the verdict. The Court of Civil Appeals affirmed. The questions before this Court
are whether there was evidence that an actionable battery was committed, and, if so, whether the
two corporate defendants must respond in exemplary as well as actual damages for the malicious
conduct of Flynn.
The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a
one day's meeting regarding telemetry equipment at the Carrousel. . . . After the morning session,
the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet
style, and Fisher stood in line with others and just ahead of a graduate student of Rice University
who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who
snatched the plate from Fisher's hand and shouted that he, a Negro, could not be served in the
club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or
apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by
Flynn's conduct in the presence of his associates.
[The jury found for Fisher and awarded damages.]
The Court of Civil Appeals held that there was no assault because there was no physical
contact and no evidence of fear or apprehension of physical contact. However, it has long been
settled that there can be a battery without an assault, and that actual physical contact is not
necessary to constitute a battery, so long as there is contact with clothing or an object closely
identified with the body. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:
‘The interest in freedom from intentional and unpermitted contacts with the
plaintiff's person is protected by an action for the tort commonly called battery. The
protection extends to any part of the body, or to anything which is attached to it and
practically identified with it. Thus contact with the plaintiff's clothing, or with a
cane, a paper, or any other object held in his hand will be sufficient; * * * The
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plaintiff's interest in the integrity of his person includes all those things which are in
contact or connected with it.’
Under the facts of this case, we have no difficulty in holding that the intentional grabbing of
plaintiff's plate constituted a battery. The intentional snatching of an object from one's hand is as
clearly an offensive invasion of his person as would be an actual contact with the body. ‘To
constitute an assault and battery, it is not necessary to touch the plaintiff's body or even his
clothing; knocking or snatching anything from plaintiff's hand or touching anything connected
with his person, when, done in an offensive manner, is sufficient.’
Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v.
Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed
‘an assault or trespass upon the person’ by snatching a book from the plaintiff's hand. The jury
findings in that case were that the defendant ‘dispossessed plaintiff of the book’ and caused her to
suffer ‘humiliation and indignity.’
The rationale for holding an offensive contact with such an object to be a battery is explained in
1 Restatement of Torts 2d s 18 (Comment p. 31) as follows:
'Since the essence of the plaintiff's grievance consists in the offense to the dignity
involved in the unpermitted and intentional invasion of the inviolability of his
person and not in any physical harm done to his body, it is not necessary that the
plaintiff's actual body be disturbed. Unpermitted and intentional contacts with
anything so connected with the body as to be customarily regarded as part of the
other's person and therefore as partaking of its inviolability is actionable as an
offensive contact with his person. There are some things such as clothing or a cane
or, indeed, anything directly grasped by the hand which are so intimately connected
with one's body as to be universally regarded as part of the person.'
We hold, therefore, that the forceful dispossession of plaintiff Fisher's plate in an offensive
manner was sufficient to constitute a battery, and the trial court erred in granting judgment
notwithstanding the verdict on the issue of actual damages.
...
Personal indignity is the essence of an action for battery; and consequently the defendant
is liable not only for contacts which do actual physical harm, but also for those which are
offensive and insulting. We hold, therefore, that plaintiff was entitled to actual damages for
mental suffering due to the willful battery, even in the absence of any physical injury.
...
. . . The judgments of the courts below are reversed, and judgment is here rendered for the
plaintiff for $900 with interest from the date of the trial court's judgment, and for costs of this suit.

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Notes

1. Intent required. Though not emphasized in the Fisher case, offensive battery requires that
the defendant have acted with intent—in the Restatement formulation, “inten[t] to cause a harmful
or offensive contact with the person of the other or a third person, or an imminent apprehension of
such a contact.” RESTATEMENT (SECOND) OF TORTS § 18 (1965). This language is identical to the
language found in the Restatement provision on conventional (harmful) battery, discussed in the
previous section. The key distinction between harmful battery and offensive battery is the nature
of the contact that results.

2. Why recognize offensive battery? It will become very clear as this book goes on that tort
law does not supply a remedy for all types of wrongful conduct, even conduct that is widely
reviled. Some types of wrongful conduct have gone untouched because judges have worried
about interfering in particular relationships (e.g., husband and wife, parent and child), or about
creating incentives for fraud, or simply about opening the door to an unmanageable number of
cases. Judges have deemed other types of wrongful conduct too trivial, too petty. Why, then, has
the law long recognized a cause of action for physical contacts that offend but do not harm? What
about the maxim “no harm, no foul”? The 1872 case Alcorn v. Mitchell, 63 Ill. 533, involving a
defendant who deliberately spit in the face of the plaintiff, offers a classic explanation for the
law’s recognition of offensive battery. The spitting, according to the concise statement of facts,
occurred in a court room, at the close of a legal proceeding between the two men (adjudicating a
charge of trespass), and “in the presence of a large number of persons.” Id. at 553. In
consequence, a trial court awarded the defendant to pay $1,000, a hefty sum at the time. In
upholding the award, the Illinois Supreme Court characterized the spitting as an act “of the
greatest indignity, highly provocative of retaliation by force.” Id. at 554. To “sav[e] the necessity
of resort to personal violence as the only means of redress” and thereby preserve “public
tranquility,” the court explained, the law “should afford substantial protection against such
outrages, in the way of liberal damages.” Id.
How does this justification hold up in an age of modern policing, when we disapprove, at
least formally, of individual citizens taking the law into their own hands? Does it appear
anachronistic now that the concepts of honor and reputation no longer play such important roles in
everyday life? Professor Scott Hershovitz defends damage awards in cases like this on the ground
that, even if they do not prevent violence, they recognize and rebut a moral injury; judgment by
judgment, they create and recreate the world we want to live in. “We are the agents of morality,”
Hershovitz argues. “There is no one else to do the job. If we think that, as a matter of morality,
Mitchell’s dignity confers on him a right to be free from insults like Alcorn’s spit, then we must
live as if he has that right. . . . Tort is a way for us to do that.” Scott Hershovitz, Treating Wrongs
as Wrongs: An Expressive Argument for Tort Law, 10 J. TORT L. 1, 15 (2018); see also Leslie
Bender, Tort Law’s Role as a Tool for Social Justice Struggle, 37 WASHBURN L.J. 249 (1998)
(“Giving people who are injured compensation from their harm-causers is one way our social
order can help promote their dignity and their ability to be social equals.”). Do you buy it? In the
big scheme of things, are cases of offensive battery a good use of judicial resources?

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2. Assault
I. de S. & Wife v. W. de S. Assizes, 1348 or 13491
THORPE, C.J.
I de S and M, his wife, complain of W de S concerning this that the said W, in the year
etc., with force and arms [vi et armis] did make an assault upon the said M at S and beat her. And
W. pleaded not guilty. And it was found by verdict of the inquest that the said W. came in the
night to the house of the said I., and would have bought some wine, but the door of the tavern was
closed; and he pounded on the door with a hatchet, which he had in his hand, and the female
plaintiff put her head out at a window and told him to stop; and he saw her and aimed at her with
the hatchet, but did not hit her. Whereupon the inquest said that it seemed to them that there was
no trespass, since there was no harm done. THORP, C. J. There is harm done, and a trespass for
which they shall recover damages, since he made an assault upon the woman, as it is found,
although he did no other harm. Wherefore tax his damages, &c. And they taxed the damages at
half a mark. THORP, C.J., awarded that they should recover their damages, &c., and that the other
should be taken. Et sic nota, that for an assault one shall recover damages, &C.

Notes

1. The action for assault. The case of I. de S. is an early recognition of legally protectable
interests in an emotional state—the emotional state of being free of certain kinds of fright.
Prosser described the assault action as recourse for unlawful “touching of the mind”:
The interest in freedom from apprehension of a harmful or offensive contact with
the person, as distinguished from the contact itself, is protected by an action for the
tort known as assault. No actual contact is necessary to it, and the plaintiff is
protected against a purely mental disturbance of this distinctive kind. This action,
which developed very early as a form of trespass, is the first recognition of a mental,
as distinct from a physical, injury. There is a “touching of the mind, if not of the
body.”
W. PAGE KEETON, DAN B. DOBBS, ROBERT E. KEETON & DAVID G. OWEN, PROSSER AND KEETON ON THE
LAW OF TORTS § 10, at 43 (5th ed. 1984).

2. Everyday frictions? Even if the action of assault has been recognized at common law for
centuries, it has always been hedged in by limits. Not every obnoxious or hurtful touching of the
mind gives rise to an assault action. Courts normally do not allow assault remedies for the
ordinary insults and frictions that accompany everyday life. In Bollaert v. Witter, 792 P.2d 465
(Or. App. 1990), for example, an Oregon State appellate court ruled against a party’s claims of

1

Y.B. Lib.Ass. folio 99, placitum 60 (Assizes 1348), translated from the Law French in, JAMES BARR AMES,
SELECT CASES ON TORTS 1 (1874).

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assault in a home boundary dispute where an angry neighbor yelled: “Let’s duke it out . . . . I’m a
Vietnam vet” and “I wouldn’t be surprised if my wife—if, while you’re working on the fence, my
wife took a gun and shot you.” Similarly, in Groff v. Sw. Beverage Co., Inc., 997 So. 2d 782 (La.
2008), a Louisiana court dismissed the assault claims of an employee who sued his employer for
yelling, “using numerous profanities,” and “hitting the desk with his hand.” These are the sorts of
unpleasant encounters that the common law of torts requires people to bear on their own.

3. Threats of future harm? Nor is it generally sufficient to allege threats of future harm.
Consider the opinion in Kijonka v. Seitzinger, written by Judge Richard Posner of the U.S. Court
of Appeals for the Seventh Circuit. Appellant Kijonka was a former small-town mayor who
during his term had fired the town dog-catcher, one Berle “Peanut” Shoulders, Jr., after reports of
corruption and narcotics dealing. Shoulders then stalked Kijonka for some time in a threatening
manner. Some time later the two men spotted one another while driving. “[A]ccording to
Shoulders, Kijonka rolled down his car window, gave Shoulders a ‘dirty look,’ and said: ‘You
have a nice day and your ass is mine you son of a bitch and I will get you.’” Judge Posner held
that the exchange did not constitute an assault:
Ever since the fourteenth century, assault whether civil or criminal has involved (1)
a threatening gesture, or an otherwise innocent gesture made threatening by the
accompanying words, that (2) creates a reasonable apprehension of an imminent
battery. . . . A merely verbal threat of indefinite action in the indefinite future is not
an assault. . . . It is missing two elements: gesture and imminence. . . . Kijonka’s
rolling down his car window was not a threatening gesture . . . . There was no
threatening gesture, nor even a present threat. It’s not as if Kijonka had said, “I
have a gun in my glove compartment and I’m going to reach in and get it and shoot
you, you son of a bitch.” Even that would have been a threat rather than an assault
until he actually reached toward the glove compartment. . . .
Shoulders, given his history of stalking Kijonka, may have feared that the day of
retribution had arrived (though this is doubtful, given the presence at the scene of a
policeman). But a victim’s fear . . . cannot transform a remote threat into an assault.
364 F.3d 645 (7th Cir. 2004). Why should the common law not make such behavior actionable?
Is there anything socially valuable in the kind of behavior at issue here?

4. Threats of distant harm. Distance in space will vitiate an assault action just as surely as
distance in time. The canonical case is Smith v. Newsam, 84 E. R. 722 (K.B. 1673), where the
court per Chief Justice Hale rejected a claim of assault in which plaintiff complained that the
defendant had shaken “a sword against the plaintiff in a cutlers shop, being on the other side the
street.” Mere words or gestures will not constitute an assault absent the imminent apprehension of
contact.

5. Conditional threats. The same principle generally renders conditional threats
inactionable. In the classic English case Tuberville v. Savage, the “evidence to prove a
provocation was, that the plaintiff put his hand upon his sword and said, ‘If it were not assizetime, I would not take such language from you.’” (In response to this “provocation,” the
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defendant had apparently wounded the plaintiff in some fashion—thus this suit for damages.)
Assize-time was when the king’s judges arrived to deliver justice in the English countryside.
With the array of royal officials present, it would have been a singularly bad time for one person
to attack another. And so the court concluded that the evidence was insufficient to make out an
assault (and by implication, the defendant’s injurious actions were not justified):
[T]he declaration of the plaintiff was that he would not assault him, the judges being
in town; and the intention as well as the act makes an assault. Therefore, if one
strike another upon the hand or arm or breast in discourse, it is no assault, there
being no intention to assault; but if one, intending to assault, strike at another and
miss him, this is an assault: so if he hold up his hand against another in a threatening
manner and say nothing, it is an assault.
Tuberville v. Savage, 86 Eng. Rep. 684 (K.B. 1669).

6. The Restatement approach. The Restatement view is that an actor may be liable for
assault to another if (1) the actor either intended to cause a “harmful or offensive contact” to the
other person or to a third party, or to cause “imminent apprehension of such contact,” and (2) the
other person is “thereby put in such imminent apprehension.” RESTATEMENT (SECOND) OF TORTS
§ 21 (1965). Merely imposing an unreasonable risk of harmful or offensive contacts, without the
intent to cause such contacts or imminent apprehension thereof, may give rise to liability for
negligence, but does not constitute the tort of assault.

Speicher v. Rajtora, 766 N.W.2d 649 (Iowa App. 2009)
EISENHAUER, J.
Daniel Rajtora and Kendra Speicher are the parents of an eight-year-old daughter.
Although they never married, the parties have resided with one another on various occasions.
Daniel appeals a civil domestic abuse protective order issued in favor of Kendra. He argues the
district court’s finding he committed domestic abuse assault is not supported by a preponderance
of the evidence. He specifically maintains there was insufficient evidence he acted in a manner
“intended to place another in fear of immediate physical contact which will be painful, injurious,
insulting, or offensive, coupled with the apparent ability to execute the act.” See Iowa Code §§
239.2(2), 708.1(2) (2007). . . .
On March 30, 2008, Daniel returned their daughter to Kendra’s residence after a
visitation. Daniel did not see Kendra at any time on March 30, and did not speak to her at the
drop-off. Kendra testified she called Daniel about five minutes later using a new cell phone
Daniel had just purchased for their daughter. Kendra asked Daniel to prevent their daughter from
taking her new cell phone to church or school. Kendra testified Daniel threatened her by replying:
“Shut the f* * * up. Don’t worry about it and shut the f* * * up before I come over there and beat
both your asses.”
Kendra stated she placed the call to Daniel’s cell phone and he did not say where he was
located. However, she believed he had returned to a friend’s house one to two miles away. At the
hearing, Daniel admitted swearing, but denied making a threat. Daniel was at his friend’s house
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during the call.
Even assuming Daniel made the alleged threat, we are compelled to find insufficient
evidence of assault . . . . Assault requires “fear of immediate physical contact” coupled with “the
apparent ability to execute” the assault. The record does not establish Daniel’s apparent ability to
execute the threat at the time the threat was made. The testimony only established Kendra’s belief
Daniel had a future ability to return from a distance and execute the threat.
We find insufficient evidence to support the assault element of domestic abuse assault.
We reverse and remand for dismissal of the protective order.

Note

1. Torts and domestic abuse. It is one thing to deny a remedy for ordinary everyday
frictions, for distant threats, or for medieval bluster. But what about the all-too-ordinary verbal
attacks that are characteristic of abusive domestic relations? According to a recent government
report, one in four women and one in ten men in the U.S. “experienced contact sexual violence,
physical violence, and/or stalking by an intimate partner during their lifetime and reported some
form of [Intimate Partner Violence]-related impact.” SHARON G. SMITH, ET AL., NATIONAL
INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2015 DATA BRIEF – UPDATED RELEASE 8-9
(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
than half of the 27,715 respondents had experienced some form of intimate partner violence and
that for one quarter of respondents that violence was “severe.” S. E. JAMES, ET AL., THE REPORT
OF THE 2015 U.S. TRANSGENDER SURVEY (2016), available at https://perma.cc/76R9-3HFM. Do
the limits of the assault cause of action prevent the law from dealing with domestic violence?
Would a more robust assault action empower otherwise disempowered people to resist threats or
acts of violence in the context of intimate and familial relationships? What other consequences
might you expect to follow were courts to more readily recognize as assault situations like the one
in Speicher?
Note that when it comes to using tort law to address domestic violence, the problem may
go much deeper than the elements of any particular tort. Professor Martha Chamallas notes that,
as compared to fifty years ago, tort claims are much more available to people who experience
domestic violence. And yet “practical and cultural reasons” have prevented tort law from
becoming an effective response to domestic violence: “Plaintiffs are deterred by short statutes of
limitations, joinder rules in some jurisdictions which require filing claims in conjunction with a
divorce action, restrictions on legal services organizations prohibiting the filing of such suits and,
most importantly, the lack of liability insurance that could operate as a fund for victims to tap into
to secure compensation. . . .” Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J.
TORT L. 39, 46-51 (2018); see also Jennifer Wriggins, Domestic Violence Torts, 75 S. CAL. L.
REV. 121 (2001); Camille Carey, Domestic Violence Torts: Righting a Civil Wrong, 62 U. KAN. L.
REV. 695 (2014). What would it take to change this pattern? Why has it proven so sticky?

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3. False Imprisonment
Whittaker v. Sandford, 110 Me. 77 (1912)
SAVAGE, J.
Action for false imprisonment. The plaintiff recovered a verdict for $1,100. The case
comes up on defendant’s exceptions and motion for a new trial.
The case shows that for several years prior to 1910, at a locality called “Shiloh,” in Durham, in this
state, there had been gathered together a religious sect, of which the defendant was at least the
religious leader. They dwelt in a so–called colony. There was a similar colony under the same
religious leadership at Jaffa, in Syria. The plaintiff was a member of this sect, and her husband was
one of its ministers. For the promotion of the work of the “movement,” as it is called, a Yacht Club
was incorporated, of which the defendant was president. The Yacht Club owned two sailing yachts,
the “Kingdom” and the “Coronet.” So far as this case is concerned, these yachts were employed in
transporting members of the movement, back and forth, between the coast of Maine and Jaffa.
The plaintiff, with her four children, sailed on the Coronet to Jaffa in 1905. Her husband
was in Jerusalem, but came to Jaffa, and there remained until he sailed, a year later, apparently to
America. The plaintiff lived in Jerusalem and Jaffa, as a member of the colony, until March, 1909.
At that time she decided to abandon the movement, and from that time on ceased to take part in its
exercise or to be recognized as a member. She made her preparations to return to America by
steamer, but did not obtain the necessary funds therefor until December 24, 1909. At that time the
Kingdom was in the harbor at Jaffa, and the defendant was on board. On Christmas day he sent a
messenger to ask the plaintiff to come on board. She went, first being assured by the messenger
that she should be returned to shore. The defendant expressed a strong desire that she should come
back to America on the Kingdom, rather than in a steamer, saying, as she says, that he could not
bear the sting of having her come home by steamer; he having taken her out. The plaintiff fearing,
as she says, that if she came on board the defendant’s yacht she would not be let off until she was
“won to the movement” again, discussed that subject with the defendant, and he assured her
repeatedly that under no circumstances would she be detained on board the vessel after they got
into port, and that she should be free to do what she wanted to the moment they reached shore.
Relying upon this promise, she boarded the Kingdom on December 28th and sailed for America.
She was treated as a guest, and with all respect. She had her four children with her. The defendant
was also on board.
The Kingdom arrived in Portland Harbor on the afternoon of Sunday, May 8, 1910. The
plaintiff’s husband, who was at Shiloh, was telephoned to by some one, and went at once to Portland
Harbor, reaching the yacht about midnight of the same day. The Coronet was also in Portland
Harbor at that time. Later both yachts sailed to South Freeport, reaching there Tuesday morning,
May 10th. From this time until June 6th following the plaintiff claims that she was prevented from
leaving the Kingdom, by the defendant, in such manner as to constitute false imprisonment.
The Exceptions
....
. . . The defendant requested the court to instruct the jury that “to maintain her action the
plaintiff must show some actual physical force exercised by the defendant or by some one acting as
his agent and by his authority to restrain her of her liberty.”
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. . . . The court instructed the jury that the plaintiff to recover must show that the restraint
was physical, and not merely a moral influence; that it must have been actual physical restraint, in
the sense that one intentionally locked into a room would be physically restrained but not
necessarily involving physical force upon the person; that it was not necessary that the defendant,
or any person by his direction, should lay his hand upon the plaintiff; that if the plaintiff was
restrained so that she could not leave the yacht Kingdom by the intentional refusal to furnish
transportation as agreed, she not having it in her power to escape otherwise, it would be a physical
restraint and unlawful imprisonment. We think the instructions were apt and sufficient. If one
should, without right, turn the key in a door, and thereby prevent a person in the room from leaving,
it would be the simplest form of unlawful imprisonment. The restraint is physical. The four walls
and the locked door are physical impediments to escape. Now is it different when one who is in
control of a vessel at anchor, within practical rowing distance from the shore, who has agreed that
a guest on board shall be free to leave, there being no means to leave except by rowboats, wrongfully
refuses the guest the use of a boat? The boat is the key. By refusing the boat he turns the key. The
guest is as effectually locked up as if there were walls along the sides of the vessel. The restraint is
physical. The impassable sea is the physical barrier.
...
It is shown that on several occasions the defendant told the plaintiff she could have a boat
when she wished; but it is also shown by testimony which the jury might believe that, each time she
made a request for a boat to be used at the time, she was refused. The plaintiff did not ask the
captain or other officers of the yacht for a boat. These officers testified that they had authority to
let any one have the use of a boat, and that, without consulting the defendant. We do not think the
defendant can justly claim that she should have asked the officers under him, if he had himself
denied her a boat. And in the one specific case shown in the evidence, when she did ask the captain
for a boat to go on shore, he referred the discussion of the matter to the defendant. . . . She apparently
believed that an appeal to the officers would be useless. It was not an unreasonable belief.
. . . [I]t is claimed for [the defendant] that after Tuesday, May 10th, he assumed no
responsibility whatever for the plaintiff, and left her in the care of her husband, specifically saying
that he would leave it to her husband to say whether she could leave the yacht. From that date, he
stayed on the Coronet, only coming aboard the Kingdom once, though on that occasion she says he
refused her the use of a boat. From that date she was in the company of her husband, though they
were not living in marital relations. She went ashore with him. She visited neighboring islands
with him. She was trying to persuade him to leave the movement and make a home for her and
their children. He was trying to persuade her to become again a member of the movement. When
on shore with him she made no effort to escape. She says she believed it would be useless, and thus
went back to the yacht with him. She says that when she did ask her husband to put her ashore to
leave, he replied, “We will see Mr. Sandford about it and see what he says.” She further says that
the defendant had told her that “he” (her husband) “couldn’t do it” (put her on shore).
Besides the evidence of express personal refusal on the part of the defendant, we think that
a jury might well find upon the evidence that . . . in view of the relation which the defendant bore
to the movement and to the husband, in view of the mystical character attributed to him, in view of
the manifest power possessed by him over the minds of the members . . . and which the husband
shared in, the husband, if not acting by express mutual understanding with the defendant, was the
minister of his known will, with the result that the plaintiff was prevented from leaving the yacht,
that the defendant was the superior, the controlling factor, by an influence intentionally used, in
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Witt & Tani, TCPI 2. Intentional Harms

keeping her there, that he possessed the key that would unlock the situation, and that in violation of
his duty he refused to use it, and thus restrained her of her liberty. If all this was true, the defendant
is liable to the plaintiff. The verdict should not be set aside on that ground.
...

Notes
1. What is the price of liberty? After sustaining the jury’s finding of false imprisonment,
Justice Savage ruled that the damage award was “manifestly excessive” and ordered the plaintiff
to remit all but $500 (about $13,000 in 2019 dollars). In his estimation, Mrs. Whittaker “was by
no means in close confinement” and in fact enjoyed a number of “liberties,” including being
“taken on shore by her husband to do shopping and transact business at a bank” and “visit[ing]
neighboring islands with her husband and children, on one of which they enjoyed a family
picnic.” Whittaker v. Sandford, 110 Me. 77 (1912). “The case lacks the elements of humiliation
and disgrace that frequently attend false imprisonment,” Judge Savage explained. Id. What is an
appropriate damage award for a situation like this? How much should the conditions of the
confinement matter?

2. What constitutes confinement? The tort of false imprisonment remains alive and well a
century after the Whittaker case. The crux of this tort is confinement. As the Restatement
explains, this action captures situations where a defendant “acts intending to confine the other or a
third person within boundaries fixed by the actor”; where the defendant’s “act directly or
indirectly results in such a confinement of the other”; and where the person who has been
confined “is conscious of the confinement or is harmed by it.” RESTATEMENT (SECOND) § 35
(1965). As for the more precise meaning of confinement, the Restatement offers several
clarifications:
(1) To make the actor liable for false imprisonment, the other's confinement within
the boundaries fixed by the actor must be complete.
(2) The confinement is complete although there is a reasonable means of escape,
unless the other knows of it.
(3) The actor does not become liable for false imprisonment by intentionally
preventing another from going in a particular direction in which he has a right or
privilege to go.
RESTATEMENT (SECOND) § 36 (1965). What concrete scenarios do you imagine gave rise to this
language? Can you imagine a situation in which a person who was confined would not have been
conscious of the confinement but would have been harmed by it? To the extent that this language
denies recovery for some intentional, wrongful restrictions on another person’s movement, how
do we make sense of such exclusions? For an example of a situation that this tort was found not
to cover, consider the facts of Zavala v. Wal Mart Stores, 691 F.32 527 (3d. Cir. 2012): The
plaintiff employees alleged that during their night-time and weekend shifts (when the defendant
retail store was closed to customers), the defendant locked them inside; if necessary, they could
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Witt & Tani, TCPI 2. Intentional Harms

ask a manager to open the doors, but “[m]anagers were often unavailable and were sometimes not
even in the store.” Id. at 532. The court characterized the store’s emergency exits as a reasonable
means of escape, even though, according to the plaintiffs’ attorneys, “no one ever showed [the
plaintiffs] the location of emergency exits and their minimal proficiency in English would make it
difficult or impossible to find them on their own.” Id. at 544-45.

3. Does motive matter? False imprisonment requires intent, but it is only intent to confine,
not intent to harm. Indeed, false imprisonment cases often arise from scenarios in which the
actors who caused the confinement thought they were playing a joke, protecting private property,
or even looking out for the best interests of the person they confined (for example, by removing
the actor from the influence of a cult). Such motives may assist the defendant in establishing an
affirmative defense (as discussed in later pages), but they generally will not prevent the plaintiff
from establishing a prima facie case of false imprisonment.

4. Intentional Infliction of Emotional Distress
Of all the intentional torts discussed so far, intentional inflection of emotional distress
(IIED) is of the most recent vintage. Although it has roots in late nineteenth-century English
common law, see Wilkinson v. Downton, [1897] 2 Q.B. 57, only in the 1930s did legal
commentators take note of its arrival on the American scene. One way of thinking about IIED is
with reference to injuries that other, more established causes of action had left unrecognized and
uncompensated; when that lack of recognition became noticeable, and then intolerable, the tort of
IIED emerged to fill the void.

GTE Southwest v. Bruce, 998 S.W.2d 605 (Tex. 1999)
ABBOTT, J.
In this case we determine whether three GTE Southwest, Incorporated employees may
recover damages for intentional infliction of emotional distress based on the workplace conduct of
their supervisor. The trial court rendered judgment for the employees on the jury verdict, and the
court of appeals affirmed. We affirm the judgment of the court of appeals.
I. Facts
Three GTE employees, Rhonda Bruce, Linda Davis, and Joyce Poelstra, sued GTE for
intentional infliction of emotional distress premised on the constant humiliating and abusive
behavior of their supervisor, Morris Shields. . . . Between 1981 and May 1991, Shields worked as
a supervisor in GTE’s supply department in Jacksonville, Arkansas. During his tenure there, four
of Shields’s subordinate employees (none of the employees involved in this case) filed formal
grievances against Shields with GTE, alleging that Shields constantly harassed them. . . . GTE
investigated Shields’s conduct in 1988 and 1989, but took no formal disciplinary action against
him.
In May 1991, GTE transferred Shields from Jacksonville to Nash, Texas, where he
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Witt & Tani, TCPI 2. Intentional Harms

became the supply operations supervisor. . . . Bruce, Davis, and Poelstra (“the employees”)
worked under Shields at the Nash facility. Like the GTE employees in Jacksonville, Bruce,
Davis, and Poelstra complained to GTE of Shields’s conduct, alleging that Shields constantly
harassed and intimidated them. The employees complained about Shields’s daily use of profanity,
short temper, and his abusive and vulgar dictatorial manner. The employees complained that,
among other offensive acts, Shields repeatedly yelled, screamed, cursed, and even “charged” at
them. In addition, he intentionally humiliated and embarrassed the employees.
GTE investigated these complaints in April 1992, after which GTE issued Shields a “letter
of reprimand.” After the reprimand, Shields discontinued some of his egregious conduct, but did
not end it completely.
Eventually, Bruce, Davis, and Poelstra sought medical treatment for emotional distress
caused by Shields’s conduct. In March 1994, the employees filed suit, alleging that GTE
intentionally inflicted emotional distress on them through Shields. . . . The jury awarded
$100,000.00 plus prejudgment interest to Bruce, $100,000.00 plus interest to Davis, and
$75,000.00 plus interest to Poelstra.
...
III. Intentional Infliction of Emotional Distress
. . . . To recover damages for intentional infliction of emotional distress, a plaintiff must
prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and
outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the
resulting emotional distress was severe. In addition, “[a] claim for intentional infliction of
emotional distress cannot be maintained when the risk that emotional distress will result is merely
incidental to the commission of some other tort.” Accordingly, a claim for intentional infliction
of emotional distress will not lie if emotional distress is not the intended or primary consequence
of the defendant’s conduct.
...
A. Extreme and Outrageous Conduct
. . . To be extreme and outrageous, conduct must be “so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as
atrocious, and utterly intolerable in a civilized community.” Generally, insensitive or even rude
behavior does not constitute extreme and outrageous conduct. Similarly, mere insults, indignities,
threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and
outrageous conduct.
In determining whether certain conduct is extreme and outrageous, courts consider the
context and the relationship between the parties. “The extreme and outrageous character of the
conduct may arise from an abuse by the actor of a position, or a relation with the other, which
gives him actual or apparent authority over the other, or power to affect his interests.”
Restatement (Second) of Torts § 46 cmt. e (1965).
In the employment context, some courts have held that a plaintiff’s status as an employee
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Witt & Tani, TCPI 2. Intentional Harms

should entitle him to a greater degree of protection from insult and outrage by a supervisor with
authority over him than if he were a stranger. . . .
In contrast, several courts, including Texas courts, have adopted a strict approach to
intentional infliction of emotional distress claims arising in the workplace. These courts rely on
the fact that, to properly manage its business, an employer must be able to supervise, review,
criticize, demote, transfer, and discipline employees. Although many of these acts are necessarily
unpleasant for the employee, an employer must have latitude to exercise these rights in a
permissible way, even though emotional distress results. We agree with the approach taken by
these courts.
. . . . Thus, to establish a cause of action for intentional infliction of emotional distress in
the workplace, an employee must prove the existence of some conduct that brings the dispute
outside the scope of an ordinary employment dispute and into the realm of extreme and
outrageous conduct.
GTE contends that the evidence establishes nothing more than an ordinary employment
dispute. To the contrary, the employees produced evidence that, over a period of more than two
years, Shields engaged in a pattern of grossly abusive, threatening, and degrading conduct.
Shields began regularly using the harshest vulgarity shortly after his arrival at the Nash facility.
In response, Bruce and Davis informed Shields that they were uncomfortable with obscene jokes,
vulgar cursing, and sexual innuendo in the office. Despite these objections, Shields continued to
use exceedingly vulgar language on a daily basis. Several witnesses testified that Shields used the
word “f–––” as part of his normal pattern of conversation, and that he regularly heaped abusive
profanity on the employees. Linda Davis testified that Shields used this language to get a
reaction. Gene Martin, another GTE employee, testified that Shields used the words “f–––” and
“motherf–––er” frequently when speaking with the employees. On one occasion when Bruce
asked Shields to curb his language because it was offensive, Shields positioned himself in front of
her face, and screamed, “I will do and say any damn thing I want. And I don’t give a s––– who
likes it.” Another typical example is when Gene Martin asked Shields to stop his yelling and
vulgarity because it upset the female employees, and Shields replied “I’m tired of walking on f–––
ing eggshells, trying to make people happy around here.” There was further evidence that
Shields’s harsh and vulgar language was not merely accidental, but seemed intended to abuse the
employees.
More importantly, the employees testified that Shields repeatedly physically and verbally
threatened and terrorized them. There was evidence that Shields was continuously in a rage, and
that Shields would frequently assault each of the employees by physically charging at them.
When doing so, Shields would bend his head down, put his arms straight down by his sides, ball
his hands into fists, and walk quickly toward or “lunge” at the employees, stopping uncomfortably
close to their faces while screaming and yelling. The employees were exceedingly frightened by
this behavior, afraid that Shields might hit them. Linda Davis testified that Shields charged the
employees with the intent to frighten them. At least once, another employee came between
Shields and Poelstra to protect her from Shields’s charge. A number of witnesses testified that
Shields frequently yelled and screamed at the top of his voice, and pounded his fists when
requesting the employees to do things. Bruce testified that Shields would “come up fast” and “get
up over her”—causing her to lean back—and yell and scream in her face for her to get things for
him. Shields included vulgar language in his yelling and screaming. Bruce stated that such
conduct was not a part of any disciplinary action against her. Further, the incidents usually
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occurred in the open rather than in private. Bruce testified that, on one occasion, Shields began
beating a banana on his desk, and when he jumped up and slammed the banana into the trash,
Bruce thought he would hit her. Afterwards, Shields was shaking and said “I’m sick.”
Bruce also told of an occasion when Shields entered Bruce’s office and went into a rage
because Davis had left her purse on a chair and Bruce had placed her umbrella on a filing cabinet
in the office. Shields yelled and screamed for Bruce to clean up her office. Shields yelled, “If
you don’t get things picked up in this office, you will not be working for me.” He later said that
Bruce and Davis would be sent to the unemployment line and “could be replaced by two Kelly
girls” that were twenty years old. On another occasion, Shields came up behind Bruce and said,
“You’re going to be in the unemployment line.” Once he told Bruce that he had been sent to Nash
to fire her. Another time, he typed “quit” on his computer and said, “That’s what you can do.”
Davis testified that Shields threatened to “get them” for complaining about his behavior. And
both Bruce and Martin testified that Shields had stated that “he was in a position to get even for
what [the employees] had done.”
Bruce also testified that Shields called her into his office every day and would have her
stand in front of him, sometimes for as long as thirty minutes, while Shields simply stared at her.
Bruce was not allowed to leave Shields’s office until she was dismissed, even though Shields
would periodically talk on the phone or read papers. This often occurred several times a day.
Bruce testified that it made her nauseated and intimidated her. On one occasion, Shields backed
Bruce into a corner, leaned over her, and said, “Rumor has it that you know how to get anything
you want out here.” During an annual review, Shields said to Bruce, “You’re mean and you’re
deadly, very deadly.” Davis also testified that Shields would stand over her desk and stare at her.
Shields required Bruce and Davis, both general clerks at GTE, to purchase vacuum
cleaners with company funds and to vacuum their offices daily, despite the fact that the company
had a cleaning service that performed janitorial services such as vacuuming. The purpose of this
seemed not to clean, but to humiliate. Bruce testified that she was ridiculed by other employees.
Shields also yelled and screamed when he discovered a spot on the carpet; he made Bruce get on
her hands and knees and clean the spots while he stood over her yelling. Poelstra testified that
Shields required her to clean tobacco stains from a wall in the warehouse. Poelstra testified that,
after she forgot her paperwork for a driving test, Shields ordered her to wear a post-it note on her
shirt that said, “Don’t forget your paperwork.” Other witnesses corroborated the employees’
testimony about Shields’s conduct.
In considering whether the evidence establishes more than an ordinary employment
dispute, we will also address GTE’s argument that because none of Shields’s acts standing alone
rises to the level of outrageous conduct, the court of appeals erred in holding that, considered
cumulatively, the conduct was extreme and outrageous.
[T]he employees demonstrated at trial that Shields engaged in a course of harassing
conduct directed at each of them, the totality of which caused severe emotional distress. It is well
recognized outside of the employment context that a course of harassing conduct may support
liability for intentional infliction of emotional distress. In such cases, courts consider the totality
of the conduct in determining whether it is extreme and outrageous.
Similarly, in the employment context, courts and commentators have almost unanimously
recognized that liability may arise when one in a position of authority engages in repeated or
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ongoing harassment of an employee, if the cumulative quality and quantity of the harassment is
extreme and outrageous.
....
We agree with the overwhelming weight of authority in this state and around the country
that when repeated or ongoing severe harassment is shown, the conduct should be evaluated as a
whole in determining whether it is extreme and outrageous. Accordingly, we hold that the court
of appeals did not err in doing so.
We now consider whether Shields’s conduct, taken as a whole, amounts to extreme and
outrageous conduct. “It is for the court to determine, in the first instance, whether the defendant’s
conduct may reasonably be regarded as so extreme and outrageous as to permit recovery . . . .”
When reasonable minds may differ, however, it is for the jury, subject to the court’s control, to
determine whether, in the particular case, the conduct has been sufficiently extreme and
outrageous to result in liability. Restatement (Second) of Torts § 46 cmt. h. To support liability
for intentional infliction of emotional distress, it is not enough that the defendant has acted with
an intent that is tortious, malicious, or even criminal, or that he has intended to inflict emotional
distress. Id. § 46 cmt. d. Although the defendant's intent is relevant, the conduct itself must be
extreme and outrageous to support liability.
...
We recognize that, even when an employer or supervisor abuses a position of power over
an employee, the employer will not be liable for mere insults, indignities, or annoyances that are
not extreme and outrageous. But Shields’s ongoing acts of harassment, intimidation, and
humiliation and his daily obscene and vulgar behavior, which GTE defends as his “management
style,” went beyond the bounds of tolerable workplace conduct. The picture painted by the
evidence at trial was unmistakable: Shields greatly exceeded the necessary leeway to supervise,
criticize, demote, transfer, and discipline, and created a workplace that was a den of terror for the
employees. And the evidence showed that all of Shields’s abusive conduct was common, not rare.
Being purposefully humiliated and intimidated, and being repeatedly put in fear of one’s physical
well-being at the hands of a supervisor is more than a mere triviality or annoyance.
Occasional malicious and abusive incidents should not be condoned, but must often be
tolerated in our society. But once conduct such as that shown here becomes a regular pattern of
behavior and continues despite the victim’s objection and attempts to remedy the situation, it can
no longer be tolerated. . . . Conduct such as being regularly assaulted, intimidated, and threatened
is not typically encountered nor expected in the course of one’s employment, nor should it be
accepted in a civilized society. . . . Accordingly, the trial court properly submitted the issue to the
jury, and there was some evidence to support the jury’s conclusion that Shields’s conduct was
extreme and outrageous.
B. Intent
[Under the doctrine of vicarious liability, it is not necessary that GTE acted with the requisite intent.
“If the intentional tort is committed in the accomplishment of a duty entrusted to the employee,
rather than because of personal animosity, the employer may be liable. Shields’s acts, although
inappropriate, involved conduct within the scope of his position as the employees’ supervisor.”]
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...
C. Severe Emotional Distress
GTE next contends that any distress the employees suffered was not severe. GTE argues
that the employees’ complaints of embarrassment, fear, stomach aches, loss of sleep, and headaches
“are problems that are normally dealt with by each of us in every day life.”
Emotional distress includes all highly unpleasant mental reactions such as embarrassment,
fright, horror, grief, shame, humiliation, and worry. Severe emotional distress is distress that is so
severe that no reasonable person could be expected to endure it. The employees testified that, as a
result of being exposed to Shields’s outrageous conduct, they experienced a variety of emotional
problems, including crying spells, emotional outbursts, nausea, stomach disorders, headaches,
difficulty in sleeping and eating, stress, anxiety, and depression. The employees testified that they
experienced anxiety and fear because of Shields’s continuing harassment, especially his charges
and rages. Each employee sought medical treatment for these problems, and all three plaintiffs
were prescribed medication to alleviate the problems. An expert witness testified that each of them
suffered from post-traumatic stress disorder. This evidence is legally sufficient to support the jury’s
finding that the employees suffered severe emotional distress.
....
. . . . We conclude that there is legally sufficient evidence to support the jury’s verdict
against GTE on each of the employees’ claims for intentional infliction of emotional distress. . . .
[W]e affirm the court of appeals’ judgment.

Notes
1. What constitutes “extreme and outrageous conduct.” Although the plaintiffs in the GTE
case succeeded in convincing a jury that the conduct in question was “extreme and outrageous,” it
was not a sure thing. Indeed, one member of the Texas Supreme Court (Justice Priscilla Owen)
declined to join the majority’s opinion because of concerns about the way the majority
characterized the conduct at issue. Actions such as screaming at employees while telling them to
do things or threatening employees with firing may have been experienced as “humiliating and
degrading” but it was simply “not a basis for sustaining a cause of action for intentional infliction
of emotional distress,” Justice Owen insisted. 998 S.W.2d 605, 620-21 (Owen, J., concurring).
Many other plaintiffs have, in fact, struggled to establish the element of “extreme and
outrageous” conduct. A famous example is Jones v. Clinton, 990 F. Supp. 657 (E.D. Ark. 1998),
in which Paula Jones sued then-president Bill Clinton for claims arising from his alleged conduct
toward her in 1991, when he was Governor of Arkansas and she was a state employee. According
to Jones, Clinton invited her to his hotel room, where, after referencing his close friendship with
Jones’s immediate supervisor, he made several unwelcome sexual advances. These allegedly
included putting his hand on her leg and “sliding it toward her pelvic area” and, after Jones clearly
signaled her disinterest, exposing and “fondling” his erect penis while talking to her. Id. at 66362

Witt & Tani, TCPI 2. Intentional Harms

64. Jones alleged that in the weeks after the incident, in the course of her job, she had several
distressing encounters with Clinton and with the bodyguard who had originally escorted her to
Clinton’s hotel room, including a request for her phone number; she also claimed that her work
environment became hostile. Id. at 665. In dismissing Jones’s IIED claim, the court
characterized the alleged conduct as “a mere sexual proposition or encounter, albeit an odious
one, that was relatively brief in duration, did not involve any coercion or threats of reprisal, and
was abandoned as soon as plaintiff made clear that the advance was not welcome.” Id. at 677.
The court’s language is reminiscent of Professor (later Judge) Calvert Magruder’s statement of the
law in 1936: that when it came to men soliciting sex from women, courts apparently saw “no
harm in asking.” Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49
HARV. L. REV. 1033, 1055 (1936). Given the current prevalence of conversations about
unwelcome sexual conduct and imbalances of power, do you think the Jones case would come out
differently today? Or would the #MeToo movement’s many revelations about abuses of power by
prominent men cause these facts to appear even less “extreme and outrageous”? Can a set of facts
that is common nonetheless be “extreme and outrageous”?
On the other side of the ledger are cases such as Morgan v. Anthony, 27 S.W.3d 928 (Tex.
2000), where the court recounted the following alleged facts, involving a woman driving alone
down a highway:
. . . . As [plaintiff Morgan] continued toward her home . . . the problems with her
automobile worsened. She was no longer able to drive more than five miles per
hour, so she began traveling on the shoulder.
As she was making her way, Mack Anthony, whom she had never before seen,
pulled in front of her in his pickup. At that point, Morgan's vehicle died. Anthony
got out of his truck, approached Morgan's car on the passenger side, and opened the
door. He asked if she was having trouble, to which she responded yes, but she told
Anthony that her husband, who was a mechanic, or her father was on the way to
help her. She thanked Anthony and tried to shut her car door, but he held it open.
Anthony then made a statement to the effect that Morgan's husband might not be
“taking care of [her] in the car department” and implied that her husband might not
be “taking care of her” in other areas of her life. Anthony then said that maybe he
could “help [her] in another area.” She replied no, that she was a happily married
woman and asked Anthony to please let her shut the car door. Anthony responded
that he did not live very far away and suggested that Morgan follow him so that he
could fix her car “and anything extra that [she] needed.”
Morgan continued her efforts to pull her car door closed, but Anthony continued to
hold it open. She repeatedly asked him to let her shut her door, but he refused.
During most of this exchange, Anthony was leaning into the car with one hand on
the dashboard, and he stared between Morgan's legs and at her breasts. When he
stepped back, with only one hand on the car door, Morgan was able to shut and lock
it. Morgan made numerous attempts to restart her car as Anthony stood outside the
passenger window saying things such as “come on baby, open the door.” Morgan's
car eventually did restart and she drove off, but she again could not get her car to
go faster than five miles per hour.

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According to Morgan, Anthony continued to follow her down the highway, variously pulling in
front of her, blocking her access to the shoulder of the road, and, when her vehicle was stopped or
debilitated, approaching her vehicle to make comments, even after she explicitly conveyed to him
her fear. Id. at 929. This pattern broke only when Morgan at last saw a diner parking lot to turn
into and got help from a family member. Id. at 930. Here, the court had “no difficulty” finding
evidence of conduct that was sufficiently outrageous to survive a motion for summary
judgment. Id. at 931.
.
There is also a broad swath of territory somewhere in the middle, where courts have
reached seemingly conflicting conclusions and only context can explain the outcomes. For
example, in Hoard v. Shawnee Medical Center, 662 P.2d 1214 (Kan. 1983), and Peddycoat v.
Birmingham, 392 So.2d 536 (Ala. 1980), erroneous statements to plaintiffs that their children had
died, in horrifying ways, did not amount to conduct that was sufficiently extreme and outrageous
to sustain a claim for IIED. In Dunbar v. Strimas, 632 S.W.2d 558 (Tenn. Ct. App. 1982), by
contrast, the court held that the plaintiff parents did state a claim of IIED where they alleged that a
medical examiner, on the basis of no valid evidence, informed them that their deceased nineteenmonth-old daughter (found dead in her crib at a relative’s house while her mother was
hospitalized giving birth to a second child) showed signs of being sexually abused. Various
courts have found the use of racial epithets insufficiently extreme and outrageous to support a
claim of IIED, see, e.g., Dawson v. Zayre Dept. Stores, 499 A.2d 648 (Pa. Super. Ct. 1985);
Bradshaw v. Swagerty, 563 P.2d 511 (Kan. 1977), but courts have come out the other way where
the defendant made racialized derogatory comments in the course of committing discriminatory
acts (kicking a black customer out of a store, in Ledsinger v. Burmeiter, 318 N.W.2d 558 (Mich.
Ct. App. 1982); sexually harassing an employee, in Lathrope-Olson v. Oregon Department of
Transportation, 876 P.2d 345 (Or. Ct. App. 1994)).
One factor that helps make sense of seemingly conflicting outcomes is the perceived
fragility of the plaintiff and whether the facts suggest that the defendant knew about the plaintiff’s
vulnerable state. As the Restatement authors explain, “the extreme and outrageous character of
the conduct may arise from the actor's knowledge that the other is peculiarly susceptible to
emotional distress, by reason of some physical or mental condition or peculiarity.” Conduct that
might not otherwise be considered “heartless, flagrant, and outrageous” may become so “when the
actor proceeds in the face of such knowledge.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. f
(1965).

2. What constitutes severe emotional distress? Plaintiffs in IIED cases must not only clear
the high bar of outrageousness but must also prove that the distress they experienced was
sufficiently severe. Proving severe emotional distress can be especially challenging when the
plaintiff has not responded to the defendant’s conduct in the way a judge or jury finds intuitive.
For example, in the Jones v. Clinton case referenced above, the court declined to credit the expert
report Jones submitted regarding the psychological and emotional impact of Clinton’s alleged
behavior while treating as significant evidence that Jones “never missed a day of work following
the alleged incident”; continued to work at her job for another nineteen months, even though it
required her to “go on a daily basis to the Governor’s Office to deliver items”; and never formally
reported the incident to a supervisor. 990 F. Supp. at 678.
The Supreme Court of Alabama was similarly skeptical of the plaintiff’s claim of severe
distress in Grantham v. Vanderzyl, 802 So.2d 1077 (Ala. 2001), where the plaintiff nurse alleged
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that, during a surgical procedure, the defendant surgeon intentionally threw at her a “surgical
drape[] containing the patient’s blood and surgical refuse,” after “ma[king] a remark to the effect
that [she] lacked the appropriate training”; the incident left “blood and fluids on [the plaintiff’s]
face,” the defendant conceded, and led to six separate rounds of blood tests (all negative) for
“HIV, hepatitis, and other communicable diseases.” The Alabama Supreme Court agreed with the
trial court that even if all the allegations were true, the plaintiff had no viable claim for “outrage”
(as IIED is called in Alabama). Although a hospital supervisor allegedly told the plaintiff to
“consider herself HIV-positive and to adapt her lifestyle accordingly,” the plaintiff was never
actually “in danger of contracting a communicable disease,” the court noted, and so had no “basis
in fact” for the fearful response she claimed. Id. at 1079, 1081.
Complicating these inquiries is the language found in the Restatement, which many
jurisdictions look to as their guide on severity: “[S]ome degree of transient and trivial emotional
distress is a part of the price of living among people. The law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected to endure it.” RESTATEMENT
(SECOND) OF TORTS § 46 cmt. j (1965) (emphasis added). What are the implications of such
language in a society with a well-recognized gender gap in the experience and expression of
particular emotions and with a cultural tendency to cast women as overly emotional? Changing
“reasonable man” to “reasonable person,” as many jurisdictions have done, facially eliminates
gender from the standard, but does it address the gender (and other) biases that factfinders might
bring with them when they evaluate a particular plaintiff’s alleged distress? For a survey of
sociological research on gender differences in the experience and expression of emotions, see
Robin W. Simon, Sociological Scholarship on Gender Differences in Emotion and Emotional
Well-Being in the United States: A Snapshot of the Field, 6 AM. J. SOC. 196 (2014).
The Restatement language presents still another puzzle: What work does the word
“reasonable” do here? Does it signal the uncompensability of sincerely felt but objectively
unreasonable distress? Or might it instead create space for uniquely sensitive plaintiffs to recover,
so long as they offer enough evidence of their subjective experience of distress to make that
experience cognizable to the factfinder, who can than test it out on the fictitious “reasonable
man”?

3. Intentionality. A successful claim of IIED also requires a showing that the defendant
acted with a particular mental state. In the words of the Restatement, the extreme and outrageous
conduct must have been done “intentionally or recklessly.” RESTATEMENT (SECOND) OF TORTS §
46 (1965). We have previously covered the word “intentionally,” in our discussion of battery. A
person acts “recklessly,” according to the Restatement, if “(a) the person knows of the risk of
harm created by the conduct or knows facts that make the risk obvious to another in the person's
situation, and (b) the precaution that would eliminate or reduce the risk involves burdens that are
so slight relative to the magnitude of the risk as to render the person's failure to adopt the
precaution a demonstration of the person's indifference to the risk.” RESTATEMENT (THIRD) OF
TORTS: PHYS. & EMOT. HARM § 2 (2010). An example of conduct that could fairly be deemed
reckless, if not intentional, can be found in Golston v. Lincoln Cemetery, Inc., 573 S.W.2d 700
(Mo. Ct. App. 1978), where the defendant funeral director’s carelessness resulted in a woman’s
remains being buried in a shallow grave, rather than in the contracted-for vault, and where heavy
equipment then uncovered her body, parts of which the plaintiff relatives of the decedent could
see when they visited her grave site.
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C. Defenses to Intentional Torts
When a plaintiff alleges that a defendant has committed an intentional tort, a defendant
may respond in at least two ways. One is by attacking the plaintiff’s prima facie case, such as by
denying that the plaintiff can establish a required element. Where the defendant successfully
undercuts the plaintiff’s showing of intent, for example, any of the intentional torts claims we
discuss will fail. A second response is to raise an “affirmative defense”—an argument that the
defendant’s apparently tortious conduct was legally justified or privileged.

1. Self-Defense
Courvoisier v. Raymond, 47 P. 284 (Colo. 1896)
HAYT, C.J.
It is admitted, or proven beyond controversy, that appellee received a gunshot wound at
the hands of the appellant . . . , and that, as the result of such wound, the appellee was seriously
injured. It is further shown that the shooting occurred under the following circumstances: That
Mr. Courvoisier, on the night in question, was asleep in his bed, in the second story of a brick
building, situate[d] at the corner of South Broadway and Dakota streets, in South Denver; that he
occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his
bed, shortly after midnight, by parties shaking or trying to open the door of the jewelry store.
These parties, when asked by him as to what they wanted, insisted upon being admitted, and, upon
his refusal to comply with this request, they used profane and abusive epithets towards him.
Being unable to gain admission, they broke some signs upon the front of the building, and then
entered the building by another entrance, and, passing upstairs, commenced knocking upon the
door of a room where defendant’s sister was sleeping. Courvoisier partly dressed himself, and,
taking his revolver, went upstairs, and expelled the intruders from the building. In doing this he
passed downstairs, and out on the sidewalk, as far as the entrance to his store, which was at the
corner of the building. The parties expelled from the building, upon reaching the rear of the store,
were joined by two or three others. In order to frighten these parties away, the defendant fired a
shot in the air; but, instead of retreating, they passed around to the street in front, throwing stones
and brickbats at the defendant, whereupon he fired a second, and perhaps a third, shot. The first
shot fired attracted the attention of plaintiff, Raymond, and two deputy sheriffs, who were at the
tramway depot across the street. These officers started towards Mr. Courvoisier, who still
continued to shoot; but two of them stopped, when they reached the men in the street, for the
purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to
him that he was an officer, and to stop shooting. Although the night was dark, the street was well
lighted by electricity, and, when the officer approached him, defendant shaded his eyes, and,
taking deliberate aim, fired, causing the injury complained of. The plaintiff’s theory of the case is
that he was a duly-authorized police officer, and in the discharge of his duties at the time; that the
defendant was committing a breach of the peace; and that the defendant, knowing him to be a
police officer, recklessly fired the shot in question. The defendant claims that the plaintiff was
approaching him at the time in a threatening attitude, and that the surrounding circumstances were
such as to cause a reasonable man to believe that his life was in danger, and that it was necessary
to shoot in self defense, and that defendant did so believe at the time of firing the shot.

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...
The next error assigned [the court had considered and rejected four other alleged errors]
relates to the instructions given by the court to the jury, and to those requested by the defendant
and refused by the court. The second instruction given by the court was clearly erroneous. The
instruction is as follows: ‘The court instructs you that if you believe, from the evidence, that, at
the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your
verdict should be for the plaintiff.’ The vice of this instruction is that it excluded from the jury a
full consideration of the justification claimed by the defendant. The evidence for the plaintiff
tends to show that the shooting, if not malicious, was wanton and reckless; but the evidence for
the defendant tends to show that the circumstances surrounding him at the time of the shooting
were such as to lead a reasonable man to believe that his life was in danger, or that he was in
danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that
he did so believe. He swears that his house was invaded, shortly after midnight, by two men,
whom he supposed to be burglars; that, when ejected, they were joined on the outside by three or
four others; that the crowd so formed assaulted him with stones and other missiles, when, to
frighten them away, he shot into the air; that, instead of going away, some one approached him
from the direction of the crowd; that he supposed this person to be one of the rioters, and did not
ascertain that it was the plaintiff until after the shooting. He says that he had had no previous
acquaintance with plaintiff; that he did not know that he was a police officer, or that there were
any police officers in the town of South Denver; that he heard nothing said at the time, by the
plaintiff or any one else, that caused him to think the plaintiff was an officer; that his eyesight was
greatly impaired, so that he was obliged to use glasses; and that he was without glasses at the time
of the shooting, and for this reason could not see distinctly. He then adds: “I saw a man come
away from the bunch of men, and come up towards me, and as I looked around I saw this man put
his hand to his hip pocket. I didn’t think I had time to jump aside, and therefore turned around
and fired at him. I had no doubts but it was somebody that had come to rob me, because, some
weeks before, Mr. Wilson’s store was robbed. It is next door to mine.”
By this evidence two phases of the transaction are presented for consideration: First. Was
the plaintiff assaulting the defendant at the time plaintiff was shot? Second. If not, was there
sufficient evidence of justification for the consideration of the jury? The first question was
properly submitted, but the second was excluded by the instruction under review. The
defendant’s justification did not rest entirely upon the proof of assault by the plaintiff. A riot was
in progress, and the defendant swears that he was attacked with missiles, hit with stones,
brickbats, etc.; that he shot plaintiff, supposing him to be one of the rioters. We must assume
these facts as established in reviewing the instruction, as we cannot say that the jury might have
found had this evidence been submitted to them under a proper charge. By the second instruction,
the conduct of those who started the fracas was eliminated from the consideration of the jury. If
the jury believed, from the evidence, that the defendant would have been justified in shooting one
of the rioters, had such person advanced towards him, as did the plaintiff, then it became
important to determine whether the defendant mistook plaintiff for one of the rioters; and, if such
a mistake was in fact made, was it excusable, in the light of all the circumstances leading up to
and surrounding the commission of the act? If these issues had been resolved by the jury in favor
of the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patten
v. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579, 48 N. W. 168; Higgins v. Minaghan, 76
Wis. 298, 45 N. W. 127. The opinion the first of the cases above cited contains an exhaustive
review of the authorities, and is very instructive. The action was for damages resulting from a
pistol-shot wound. The defendant justified under the plea of self-defense. The proof for the
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plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at
another; and the court held that, if the defendant was justified in firing the shot at his antagonist,
he was not liable to the plaintiff, for the reason that the act of shooting was lawful under the
circumstances. Where a defendant, in a civil action like the one before us, attempts to justify on a
plea of necessary self-defense, he must satisfy the jury, not only that he acted honestly in using
force, but that his fears were reasonable under the circumstances, and also as to the
reasonableness of the means made use of. In this case, perhaps, the verdict would not have been
different, had the jury been properly instructed; but it might have been, and therefore the
judgment must be reversed.

Notes

1. Reasonable errors in self-defense. Why should innocent third parties bear the costs of
another person’s mistaken self-defense? Since at least Morris v. Platt, discussed in the
Courvoisier opinion, American courts have adopted the view that a defendant may not be held
liable for injuries caused by mistaken self-defense, so long as the mistake was reasonable. Other
legal systems, however, have allowed injured persons to hold defendants liable under these
circumstances, allocating mistake costs to the mistaken self-defender himself. The Roman law
rule, for example, provided that:
Those who do damage because they cannot otherwise defend themselves are
blameless; for all laws and all legal systems allow one to use force to defend oneself
against violence. But if in order to defend myself I throw a stone at my attacker and
I hit not him but a passerby I shall be liable under the lex Aquilia; for it is permitted
only to use force against an attacker.
1 THEODOR MOMMSEN & ALAN WATSON EDS., THE DIGEST OF JUSTINIAN 9.2.45.4, at p. 292
(1985). Today’s German law adopts a similar approach. See RAYMOND YOUNGS, ENGLISH,
FRENCH & GERMAN COMPARATIVE LAW 472-73 (2d ed. 2007). The French adopt the Courvoisier
approach. Jean Limpens, Robert M. Kruithof & Anne Meinertzhagen-Limpens, Liability for
One’s Own Act, in 11 INT’L ENCYCLOPEDIA OF COMPARATIVE L., 2-1, 2-171 (André Tunc ed.,
1983).
In the United Kingdom, the House of Lords recently indicated its inclination to adopt the
Roman law rule of strict liability for mistaken self-defense, regardless of whether the defendant’s
beliefs and actions were reasonable under the circumstances. A majority of the Lords of Appeal
in the case affirmed their agreement with the opinion of Lord Scott, who asserted that the correct
principle would be that “in order to establish the relevant necessity the defendant must establish
that there was in fact an imminent and real risk of attack.” Ashley v. Chief Constable of Sussex
Police, [2008] UKHL 25, 1 A.C. 962, para. 16-19. Because the issue was not squarely posed, the
Lords of Appeal did not decide the issue definitively.
On the other hand, the criminal law—and at least one U.S. jurisdiction’s tort law—adopts
a standard for self-defense that substantially vindicates a defendant whether the defendant’s belief
in the necessity of self-defense is reasonable or not. Under this approach, so long as the defendant
has a subjectively authentic belief in the threat of an attack, the defendant is privileged to respond
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with appropriate force without risking prosecution for any crime for which intent is a requirement.
(The defendant may nonetheless be liable for those crimes for which proof of recklessness is
sufficient.) See Moor v. Licciardello, 463 A.2d 268, 270-71 (Del. 1983).
Which is the better approach? The American one? The Roman law rule, which now
seems likely to become the British rule as well? Or the criminal law standard? Why does the
criminal law approach differ from the usual common law rule for civil liability?

2. Reasonable escalation. Defense of one’s self privileges a person to use reasonable force
to defend against an unprivileged act, or the threat of an imminent unprivileged act, by another
that the person reasonably believes will cause them harm. A key limit here is that the force used
in self-defense must be “reasonable.”
In Martin v. Yeoham, 419 S.W.2d 937 (Mo. App. 1967), for example, the court held that a
defendant’s apprehension of bodily harm alone would not have justified the use of deadly force;
only apprehension of “imminent danger of death or great bodily harm” would have warranted the
use of a firearm in defense against the perceived threat. The basic test is whether the defendant’s
use of force was necessary given all the attendant facts and circumstances. As the Connecticut
Supreme Court put it, “The permissible degree of force used in self-defense depends on that
which is necessary, under all the circumstances, to prevent an impending injury.” Hanauer v.
Coscia, 244 A.2d 611, 614 (Conn. 1968).
In English law, and according to the Restatement authors, the necessity standard, properly
understood, includes an obligation to retreat before using deadly force if retreat is possible. See
RESTATEMENT (SECOND) OF TORTS § 63 (1965). This is the doctrine known as the “retreat to the
wall” rule. A number of American states, however, follow the so-called “true man” or “stand
your ground” rule, which allows the use of deadly force in response to imminent danger of death
or great bodily harm, even when the alternative of retreat exists. See, e.g., Boykin v. People, 45 P.
419 (Colo. 1896). Some states have even extended the stand-your-ground approach to allow
deadly force in self-defense without an obligation to make an available retreat by a person who is
himself a trespasser at the time. See, e.g., People v. Toler, 9 P.3d 341 (Colo. 2000). The
Restatement authors, by contrast, insist that such a duty to retreat will sometimes require that a
person surrender certain privileges to an attacker, or comply with certain demands by an attacker,
if doing so offers an alternative to the use of deadly force. See RESTATEMENT (SECOND) OF TORTS
§ 65 (1965). On the other hand, virtually all authorities agree that at one’s own dwelling, a person
is 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 “not obliged to retreat . . . but was entitled
to stand his ground, and meet any attack made upon him with a deadly weapon, in such way . . . as
. . . he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary
to . . . protect himself from great bodily injury”).
What are the considerations in favor of the Restatement’s “retreat to the wall” approach as
opposed to the majority “true man” approach? (Note that the doctrinal labels themselves seem
slanted heavily toward the latter, in a clumsily gendered way.) Why does the Restatement view
carve out the home as a special no-retreat-required zone? Is defending one’s home somehow
more worthy of respect than, say, defending one’s family or one’s business or one’s neighbors?

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3. Race and self-defense. “Stand your ground” laws faced renewed public scrutiny after the
death of a seventeen-year-old African-American named Trayvon Martin in Florida in 2012.
Martin was walking back to the house where he was staying (after going out to a local 7-Eleven to
buy Skittles and an iced tea) when a neighborhood watch member named George Zimmerman
deemed him “suspicious.” During a subsequent confrontation, Zimmerman shot the unarmed
black teen to death. Zimmerman’s “suspicions,” according to Martin’s family and to many critics,
had everything to do with Martin’s race. In Zimmerman’s criminal trial, the trial judge instructed
the jury that Florida’s 2005 “stand your ground” law provided that Zimmerman had no duty to
retreat before using deadly force in self-defense as long as he was attacked in a place where he
had a lawful right to be. The jury found Zimmerman not guilty.
Critics argue that one problem with the “stand your ground” principle is the apparent
racial disparity of its impact. Psychological research on implicit bias finds that in simulation
shooting studies, “participants are faster and more accurate when shooting an armed black man
than an armed white man, and faster and more accurate when responding ‘don’t shoot’ to an
unarmed white man than an unarmed black man.” Joshua Correll et al., Across the Thin Blue
Line: Police Officers and Racial Bias in the Decision to Shoot, 92 J. PERSONALITY & SOC.
PSYCHOL. 1007 (2007). The Urban Institute released a study in 2013 that found “with respect to
race, controlling for all other case attributes, the odds a white-on-black homicide is found justified
is 281 percent greater than the odds a white-on-white homicide is found justified. By contrast, a
black-on-white homicide has barely half the odds of being ruled justifiable relative to white-onwhite homicides.” JOHN K. ROMAN, URBAN INST., RACE, JUSTIFIABLE HOMICIDE, AND STAND
YOUR GROUND LAWS: ANALYSIS OF FBI SUPPLEMENTARY HOMICIDE REPORT DATA (2013). One
view is that the law of self-defense affords justifications to actors seeking to defend white spaces
against non-white actors. See generally Angela Onwuachi-Willig, Policing the Boundaries of
Whiteness: The Tragedy of Being “Out of Place” from Emmett Till to Trayvon Martin, 102 IOWA
L. REV. 1113 (2017).
How should the “reasonableness” standard be applied in view of such racial disparities?

4. Defense of third parties. A person is privileged to defend others, too—even strangers.
Until the second half of the twentieth century, most courts held that the privilege of a person to
defend another was no greater than the other’s right to defend himself. A person using force to
defend another thus took the risk that the other was for some reason not privileged to use force in
his own defense. If the other person, for example, was subject to lawful arrest and confinement,
or if the attack on the other person was itself privileged as self-defense by some third party, it
would follow that any use of force in his defense would not be privileged.
Since the 1960s, the rule has shifted. Today, “one who intervenes in a struggle between
strangers under the mistaken but reasonable belief that he is protecting another who he assumes is
being unlawfully beaten is thereby exonerated from criminal liability” —and from tort liability,
too. People v. Young, 183 N.E.2d 319 (N.Y. 1962).
Which of the two approaches is better? Why do you think we have seen a shift from one
approach to the other?

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2. Defense of Real Property
Bird v. Holbrook, 130 Eng. Rep. 911 (C.P. 1825)
[Plaintiff was a nineteen-year-old boy who, seeing a young woman giving chase to a stray
pea-hen, climbed the wall of a neighboring garden for the innocent purpose of retrieving the fowl,
which belonged to the young woman’s employer and had flown over the wall and into the garden.
The defendant, who leased the garden, used it to grow “valuable flower-roots,” including tulips
“of the choicest and most expensive description.” He lived one mile from the garden but
sometimes slept with his wife in a summer house on the garden grounds so as to better protect his
tulips. Shortly before the incident at issue in the case, defendant had been robbed of flowers and
roots in the value of about £20. To prevent further theft, the defendant placed in the garden a
spring gun loaded with gunpowder and buckshot and operated by wires stretching across the
garden’s paths in three or four locations. Defendant posted no notice of the spring gun, and
though the wires were visible from the wall, the defendant conceded that the plaintiff did not see
them. When the defendant told one or two people about the spring gun, he asked them not to tell
others of its presence in the garden “lest the villain should not be detected.” One witness testified
that he (the witness) had urged the defendant to post a notice of the gun, but the defendant had
answered that “he did not conceive that there was any law to oblige him to so.” “The Defendant
stated to the same person that the garden was very secure, and that he and his wife were going to
sleep in the summer-house in a few days.” Plaintiff climbed the garden wall, which was nowhere
higher than seven feet, between the hours of six and seven in the afternoon. “Having called out
two or three times to ascertain whether any person was in the garden and waiting a short space of
time without receiving any answer,” the plaintiff jumped down into the garden and pursued the
pea-hen into a corner near the summer house, where his foot came into contact with one of the
wires close to the spot where the gun was set. The wire triggered the gun, which discharged a
load of swan shot into the plaintiffs’ knee, maiming him. After the case was tried at the Bristol
assizes, plaintiff and defendant consented to enter a verdict for the plaintiff of £50, to be reserved
pending the judgment of the Court of Common Pleas.]
Merewether Serjt. for the defendant. . . . Plaintiff cannot recover for an injury occasioned
to him by his own wrongful act. . . . If a man place broken glass on a wall, or spikes behind a
carriage, one who willfully encounters them, and is wounded, even though it were by night, when
he could have no notice, has no claim for compensation. Volenti non fit injuria [no legally
cognizable injury occurs with the consent of the victim]. The Defendant lawfully places a gun on
his own property; he leaves the wires visible; he builds a high wall, expressly to keep off
intruders; and if, under those circumstances, they are permitted to recover for an injury resulting
from their scaling the wall, no man can protect his property at a distance.
Wilde in reply. . . . No illustration can be drawn from the use of spikes and broken glass
on walls, &c. These are mere preventives, obvious to the sight,—unless the trespasser chooses a
time of darkness, when no notice could be available,—mere preventives, injurious only to the
persevering and determined trespasser, who can calculate at the moment of incurring the danger
the amount of suffering he is about to endure, and who will, consequently, desist from his
enterprise whenever the anticipated advantage is outweighed by the pain which he must endure to
obtain it.

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BEST, C.J. . . . It has been argued that the law does not compel every line of conduct
which humanity or religion may require; but there is no act which Christianity forbids, that the
law will not reach: if it were otherwise, Christianity would not be, as It has always been held to
be, part of the law of England. I am, therefore, clearly of opinion that he who sets spring guns,
without giving notice, is guilty of an inhuman act and that, if injurious consequences ensue, he is
liable to yield redress to the sufferer. But this case stands on grounds distinct from any that have
preceded it. In general, spring guns have been set for the purpose of deterring; the Defendant
placed his for the express purpose of doing injury; for, when called on to give notice, he said, “If I
give notice, I shall not catch him.” He intended, therefore, that the gun should be discharged, and
that the contents should be lodged in the body of his victim, for he could not be caught in any
other way. On these principles the action is clearly maintainable, and particularly on the latter
ground. . . . As to the case of Brock v. Copeland, Lord Kenyon proceeded on the ground that the
Defendant had a right to keep a dog for the preservation of his house, and the Plaintiff, who was
his foreman, knew where the dog was stationed. The case of the furious bull is altogether
different; for if a man places such an animal where there is a public footpath, he interferes with
the rights of the public. What would be the determination of the court if the bull were placed in a
field where there is no footpath, we need not now decide; but it may be observed, that he must be
placed somewhere, and is kept, not for mischief, but to renew his species; while the gun in the
present case was placed purely for mischief. . . .
But we want no authority in a case like the present; we put it on the principle that it is
inhuman to catch a man by means which may maim him or endanger his life, and, as far as human
means can go, it is the object of English law to uphold humanity and the sanctions of religion. It
would be, indeed, a subject of regret, if a party were not liable in damages, who, instead of giving
notice of the employment of a destructive engine, or removing it, at least, during the day,
expressed a resolution to withhold notice, lest, by affording it, he should fail to entrap his victim.
...
BURROUGH, J. The common understanding of mankind shews, that notice ought to be
given when these means of protection are resorted to; and it was formerly the practice upon such
occasions to give public notice in market towns. But the present case is of a worse complexion
than those which have preceded it; for if the Defendant had proposed merely to protect his
property from thieves, he would have set the spring guns only by night. The Plaintiff was only a
trespasser: if the Defendant had been present he would not have been authorized even in taking
him into custody, and no man can do indirectly that which he is forbidden to do directly. . . . [N]o
notice whatever was given, but the Defendant artfully abstained from giving it, and he must take
the consequences.

Notes

1. Pea-fowls versus tulips. Judge Richard Posner analyzes Bird as presenting a conflict
between two economic activities:
The issue in the case, as an economist would frame it, was the proper
accommodation of two legitimate activities, growing tulips and raising peacocks.
The defendant had a substantial investment in the tulip garden; he lived at a distance;
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and the wall had proved ineffective against thieves. In an era of negligible police
protection, a spring gun may have been the most cost-effective means of protection
for the tulips. But since spring guns do not discriminate between the thief and the
innocent trespasser, they deter owners of domestic animals from pursuing their
animals onto other people’s property and so increase the costs (enclosure costs or
straying losses) of keeping animals. The court in Bird implied an ingenious
accommodation: One who set a spring gun must post notices that he has done so.
Then owners of animals will not be reluctant to pursue their animals onto property
not so posted. A notice will be of no avail at night, but animals are more likely to
be secured then and in any event few owners would chase their straying animals
after dark.
RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 260-61 (8th ed. 2011). If this is the right way
to think about Bird v. Holbrook (is it?), what explains the court’s decision to place the obligation
to avoid the conflict between the two activities on the tulip growers rather than on the pea-fowl
farmers? 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?
Note Judge Posner’s reference to the negligible police protection of 1820s Great Britain.
We no longer live in such an era—at least not in developed countries. Does this matter for the
analysis? What about technological changes? Should spring guns or other dangerous traps be
allowed even with notice in defense of private property now that inexpensive digital cameras
promise the possibility of constant surveillance?

2. Malicious traps. The use of spring guns and other traps by property owners looking for an
inexpensive way to defend their property—or to wreak private vengeance on thieves—has not
disappeared in the era of modern policing. Such traps raise questions of both criminal law, which
asks 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
treated as having engaged in justified self-defense.
Probably the most celebrated (and reviled) instance of the use of spring gun traps is Katko
v. Briney, 183 N.W.2d 657 (Iowa 1971), near the beginning of the late-twentieth-century increase
in crime rates. The issue before the court in Katko was whether an owner “may protect personal
property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun
capable of inflicting death or serious injury.” After a series of break-ins to their vacant farmhouse
over a ten year period—break-ins that had resulted in considerable property damage and the theft
of household items—Mr. and Mrs. Briney decided to put a stop to the crimes once and for all. In
June 1967, they supplemented the “no trespass” signs on the property with boards on the windows
and doors and with a spring-loaded shotgun wired to fire when the door to a bedroom was opened.
In July 1967, a man named Katko entered the home to steal antique glass bottles and fruit
jars he had found on an earlier visit. After loosening a board on the porch window, Katko entered
the house with a companion and began to search it. On opening the north bedroom door, Katko
triggered the shotgun trap that the defendants had set. The 20-gauge spring shotgun fired, striking
Katko in the right leg above the ankle; much of his leg, including part of the tibia, was destroyed.
Katko later entered a guilty plea to larceny, stating that he knew “he had no right to break and
enter the house with the intent to steal.” The value of the jars and bottles was set at less than $20
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in value; Katko was later fined $50 and paroled during good behavior from his 60-day jail
sentence. The legal consequences for the Brineys were stiffer. When Katko brought suit for
damages, the trial judge instructed the jury:
You are hereby instructed that one may use reasonable force in the protection of his
property, but such right is subject to the qualification that one may not use such
means of force as will take human life or inflict great bodily injury. Such is the rule
even though the human party is a trespasser and is in violation of the law himself.
The jury found for Katko and awarded him $20,000 in compensatory damages and an additional
$10,000 in punitive damages. The Iowa Supreme Court upheld the verdict and approved the
instruction, 183 N.W.2d 657, notwithstanding widespread protest, an angry dissent, and a
nationwide fundraiser that netted some $10,000 for the Brineys. Newspapers later reported that
the Brineys sold 80 acres of their 120-acre farm in order to pay the judgment to Katko. When
asked several years later whether he had any regrets, Mr. Briney replied: “There’s one thing I’d do
different, though. . . . I’d have aimed that gun a few feet higher.” Booby Trap Case in Iowa
Takes New Turn, CHI. TRIBUNE, Apr. 25, 1975, at 1.
Why was the spring shotgun an unjustifiable protection for the Brineys’ farmhouse? Does
it matter that the defendants’ home was several miles from the scene? That neither Mr. Briney
nor Mrs. Briney were present on the property at the time of the break-in? Under what conditions,
if any, could the Brineys’ shotgun trap be considered a reasonable protection of property?

3. Defense of Chattels
Gortarez v. Smitty’s Super Valu, 680 P.2d 807 (Ariz. 1984)
FELDMAN, J.
Ernest Gortarez, age 16, and his cousin, Albert Hernandez, age 18, went to Smitty’s store
on January 2, 1979, around 8:00 p.m. [In the automotive department, Hernandez selected and
bought something known as a “power booster” for $22.00, while Gortarez picked up a 59-cent
vaporizer used to freshen the air in cars. Before leaving the store, Gortarez changed his mind, left
the vaporizer near the check-out stand and left the store through an unattended check-out aisle. A
clerk, not having seen Gortarez put down the vaporizer,] told the assistant manager and the
security guard, Daniel Gibson, that “[t]hose two guys just ripped us off.” . . .
Gibson and Scott Miller, the assistant manager, along with two other store employees,
then ran out of the store to catch the two young men as they were about to get inside their car in
the parking lot. Miller went to the passenger side to intercept Gortarez, while Gibson went for
Hernandez, who was about to open the car door on the driver’s side. Gibson said that he
identified himself “as an officer” by showing his badge as he ran up to Hernandez. (Gibson was
an off-duty police officer working as a security guard for Smitty’s.) Gibson told Hernandez: “I
believe you have something you did not pay for.” He then seized Hernandez, put his arms on the
car and began searching him. Hernandez offered no resistance even though Gibson did not ask
for the vaporizer, nor say what he was looking for. In cross-examination, Gibson admitted that

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Hernandez did nothing to resist him, and, as Gibson searched him, Hernandez kept repeating that
he did not have anything that he had not paid for.
Meanwhile, on the other side of the car, flanked by Miller, Gortarez saw Gibson grab
Hernandez, push him up against the car, and search him. Gortarez was outraged at this behavior
and used strong language to protest the detention and the search—yelling at Gibson to leave his
cousin alone. According to Gortarez, he thought the men were looking for the vaporizer because
he heard Gibson tell the others to watch out for the bottle, and to look under the car for the bottle.
Gortarez testified that he told the men that Hernandez did not have the vaporizer—it was in the
store. No one had stopped to check at the counter through which the two exited, where the
vaporizer was eventually found in one of the catch-all baskets at the unattended check-out stand.
Seeing Gibson “rousting” Hernandez, Gortarez came to the defense of his cousin, ran
around the front of the car and pushed Gibson away. Gibson then grabbed Gortarez and put a
choke hold around Gortarez’ neck until he stopped struggling. Both Hernandez and Gortarez
testified that the first time that Gibson identified himself to them was after he had restrained
Gortarez in a choke hold. There was testimony that Gortarez was held in the choke hold for a
period of time even after Gortarez had advised the store employees that he had left the vaporizer
in the store. When a carry-out boy told the store employees that he had found the vaporizer in a
basket at the check-out stand, the two cousins were released.
Gortarez later required medical treatment for injuries suffered from the choke hold.
Plaintiffs sued Smitty’s and Gibson for false arrest [and] false imprisonment . . . . The case was
tried before a jury. At the close of all the evidence, the court directed a verdict for the defendants
on the false imprisonment and false arrest count[s]. . . . The court of appeals affirmed, and
plaintiffs petition this court for review. . . .
There is a limited privilege for an owner whose property has been wrongfully taken, while
in fresh pursuit, to use reasonable force to recapture a chattel. An important caveat to this
privilege is that the actor must be correct as to the facts which he believes grant him the privilege,
and faces liability for damages resulting from any mistake, however reasonable. The force
privileged must be reasonable under the circumstances, and not calculated to inflict serious bodily
harm. Ordinarily, the use of any force at all will not be justified until there has been a demand
made for the return of the property.
Thus, privileges for misdemeanor arrest traditionally available at common law recognize
no privilege to arrest for ordinary “shoplifting.” Under this rule a shopkeeper who believed that a
customer was shoplifting was placed in an untenable position. Either the shopkeeper allowed the
suspect to leave the premises, risking the loss of merchandise, or took the risk of attempting to
recapture the chattel by detaining the customer, facing liability for the wrongful detention if the
person had not stolen merchandise.
As Prosser noted, shoplifting is a major problem, causing losses that range into millions of
dollars each year. There have been a number of decisions which permit a business person for
reasonable cause, to detain a customer for investigation. This privilege, however, is narrow: it is
confined to what is reasonably necessary for its limited purpose, of enabling the defendant to do
what is possible on the spot to discover the facts. . . .

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Arizona has adopted the shopkeeper’s privilege by statute, which provides in pertinent
part:
C. A merchant, or his agent or employee, with reasonable cause, may detain on the
premises in a reasonable manner and for a reasonable time any person suspected of
shoplifting . . . for questioning or summoning a law enforcement officer.
D. Reasonable cause is a defense to a civil or criminal action against a peace officer,
merchant or an agent or employee of such merchant for false arrest, false or
unlawful imprisonment or wrongful detention. A.R.S. § 13–1805 (emphasis
supplied).
. . . Once reasonable cause is established, there are two further questions regarding the
application of the privilege. We must ask whether the purpose of the shopkeeper’s action was
proper (i.e., detention for questioning or summoning a law enforcement officer). The last
question is whether the detention was carried out in a reasonable manner and for a reasonable
length of time. If the answer to any of the three questions is negative, then the privilege granted
by statute is inapplicable and the actions of the shopkeeper are taken at his peril. . . .
[The court concluded that while it could not say that the shopkeepers lacked reasonable
cause or acted with an improper purpose, neither could it conclude that the detention was
necessarily reasonable under the circumstances:]
There was no request that the two young men remain. No inquiry was made with regard
to whether Hernandez had the vaporizer. Gibson testified that Hernandez gave no indication of
resistance and made no attempt to escape. The possible theft of a 59-cent item hardly warrants
apprehension that the two were armed or dangerous. There was, arguably, time to make a request
to remain before Gibson seized Hernandez and began searching him. Also, there is no indication
that such a request would obviously have been futile. The evidence adduced probably would have
supported a finding that the manner of detention was unreasonable as a matter of law. At best,
there was a question of fact; there was no support for the court’s presumptive finding that as a
matter of law the detention was performed reasonably.
[T]he court erred in its findings with respect to both the purpose and manner of detention.
This requires reversal and retrial. . . .

Notes

1. The recapture privilege. In Hodegeden v. Hubbard, 18 Vt. 504 (1846), the plaintiff
purchased a stove from defendants in exchange for a promissory note, making assurances of his
creditworthiness. When the defendant-sellers “on the same day, and soon after the sale” learned
of credible reports that the buyer-plaintiff’s assurances were false, and that he was irresponsible
and a poor credit risk, they gave chase and caught up to him on the road to his home. Plaintiff
drew a knife to defend himself, but was overcome by the defendants, who held him down and
recaptured the stove. The court rejected plaintiff’s suit on the grounds that the defendants were
privileged to recapture the stove:
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To obtain possession of the property in question no violence to the person of the
plaintiff was necessary, or required, unless from his resistance. It was not like
property carried about the person, as a watch, or money, nor did it require a number
of people to effect the object. The plaintiff had no lawful possession, nor any right
to resist the attempt of the defendants to regain the property, of which he had
unlawfully and fraudulently obtained the possession.
18 Vt. at 507-08. Critical to the shopkeeper’s privilege is the requirement that the privilege be
exercised (as the Gortarez court opinion indicated) “on the spot” or while in “fresh pursuit” of the
purported shoplifters. What is the function of the “fresh pursuit” rule?

2. Claims of right. In Kirby v. Foster, 22 A. 1111 (R.I. 1891), Foster gave his bookkeeper,
Kirby, a sum of money to be used as wages for other employees. The plaintiff, acting under the
advice of counsel, took from this money the amount due him at the time, and an additional $50
that Kirby believed to have been wrongly deducted from his pay by Foster on a previous occasion.
Kirby put this sum into his pocket, and returned the balance to Foster, saying he had received his
pay and was going to leave, and that he did this under advice of counsel. The defendants—Foster
and his son—then seized the plaintiff, and attempted to take the money from him. A struggle
ensued, in which the plaintiff claims to have received injury, which led to his suit. In his opinion,
Judge Stiness rejected the defense that Foster was engaged in a privileged recapture of his money:
Unquestionably, if one takes another’s property from his possession, without right
and against his will, the owner or person in charge may protect his possession, or
retake the property, by the use of necessary force. He is not bound to stand by and
submit to wrongful dispossession or larceny when he can stop it, and he is not guilty
of assault, in thus defending his right, by using force to prevent his property from
being carried away. But this right of defense and recapture involves two
things: First, possession by the owner; and, second, a purely wrongful taking or
conversion, without a claim of right. If one has intrusted his property to another,
who afterwards, honestly, though erroneously, claims it as his own, the owner has
no right to retake it by personal force. If he has, the actions of replevin and trover
in many cases are of little use. The law does not permit parties to take the settlement
of conflicting claims into their own hands. It gives the right of defense, but not of
redress. The circumstances may be exasperating; the remedy at law may seem to
be inadequate; but still the injured party cannot be arbiter of his own claim. Public
order and the public peace are of greater consequence than a private right or an
occasional hardship. Inadequacy of remedy is of frequent occurrence, but it cannot
find its complement in personal violence.
22 A. at 1112. Why does Kirby’s claim of right in the money transform the legal situation from
that of ordinary recapture of chattels?

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4. Consent
Consent is a “defense” in the sense that where the plaintiff has consented to the
defendant’s conduct, the defendant’s conduct generally (but not always) loses its wrongful
character and the plaintiff’s intentional torts claim should fail.

Mohr v. Williams, 104 N.W. 12, 13-16 (Minn. 1905)
BROWN, J.
Defendant is a physician and surgeon of standing and character, making disorders of the
ear a specialty, and having an extensive practice in the city of St. Paul. He was consulted by
plaintiff, who complained to him of trouble with her right ear, and, at her request, made an
examination of that organ for the purpose of ascertaining its condition. He also at the same time
examined her left ear, but, owing to foreign substances therein, was unable to make a full and
complete diagnosis at that time. The examination of her right ear disclosed a large perforation in
the lower portion of the drum membrane, and a large polyp in the middle ear, which indicated that
some of the small bones of the middle ear (ossicles) were probably diseased. He informed
plaintiff of the result of his examination, and advised an operation for the purpose of removing the
polyp and diseased ossicles. After consultation with her family physician, and one or two further
consultations with defendant, plaintiff decided to submit to the proposed operation. She was not
informed that her left ear was in any way diseased, and understood that the necessity for an
operation applied to her right ear only. She repaired to the hospital, and was placed under the
influence of anaesthetics; and, after being made unconscious, defendant made a thorough
examination of her left ear, and found it in a more serious condition than her right one. A small
perforation was discovered high up in the drum membrane, hooded, and with granulated edges,
and the bone of the inner wall of the middle ear was diseased and dead. He called this discovery
to the attention of Dr. Davis—plaintiff’s family physician, who attended the operation at her
request—who also examined the ear, and confirmed defendant in his diagnosis. Defendant also
further examined the right ear, and found its condition less serious than expected, and finally
concluded that the left, instead of the right, should be operated upon; devoting to the right ear
other treatment. He then performed the operation of ossiculectomy on plaintiff’s left ear;
removing a portion of the drum membrane, and scraping away the diseased portion of the inner
wall of the ear. The operation was in every way successful and skillfully performed. It is claimed
by plaintiff that the operation greatly impaired her hearing, seriously injured her person, and, not
having been consented to by her, was wrongful and unlawful, constituting an assault and battery;
and she brought this action to recover damages therefor.
The trial in the court below resulted in a verdict for plaintiff for $14,322.50. Defendant
thereafter moved the court for judgment notwithstanding the verdict, on the ground that, on the
evidence presented, plaintiff was not entitled to recover . . . . The trial court denied the motion for
judgment . . . . Defendant appealed . . . .
The . . . contention of defendant is that the act complained of did not amount to an assault
and battery. This is based upon the theory that, as plaintiff’s left ear was in fact diseased, in a
condition dangerous and threatening to her health, the operation was necessary, and, having been
skillfully performed at a time when plaintiff had requested a like operation on the other ear, the
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charge of assault and battery cannot be sustained; that, in view of these conditions, and the claim
that there was no negligence on the part of defendant, and an entire absence of any evidence
tending to show an evil intent, the court should say, as a matter of law, that no assault and battery
was committed, even though she did not consent to the operation. In other words, that the absence
of a showing that defendant was actuated by a wrongful intent, or guilty of negligence, relieves
the act of defendant from the charge of an unlawful assault and battery. We are unable to reach
that conclusion, though the contention is not without merit. It would seem to follow from what
has been said on the other features of the case that the act of defendant amounted at least to a
technical assault and battery. If the operation was performed without plaintiff’s consent, and the
circumstances were not such as to justify its performance without, it was wrongful; and, if it was
wrongful, it was unlawful. [E]very person has a right to complete immunity of his person from
physical interference of others, except in so far as contact may be necessary under the general
doctrine of privilege; and any unlawful or unauthorized touching of the person of another, except
it be in the spirit of pleasantry, constitutes an assault and battery.
In the case at bar, as we have already seen, the question whether defendant’s act in
performing the operation upon plaintiff was authorized was a question for the jury to determine.
If it was unauthorized, then it was, within what we have said, unlawful. It was a violent assault,
not a mere pleasantry; and, even though no negligence is shown, it was wrongful and unlawful.
The case is unlike a criminal prosecution for assault and battery, for there an unlawful intent must
be shown. But that rule does not apply to a civil action, to maintain which it is sufficient to show
that the assault complained of was wrongful and unlawful or the result of negligence. . . .
The amount of plaintiff’s recovery, if she is entitled to recover at all, must depend upon
the character and extent of the injury inflicted upon her, in determining which the nature of the
malady intended to be healed and the beneficial nature of the operation should be taken into
consideration, as well as the good faith of the defendant.
Order affirmed.

Notes
1. Consent or utility? The operation was “in every way successful and skillfully performed.”
No one seems to have doubted that the surgeon adopted the prudent course of action once the
operation had begun. Moreover, the surgeon even consulted with his patient’s family doctor
during the surgery. To have obtained permission from the patient herself would have required
that she be brought out of anesthesia and then put back under, no easy feat at the time, and a
procedure with considerable risks to the patient herself. Why would the court conclude that the
undoubtedly correct surgical decision was nonetheless a battery on the plaintiff? Is this a wasteful
decision, requiring future doctors and patients to expend unnecessary and foolish resources in
time, money, and health?

2. Identifying consent. It is not always easy to identify when consent has taken place.
Consider O’Brien v. Cunard Steamship Co., 28 N.E. 266 (Mass. 1891), in which a steerage
passenger on the defendant’s steamship brought an action for intentional tort alleging that
defendant administered a contaminated vaccine without her consent. The plaintiff never said to
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anyone that she desired to be vaccinated. To the contrary, she told the ship’s surgeon that she had
already been vaccinated, though it had left no mark. On the other hand, the plaintiff waited in a
line with 200 other women who were all vaccinated; the plaintiff presented her arm to the surgeon
as the women before her had done; and the plaintiff used the vaccination card she received to gain
admission to the United States at the port of Boston.
Writing for the court, Judge Knowlton held that the question of consent turned on a broad
reading of the surrounding facts and circumstances:
In determining whether the act was lawful or unlawful, the surgeon’s conduct must
be considered in connection with the surrounding circumstances. If the plaintiff’s
behavior was such as to indicate consent on her part, he was justified in his act,
whatever her unexpressed feelings may have been. In determining whether she
consented, he could be guided only by her overt acts and the manifestations of her
feelings.
The court concluded about the women passengers that “[t]hey all indicated by their conduct that
they desired to avail themselves of the provisions made for their benefit.” 28 N.E. at 273-74.
How does the court’s recognition of consent-by-conduct square with the kinds of concerns that
motivate the consent requirement in the first place?
Note that the influential Restatement (Second) of Torts is consistent with the court’s
approach to consent in O’Brien (although a jury today might apply the law differently to the
facts). The Restatement defines consent as “willingness in fact for conduct to occur”; such
willingness “may be manifested by action or inaction and need not be communicated to the actor.”
RESTATEMENT (SECOND) OF TORTS § 892 (1979). Commentators today refer to this as “actual
consent.” The same section gives the identical effect to “apparent consent”: “If words or conduct
are reasonably understood by another to be intended as consent, they constitute apparent consent
and are as effective as consent in fact.” Id.

3. Consent to allegedly tortious sexual conduct. As discussed in Note 2, the influential
Restatement (Second) of Torts employs a general definition of consent. Tort claims involving
unwelcome sexual contact receive no special treatment. Consider the following illustration, which
the Restatement authors include in the commentary following Section 892: “A, a young man, is
alone with B, a girl, in the moonlight. A proposes to kiss B. Although inwardly objecting, B says
nothing and neither resists nor protests by any word or gesture. A kisses B. A is not liable to B.”
RESTATEMENT (SECOND) OF TORTS § 892, cmt. c, illustration 3 (1979). B’s conduct, in this
hypothetical scenario, exemplifies “apparent consent.”
The doctrine of apparent consent has proven controversial, to say the least. Professor
Martha Chamallas, for example, contends that the “outdated and inhospitable doctrine of consent”
is “a main obstacle to successful prosecution of a sexual battery or assault tort claim against [an]
offender.” Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J. TORT L. 39, 52
(2018).
It is also worth asking whether some groups of potential plaintiffs are particularly poorly
served by the doctrine of apparent consent. Professor Elizabeth Adjin-Tettey contends that “the
objective ascertainment of reasonable belief in consent” sounds neutral, but in application is likely
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to privilege the perspective that, historically, has enjoyed social and cultural dominance: that of
white, heterosexual men. Elizabeth Adjin-Tettey, Protecting the Dignity and Autonomy of
Women: Rethinking the Place of Constructive Consent in the Tort of Battery, 39 U.B.C. L. REV. 3
(2006). For related reasons, this doctrine poses a risk for the very populations that are most
vulnerable to sexual abuse. For example, what might an objective reasonableness inquiry mean
for non-white women, who face well-documented racialized stereotypes about their sexual
availability and sexual deviance? Id. What might it mean for plaintiffs whose key identity
markers—such as disability, poverty, or gender non-conformity—leave them underrepresented
among the legal decisionmakers who will apply this “reasonable belief” standard to their cases?
Where is the law headed? One might expect tort law to incorporate, eventually, the
evolving norms on college campuses, where both school officials and some students have
embraced the notion of “affirmative consent.” Under affirmative consent policies, sexual contact
is presumed non-consensual unless and until the parties expressly agree to it. Such policies often
go hand-in-hand with a skepticism towards expressions of consent given while an actor’s
judgment is demonstrably impaired by drugs or alcohol. The authors of the Third Restatement
(Intentional Torts to Persons) have attempted to address this difficult issue in a draft chapter on
consent, which includes a specific section on consent to sexual conduct. RESTATEMENT (THIRD)
OF TORTS: INTEN. TORTS TO PERSONS § 18 TD No 4 (2019). In the draft comments, the authors
acknowledge the “social importance” of the issue and the apparent shift in norms toward an
affirmative consent standard. Id. § 18 cmts. a & f. Ultimately, however, the authors decline to
take a position on whether affirmative consent should be the standard for consent to sexual
conduct in tort law and instead adopt a less controversial “no means no” approach to consent. Id.
§ 18 cmts. e & f. Under “no means no” policies, sexual contact is presumed consensual unless
and until a party expresses an unwillingness to permit sexual contact. If the Third Restatement’s
proposed approach to consent is widely adopted, how might this affect litigation over allegedly
tortious sexual conduct? What are the advantages and disadvantages of this approach as
compared to a standard of affirmative consent?

4. Boilerplate consent. Modern consent mechanisms in the medical care context are
radically different from the informal inferences of O’Brien. Establishing consent in a medical
context is now a matter of detailed medical paperwork. Consider the following excerpt from a
standardized consent form at Yale-New Haven Hospital:

SECTION A
1. After discussing other options, including no treatment, with my
doctor, I ask Dr. _____________________________ and/or his/her
partners to perform the following procedure(s):
____________________________________________ Name or
description of operation(s), procedure(s) and/or treatment(s). Indicate
applicable level, side, or site. I understand that this procedure is for
purposes of _________________________________________________
2. I give permission to my doctor to do whatever may be necessary if
there is a complication or unforeseen condition during my procedure.

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3. My doctor has explained to me that some possible complications of the
procedure(s) can include:
a. Bleeding; infection; accidental injury of other body parts; my
condition returning or not being improved; or, possibly, death.
b. My doctor has discussed with me the additional risks listed
below and their chances of happening. I do understand that
other things can happen as
well.__________________________________________________
4. I agree to have anesthesia as necessary to perform the procedure(s). I
understand that if an anesthesiologist is to be involved he/she will
speak to me about the risks of anesthesia in more detail.
5. I understand that I may need to have a blood transfusion during or
after the procedure(s). I understand that some risks of blood
transfusions include: fever, allergic reaction, or getting an infectious
disease. I agree to receive blood or blood products if my doctor
decides it is necessary.
6. I give permission to the hospital to keep tissue, blood, body parts, or
fluids removed from my body during the procedure and use them to
make a diagnosis, after which they may be used for scientific research
or teaching by appropriate persons within or outside the hospital.
These materials will only be used for scientific research after review
by an ethics board. I understand that I will no longer own or have any
rights to these things regardless of how they may be used.
7. I understand that Yale-New Haven is a teaching hospital. Doctors who
are in training may help my doctor with the procedure. My doctor will
supervise these trainees and will be present at all important times
during the procedure. I also understand that my doctor’s associate(s),
surgical assistants and/or other non-physicians or trainees may assist
or perform parts of the procedure under my doctor’s supervision, as
permitted by law and hospital policy. If others who are not hospital
staff will be present in the operating room, my doctor has spoken with
me about this.
8. I understand the purpose and potential benefits of the procedure. My
doctor has explained to me what results to expect, and the chances of
getting those results. I understand that no promises or guarantees
have been made or can be made about the results of the procedure(s).
9. I give permission to the hospital and the above-named doctor to
photograph and/or videotape the procedure(s) for medical, scientific,
or educational purposes.
Consent signed on _____________, 20__ at _______________AM / PM
_____________________________________
Signature of Patient or Guardian (Circle one)
_____________________________________
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Signature of Doctor Performing Procedure
_____________________________________
Signature of Person Obtaining Consent
___________________________________
Printed Name

Do boilerplate consent forms of modern medical practice undo the decision in Mohr? Or
do they vindicate it? What if the consent form said only the following: “I give permission to my
doctor to do whatever the doctor deems advisable for my health and wellbeing during my
procedure.” Would this undo the decision in Mohr?
For a troubling example of the type of conduct that such a form might make consensual,
legally speaking, consider the once common practice (now increasingly under scrutiny) at
teaching hospitals of medical trainees performing pelvic exams on unconscious, anesthetized
women patients, often solely for the purpose of educating the trainees. Such hospitals have also
sometimes allowed medical trainees to practice rectal exams on patients undergoing prostate
surgery. Defenders of these practices have advanced utilitarian arguments: such exams allow
future doctors to gain and hone crucial skills, to the benefit of society. Phoebe Friesen,
Educational Pelvic Exams on Anesthetized Women: Why Consent Matters, 32 BIOETHICS 298
(2018). Consider also the increasingly acknowledged phenomenon of “obstetric violence,”
including unwanted surgical incisions, unnecessary resort to forceps and vacuum extractors, and
physical restraint during the processes of labor and delivery. Elizabeth Kukura, Obstetric
Violence, 106 GEO. L.J. 721 (2018). How should tort law address situations of this nature?

5. Limitations on consent. Not all manifestations of consent will prevent defendants from
being held liable for the injurious consequences of their action. One set of situations where the
effect of consent is limited is when the person who purportedly consented could not legally give
that consent. The Restatement explains it this way: “To be effective, consent must be (a) by one
who has the capacity to consent or by a person empowered to consent for him, and (b) to the
particular conduct, or to substantially the same conduct. ”RESTATEMENT (SECOND) OF TORTS §
892A (1979).
The Restatement also notes the existence of “conditional” or “restricted” consent, which
“is effective only within the limits of the condition or restriction. And “[u]pon termination of
consent its effectiveness is terminated,” too, “except as it may have become irrevocable by
contract or otherwise, or except as its terms may include, expressly or by implication, a privilege
to continue to act.” RESTATEMENT (SECOND) OF TORTS § 892A (1979).
A final set of situations where the law will not honor what the defendant claims to be
consent is where the facts suggest a lack of voluntariness. Thus, consent given under duress will
not defeat a plaintiff’s claim to recovery for injury from an ostensibly consented-to action. See
RESTATEMENT (SECOND) OF TORTS § 892B (1979). Courts take a similar approach to consent
secured by false pretenses. The Restatement puts it this way: “If the person consenting to the
conduct of another is induced to consent by a substantial mistake concerning the nature of the
invasion of his interests or the extent of the harm to be expected from it and the mistake is known
to the other or is induced by the other's misrepresentation, the consent is not effective for the
unexpected invasion or harm.” RESTATEMENT (SECOND) OF TORTS § 892B (1979).
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6. The psychology of consent. Do we know involuntariness when we see it? Recent research
by Roseanna Sommers and Vanessa Bohns has been invoked by some scholars to suggest that
social pressures may turn requests for voluntary consent into occasions of coerced compliance.
Sommers and Bohns report that when researchers conducting a laboratory study asked one group
of participants to unlock their password-protected smartphones and give them to an experimenter
to search through while the participants waited in another room (i.e., a highly intrusive request),
the vast majority of participants complied; when researchers asked another group of participants
whether a reasonable person would agree to such a request if hypothetically approached by the
same researcher, the vast majority predicted that people would refuse and reported that they
themselves would refuse the request. Roseanna Sommers & Vanessa K. Bohns, The
Voluntariness of Voluntary Consent: Consent Searches and the Psychology of Compliance, 128
YALE L.J. 1962 (2019). What explains the gap between predicted performance and actual
performance? If it is true that decisionmakers are not good at estimating the freedom, or lack of
freedom, that another person feels when asked to permit an intrusion on their own interests, is this
a reason to change the way the doctrine of consent currently operates? What might such a change
look like?

5. Necessity
For cases of alleged trespass, tort law allows defendants to argue that their actions were
necessary and therefore privileged. The following two cases present famous nuances arising from
claims of necessity. Pay careful attention in each case to which party has asserted such a claim.

Ploof v. Putnam, 71 A. 188 (Vt. 1908)
MUNSON, J.
It is alleged as the ground on recovery that on the 13th day of November 1904, the
defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached
thereto, which island and dock were then in charge of the defendant’s servant; that the plaintiff
was then possessed of and sailing upon said lake a certain loaded sloop, on which were the
plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest,
whereby the sloop and the property and persons therein were placed in great danger of
destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did,
moor the sloop to defendant’s dock; that the defendant, by his servant, unmoored the sloop,
whereupon it was driven upon the shore by the tempest, without the plaintiff’s fault; and that the
sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into
the lake and upon the shore, receiving injuries. . . .
There are many cases in the books which hold that necessity, and an inability to control
movements inaugurated in the proper exercise of a strict right, will justify entries upon land and
interferences with personal property that would otherwise have been trespasses. A reference to a
few of these will be sufficient to illustrate the doctrine. . . . In trespass of cattle taken in A.,
defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased
them towards the pound, and they escaped from him and went into A., and he presently retook
them; and this was held a good plea. . . . If one have a way over the land of another for his beasts
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to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of
the way and are promptly pursued and brought back, trespass will not lie. . . . A traveler on a
highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining
land without becoming a trespasser because of the necessity. . . . An entry upon land to save
goods which are in danger of being lost or destroyed by water or fire is not a trespass. . . . In
Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff’s beach
for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore,
and was in danger of being carried off by the sea; and it was held no trespass. . . .
This doctrine of necessity applies with special force to the preservation of human life.
One assaulted and in peril of his life may run through the close of another to escape from his
assailant. . . . One may sacrifice the personal property of another to save his life or the lives of his
fellows. In Mouse’s Case, 12 Co. 63, the defendant was sued for taking and carrying away the
plaintiff’s casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers
into his barge to pass to London, among whom were the plaintiff and defendant; and the barge
being upon the water a great tempest happened, and a strong wind, so that the barge and all the
passengers were in danger of being lost if certain ponderous things were not cast out, and the
defendant thereupon cast out the plaintiff’s casket. It was resolved that in case of necessity, to
save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the
plaintiff’s casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have
his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the
danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one
ought to bear his loss to safeguard the life of a man.
It is clear that an entry upon the land of another may be justified by necessity . . . . But the
defendant questions the sufficiency of the counts because they do not negative the existence of
natural objects to which the plaintiff could have moored with equal safety. The allegations are, in
substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to
defendant’s dock to save his sloop and the people in it. The averment of necessity is complete, for
it covers not only the necessity of mooring to the dock; and the details of the situation which
created this necessity, whatever the legal requirements regarding them, are matters of proof, and
need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of
circumstance, and the question must be left for adjudication upon proceedings had with reference
to the evidence or the charge.
...
Judgment affirmed and cause remanded.

Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910)
O’BRIEN, J.
The steamship Reynolds, owned by the defendant, was for the purpose of discharging her
cargo on November 27, 1905, moored to plaintiff’s dock in Duluth. While the unloading of the
boat was taking place a storm from the northeast developed, which at about 10 o’clock p. m.,
when the unloading was completed, had so grown in violence that the wind was then moving at 50
miles per hour and continued to increase during the night. There is some evidence that one, and
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perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was
practically suspended from the hour mentioned until the morning of the 29th, when the storm
abated, and during that time no master would have been justified in attempting to navigate his
vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a
tug to tow her from the dock, but none could be obtained because of the severity of the storm. If
the lines holding the ship to the dock had been cast off, she would doubtless have drifted away;
but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced,
sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the
wind and waves striking her starboard quarter with such force that she was constantly being lifted
and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.
We are satisfied that the character of the storm was such that it would have been highly
imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted
his vessel to drift a way from it. . . . [T]hose in charge of the dock and the vessel at the time of the
storm were not required to use the highest human intelligence, nor were they required to resort to
every possible experiment which could be suggested for the preservation of their property.
Nothing more was demanded of them than ordinary prudence and care, and the record in this case
fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in
charge of her exercised good judgment and prudent seamanship.
It is claimed by the respondent that it was negligence to moor the boat at an exposed part
of the wharf, and to continue in that position after it became apparent that the storm was to be
more than usually severe. We do not agree with this position. The part of the wharf where the
vessel was moored appears to have been commonly used for that purpose. It was situated within
the harbor at Duluth, and must, we think, be considered a proper and safe place, and would
undoubtedly have been such during what would be considered a very severe storm. The storm
which made it unsafe was one which surpassed in violence any which might have reasonably been
anticipated.
The appellant contends by ample assignments of error that, because its conduct during the
storm was rendered necessary by prudence and good seamanship under conditions over which it
had no control, it cannot be held liable for any injury resulting to the property of others, and
claims that the jury should have been so instructed. An analysis of the charge given by the trial
court is not necessary, as in our opinion the only question for the jury was the amount of damages
which the plaintiffs were entitled to recover, and no complaint is made upon that score.
The situation was one in which the ordinary rules regulating properly rights were
suspended by forces beyond human control, and if, without the direct intervention of some act by
the one sought to be held liable, the property of another was injured, such injury must be
attributed to the act of God, and not to the wrongful act of the person sought to be charged. If
during the storm the Reynolds had entered the harbor, and while there had become disabled and
been thrown against the plaintiffs’ dock, the plaintiffs could not have recovered. Again, if while
attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel
carried against some other boat or dock in the harbor, there would be no liability upon her owner.
But here those in charge of the vessel deliberately and by their direct efforts held her in such a
position that the damage to the dock resulted, and, having thus preserved the ship at the expense
of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the
injury inflicted.
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In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held
that where the plaintiff, while lawfully in the defendants’ house, became so ill that he was
incapable of traveling with safety, the defendants were responsible to him in damages for
compelling him to leave the premises. If, however, the owner of the premises had furnished the
traveler with proper accommodations and medical attendance, would he have been able to defeat
an action brought against him for their reasonable worth?
In Ploof v. Putnam, 71 Atl. 188, 20 L. R. A. (N. S.) 152, the Supreme Court of Vermont
held that where, under stress of weather, a vessel was without permission moored to a private
dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of
trespass, and that the defendant was responsible in damages because his representative upon the
island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in
that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe
the shipowner would have been held liable for the injury done.
Theologians hold that a starving man may, without moral guilt, take what is necessary to
sustain life; but it could hardly be said that the obligation would not be upon such person to pay
the value of the property so taken when he became able to do so. And so public necessity, in
times of war or peace, may require the taking of private property for public purposes; but under
our system of jurisprudence compensation must be made.
Let us imagine in this case that for the better mooring of the vessel those in charge of her
had appropriated a valuable cable lying upon the dock. No matter how justifiable such
appropriation might have been, it would not be claimed that, because of the overwhelming
necessity of the situation, the owner of the cable could not recover its value.
This is not a case where life or property was menaced by any object or thing belonging to
the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is
it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was
beyond the control of the defendant, but is one where the defendant prudently and advisedly
availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable
property, and the plaintiffs are entitled to compensation for the injury done.
Order affirmed.
LEWIS, J., dissenting.
I dissent. It was assumed on the trial before the lower court that appellant’s liability
depended on whether the master of the ship might, in the exercise of reasonable care, have sought
a place of safety before the storm made it impossible to leave the dock. The majority opinion
assumes that the evidence is conclusive that appellant moored its boat at respondent’s dock
pursuant to contract, and that the vessel was lawfully in position at the time the additional cables
were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of
the stronger cables to hold the boat in position, it became liable under the rule that it had
voluntarily made use of the property of another for the purpose of saving its own. In my
judgment, if the boat was lawfully in position at the time the storm broke, and the master could
not, in the exercise of due care, have left that position without subjecting his vessel to the hazards
of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an
inevitable accident. If the master was in the exercise of due care, he was not at fault. The
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reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not
parted, or if, in the first instance, the master had used the stronger cables, there would be no
liability. If the master could not, in the exercise of reasonable care, have anticipated the severity
of the storm and sought a place of safety before it became impossible, why should he be required
to anticipate the severity of the storm, and, in the first instance, use the stronger cables?
I am of the opinion that one who constructs a dock to the navigable line of waters, and
enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of
damage to his dock by a boat caught there by a storm, which event could not have been avoided in
the exercise of due care, and further, that the legal status of the parties in such a case is not
changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.
JAGGARD, J., concurs herein.

Notes

1. The incomplete privilege of private necessity. Under the privilege of necessity, a
defendant is permitted to commit what would otherwise be an intentional tort to another’s rights
in property or realty to protect a more valuable interest in property or an interest in bodily security
or life. See RESTATEMENT (SECOND) OF TORTS §§ 196, 197, 262, 263 (1965). Where the more
valuable interest belongs to a large number of persons, as for example, where a city must be saved
from a fire, the privilege may be deemed one of public necessity, and the defendant will owe no
compensation for any damage that occurs in reasonable exercise of the privilege. See id. §§ 196,
262. However, where the more valuable interest belongs only to the defendant or a small number
of persons, the privilege is classified as a case of private necessity, and in suits by a party injured
by the invasion, courts will require that the taker pay compensation for the harm caused by the
invasion. See id. § 197(2); § 263(2) & cmt. e. The privilege of private necessity is thus an
incomplete privilege (while the privilege of public necessity, by contrast, is complete). Note,
however, that even where the privilege is incomplete in this sense, the privilege to invade
another’s property means that a property owner engaging in self-help to prevent the privileged
invasion must pay for any damages resulting from her self-help. See id. § 263 cmt. b.

2. A philosopher’s view of Vincent. Philosophers of tort law typically argue that the
normative structure of tort law is organized around wrongs and obligations of repair. But if that is
so, what was the wrong in Vincent? Leading philosopher of tort law Jules Coleman offered an
ingenious argument on this score:
There are three different ways in which “wrongs” and “compensation” can be
connected. (1) You wrong me and owe me compensation because of the wrong you
have done me. (2) You pay me compensation and thereby make right (or make
permissible) what would otherwise be a wrong to me. (3) You wrong me and owe
me compensation, but your conduct is permissible even if you cannot and ultimately
do not compensate me.
Jules L. Coleman, Some Reflections on Richard Brooks’s “Efficient Performance Hypothesis,”
116 YALE L.J. POCKET PART 416 (2007). Does the Coleman explanation offer an adequate
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explanation of why a law of civil wrongs would require compensation from the shipowner to the
dockowner?

3. The paradigm of reciprocity. Perhaps the wrong that corrective justice theorists believe is
present in Vincent can be cashed out in terms of fairness. This is George Fletcher’s view—
namely, that an unexcused nonreciprocity of risk is what makes sense of Vincent.
The critical feature of [Vincent] is that the defendant created a risk of harm to the
plaintiff that was of an order different from the risks that the plaintiff imposed on
the defendant. [S]uppose that two sailors secured their ships in rough weather to a
single buoy. [E]ach party would subject the other to a risk of . . . abrasion. [This]
manifestation . . . of the paradigm of reciprocity . . . express[es] the same principle
of fairness: all individuals in society have the right to roughly the same degree of
security from risk. By analogy to John Rawls’ first principle of justice, the principle
might read: we all have the right to the maximum amount of security compatible
with a like security for everyone else. This means that we are subject to harm,
without compensation, from background risks, but that no one may suffer harm
from additional risks without recourse for damages against the risk-creator.
Compensation is a surrogate for the individual’s right to the same security as
enjoyed by others. But the violation of the right to equal security does not mean
that one should be able to enjoin the risk-creating activity or impose criminal
penalties against the risk-creator. The interests of society may often require a
disproportionate distribution of risk. Yet, according to the paradigm of reciprocity,
the interests of the individual require us to grant compensation whenever this
disproportionate distribution of risk injures someone subject to more than his fair
share of risk.
George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972). Does
Fletcher’s view of Vincent do a better job than Coleman’s view of explaining the outcome of the
case? The question for any view based on reciprocity is how to identify the appropriate baseline
from which reciprocity may be measured. Fletcher’s conception of reciprocal risks in the case of
two sailors and a single buoy presupposes that the law vests each sailor with a protectable
entitlement in their respective vessels. But whether any such entitlements exist is what we are
trying to decide. To take the Vincent example, can we identify the risks as nonreciprocal without
assuming that the plaintiff has a protectable entitlement in the dock? But isn’t that what we are
trying to decide?

4. A civil recourse approach? More recently, Professors John Goldberg and Benjamin
Zipursky have attempted to establish a civil recourse theory of tort as an alternative to both the
economic-utilitarian and corrective justice approaches. The basic idea that animates civil recourse
theory is that a tort is a wrong that empowers the victim to seek satisfaction from the wrongdoer
through special means of redress provided by the government. Tort (in this view) is therefore not
about loss-spreading, risk allocation, or even compensation, but rather about vindicating the right
of the victim of wrong to recourse from the tortfeasor. Goldberg and Zipursky believe that their
view of tort generates an explanation of Vincent:
Our own view of Vincent is that . . . it deserves attention because it vividly
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demonstrates the distinctiveness of the wrong of trespass to land. Vincent, we
believe, is a plain-vanilla trespass case. The ship owner intentionally occupied the
defendant’s property (the dock) even after it was no longer permitted to do so. It
therefore committed a trespass for which compensation was owed. Of course its
decision to trespass was entirely reasonable. However—as we have emphasized all
along—the wrong of trespass, at least in the first instance, has nothing to do with
whether the defendant behaved reasonably. . . .
Even though the reasonableness of the trespass in Vincent does not prevent it from
being a trespass, it does have some significance on the outcome of the case. . . .
[T]he same circumstances that explain why the captain’s decision to stay put was
entirely reasonable also explain why the dock owner in Vincent, like the dock owner
in Ploof, would have faced liability if it had forcibly ejected the Reynolds from the
dock, thereby causing it or its crew to suffer harm. A property owner has a limited
privilege to take measures to ward off trespassers [but] as we saw in Katko v. Briney,
a property possessor cannot do just anything in response to trespasses. Ploof tells
us that if a property owner expels trespassers under circumstances where the
expulsion exposes them to a grave risk of death or bodily harm, the property owner
will have abused his privilege to defend his property and therefore will be subject
to liability for battery.
JOHN C. P. GOLDBERG & BENJAMIN C. ZIPURSKY, THE OXFORD INTRODUCTIONS TO U.S. LAW:
TORTS (2010). What, in Goldberg’s and Zipursky’s view, explains why the dockowner may not
forcibly unmoor the shipowner? Do Goldberg and Zipursky have an account of this feature of the
legal structure, or does their theory beg the question of whence the privilege comes?

5. The economic view of Vincent. A very different set of accounts of tort law and of cases
like Vincent emphasizes the economic logic of the case. In this view, the aim of the law should be
to allocate liability to the party best positioned and incentivized to minimize the costs of
accidents. Costs should be allocated, in other words, to the best cost avoider. See GUIDO
CALABRESI, THE COSTS OF ACCIDENTS (1970).
Note, however, that cases like Vincent pose two wrinkles. The first is that it can be very
hard for an adjudicator to accurately gauge which party is better positioned to minimize accident
costs. The second is that it is not always clear that adjudicators will in fact always be able to
decide that question, at least as a prospective matter. Will shipowners in Minnesota bear the risk
of Vincent-like damages in future Vincent-like situations? One might think so having just read the
case. But if we allow shipowners and dockowners to trade the risks before those risks come to
fruition, we should expect to see the risk freely traded, even if the common law tort rule allocates
it to ship owners as an initial matter.
This insight has made the Vincent decision a classic case for the discussion of what
economists and lawyers call the Coase Theorem. In a famous article, Nobel Prize-winning
economist Ronald Coase contended that absent transaction costs, rational parties will transact to
allocate the entitlements to their highest value user regardless of the initial allocation of legal
entitlements. Parties will do so in order to maximize the joint value of the entitlement in question.
Coase gave the analogy of a then-recent British case brought by a physician against a neighboring
baker whose noisy machinery interfered with his medical practice. The court had allocated the
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entitlement to the doctor, who thereafter had the power to stop the confectioner from using the
loud machines. But Coase observed that a rational doctor would have been willing to
waive his right and allow the machinery to continue in operation if the confectioner
would have paid him a sum of money which was greater than the loss of income
which he would suffer from having to move to a more costly or less convenient
location or from having to curtail his activities at this location or, as was suggested
as a possibility, from having to build a separate wall which would deaden the noise
and vibration.
Ronald N. Coase, The Problem of Social Cost, 3 J.L. & ECON. 1, 9 (1960). In turn, the baker
“would have been willing to do this,” if and only if “the amount he would have to pay the doctor
was less than the fall in income he would suffer if he had to change his mode of operation at this
location, abandon his operation or move his confectionery business to some other location.” Id.
The only real question, in Coase’s account, was whether “continued use of the machinery adds
more to the confectioner’s income that it subtracts from the doctor’s.” If it did, then the baker
would buy from the doctor the right to continue with the machinery. Indeed, Coase’s insight was
that the same outcome would obtain no matter whether the court found for the doctor or the baker.
But now consider the situation if the confectioner had won the case. The
confectioner would then have had the right to continue operating his noise and
vibration-generating machinery without having to pay anything to the doctor. The
boot would have been on the other foot: the doctor would have had to pay the
confectioner to induce him to stop using the machinery.
Just as in the first scenario in which the doctor won, the parties will trade the entitlement so that
the party valuing it most ends up with it. As Coase concludes: “With costless market transactions,
the decision of the courts concerning liability for damage would be without effect on the
allocation of resources.” Coase’s point is that where trading is possible, entitlements will tend to
go to their highest value users. Id. at 9-10.
At around the same time Coase wrote The Problem of Social Cost, Guido Calabresi made
a similar observation in a classic article, The Decision for Accidents:
[A]lthough there are situations in which the choice of an original loss bearer is
relatively easy because it . . . makes no difference . . . there are other situations in
which the choice of an original loss bearer or, if you wish, the question of what loss
belongs to what activity, is not only important, but hard!
Guido Calabresi, The Decision for Accidents, 78 HARV. L. REV. 713, 732 (1965). Calabresi
emphasized the pervasiveness of transaction costs, where Coase emphasized the power of
markets. But together their insights have produced elaborate literatures in law and economics in
the years since.
Some of the claims in the law and economics literature are quite contentious because they
make strong assertions or assumptions about the efficiency of markets. But the basic point—that
common law adjudications are often not the final word on the allocation of an entitlement—is a
straightforward, important, and widely accepted one.
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How does this matter for torts? Typically the Coase theorem is stated in the form of
entitlements and assets. But as the case of the baker and the confectioner suggests, the point holds
for liabilities and risks, too. Rational parties in settings of low transaction costs will trade
liabilities and risks just as they trade entitlements and assets. Only now they will tend to allocate
those liabilities and risks not to a highest value user, but to a lowest cost bearer.
Now we can begin to see the implications of Coase’s ideas about entitlements and
transaction costs for risks like those present in Vincent v. Lake Erie Transportation. Under what
conditions will dock owners bear those risks, even if Vincent remains the background common
law rule? The Coase Theorem seems to indicate that we should expect mooring contracts to
allocate the costs of storm damage to the lowest-cost bearer (an inverse to the highest value user
above). This only stands to reason, since the real price of any such contract is the price net of the
cost of the risks. If the cost of the risks can be reduced, the parties to the contract can split the
gains between them: shipowners can pay reduced net prices while dockowners receive higher net
prices. It’s a win-win! Mooring contracts should allocate risks to shipowners when they are in a
better position to bear those risks at minimum costs, and to dockowners when the situation is
reversed. Shipowners and dockowners would be foolish to do otherwise. They would simply be
leaving money on the table, or in the water, as the case may be.

6. The economic view of Vincent (II): what difference do legal rules make? The Coase
Theorem does not assert that legal rules make no difference. The Theorem purports to identify
what kinds of difference, under conditions of low or zero transaction costs, legal rules will and
will not make. Even if the initial allocation of an entitlement or a risk makes no difference for its
ultimate allocation, the initial allocation does have a distributional or wealth effect. Entitlement
allocations have a positive wealth effect on the initial holder because such allocations endow the
holder of the entitlement with either the entitlement or the value received for selling it to some
other higher value holder. Risk allocations have a negative wealth effect in the same way. By
hypothesis, the initial allocatee will be willing to pay a cheaper cost bearer to bear the risk. Either
way, however, the initial allocatee is worse off.
To see this in a real life setting, consider the Ploof case as an example. By allocating the
entitlement, or privilege, to boat owners, the court made the Ploof family that much better off and
the defendants that much worse off. The law mattered!
In contractual settings, however, there is a wrinkle. The privilege in Ploof settings exists
for all boaters moving forward, whether or not dock owners agree. That is the pro-boater wealth
effect of the initial entitlement. The Vincent case is different. Viewed after the fact, the decision
of the Minnesota Supreme Court benefitted a particular dockowner at the expense of a particular
shipowner. But prospectively, the rule allocating the privilege as between shipowners and
dockowners looking to enter into consensual docking agreements—as they will in Vincent v. Lake
Erie-like settings—is a different kind of animal. The key difference is that there is no entitlement
for the law to allocate here unless the parties agree to a docking arrangement. Rather than
allocating an initial entitlement as in Ploof, the Vincent rule is better thought of as setting a default
rule or a contract presumption in the event the parties’ agree to have a relationship. Moving
forward, the allocation of this risk is subject to rearrangement by the parties if they see fit to alter
the presumptive or default term of the mooring contract, since either one of them can refuse to
consent to the deal in question. In future Vincent v. Lake Erie situations, the privilege to lash and
re-lash can only come about if both parties agree to bring it into existence by virtue of entering
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into a mooring contract that either tacitly or expressly adopts the contract presumption or default
rule. The result is that the law has not allocated an entitlement to the initial allocatee at all—at
least not in any obvious way. As Stewart Schwab puts it, “because both sides to a contract
simultaneously agree to create and distribute wealth, the distributive effect of contract rules is
muted.” Stewart Schwab, A Coasean Experiment on Contract Presumptions, 17 J. LEGAL STUD.
237, 239 (1988).

7. The economic view of Vincent (III): transaction costs. Real-world bargaining is not
seamless, of course. The real world involves transaction costs, and when these costs are included
in the analysis, it turns out that parties may not be able to enter into jointly advantageous
arrangements. In some situations, there simply isn’t an opportunity to bargain. The parties
creating risks for one another, for example, may be strangers hurtling down a highway toward one
another. Or perhaps they are in a Ploof-like situation, where a sudden oncoming storm makes
negotiation impossible. The usual mooring scenario typically does not involve very high
transaction costs at all, at least not in this sense. Shipowners and dockowners are already entering
into deals with one another, so the transaction costs of adding a term to govern the risks of storm
damage are low. But, in many other settings, transaction costs may be prohibitive.
Ian Ayres and Jack Balkin argue that in high-transaction-costs settings the privilege
regime of Ploof and Vincent creates ersatz auctions in which a sequence of unilateral actions by
the parties may reproduce the effect of a market without transaction costs.
Viewing entitlements as auctions implies that after one party exercises its option to
take nonconsensually, the other has an option to “take back,” and so on, for some
number of rounds. . . . [R]eciprocal takings regimes, like ordinary auctions, can
increase efficiency by inducing participants to reveal information about how much
they value an asset. This tends to place the asset in the hands of the person who is
willing to pay the most for it.
The Ayres and Balkin argument is that the process by which the parties choose to exercise their
option to take (either by mooring or unmooring) essentially reproduces the dynamic of an internal
auction in which the parties bid on the entitlement in question. The shipowner moors if he thinks
the savings thereby achieved to be greater than the damages to be incurred. That’s his opening
bid, and it flushes new information into the open: namely, that the shipowner’s willingness to pay
to save his vessel (his reserve price, in the parlance of auctions) is greater than what he takes the
value of the dock to be. With this new information, the dockowner, in turn, has the opportunity to
unmoor. That’s a second bid. It too reveals new information about the relative valuations of the
assets in question. And the auction need not be over. The shipowner may re-lash the vessel to the
dock, and the dockowner may sever the lines again. With each passing round the chance that we
will make the right choice as between saving the dock or the ship in the storm rises, even though
no market transaction ever takes place. As Ayres and Balkin explain, “[t]he more rounds we add
to an internal auction, the more it appears to mimic bargaining between the participants.” Ian
Ayres & J. M. Balkin, Legal Entitlements as Auctions: Property Rules, Liability Rules, and
Beyond, 106 YALE L.J. 703 (1997).

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CHAPTER 3. STRICT LIABILITY AND NEGLIGENCE: HISTORY
AND INTRODUCTION
So far in this book we have been studying torts arising out of intentionally inflicted harms.
But the great majority of torts cases in the court system – and the great majority of the hard cases
– arise not out of intentional contacts but out of unintentional contacts. They are unintentionally
inflicted harms. In other words, they are accidents. If a defendant does not intend an injury,
ought the defendant be obligated to compensate the plaintiff for it? If so, what kinds of
unintentional injuries produce such obligations to compensate? These are the central questions
for the law of unintentional torts, and we turn to them now through the development of the
common law of torts.

A. Common Law Beginnings
In the first several centuries after the Norman Conquest, the Norman kings left the
resolution of many disputes to the local or church courts that were scattered choc-a-bloc across
the English landscape. Parties seeking the king’s justice in disputes involving real property or
interpersonal violence, however, could seek out the king’s justice. A petition to the king’s
chancellor could produce powerful royal intervention—but only if the chancellor determined that
it was the kind of dispute into which the king ought to intervene. Over time, as the number of
petitions grew, the chancellor came to recognize certain categories of dispute as entitled to royal
justice. Such disputes were causes for royal action—or causes of action, as we know them today.
A petition alleging the kinds of facts that constituted one of these stereotyped disputes would
produce a letter, or “writ,” from the chancellor to a local official ordering him to take steps toward
resolving the dispute in question.
Thus was born the so-called “writ system,” which formed the basis for the law common to
the king’s courts—the English common law—for nearly a thousand years. The chancellors’
categories hardened into particularized forms of action, which offered specific procedures and
remedies for complaints stated in terms of the stereotyped factual allegations that followed the
pattern of the chancellor’s category. From time to time, under pressure from parties seeking the
king’s justice, the chancellor slowly recognized new forms of action to address new kinds of
disputes. Moreover, parties seeking the advantages of the king’s justice often sought to fit their
disputes within the preexisting categories of the forms of action. And as the king’s
representatives recognized these expansions of the existing forms of action, the writ system grew
and expanded to meet new kinds of disputes.
The evolution of the writ system explains the common law beginnings of the law of
unintentional torts. The writ of trespass was first recognized in the twelfth century; it offered a
remedy in the king’s courts for intentional breaches of the king’s peace by force and arms—vi et
armis in the Latin. (Recall the recitations of “force and arms” in the action for trespass in Ploof v.
Putnam and the action for assault in I de S v. W de S in Chapter 2.) Over time, the recitation of
the key phrase “force and arms” in complaints initiating a cause of action for trespass became a
mere fiction; the terms were used solely because they were necessary to invoke the procedures of
royal justice, even where there was no real allegation that force or arms had been used at all. In
the late thirteenth century and fourteenth century, the clerks of the Chancery began to authorize a
subsidiary form of action as well, a writ known as the writ of trespass on the case. Trespass on
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the case, or simply “case” as it was sometimes known, dropped the recitation of force and arms
and supplied a cause of action for the kinds of harms that seemed too indirect to be characterized
as trespasses by force and arms.
All this may seem quite mysterious, but it is relatively simple once one drops the
unfamiliar language. The forms of action were simply the causes for which the king’s justice
might be invoked. The king’s writs were simply his orders to lower officials to commence the
process by which the cause in question might be redressed. A typical writ issued by the
Chancellor upon a complaint of trespass would have looked something like this one:
The King to the sheriff of S., greeting. If A. shall give you security for pursuing his
claim, then put by gage and safe pledges B. that he be before us on the octave of
Michaelmas, wheresoever we shall then be in England [i.e., in the King’s Bench],
to show why [ostensurus quare] with force and arms [vi et armis] he made assault
on the selfsame A. at N., and beat, wounded and ill treated him so that his life was
despaired of, and offered other outrages against him, to the grave damage of the
selfsame A. and against our peace. And have there the names of the pledges, and
this writ. Witness etc.
J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 545 (4th ed. 2002). To translate:
“Dear Sheriff, Hello! If A is willing to put up a bond, then please order B to put up a bond of his
own and to find men who will vouch for him and agree to offer their own assets to guarantee that
he will appear at the fall term of the court to answer A’s allegations. Yours as ever, King.” Thus
would a medieval or early modern tort case begin.
With the establishment of the writs of trespass and case, the basic building blocks of early
modern tort law were in place. But key questions remain unresolved in our account thus far. The
most important for our purposes is to determine the kinds of unintentional harm for which the
writs of trespass and case would offer remedies. As far as we can tell, this question first arose in
round-about fashion as part of a fifteenth-century case. The late medieval report of the case
appears below. As you will quickly see, the dispute was not really about unintentional torts at all.
Yet as the parties argued the case in the royal court, they arranged for part of the case to turn on
the answer to the question of whether the defendant had committed an unintentional wrong. The
lawyers for the parties and the judges then weighed in with a startling variety of possible answers
to our central question: when is an actor liable for unintentional harms?

Hulle v. Orynge (The Case of the Thorns), Y.B. Mich. 6 Edw. IV, fo. 7, pl. 18 (1466)
[Plaintiff Hulle brought a writ of trespass against defendant Orynge for breaking into his
close with force and arms (“quare vi & armis clausum fregit”) and consuming and trampling his
grass and crops on six acres of land in Devon. Defendant Orynge pleaded that he owned one acre
adjoining the plaintiff’s land, that while cutting thorns there from a thorn hedge on his property,
the thorns fell onto the plaintiff’s land by their own will (“ipso invito”), that he had gone
immediately onto the plaintiff’s land to recover the thorns, and that this was the trespass of which
the plaintiff complained. The plaintiff demurred. The report, translated from Law French, is
taken from a medieval Year-Book during the reign of King Edward IV.]

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And Catesby said, Sir, it has been argued that if a man acts whereby injury and damage
are done to another person against his will, even though the act is lawful, nonetheless he shall be
punished if he could by some means have avoided the damage. Sir, to me the truth seems
contrary. As I understand, if a man acts in a lawful fashion, and damage occurs to another against
his will, he will not be punished. Consider the case that I driving my cattle along the highway,
and that you have an acre of land along the highway, and my cattle enter into your land and
destroy your plantings, and I come immediately and chase the cattle from your land, in this case
you will not have an action against me, because the driving of the cattle was lawful, and their
entry into your land was against my will. No more here, because the cutting was lawful and the
falling onto your land was against my will, and therefore the taking back was good and
permissible. And Sir, I put it that if I cut my trees, and a bough fell on a man, and killed him, in
this case I will not be attainted of a felony, because my cutting was permissible, and the falling on
the man was against my will. No more here.
Fairfax. To me it seems the contrary. I say that there is a difference between when a man
acts in a way that entails a felony, and when he acts in a way that entails a trespass, because in the
case that Catesby advances there is no felony, because felony requires malice aforethought, but it
was against his will, such that there was no animo felonico. But if someone cuts his plantings and
a bough fell on a man and injured him, in this case there will be an action of trespass. Also, sir, if
a man shoots at the butts and his bow turns in his hand and kills a man at its own invitation [i.e.,
against the shooter’s will], it is not a felony, as has been said. But if he injures a man by his
shooting, he will have a good action of trespass against him, even if the shooting was lawful, and
the injury to the other was against his will. Also here.
Pigot. To the same idea, I suggest that if I had a mill and the water that comes to my mill
flows past your land and you cut your willows such that against your will they fall in the water
and stop the flow so that I do not have enough water for my mill, in this case I have an action of
trespass, even though the cutting was lawful and the falling was against your will. . . .
Yonge. It seems to me the opposite. In this case you have damnum absque injuria
[damage without legal injury]. In this case you will have no action, because if there is no wrong
[tort] there will be no reason for him to recover damages. So it was here where he went into the
plaintiff’s close to retrieve the thorns that had fallen there: this entry was not wrongful [tortious],
because when he cut the thorns and they fell into the close against his will, nonetheless the
property in the thorns remained in him, and therefore it was lawful for him to remove them from
his close. Notwithstanding that the plaintiff was injured, he has done no wrong [tort].
Brian. To me it seems the opposite. My idea is that when a man acts he is bound to do it
in such a manner that by his act neither prejudice nor damage is done to others. In a case where I
build my house and a timber falls on the house of my neighbor and damages his house, he has a
good action, even though building my house was lawful and the timber fell against my will. Also
if a man assaults me and I cannot avoid him without hitting him, and in my defense I raise my
stick to strike him, and there is someone behind me, and in raising my stick I strike him, in this
case 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.
LITTLETON, J. In my view, if a man is damaged that is reason that he should be
recompensed. To my understanding, the case that Catesby has put is not the law, because if your
cattle comes onto my land and consumes my plantings, then even if you immediately come and
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chase your cows, it is obligatory of you to make amends for what they have done, be the damage
great or small. . . . And sir if it were the law that he was able to come and take the thorns, then by
the same reasoning if he cut a large tree he would be able to come in with carts and horses to carry
the trees out; that would be unreasonable, because the plaintiff might have corn or other plantings
there. Nor here, because the law is the same for big things and small, and he will make amends
according to the size of the trespass.
CHOKE, J. This resembles my view, because where the principal thing was not lawful,
then the thing that depends on it will not be lawful. When the defendant cut the thorns and they
fell, this falling was unlawful and therefore his coming to take them was unlawful. As to what has
been said about their falling against his will, that is no plea, but it obliges him to say that he could
not have acted in any other way, or that he did all that he could to keep them out, otherwise he
will render the damages. And Sir, if the thorns or a large tree had fallen onto the plaintiff’s land
by wind, in this case he would have been able to go to take them, because the falling would not
have been his act, but that of the wind.

Notes

1. The liability standard for unintentional torts. How many different positions on the
liability threshold in unintentional torts are articulated by the lawyers and the judges in The Case
of the Thorns? Are there arguments to be made on behalf of some or all of these views? Are
there still further possible positions the law might adopt?

2. Why so few cases? One striking feature of the Thorns case is that it poses the question of
what the liability standard ought to be for unintentional torts—but it does so in the context of an
intentional tort dispute. We rely on the case as a way of identifying the liability standard for
unintentional torts in the early modern period because torts cases were few and far between prior
to the nineteenth century. Why so few torts cases until then? Professor Norma Landau suggests
one explanation: seventeenth- and eighteenth-century plaintiffs often took advantage of the nowlong-abandoned system of private prosecution to initiate criminal processes against those who
injured them. See Norma Landau, Indictment for Fun and Profit: A Prosecutor’s Reward at
Eighteenth-Century Quarter Sessions, 17 LAW & HIST. REV. 507 (1999). Professor Landau notes
that plaintiffs “were not really interested in bringing defendants before [a] court” for punishment.
Instead, plaintiffs “were interested . . . in obtaining compensation for the offense.” Id. at 529.
The threat of criminal punishments must surely have been a very powerful club with which to
induce settlement from the accused. The rise of the modern system of public prosecution in the
early nineteenth century, however, eliminated this criminal process option and helped bring about
the rise of tort law.

3. Over a hundred years later, the English Court of Common Pleas weighed in with another
ruling on the question of what sorts of unintentional injuries created a legal obligation of
compensation, this time when an injury arose out of a soldiers’ skirmish in London.

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Weaver v. Ward, 80 Eng. Rep. 284 (C.P. 1616)
Weaver brought an action of trespass of assault and battery against Ward. The defendant
pleaded, that he was amongst others by the commandment of the Lords of the Council a trained
soldier in London, of the band of one Andrews captain; and so was the plaintiff, and that they
were skirmishing with their musquets charged with powder for their exercise in re militari,
against another captain and his band; and as they were so skirmishing, the defendant casualiter &
per infortunium & contra voluntatem suam [accidentally and by misfortune and against his will],
in discharging of his piece did hurt and wound the plaintiff . . . .
And upon demurrer by the plaintiff, judgment was given for him; for though it were
agreed, that if men tilt or tourney in the presence of the King, or if two masters of defence [i.e.,
prize-fighters] playing [for] their prizes kill one another, that this shall be no felony—or if a
lunatick kill a man, or the like—because felony must be done animo felonico; yet in trespass,
which tends only to give damages according to hurt or loss, it is not so. And therefore if a
lunatick hurt a man, he shall be answerable in trespass. And therefore no man shall be excused of
a trespass (for this is the nature of an excuse, and not of a justification . . .) except it may be
judged utterly without his fault.
As if a man by force take my hand and strike you, or if here the defendant had said, that
the plaintiff ran cross his piece when it was discharging, or had set forth the case with the
circumstances, so as it had appeared to the Court that it had been inevitable, and that the
defendant had committed no negligence to give occasion to the hurt.

Notes

1. Ward’s defense. What is Ward’s story, and why is it insufficient as a plea in defense
against Weaver’s trespass action?

2. Stories that worked, stories that didn’t. The court gives examples of stories the defendant
could have offered that would have satisfied its “utterly without fault” standard. It also offers the
story of the “lunatick” to illustrate an injury for which a defendant will be held answerable in
trespass. And it offers at least a couple of ways of articulating the principle explaining which
stories “lie,” meaning which stories make up a case for the plaintiff at the pleading stage, and
which stories do not. Can we develop a sense of the landscape of early modern common law
liability for unintentional harms, at least in trespass cases, from the report of Weaver v. Ward?

3. Attenuated causation? One question that the Weaver case does not explicitly address is
what might have happened had the causal connection between plaintiff Weaver and defendant
Ward been considerably more attenuated? In the actual event, as the court at the time understood,
the plaintiff had been the man nearest in the ranks to the defendant. But what if Weaver had been
on the far side of the soldiers’ infantry square as they skirmished? Or what if Weaver was injured
by a panic and stampede among the skirmishers after Ward’s musket went off unexpectedly?
Recall from the introduction to this section that the writ of trespass was associated with relatively
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direct injuries, whereas the writ of trespass on the case was associated with indirect injuries like
the trampling incident we have hypothesized here.
Judge Fortescue of the King’s Bench gave the classic statement of the distinction between
trespass and case in 1726:
[I]f a man throws a log into the highway, and in that act it hits me, I may maintain
trespass, because it is an immediate wrong; but if as it lies there I tumble over it and
receive an injury, I must bring an action upon the case; because it is only prejudicial
in consequence for which originally [i.e., in trespass vi et armis] I could have no
action at all.
Reynolds v. Clarke, 92 Eng. Rep. 410 (K.B. 1726). The neat distinction offered by Fortescue,
however, soon gave way to great difficulty. The next case gives us a sense of how the early
modern common law tried to resolve the problem of indirect injuries. The underlying problem of
indirect injuries is especially important because it raises general considerations that are with us
still today.

Scott v. Shepherd, 96 Eng. Rep. 525 (K.B. 1773)
Trespass and assault for throwing, casting, and tossing a lighted squib at and against the
plaintiff, and striking him therewith on the face, and so burning one of his eyes, that he lost the
sight of it . . . .
[T]he cause came on to be tried before Nares, J., last Summer Assizes, at Bridgwater,
when the jury found a verdict for the plaintiff with £100 damages, subject to the opinion of the
Court on this case: On the evening of the fair-day at Milborne Port, 28th October, 1770, the
defendant 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
the other and both the sides, where a large concourse of people were assembled; which lighted
squib, so thrown by the defendant, fell upon the standing of one Yates, who sold gingerbread[.]
That one Willis instantly, and to prevent injury to himself and the said wares of the said Yates,
took 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
instantly, and to save his own goods from being injured, took up the said lighted squib from off
the said standing, and then threw it to another part of the said market-house, and, in so throwing
it, struck the plaintiff then in the said market-house in the face therewith, and the combustible
matter then bursting, put out one of the plaintiff’s eyes. . . .
NARES, J., was of opinion, that trespass would well lie in the present case. That the
natural and probable consequence of the act done by the defendant was injury to somebody, and
therefore the act was illegal at common law. And the throwing of squibs has by statute . . . been
since made a nuisance. Being therefore unlawful, the defendant was liable to answer for the
consequences, be the injury mediate or immediate. . . . The principle I go upon is . . . that if the
act in the first instance be unlawful, trespass will lie. Wherever therefore an act is unlawful at
first, trespass will lie for the consequences of it. So, in . . . . [The Case of the Thorns,] for going
upon the plaintiff’s land to take the boughs off which had fallen thereon in lopping. . . . I do not
think it necessary, to maintain trespass, that the defendant should personally touch the plaintiff. . .
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. He is the person, who, in the present case, gave the mischievous faculty to the squib. That
mischievous faculty remained in it till the explosion. . . . The intermediate acts of Willis and Ryal
will not purge the original tort in the defendant. But he who does the first wrong is answerable for
all the consequential damages. . . .
BLACKSTONE, J., was of opinion that an action of trespass did not lie for Scott against
Shepherd upon this case. He took the settled distinction to be, that where the injury is immediate,
an action of trespass will lie; where it is only consequential, it must be an action on the case . . . .
The lawfulness or unlawfulness of the original act is not the criterion. . . . [T]his cannot be the
general rule; for it is held by the Court . . . that if I throw a log of timber into the highway, (which
is an unlawful act), and another man tumbles over it, and is hurt, an action on the case only lies,
it being a consequential damage; but if in throwing it I hit another man, he may bring trespass,
because it is an immediate wrong. Trespass may sometimes lie for the consequences of a lawful
act. If in lopping my own trees a bough accidentally falls on my neighbour’s ground, and I go
thereon to fetch it, trespass lies. This is the case cited from 6 Edw. IV, 7 [The Case of the
Thorns]. But then the entry is of itself an immediate wrong. And case will sometimes lie for the
consequence of an unlawful act. If by false imprisonment I have a special damage, as if I forfeit
my recognizance thereby, I shall have an action on the case . . . . yet here the original act was
unlawful, and in the nature of trespass. So that lawful or unlawful is quite out of the case.
The solid distinction is between direct or immediate injuries, on the one hand, and
mediate or consequential, on the other. And trespass never lay for the latter. If this be so, the
only question will be, whether the injury which the plaintiff suffered was immediate, or
consequential only; and I hold it to be the latter. The original act was, as against Yates, a trespass;
not as against Ryal, or Scott. The tortious act was complete when the squib lay at rest upon
Yates’s stall. He, or any bystander, had, I allow, a right to protect themselves by removing the
squib, but should have taken care to do it in such a manner as not to endamage others. But
Shepherd, I think, is not answerable in an action of trespass and assault for the mischief done by
the squib in the new motion impressed upon it, and the new direction given it, by either Willis or
Ryal; who both were free agents, and acted upon their own judgment. This differs it from the
cases put of turning loose a wild beast or a madman. They are only instruments in the band of the
first agent. Nor is it like diverting the course of an enraged ox, or of a stone thrown, or an arrow
glancing against a tree; because there the original motion . . . is continued, though diverted. Here
the instrument of mischief was at rest, till a new impetus and a new direction are given it, not once
only, but by two successive rational agents. But it is said that the act is not complete, nor the
squib at rest, till after it is spent or exploded. It certainly has a power of doing fresh mischief, and
so has a stone that has been thrown against my windows, and now lies still. Yet if any person
gives that stone a new motion, and does farther mischief with it, trespass will not lie for that
against the original thrower.
No doubt but Yates may maintain trespass against Shepherd. And, according to the
doctrine contended for, so may Ryal and Scott. Three actions for one single act! Nay, it may be
extended in infinitum. If a man tosses a football into the street, and, after being kicked about by
one hundred people, it at last breaks a tradesman’s windows; shall he have trespass against the
man who first produced it? Surely only against the man who gave it that mischievous direction.
But it is said, if Scott has no action against Shepherd, against whom must he seek his remedy? I
give no opinion whether case would lie against Shepherd for the consequential damage, though, as
at present advised, I think . . . it would. But I think, in strictness of law, trespass would lie
against Ryal, the immediate actor in this unhappy business. Both he and Willis have exceeded the
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bounds of self-defence, and not used sufficient circumspection in removing the danger from
themselves. The throwing it across the market-house, instead of brushing it down, or throwing [it]
out of the open sides into the street, (if it was not meant to continue the sport, as it is called), was
at least an unnecessary and incautious act. Not even menaces from others are sufficient to justify
a trespass against a third person; much less a fear of danger to either his goods or his person—
nothing but inevitable necessity. Weaver and Ward.
I admit that the defendant is answerable in trespass for all the direct and inevitable effects
caused by his own immediate act. But what is his own immediate act? The throwing [of] the
squib to Yates’s stall. Had Yates’s goods been burnt, or his person injured, Shepherd must have
been responsible in trespass. But he is not responsible for the acts of other men. . . . [I]f I bring
trespass for an immediate injury, and prove at most only a consequential damage, judgment must
be for the defendant . . . . It is said by Lord Raymond, and very justly, . . . “we must keep up the
boundaries of actions, otherwise we shall introduce the utmost confusion.” As I therefore think
no immediate injury passed from the defendant to the plaintiff . . . I am of opinion, that in this
action judgment ought to be for the defendant.
GOULD, J., was of the same opinion with Nares, J., that this action was well maintainable.
The whole difficulty lies in the form of the action, and not in the substance of the remedy. The
line is very nice between case and trespass upon these occasions:
I am persuaded there are many instances wherein both or either will lie. I agree with brother
Nares, that wherever a man does an unlawful act, he is answerable for all the consequences; and
trespass will lie against him . . . . But, exclusive of this, I think the defendant may be considered
in the same view as if he himself had personally thrown the squib in the plaintiff’s face. The
terror impressed upon Willis and Ryal excited self-defence, and deprived them of the power of
recollection. What they did was therefore the inevitable consequence of the defendant’s unlawful
act. Had the squib been thrown into a coach full of company, the person throwing it out again
would not have been answerable for the consequences. What Willis and Ryal did was by
necessity, and the defendant imposed that necessity upon them. . . .
DE GREY, C.J. This case is one of those wherein the line drawn by the law between
actions on the case and actions of trespass is very nice and delicate. Trespass is an injury
accompanied with force, for which an action of trespass vi et armis lies against the person from
whom it is received. The question here is, whether the injury received by the plaintiff arises from
the force of the original act of the defendant, or from a new force by a third person. I agree with
my brother Blackstone as to the principles he has laid down, but not in his application of those
principles to the present case. The real question certainly does not turn upon the lawfulness or
unlawfulness of the original act; for actions of trespass will lie for legal acts when they become
trespasses by accident; as in the cases cited for cutting thorns, lopping of a tree, shooting at a
mark, defending oneself by a stick which strikes another behind, etc. They may also not lie for
the consequences even of illegal acts, as that of casting a log in the highway. But the true
question is, whether the injury is the direct and immediate act of the defendant, and I am of
opinion, that in this case it is. The throwing [of] the squib was an act unlawful and tending to
affright the bystanders. So far, mischief was originally intended; not any particular mischief, but
mischief indiscriminate and wanton. Whatever mischief therefore follows, he is the author of it. .
. . I look upon all that was done subsequent to the original throwing as a continuation of the first
force and first act, which will continue till the squib was spent by bursting. And I think that any
innocent person removing the danger from himself to another is justifiable; the blame lights upon
the first thrower. The new direction and new force flow out of the first force, and are not a new
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trespass. . . . On these reasons I concur with Brothers Gould and Nares, that the present action is
maintainable.

Notes

1. Direct and indirect. Given the liability standard set out in The Case of the Thorns and in
Weaver v. Ward, it seems vital to Blackstone that the writ of trespass be restricted to direct rather
than indirect consequences. The football (soccer!) example he offers illustrates his concern. Do
Nares or Gould have a good answer? On the other hand, is Blackstone’s distinction between
direct and indirect distinction sustainable? What about De Grey’s idea that directness follows
from the relevant agent’s intentions rather than from the path of the object in question? What
about Gould’s idea that Willis and Ryal were not agents in the right way?

2. The great William Blackstone. Blackstone, whose opinion failed to carry the day in Scott
v. Shepherd, was one of the most important jurists in the history of the common law. As the first
holder of the Vinerian Chair of English Law at Oxford University, Blackstone was responsible for
turning the common law into a subject worthy of university study. His Commentaries on the
Laws of England, published in four volumes between 1765 and 1769, aimed to take the
accumulated forms of action in the common law and make sense of them as a body of law
founded on rational principles with coherence and integrity. Given that the common law had
accumulated in ad hoc fashion for over seven hundred years by the time he began to write, this
was no small feat. Blackstone’s effort was so successful that virtually every American law
student for the next century learned the law by reading American editions of the Vinerian
Professor’s great text. And unlike contemporary common law works such as digests and practice
manuals, which functioned even in their time as reference books, the four volumes of Blackstone
remain readable as a classic text to this day.
Does Blackstone’s commitment to reason and the rule of law as a body of principles help
us understand his view in Scott v. Shepherd? To be sure, the great jurist’s distinction between
direct and indirect injuries will be very difficult to maintain in practice. But what mechanisms are
his fellow judges likely to try to invoke in order hold off the problem that Blackstone’s soccer
example identifies? At the heart of Scott v. Shepherd, then, is a deep problem in legal theory.
Law aims to articulate principles of general application that can resolve future disputes. But the
multifariousness of human behavior and social life and the limits of reason make it exceedingly
hard to exclude human discretion from the operation of the law.

3. Whose act? The action on the case was more appealing to Blackstone in Scott v. Shepherd
because of its association with a heightened liability standard of negligence. Plaintiffs in actions
on the case typically only recovered damages if they could show that a defendant’s negligent or
otherwise wrongful act caused the injury in question. This meant that the innocent kicker of a
soccer ball would not be stuck with liability for the damage done by the same soccer ball at some
later time, where the later damage would not have occurred but for the initial innocent kick. Only
a negligent or otherwise wrongful initial act would raise the possibility of the actor being held
liable for such downstream damages.
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And yet a puzzle persists about the liability standard for trespass actions in the
seventeenth and eighteenth centuries. If the court in Weaver v. Ward really meant to say that a
defendant may be held liable without regard to fault, how were courts to know which of the two
actors before them—plaintiff and defendant—was responsible for the injury in question in the
relevant way? To put this a different way, when the Weaver court said that a defendant might
plead that the injury was the result of the plaintiff’s act instead of the defendant’s act, how was a
court to decide which act was the responsible act? Both parties will inevitably have acted. What
seems to be needed is some further basis for distinguishing the conduct of the two parties. But the
early modern common law does not seem to have offered much by way of such a basis—not at the
pleading stage, at least.
But if the pleadings offered no basis for distinguishing injuries attributable to plaintiff’s
actions from those attributable to the defendant’s acts, a basis for allocating the liability between
plaintiff and defendant may have emerged at the trial stage. If the parties joined issue on some
allegation of fact, the king’s judges sent causes of action out into the countryside for a trial by
jury. The next case suggests that despite the suggestion of The Case of the Thorns, Weaver v.
Ward, and Scott v. Shepherd, negligence questions may have been raised in trespass actions in
those jury trials precisely as a way of identifying which of the two parties had acted in such a way
as to make him the one who should bear the costs of the injury.

Gibbons v. Pepper, 91 Eng. Rep. 922 (K.B. 1695)
Trespass, assault and battery. The defendant pleads, that he rode upon a horse in the
King’s highway, and that his horse being affrighted ran away with him . . . so that he could not
stop the horse; that there were several persons standing in the way, among whom the plaintiff
stood; and that he called to them to take care, but that notwithstanding, the plaintiff did not go out
of the way, but continued there; so that the defendant’s horse ran over the plaintiff against the will
of the defendant . . . . The plaintiff demurred. And Serjeant Darnall for the defendant argued, that
if the defendant in his justification shows that the accident was inevitable, and that the negligence
of the defendant did not cause it, judgment shall be given for him. To prove which he cited
[cases].
Northey for the plaintiff said, that in all these cases the defendant confessed a battery,
which he afterwards justified; but in this case he justified a battery, which is no battery. Of which
opinion was the whole Court; for if I ride upon a horse, and J. S. whips the horse, so that he runs
away with me and runs over any other person, he who whipped the horse is guilty of the battery,
and not me. But if I by spurring was the cause of such accident, then I am guilty. In the same
manner, if A. takes the hand of B. and with it strikes C., A. is the trespasser, and not B. And, per
curiam, the defendant might have given [his] justification in evidence, upon the general issue
pleaded. And therefore judgment was given for the plaintiff.

Notes

1. Early modern common law pleading and procedural imperatives. To understand Gibbons
v. Pepper, one has to know a little bit about the pleading system of the early modern common law
courts. Once the plaintiff had selected his writ, the defendant was put to a choice before the
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king’s judges at Westminster. He could issue a general denial (plead “the general issue”). Or he
could enter a special plea (plead “the special issue”) confessing the validity of the plaintiff’s
allegation but asserting some justification. The former plea sent the cause of action to a trial by
jury on the truth of the plaintiff’s story, a trial that was usually held in the vicinity of the acts
complained of. The latter plea put the plaintiff to a choice. Now the plaintiff could either issue a
general denial of the facts alleged in the defendant’s special plea in justification, which would
produce a jury trial on the limited question of whether the defendant’s story was true, or issue a
special plea of his own. Typically, the special plea at this stage would be a demurrer, asserting
that the defendant’s justification, even if true, was not sufficient as a matter of law.
The plaintiff’s lawyer in Gibbons adopted this latter strategy and demurred to the
defendant’s plea. Northey says—and the judges of the King’s Bench seem to agree—that it
would be a good special plea for a defendant in a trespass action to confess the trespass but justify
it some way. The defendant might, for example, say that the injury was inevitable in the sense
suggested in Weaver v. Ward. It would also have been permissible for the defendant to enter a
general denial and assert that there was no tort at all because the defendant’s acts were not the
relevant cause of the plaintiff’s injury. But this defendant, Northey claims, wants to have it both
ways: to say that the relevant cause was the fright given to the horse, not the defendant’s act, and
that the injury was inevitable. Northey’s response is to say that this is a bad plea—that the
defendant may not plead both ways but must instead choose one plea or another. And the court
agrees.
One might wonder at the fairness of this: why put the defendant to the burden of
specifying so precisely the kind of plea he means to enter? Over time, the demanding and highly
particular procedures of the common law became objects of derision and scorn. It would seem the
domain of pettifogging lawyers drawing obscure distinctions and laying traps for the unwary and
untrained. Our modern procedural system, since at least the middle of the nineteenth century, has
dropped the elaborate pleading requirements from the front end of civil actions.
But the early modern system was not merely a device for generating fine distinctions and
procedural niceties. People rarely create arbitrary and capricious systems; we create institutions
for reasons, and here the reason was that it served an important function. The common law trial
had no discovery stage: there was no sharing of information between the parties in advance of the
trial. The result was that the factual issues on which the jury would decide had to be narrowed by
the pleadings lest one or both of the litigants risk being completely taken by surprise by his
adversary’s trial strategy and not have prepared witnesses or other evidence on the relevant story.
(Consider Serjeant Darnall’s plea for the defendant in Gibbons: it impermissibly presented not
one but two different factual defenses to the plaintiff’s complaint, first that the horse had been
frightened by some third party or some other agency, and second that the injury was inevitable in
the sense suggested by the court in Weaver v. Ward.) The common law courts’ insistence on
extremely specific pleading was an effort to focus the proceedings on as narrow an issue as
possible.
Note that although to our eyes the common law’s early pleading system may seem
unappealing, our own procedural alternative is hardly free of dysfunction. Recall first how
incredibly expensive our system is. The pretrial process by which parties share information with
one another—discovery and depositions—is so overwhelmingly costly that many kinds of cases
simply cannot be brought at all, at least not in an economical matter. Recall also that our system
has essentially brought an end to the civil trial altogether, since virtually all cases that do get
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brought settle in advance of trial. Both of these characteristics of our system of trials may be
traced directly to the reform of the common law pleading system. The advent of elaborate pretrial
processes like discovery became necessary once the common law pleading had been abolished. In
turn, discovery has turned out to be so expensive and to produce so much information at the
pretrial stage that it has in most cases led the parties to settle rather than litigate to trial. For more
on this point, see John H. Langbein, The Disappearance of Civil Trial in the United States, 122
YALE L.J. 522 (2012).

2. Common law juries and the fault standard. Gibbons is important to us not only because
the case illustrates the choices to be made in designing a procedural system, but also because it
reveals more about the liability standard at common law for unintentional injuries. The judges of
King’s Bench emphasize the centrality for the law of trespass of identifying the relevant actor. To
act and cause injury is to have committed a trespass.
But the penultimate line of Gibbons suggests something more—it indicates that at least
some of the kinds of justifications and excuses that the defendant sought to offer could have been
raised and litigated at the jury trial stage of the proceedings. We have much less information
about the jury trials in the early common law than we do about the pleadings that took place at
Westminster. Trial transcripts do not exist. But the suggestion of Gibbons is that juries may have
been making distinctions between the parties that were subtler than the relatively crude pleading
categories.

3. Gibbons foreshadowed a crisis for the rigid forms of the common law writ system. The
crisis was especially apparent in highway cases, particularly in carriage accidents. The difficulty
appeared in the following case:

Leame v. Bray, 102 Eng. Rep. 724 (K.B. 1803)
[In a trespass action, plaintiff declared that the defendant “with force and arms” drove
“along the King’s highway with such great force and violence upon and against the plaintiff’s
curricle drawn by two horses,” that the plaintiff’s servant was thrown to the ground and plaintiff
himself leapt to the ground and was injured as his horses fled in fright, fracturing his collar bone.
Defendant pleaded not guilty, and the case went to trial where it appeared in evidence at trial
before Lord Ellenborough, C.J. that the accident occurred because the defendant drove his
carriage on the wrong side of the road on a dark night. The defendant objected that “the injury
having happened from negligence, and not wilfully, the proper remedy was by an action on the
case and not of trespass vi et armis. The trial judge dismissed the plaintiff’s case as having been
brought under the wrong writ.]
Gibbs and Park [for the defendant-respondent] now shewed cause against a rule for setting
aside the nonsuit, and admitted that there were many precedents of trespass vi et armis for an
injury immediately proceeding from the party, although his will did not go along with his act; but
here they contended that the injury was consequential and not immediately flowing from the
forcible act of the defendant, and in such a case trespass will not lie unless such act be done
willfully. . . .
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Erskine and Hovell [for the plaintiff-appellant] in support of the rule. The distinction
which was taken in Reynolds v. Clarke has been adopted in all the subsequent cases that where
the immediate act itself occasions a prejudice or is an injury to the plaintiff’s person &c. there
trespass vi et armis will lie: but where the act itself is not an injury, but a consequence from that
act is prejudicial to the plaintiff’s person, &c., there trespass vi et armis will not lie, but the proper
remedy is by an action on the case. . . . In none of the cases is it laid down as a branch of the
distinction that the act done must be either wilful, or illegal, or violent, in order to maintain
trespass: the only question is, whether the injury from it be immediate.
LORD ELLENBOROUGH, C.J. The true criterion seems to be according to what Lord C.J. de
Grey says in Scott v. Shepherd, whether the plaintiff received an injury by force from the
defendant. If the injurious act be the immediate result of the force originally applied by the
defendant, and the plaintiff by injured by it, it is the subject of an action of trespass vi et armis by
all the cases both ancient and modern. It is immaterial whether the injury be wilful or not. As is
in the case alluded to by my brother Grose, where on shooting at butts for a trial of skill with the
bow and arrow, the weapon then in use, in itself a lawful act, and no unlawful purpose in view;
yet having accidentally wounded a man, it was holden to be a trespass, being an immediate injury
from an act of force by another. Such also was the case of Weaver v. Ward, in Hob. 134, where a
like unfortunate accident happened whilst persons were lawfully exercising themselves in arms.
So in none of the cases mentioned in Scott v. Shepherd did willfulness make any difference. . . .
LE BLANC, J. In many of the cases the question has come before the Court upon a motion
in arrest of judgment, where the Court in determining whether trespass or case were the proper
remedy, have observed on the particular language of the declaration. But in all the books the
invariable principle to be collected is, that where the injury is immediate on the act done, there
trespass lies; but where it is not immediate on the act done, but consequential, there the remedy is
in case. And the distinction is well instanced by the example put out of a man’s throwing a log
into the highway: if at the time of its being thrown it hit any person, it is trespass, but if after it be
thrown, any person going along the road receive an injury by falling over it as it lies there, it is
case. Neither does the degree of violence with which the act is done make any difference: for if
the log were put down in the most quiet way upon a man’s foot, it would be trespass; but if
thrown into the road with whatever violence, and one afterwards fall over it, it is case and not
trespass. So here, if the defendant had simply placed his chaise in the road, and the plaintiff had
run against it in the dark, the injury would not have been direct, but in consequence only of the
defendant’s previous improper act. Here however the defendant was driving the carriage at the
time with the force necessary to move it along, and the injury to the plaintiff happened from that
immediate act: therefore the remedy must be trespass: and all the cases will support that
principle.

Note

1. The problem of surprise. In Leame, the trial judge saw the writ of trespass as
inappropriate for non-willful carriage accidents arising out of mere negligence, because there was
no willful injury. The defendant here, after all, did not intend to be on the wrong side of the road.
But the trial court was reversed on appeal. Why the reversal? One consideration might have been
that requiring plaintiffs to use the writ of trespass on the case in highway cases would put them at
risk of being surprised at trial by testimony that the defendant actually intended to strike them. In
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an intentional or willful highway collision, only trespass would be appropriate. And so the
justices of King’s Bench concluded that a plaintiff such as the plaintiff in Leame had to be
allowed to move forward in trespass, even in actions for mere negligence.
The difficulty that soon became apparent is that plaintiffs moving forward in case face the
same risk of surprise: if facts emerged at trial to suggest that the proper writ was trespass, the
same difficulty of surprise would arise once more, which is precisely what happened in Williams
v. Holland:

Williams v. Holland, 131 Eng. Rep. 848 (C.P. 1833)
[John Williams, the son and servant of the plaintiff and Mary Ann Williams, the infant
daughter of the Plaintiff, were riding in horse-drawn cart along a public highway when the
defendant “so carelessly, unskillfully, and improperly drove, governed, and directed” his horsedrawn gig that “by and through the carelessness, negligence, unskillfulness, and improper conduct
of the Defendant, the said gig and horse of the Defendant then and there ran and struck with great
violence upon and against the cart and horse of the Plaintiff, and thereby then and there crushed,
broke to pieces, and damaged the same,” injuring John and Mary Ann and depriving the plaintiff
of the service of his son and putting him to the expense of doctor’s bills. The defendant pled not
guilty.]
At the trial before Tindal, C. J., it appeared that the Plaintiff’s cart was standing at the side
of a road twenty-four feet wide, with the near wheel on the footway, when the Defendant in a gig,
and, in the act of racing with another gig, drove against the cart, upset and broke it to pieces . . . .
The defence was that the defendant’s horse had run away with him. And the Chief Justice left it
to the jury to say whether the collision was the result of accident, or of negligence and
carelessness in the defendant. The jury found the latter, and gave a verdict with damages for the
Plaintiff. It was also contended, on the part of the Defendant, that the action was misconceived,
and ought to have been trespass instead of case. The Chief Justice having reserved that point for
the consideration of the Court, Bompas Serjt. obtained thereupon, a rule nisi to set aside the
verdict and enter a nonsuit.
Jones Serjt. [for the plaintiff], who shewed cause, contended, that the result of all the cases
on this subject was, that where the act complained of is immediate and wilful, the remedy is only
by action of trespass; where the act is immediate, but occasioned by negligence or carelessness,
the remedy is either by trespass or case; where the act is unimmediate, the remedy is by case only.
[Citing Weaver v. Ward, Reynolds v. Clarke, Scott v. Shepherd, and Leame v. Bray]
Bompas [for the defendant], in support of his rule, insisted, that the effect of all the authorities is,
that when the act complained of is immediate, whether it be willful or the result of negligence, the
remedy is by trespass only.
TINDAL, C.J. . . . [T]he present rule was obtained for setting aside the verdict and
entering a nonsuit, under leave given for that purpose, upon the ground that the injury having
been occasioned by the immediate act of the Defendant himself, the action ought to
have been trespass, and that the case was not maintainable; and amongst other cases cited by
the Defendant’s counsel in support of this objection, that of Leame v. Bray (3 East, 593) was
principally relied upon as an authority in point.
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[T]he present objection ought not to prevail, unless some positive and inflexible rule of
law, or some authority too strong to be overcome, is brought forward in its support. If such are to
be found, they must, undoubtedly, be adhered to; for settled forms of action, adapted to different
grievances, contribute much to the certain administration of justice.
But upon examining the cases cited in argument, both in support of, and in answer to, the
objection, we cannot find one in which it is distinctly held, that the present form of action is not
maintainable under the circumstances of this case.
For as to Leame v. Bray, on which the principal reliance is placed by the Defendant, in
which the form of action was trespass, and the circumstances very nearly the same as those in the
case now under consideration, the only rule established is, that an action of trespass might be
maintained, not that an action on the case could not. The case of Savignac v. Roome, in which the
Court held that case would not lie where the defendant’s servant willfully drove against the
plaintiff’s carriage, was founded on the principle, that no action would lie against the master for
the wilful act of his servant . . . .
We hold it, however, to be unnecessary, to examine very minutely the grounds of the
various decisions; for the late case of Moreton v. Hardern and Others [decided] . . . that where the
injury is occasioned by the carelessness and negligence of the Defendant, although it be
occasioned by his immediate act, the Plaintiff may, if he thinks proper, make the negligence of the
Defendant the ground of his action, and declare in case. It has been urged, indeed, in answer to
[Moreton v. Hardern], that it was decided on the ground, that the action was brought against one
of the proprietors who was driving, and against his co-proprietors who were absent, but whose
servant was on the box at the time; and that as trespass would not have been maintainable against
the co-proprietors who were absent, so case was held maintainable in order that all the proprietors
might be included. But it is manifest that the Court did not rest their opinion upon so narrow a
ground; nor indeed would it have been a solid foundation for the judgment, that the master, who
was present, should be made liable to a different form of action than he otherwise would have
been if the servant of the other proprietors had not been there.
We think the case last above referred to has laid down a plain and intelligible rule, that
where the injury is occasioned by the carelessness and negligence of the defendant, the plaintiff is
at liberty to bring an action on the case, notwithstanding the act is immediate, so long as it is not a
willful act; and, upon the authority of that case, we think the present form of action maintainable
to recover damages for the injury.

Notes

1. Highway cases. Williams v. Holland addressed a problem that was emerging in highway
cases and in cases involving enterprises with more than one owner such as that in Moreton v.
Hardern and Others, discussed by Chief Justice Tindal. The problem was that requiring a
plaintiff to choose between trespass and case in advance of the trial forced the plaintiff to gamble
on what the underlying facts might turn out to be. If the defendant himself was driving, Leame v.
Bray permitted the plaintiff to move ahead in trespass. But if it turned out that the defendant’s
servant was driving, then the injury would be indirect as between plaintiff and defendant such that
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case might seem to be the only appropriate cause of action. Williams resolved this problem by
making clear that either way, a writ of trespass on the case would be an appropriate cause of
action in highway collisions, so long as the defendant’s act was not willful.

2. Trespass on the case. After Williams, trespass on the case became the standard form of
action in highway cases. Williams thus increased the association between showings of negligence
and highway cases. This made sense because the highway cases brought out an underlying
problem with the trespass cases reaching back all the way to the Case of the Thorns and Weaver v.
Ward. It was one thing to attribute great significance to the act that caused the plaintiff’s injury.
But on what principle did the common law courts conclude that the relevant cause of that injury
was the defendant’s act rather than the plaintiff’s own? In the middle of the nineteenth-century,
common law jurists would identify an answer to this problem. We now turn to the answer to
which they arrived.

B. Negligence Versus Strict Liability
Despite a smattering of older cases such as those in Section A above, the modern law of
unintentional torts is quite new. Scholars trace it back to the middle of the nineteenth century,
when a confluence of developments gave rise to something recognizable as modern tort law.
Industrialization produced a sharp increase in the sheer number of accidental injuries and deaths.
The demise of the writ system and the abolition of the old common law forms of action gave rise
to substantive conceptual categories for the law, such that for the first time law book publishers
issued treatises on tort law. Equally important, the rise of a market economy characterized by
male wage earners supporting families of dependent women and children gave rise to new
pressure for wage replacement when wage earners were injured or killed. See generally JOHN
FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004).
Just as modern tort law was beginning to emerge, an influential judge in Massachusetts
weighed in on the question that had animated the smattering of English cases since The Case of
the Thorns: when is a defendant obligated to compensate a plaintiff for unintentionally inflicted
harm? Strangely enough, the question would arise in a case that had nothing to do with the
industrial revolution or the kinds of wage work that seemed to have occasioned the new law of
torts. To the contrary, the case involved the kind of simple problem that torts jurists had posed as
hypotheticals for centuries.

Brown v. Kendall, 60 Mass. 292 (1850)
It appeared in evidence, on the trial . . . that two dogs, belonging to the plaintiff and the
defendant, respectively, were fighting in the presence of their masters; that the defendant took a
stick about four feet long, and commenced beating the dogs in order to separate them; that the
plaintiff was looking on, at the distance of about a rod, and that he advanced a step or two towards
the dogs. In their struggle, the dogs approached the place where the plaintiff was standing. The
defendant retreated backwards from before the dogs, striking them as he retreated; and as he
approached the plaintiff, with his back towards him, in raising his stick over his shoulder, in order
to strike the dogs, he accidentally hit the plaintiff in the eye, inflicting upon him a severe injury.
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SHAW, C.J. This is an action of trespass, vi et armis, brought by George Brown against
George K. Kendall, for an assault and battery . . . . [The trial court entered judgment for the
plaintiff, instructing “the jury, that if it was not a necessary act, and the defendant was not in duty
bound to part the dogs, but might with propriety interfere or not as he chose, the defendant was
responsible for the consequences of the blow, unless it appeared that he was in the exercise of
extraordinary care, so that the accident was inevitable, using the word not in a strict but a popular
sense.”]
The facts set forth in the bill of exceptions preclude the supposition, that the blow,
inflicted by the hand of the defendant upon the person of the plaintiff, was intentional. The whole
case proceeds on the assumption, that the damage sustained by the plaintiff, from the stick held by
the defendant, was inadvertent and unintentional; and the case involves the question how far, and
under what qualifications, the party by whose unconscious act the damage was done is responsible
for it. We use the term “unintentional” rather than involuntary, because in some of the cases, it is
stated, that the act of holding and using a weapon or instrument, the movement of which is the
immediate cause of hurt to another, is a voluntary act, although its particular effect in hitting and
hurting another is not within the purpose or intention of the party doing the act.
It appears to us, that some of the confusion in the cases on this subject has grown out of
the long-vexed question, under the rule of the common law, whether a party’s remedy, where he
has one, should be sought in an action of the case, or of trespass. This is very distinguishable
from the question, whether in a given case, any action will lie. The result of these cases is that if
the damage complained of is the immediate effect of the act of the defendant, trespass vi et armis
lies; if consequential only, and not immediate, case is the proper remedy. Leame v. Bray, 3 East,
593. . . .
In these discussions, it is frequently stated by judges, that when one receives injury from
the direct act of another, trespass will lie. But we think this is said in reference to the question,
whether trespass and not case will lie, assuming that the facts are such, that some action will lie.
These dicta are no authority, we think, for holding, that damage received by a direct act of force
from another will be sufficient to maintain an action of trespass, whether the act was lawful or
unlawful, and neither wilful, intentional, or careless. In the principal case cited, Leame v. Bray,
the damage arose from the act of the defendant, in driving on the wrong side of the road, in a dark
night, which was clearly negligent if not unlawful. . . .
We think, as the result of all the authorities, the rule is correctly stated by Mr. Greenleaf,
that the plaintiff must come prepared with evidence to show either that the intention was unlawful,
or that the defendant was in fault; for if the injury was unavoidable, and the conduct of the
defendant was free from blame, he will not be liable. 2 Greenl. Ev. §§ 85-92. If, in the
prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an
injury arising therefrom. . . . In applying these rules to the present case, we can perceive no
reason why the instructions asked for by the defendant ought not to have been given; to this effect,
that if both plaintiff and defendant at the time of the blow were using ordinary care, or if at that
time the defendant was using ordinary care, and the plaintiff was not, or if at that time, both the
plaintiff and defendant were not using ordinary care, then the plaintiff could not recover.
In using this term, ordinary care, it may be proper to state, that what constitutes ordinary
care will vary with the circumstances of cases. In general, it means that kind and degree of care,
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which prudent and cautious men would use, such as is required by the exigency of the case, and
such as is necessary to guard against probable danger. A man, who should have occasion to
discharge a gun, on an open and extensive marsh, or in a forest, would be required to use less
circumspection and care, than if he were to do the same thing in an inhabited town, village, or
city. To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it
must be such an accident as the defendant could not have avoided by the use of the kind and
degree of care necessary to the exigency, and in the circumstances in which he was placed.
We are not aware of any circumstances in this case, requiring a distinction between acts
which it was lawful and proper to do, and acts of legal duty. There are cases, undoubtedly, in
which officers are bound to act under process, for the legality of which they are not responsible,
and perhaps some others in which this distinction would be important. We can have no doubt that
the act of the defendant in attempting to part the fighting dogs, one of which was his own, and for
the injurious acts of which he might be responsible, was a lawful and proper act, which he might
do by proper and safe means. If, then, in doing this act, using due care and all proper precautions
necessary to the exigency of the case, to avoid hurt to others, in raising his stick for that purpose,
he accidentally hit the plaintiff in his eye, and wounded him, this was the result of pure accident,
or was involuntary and unavoidable, and therefore the action would not lie. Or if the defendant
was chargeable with some negligence, and if the plaintiff was also chargeable with negligence, we
think the plaintiff cannot recover without showing that the damage was caused wholly by the act
of the defendant, and that the plaintiff’s own negligence did not contribute as an efficient cause to
produce it.
The [trial] court instruct[ion] . . . is to be taken in connection with the charge afterwards
given, that if the jury believed, that the act of interference in the fight was unnecessary, (that is, as
before explained, not a duty incumbent on the defendant,) then the burden of proving
extraordinary care on the part of the defendant, or want of ordinary care on the part of plaintiff,
was on the defendant.
The court are of opinion that these directions were not conformable to law. If the act of
hitting the plaintiff was unintentional, on the part of the defendant, and done in the doing of a
lawful act, then the defendant was not liable, unless it was done in the want of exercise of due
care, adapted to the exigency of the case, and therefore such want of due care became part of the
plaintiff’s case, and the burden of proof was on the plaintiff to establish it. 2 Greenl. Ev. § 85.
Perhaps the learned judge, by the use of the term extraordinary care, in the above charge,
explained as it is by the context, may have intended nothing more than that increased degree of
care and diligence, which the exigency of particular circumstances might require, and which men
of ordinary care and prudence would use under like circumstances, to guard against danger. If
such was the meaning of this part of the charge, then it does not differ from our views, as above
explained. But we are of opinion, that the other part of the charge, that the burden of proof was
on the defendant, was incorrect. Those facts which are essential to enable the plaintiff to recover,
he takes the burden of proving. The evidence may be offered by the plaintiff or by the defendant;
the question of due care, or want of care, may be essentially connected with the main facts, and
arise from the same proof; but the effect of the rule, as to the burden of proof, is this, that when
the proof is all in, and before the jury, from whatever side it comes, and whether directly proved,
or inferred from circumstances, if it appears that the defendant was doing a lawful act, and
unintentionally hit and hurt the plaintiff, then unless it also appears to the satisfaction of the jury,
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that the defendant is chargeable with some fault, negligence, carelessness, or want of prudence,
the plaintiff fails to sustain the burden of proof, and is not entitled to recover.
New trial ordered.

Notes

1. What is a holding? What is the holding of Brown v. Kendall? For that matter, what is a
holding? Judges do not make law simply by speaking and writing. A judge’s opinion, or at least
part of that opinion, becomes law for subsequent cases by virtue of the court’s resolution of the
dispute that is before the court. That is why a case that settles before it is decided by a court does
not produce any law at all. In the formulation of Judge Pierre Leval of the U.S. Court of Appeals
for the Second Circuit, a holding is a “proposition of law” that “explain[s] why the court’s
judgment goes in favor of the winner.” Pierre N. Leval, Judging Under the Constitution: Dicta
About Dicta, 81 N.Y.U. L. REV. 1249, 1256 (2006). Professors Michael Abramowicz and
Maxwell Stearns observe further that it cannot be that holdings are merely those parts of an
opinion necessary (or, as in one influential formulation, “pivotal”) in reaching the decision, since
there is often more than one possible route to a particular resolution. Abramowicz and Stearns
argue therefore that a holding consists of “those propositions along the chosen decisional path or
paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3)
lead to the judgment.” Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L.
REV. 953, 961 (2004).
Using the Leval or Abramowicz/Stearns theories of a holding, we might take the question
about the holding of Brown v. Kendall a step further. The first question is what Justice Shaw held
in Brown v. Kendall as to the relevant liability standard. But the second and underlying question
is whether there was a holding at all!

2. Tort law as industrial subsidy? Setting aside the problem of characterizing the holding of
Brown v. Kendall, it seems clear that Shaw meant to articulate a principle for distinguishing
between the plaintiff and the defendant in accident cases. The principle Shaw identified was the
negligence principle. He moved the liability standard as administered by judges toward
something like a negligence test, holding defendants liable only when they fail to exercise
ordinary or reasonable care—that is, when they act negligently. This negligence standard
generally offers a more favorable approach for defendants than a test that holds them liable even if
they exercise reasonable care, but fail to take the extraordinary care on which earlier cases
sometimes seemed to insist. Why would Shaw have wanted to do this?
Given the historical influence of Shaw’s opinion, a substantial literature has tried to
explain Shaw’s motivations. Harvard professor Morton Horwitz controversially claimed that
Shaw adopted the negligence standard to subsidize industrialization and economic growth at the
expense of poor constituencies. In contrast to the stricter liability standard that preceded it,
Horwitz argues, negligence immunized emerging industries from legal liability absent fault,
placing more of the burden of economic growth on the weakest groups in American society:
groups like farmers and workers. MORTON HORWITZ, THE TRANSFORMATION OF AMERICAN LAW,
1780-1860 97, 99-101 (1977).
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Subsequent scholars have criticized Horwitz’s thesis. Some dispute Horwitz’s
characterization of mid- and late-nineteenth-century tort law as having been especially friendly to
defendants. For example, Peter Karsten has argued that nineteenth-century negligence plaintiffs
faced no “new ‘roadblocks and hurdles’” in collecting damages. See PETER KARSTEN, HEART
VERSUS HEAD: JUDGE-MADE LAW IN NINETEENTH-CENTURY AMERICA 80 (1997). Gary Schwartz
similarly rejected Horwitz’s claim that nineteenth-century courts favored major industries. See
Gary T. Schwartz, The Character of Early American Tort Law, 36 U.C.L.A. L. REV. 641, 717
(1988); Gary T. Schwartz, Tort Law and the Economy in Nineteenth Century America: A
Reinterpretation, 90 YALE L.J. 1717, 1720 (1981).
The more perceptive critique of the Horwitz view begins with the observation that before
the era of Brown v. Kendall, there were remarkably few tort actions for personal injuries of any
kind. For them, Brown v. Kendall is thus not a decision narrowing an earlier era of relatively
liberal liability, but precisely the opposite. It is the beginning of the modern liability regime,
representing the end of an era of pervasive status-based immunities from suit, and also the halting
beginning of a new era of tort-based responsibility for harms. For this account, see especially
Robert Rabin, The Historical Development of the Fault Principle: A Reinterpretation, 15 GA. L.
REV. 925, 961 (1981), and also Richard A. Epstein, The Historical Origins and Economic
Structure of Workers’ Compensation Law, 16 GA. L. REV. 75 (1982), and John Fabian Witt, From
Loss of Services to Loss of Support, 25 L. & SOCIAL INQUIRY 717 (2000).
Scholars have also objected to one of Horwitz’s underlying premises: that private law
doctrine can redistribute wealth among social groups. For example, Richard Epstein has claimed
that courts and common law doctrines typically lack the institutional capacity to redistribute
wealth, since (after all) all parties—including industrialists—are simultaneously prospective
defendants and prospective plaintiffs. In theory, they may stand to lose as much as they gain from
new common law rules favoring one side or the other. See Richard A. Epstein, The Social
Consequences of Common Law Rules, 95 HARV. L. REV. 1717, 1718 (1982). Today’s lawyereconomists thus usually argue that common law rules are highly inferior to the tax system as
mechanisms for redistributing wealth. See Louis Kaplow & Steven Shavell, Why the Legal
System is Less Efficient Than the Income Tax in Redistributing Income, 23 J. L. STUD. 667 (1994).
Is there any reason to think that in the real world firms or industries with deep pockets are
more likely to be defendants than plaintiffs in tort litigation? It is a sociological fact that some
actors are essentially not worth suing in tort: they are “judgment proof,” as the saying goes,
because they lack the assets against which any tort judgment against them could be collected.
Firms or industries with assets, by contrast, are judgment-worthy. They are worth suing. Note
that 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
recently passed legislation to immunize the private space flight industry from liability. See, e.g.,
COLO. REV. STAT. §§ 41-6-101(1) to (2)(a) (2014). These state immunity statutes protect and
subsidize the “small but growing” private space flight industry. See Justin Silver, Note, Houston,
We Have a (Liability) Problem, 112 MICH. L. REV. 833, 838 (2014). At the federal level, to take
two further examples, Congress has immunized firearm manufacturers from suits by the victims
of criminal shootings, see Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2012),
and vaccine manufacturers from tort actions for bad reactions to childhood vaccines, see National
Childhood Vaccine Injury Act, 42 U.S.C. § 300aa-11 (2012). These targeted, scalpel-like
immunizations are considerably more precise than the blunderbuss of the general negligence
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standard. But they suggest that tort rules can accomplish some kinds of distributive goals, worthy
or otherwise—or, at least, that lobbyists and legislatures think so. For a recent argument that the
choice between private law rules or the tax system as the best vehicle for redistribution is a
contextual and empirical question, see Zachary Liscow, Note, Reducing Inequality on the Cheap:
When Legal Rule Design Should Include Equity as Well as Efficiency, 123 YALE L.J. 2134 (2014).

3. Negligence and wrongfulness. Are there other grounds that might have made the
negligence principle appealing to Shaw? One view argues that the ordinary care standard
advances the social interest, not merely the private interests of particular industries. This
argument, to which we will return in Chapter 4, contends that the standard of ordinary care
demands of actors only that they not engage in conduct that is, on balance, socially harmful and
therefore wrongful. Another view comes from jurists who defend tort law as an institution
primarily for correcting injustice or for expressing moral judgments about wrongfulness. For
corrective justice theorists, tort law embodies the obligation to repair wrongful losses. For
theorists who emphasize tort law’s expressive function, tort law is a crucial mechanism for
signaling whose interests the community deems worthy of respect and when those interests have
been wrongfully impinged upon. The negligence standard might be said to be consistent with this
emphasis on wrongfulness because to act negligently is to behave wrongfully, even if not
intentionally so. See JULES L. COLEMAN, RISKS AND WRONGS (1992).
The leading turn-of-the-twentieth-century jurist, and later Supreme Court justice, Oliver
Wendell Holmes, Jr., organized much of the book with which he made his name around
identifying a moral ground for the test that Shaw articulated in Brown v. Kendall:
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 77, 81-96 (1881)
The object of the next two Lectures is to discover whether there is any common ground at
the bottom of all liability in tort, and if so, what that ground is. . . .
[T]here are two theories of the common-law liability for unintentional harm. Both of
them seem to receive the implied assent of popular textbooks, and neither of them is wanting in
plausibility and the semblance of authority.
The first is that of Austin, which is essentially the theory of a criminalist. According to
him, the characteristic feature of law, properly so called, is a sanction or detriment threatened and
imposed by the sovereign for disobedience to the sovereign’s commands. As the greater part of
the law only makes a man civilly answerable for breaking it, Austin is compelled to regard the
liability to an action as a sanction, or, in other words, as a penalty for disobedience. It follows
from this, according to the prevailing views of penal law, that such liability ought only to be based
upon personal fault; and Austin accepts that conclusion, with its corollaries, one of which is that
negligence means a state of the party’s mind. These doctrines will be referred to later, so far as
necessary.
The other theory is directly opposed to the foregoing. It seems to be adopted by some of
the greatest common law authorities, and requires serious discussion before it can be set aside in
favor of any third opinion which may be maintained. According to this view, broadly stated,
under the common law a man acts at his peril. It may be held as a sort of set-off, that he is never
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liable for omissions except in consequence of some duty voluntarily undertaken. But the whole
and sufficient ground for such liabilities as he does incur outside the last class is supposed to be
that he has voluntarily acted, and that damage has ensued. If the act was voluntary, it is totally
immaterial that the detriment which followed from it was neither intended nor due to the
negligence of the actor.
In order to do justice to this way of looking at the subject, we must remember that the
abolition of the common-law forms of pleading has not changed the rules of substantive law.
Hence, although pleaders now generally allege intent or negligence, anything which would
formerly have been sufficient to charge a defendant in trespass is still sufficient, notwithstanding
the fact that the ancient form of action and declaration has disappeared.
In the first place, it is said, consider generally the protection given by the law to property,
both within and outside the limits of the last-named action. If a man crosses his neighbor’s
boundary by however innocent a mistake, or if his cattle escape into his neighbor’s field, he is
said to be liable in trespass quare clausum fregit. If an auctioneer in the most perfect good faith,
and in the regular course of his business, sells goods sent to his rooms for the purpose of being
sold, he may be compelled to pay their full value if a third person turns out to be the owner,
although he has paid over the proceeds, and has no means of obtaining indemnity.
Now suppose that, instead of a dealing with the plaintiff’s property, the case is that force
has proceeded directly from the defendant’s body to the plaintiff’s body, it is urged that, as the
law cannot be less careful of the persons than of the property of its subjects, the only defences
possible are similar to those which would have been open to an alleged trespass on land. You
may show that there was no trespass by showing that the defendant did no act; as where he was
thrown from his horse upon the plaintiff, or where a third person took his hand and struck the
plaintiff with it. In such cases the defendant’s body is the passive instrument of an external force,
and the bodily motion relied on by the plaintiff is not his act at all. So you may show a
justification or excuse in the conduct of the plaintiff himself. But if no such excuse is shown, and
the defendant has voluntarily acted, he must answer for the consequences, however little intended
and however unforeseen. If, for instance, being assaulted by a third person, the defendant lifted
his stick and accidentally hit the plaintiff, who was standing behind him, according to this view he
is liable, irrespective of any negligence toward the party injured.
The arguments for the doctrine under consideration are, for the most part, drawn from
precedent, but it is sometimes supposed to be defensible as theoretically sound. Every man, it is
said, has an absolute right to his person, and so forth, free from detriment at the hands of his
neighbors. In the cases put, the plaintiff has done nothing; the defendant, on the other hand, has
chosen to act. As between the two, the party whose voluntary conduct has caused the damage
should suffer, rather than one who has had no share in producing it. . . .
In spite, however, of all the arguments which may be urged for the rule that a man acts at
his peril, it has been rejected by very eminent courts, even under the old forms of action. In view
of this fact, and of the further circumstance that, since the old forms have been abolished, the
allegation of negligence has spread from the action on the case to all ordinary declarations in tort
which do not allege intent, probably many lawyers would be surprised that any one should think it
worthwhile to go into the present discussion. Such is the natural impression to be derived from
daily practice. But even if the doctrine under consideration had no longer any followers, which is
not the case, it would be well to have something more than daily practice to sustain our views
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upon so fundamental a question; as it seems to me at least, the true principle is far from being
articulately grasped by all who are interested in it, and can only be arrived at after a careful
analysis of what has been thought hitherto. It might be thought enough to cite the decisions
opposed to the rule of absolute responsibility, and to show that such a rule is inconsistent with
admitted doctrines and sound policy. But we may go further with profit, and inquire whether
there are not strong grounds for thinking that the common law has never known such a rule,
unless in that period of dry precedent which is so often to be found midway between a creative
epoch and a period of solvent philosophical reaction. Conciliating the attention of those who,
contrary to most modern practitioners, still adhere to the strict doctrine, by reminding them once
more that there are weighty decisions to be cited adverse to it, and that, if they have involved an
innovation, the fact that it has been made by such magistrates as Chief Justice Shaw goes far to
prove that the change was politic, I think I may assert that a little reflection will show that it was
required not only by policy, but by consistency. I will begin with the latter.
The same reasoning which would make a man answerable in trespass for all damage to
another by force directly resulting from his own act, irrespective of negligence or intent, would
make him answerable in case for the like damage similarly resulting from the act of his servant, in
the course of the latter’s employment. The discussions of the company’s negligence in many
railway cases would therefore be wholly out of place, for although, to be sure, there is a contract
which would make the company liable for negligence, that contract cannot be taken to diminish
any liability which would otherwise exist for a trespass on the part of its employees.
More than this, the same reasoning would make a defendant responsible for all damage,
however remote, of which his act could be called the cause. So long, at least, as only physical or
irresponsible agencies, however unforeseen, co-operated with the act complained of to produce
the result, the argument which would resolve the case of accidentally striking the plaintiff, when
lifting a stick in necessary self-defence, adversely to the defendant, would require a decision
against him in every case where his act was a factor in the result complained of. The distinction
between a direct application of force, and causing damage indirectly, or as a more remote
consequence of one’s act, although it may determine whether the form of action should be
trespass or case, does not touch the theory of responsibility, if that theory be that a man acts at his
peril.
As was said at the outset, if the strict liability is to be maintained at all, it must be
maintained throughout. A principle cannot be stated which would retain the strict liability in
trespass while abandoning it in case. It cannot be said that trespass is for acts alone, and case for
consequences of those acts. All actions of trespass are for consequences of acts, not for the acts
themselves. And some actions of trespass are for consequences more remote from the defendant’s
act than in other instances where the remedy would be case.
An act is always a voluntary muscular contraction, and nothing else. The chain of
physical sequences which it sets in motion or directs to the plaintiff’s harm is no part of it, and
very generally a long train of such sequences intervenes. An example or two will make this
extremely clear.
When a man commits an assault and battery with a pistol, his only act is to contract the
muscles of his arm and forefinger in a certain way, but it is the delight of elementary writers to
point out what a vast series of physical changes must take place before the harm is done. Suppose
that, instead of firing a pistol, he takes up a hose which is discharging water on the sidewalk, and
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directs it at the plaintiff, he does not even set in motion the physical causes which must co-operate
with his act to make a battery. Not only natural causes, but a living being, may intervene between
the act and its effect. . . . In Scott v. Shepherd . . . trespass was maintained against one who had
thrown a squib into a crowd, where it was tossed from hand to hand in self-defence until it burst
and injured the plaintiff. Here even human agencies were a part of the chain between the
defendant’s act and the result, although they were treated as more or less nearly automatic, in
order to arrive at the decision.
Now I repeat, that, if principle requires us to charge a man in trespass when his act has
brought force to bear on another through a comparatively short train of intervening causes, in spite
of his having used all possible care, it requires the same liability, however numerous and
unexpected the events between the act and the result. If running a man down is a trespass when
the accident can be referred to the rider’s act of spurring, why is it not a tort in every case . . .
seeing that it can always be referred more remotely to his act of mounting and taking the horse
out?
Why is a man not responsible for the consequences of an act innocent in its direct and
obvious effects, when those consequences would not have followed but for the intervention of a
series of extraordinary, although natural, events? The reason is, that, if the intervening events are
of such a kind that no foresight could have been expected to look out for them, the defendant is
not to blame for having failed to do so. It seems to be admitted by the English judges that, even
on the question whether the acts of leaving dry trimmings in hot weather by the side of a railroad,
and then sending an engine over the track, are negligent,—that is, are a ground of liability,—the
consequences which might reasonably be anticipated are material. Yet these are acts which, under
the circumstances, can hardly be called innocent in their natural and obvious effects. The same
doctrine has been applied to acts in violation of statute which could not reasonably have been
expected to lead to the result complained of.
But there is no difference in principle between the case where a natural cause or physical
factor intervenes after the act in some way not to be foreseen, and turns what seemed innocent to
harm, and the case where such a cause or factor intervenes, unknown, at the time . . . .
To return to the example of the accidental blow with a stick lifted in self-defence, there is
no difference between hitting a person standing in one’s rear and hitting one who was pushed by a
horse within range of the stick just as it was lifted, provided that it was not possible, under the
circumstances, in the one case to have known, in the other to have anticipated, the proximity. In
either case there is wanting the only element which distinguishes voluntary acts from spasmodic
muscular contractions as a ground of liability. In neither of them, that is to say, has there been an
opportunity of choice with reference to the consequence complained of,—a chance to guard
against the result which has come to pass. A choice which entails a concealed consequence is as
to that consequence no choice.
The general principle of our law is that loss from accident must lie where it falls, and this
principle is not affected by the fact that a human being is the instrument of misfortune. But
relatively to a given human being anything is accident which he could not fairly have been
expected to contemplate as possible, and therefore to avoid. In the language of the late Chief
Justice Nelson of New York: “No case or principle can be found, or if found can be maintained,
subjecting an individual to liability for an act done without fault on his part. . . . All the cases
concede that an injury arising from inevitable accident, or, which in law or reason is the same
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thing, from an act that ordinary human care and foresight are unable to guard against, is but the
misfortune of the sufferer, and lays no foundation for legal responsibility.” If this were not so,
any act would be sufficient, however remote, which set in motion or opened the door for a series
of physical sequences ending in damage; such as riding the horse, in the case of the runaway, or
even coming to a place where one is seized with a fit and strikes the plaintiff in an unconscious
spasm. Nay, why need the defendant have acted at all, and why is it not enough that his existence
has been at the expense of the plaintiff? The requirement of an act is the requirement that the
defendant should have made a choice. But the only possible purpose of introducing this moral
element is to make the power of avoiding the evil complained of a condition of liability. . . .
A man need not, it is true, do this or that act, the term act implies a choice,—but he must
act somehow. Furthermore, the public generally profits by individual activity. As action cannot
be avoided, and tends to the public good, there is obviously no policy in throwing the hazard of
what is at once desirable and inevitable upon the actor. The state might conceivably make itself a
mutual insurance company against accidents, and distribute the burden of its citizens’ mishaps
among all its members. There might be a pension for paralytics, and state aid for those who
suffered in person or estate from tempest or wild beasts. As between individuals it might adopt
the mutual insurance principle pro tanto, and divide damages when both were in fault, as in the
rusticum judicium of the admiralty, or it might throw all loss upon the actor irrespective of fault.
The state does none of these things, however, and the prevailing view is that its cumbrous and
expensive machinery ought not to be set in motion unless some clear benefit is to be derived from
disturbing the status quo. State interference is an evil, where it cannot be shown to be a good.
Universal insurance, if desired, can be better and more cheaply accomplished by private
enterprise. The undertaking to redistribute losses simply on the ground that they resulted from the
defendant’s act would not only be open to these objections, but, as it is hoped the preceding
discussion has shown, to the still graver one of offending the sense of justice. Unless my act is of
a nature to threaten others, unless under the circumstances a prudent man would have foreseen the
possibility of harm, it is no more justifiable to make me indemnify my neighbor against the
consequences, than to make me do the same thing if I had fallen upon him in a fit, or to compel
me to insure him against lightning.

Note

1. Holmes’s gloss on Brown v. Kendall has provided a theoretical defense for the reasonable
care regime for more than a century now. Yet even as Shaw and then Holmes articulated the
basic principles of the negligence regime, an alternative approach that turned neither on
negligence nor on any failure of reasonable care sprang up. No-fault liability arose almost
simultaneously with the negligence regime and remains alongside it in tort law today, a century
and a half later.

Fletcher v. Rylands, 159 Eng. Rep. 737 (1865)
[This was an action by a tenant coal-mine operator against the builder of a new reservoir
for damages that occurred when the filling of the reservoir flooded the coal mining operation. In
the 1850s, a tenant to the Earl of Wilton leased beds of coal from Lord Wilton for the purpose of
extracting the coal. In the process of working the coal seam, the tenant came into contact with old
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abandoned coal workings from prior mining efforts. Soon thereafter, defendants—who did not
know about the old coal workings, or about the plaintiff’s having found any such coal workings in
the course of plaintiff’s mining—began to build a dam on an adjoining part of Lord Wilton’s land
for purposes of building a reservoir that would power their mill. The defendant, everyone agreed,
exercised due care in selecting competent engineers to build the reservoir. In the course of their
work, the engineers discovered that the bed was in part built on top of “five old shafts, running
vertically downwards” and “constructed of timber” but “filled up with marl or soil of the same
kind as the marl or soil which immediately surrounded them.” The condition of the ancient shafts
was such that the engineers did not know or suspect they were old coal mining shafts. When the
reservoir was filled with water in December 1860, one of the shafts under the reservoir bed gave
way, flooding the old workings underneath. The water flowed through into the plaintiff’s coal
workings and forced the plaintiff to suspend its operations.]
The question for the opinion of the Court was, whether the plaintiff was entitled to recover
damages from the defendants by reason of the matter stated in the case.
BRAMWELL, B. . . . [W]hat is the plaintiff’s right? He had the right to work his mines to
their extent, leaving no boundary between himself and the next owner. By so doing he subjected
himself to all consequences resulting from natural causes, among others, to the influx of all water
naturally flowing in. But he had a right to be free from what has been called “foreign” water, that
is, water artificially brought or sent to him directly, or indirectly by its being sent to where it
would flow to him. The defendants had no right to pour or send water on to the plaintiff’s works.
Had they done so knowingly it is admitted an action would lie; and that it would if they did it
again. . . . The plaintiff’s right then has been infringed; the defendants in causing water to flow to
the plaintiff have done that which they had no right to do. [C]onsequently th[e] the action is
maintainable. The plaintiff’s case is, you have violated my right, you have done what you had no
right to do, and have done me damage. If the plaintiff has the right I mention, the action is
maintainable. If he has it not, it is because his right is only to have his mines free from foreign
water by the act of those who know what they are doing. I think this is not so. I know no case of
a right so limited. As a rule the knowledge or ignorance of the damage done is immaterial. The
burthen of proof of this proposition is not on the plaintiff. . . .
I think, therefore, on the plain ground that the defendants have caused water to flow into
the plaintiff’s mines, which but for their, the defendants’, act would not have gone, this action is
maintainable. I think that the defendants’ innocence, whatever may be its moral bearing on the
case, is immaterial in point of law.
MARTIN, B. . . . I think there was no trespass. In the judgment of my brother Bramwell . .
. the act of the defendants was a trespass, but I cannot concur, and I own it seems to me that the
cases cited by him, Leame v. Bray (3 East, 593) . . . prove the contrary. . . . [T]o constitute
trespass the act doing the damage must be immediate, and that if the damage be mediate or
consequential (which I think the present was), it is not a trespass. . . . The digging a reservoir in a
man’s own land is a lawful act. It does not appear that there was any embankment, or that the
water in the reservoir was ever above the level of the natural surface of the land, and the water
escaped from the bottom of the reservoir, and in ordinary course would descend by gravitation
into the defendants’ own land, and they did not know of the existence of the old workings. To
hold the defendants liable would therefore make them insurers against the consequence of a
lawful act upon their own land when they had no reason to believe or suspect that any damage
was likely to ensue.
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[T]here is no better established rule of law than that when damage is done to personal
property, and even to the person, by collision either upon the road or at sea, there must be
negligence in the party doing the damage to render him legally responsible, and if there be no
negligence the party sustaining the damage must bear with it. The existence of this rule is proved
by the exceptions to it, the cases of the innkeeper and common carrier of goods for hire, who are
quasi insurers. These cases are said to be by the custom of the realm, treating them as exceptions
from the ordinary rule of law. In the absence of authority to the contrary, I can see no reason why
damage to real property should be governed by a different rule or principle than damage to
personal property. There is an instance also of damage to real property, when the party causing it
was at common law liable upon the custom of the realm as a quasi insurer, viz, the master of a
house if a fire had kindled there and consumed the house of another. In such case, the master of
the house was liable at common law without proof negligence on his part. This seems to be an
exception from the ordinary rule of law, and in my opinion, affords an argument that in other
cases such as the present, there must be negligence to create a liability. . . .
POLLOCK, C. B. . . . I agree with my brother Martin that no action will lie. It appears to
me that my brother Bramwell assumes too strongly that the complainant “had a right to be free
from what is called ‘foreign water.’” That may be so with reference to surface-rights; but I am not
prepared to hold that this applies to every possible way in which water may happen to come.
There being, therefore, no authority for bringing such an action, I think the safer course is to
decide in favour of the defendants. . . .

Fletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866)
BLACKBURN, J. We have come to the conclusion that the opinion of Bramwell, B., was
right, and that . . . the plaintiff was entitled to recover damages from the defendants . . . .
The plaintiff, though free from all blame on his part, must bear the loss, unless he can
establish that it was the consequence of some default for which the defendants are responsible.
The question of law therefore arises, what is the obligation which the law casts on a person who,
like the defendants, lawfully brings on his land something which, though harmless whilst it
remains there, will naturally do mischief if it escape out of his land. It is agreed on all hands that
he must take care to keep in that which he has brought on the land and keeps there, in order that it
may not escape and damage his neighbours, but the question arises whether the duty which the
law casts upon him, under such circumstances, is an absolute duty to keep it in at his peril, or is,
as the majority of the Court of Exchequer have thought, merely a duty to take all reasonable and
prudent precautions, in order to keep it in, but no more. If the first be the law, the person who has
brought on his land and kept there something dangerous, and failed to keep it in, is responsible for
all the natural consequences of its escape. If the second be the limit of his duty, he would not be
answerable except on proof of negligence, and consequently would not be answerable for escape
arising from any latent defect which ordinary prudence and skill could not detect. . . .
We think that the true rule of law is, that the person who for his own purposes brings on
his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in
at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the
natural consequence of its escape. He can excuse himself by shewing that the escape was owing to
the plaintiff’s default; or perhaps that the escape was the consequence of vis major, or the act of
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God; but as nothing of this sort exists here, it is unnecessary to inquire what excuse would be
sufficient. The general rule, as above stated, seems on principle just. The person whose grass or
corn is eaten down by the escaping cattle of his neighbour, or whose mine is flooded by the water
from his neighbour’s reservoir, or whose cellar is invaded by the filth of his neighbour’s privy, or
whose habitation is made unhealthy by the fumes and noisome vapours of his neighbour’s alkali
works, is damnified without any fault of his own; and it seems but reasonable and just that the
neighbour, who has brought something on his own property which was not naturally there,
harmless to others so long as it is confined to his own property, but which he knows to be
mischievous if it gets on his neighbour’s, should be obliged to make good the damage which
ensues if he does not succeed in confining it to his own property. . . .
The case that has most commonly occurred, and which is most frequently to be found in
the books, is as to the obligation of the owner of cattle which he has brought on his land, to
prevent their escaping and doing mischief. The law as to them seems to be perfectly settled from
early times; the owner must keep them in at his peril, or he will be answerable for the natural
consequences of their escape; that is with regard to tame beasts, for the grass they eat and trample
upon, though not for any injury to the person of others, for our ancestors have settled that it is not
the general nature of horses to kick, or bulls to gore; but if the owner knows that the beast has a
vicious propensity to attack man, he will be answerable for that too. . . .
[T]here does not appear to be any difference in principle, between the extent of the duty
cast on him who brings cattle on his land to keep them in, and the extent of the duty imposed on
him who brings on his land, water, filth, or stenches, or any other thing which will, if it escape,
naturally do damage, to prevent their escaping and injuring his neighbor. . . .
. . . [I]t was . . . said by Martin, B. that when damage is done to personal property, or even
to the person by collision, either upon land or at sea, there must be negligence in the party doing
the damage to render him legally responsible, and this is no doubt true . . . . But we think these
cases distinguishable from the present. Traffic on the highways . . . cannot be conducted without
exposing those whose persons or property are near it to some inevitable risk; . . . those who go on
the highway, or have their property adjacent to it, may well be held to do so subject to their taking
upon themselves the risk of injury from that inevitable danger . . . . But there is no ground for
saying that the plaintiff here took upon himself any risk arising from the uses to which the
defendants should choose to apply their land. He neither knew what these might be, nor could he
in any way control the defendants, or hinder their building what reservoirs they liked, and storing
up in them what water they pleased, so long as the defendants succeeded in preventing the water
which they there brought from interfering with the plaintiff’s property. . . .
We are of [the] opinion that the plaintiff is entitled to recover.

Rylands v. Fletcher, L.R. 3 H.L. 330 (House of Lords 1868)
THE LORD CHANCELLOR (LORD CAIRNS) My Lords, the principles on which this case must
be determined appear to me to be extremely simple. The Defendants, treating them as the owners
or occupiers of the close on which the reservoir was constructed, might lawfully have used that
close for any purpose for which it might in the ordinary course of the enjoyment of land be used;
and if, in what I may term the natural user of that land, there had been any accumulation of water,
either on the surface or underground, and if, by the operation of the laws of nature, that
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accumulation of water had passed off into the close occupied by the Plaintiff, the Plaintiff could
not have complained that that result had taken place. If he had desired to guard himself against it,
it would have lain upon him to have done so, by leaving, or by interposing, some barrier between
his close and the close of the Defendants in order to have prevented that operation of the laws of
nature.
On the other hand if the Defendants, not stopping at the natural use of their close, had
desired to use it for any purpose which I may term a non-natural use, for the purpose of
introducing into the close that which in its natural condition was not in or upon it, for the purpose
of introducing water either above or below ground in quantities and in a manner not the result of
any work or operation on or under the land,—and if in consequence of their doing so, or in
consequence of any imperfection in the mode of their doing so, the water came to escape and to
pass off into the close of the Plaintiff, then it appears to me that that which the Defendants were
doing they were doing at their own peril; and, if in the course of their doing it, the evil arose to
which I have referred, the evil, namely, of the escape of the water and its passing away to the
close of the Plaintiff and injuring the Plaintiff, then for the consequence of that, in my opinion, the
Defendants would be liable. . . .
My Lords, these simple principles, if they are well founded, as it appears to me they are,
really dispose of this case.
The same result is arrived at on the principles referred to by Mr. Justice Blackburn in his
judgment, in the Court of Exchequer Chamber . . . .
My Lords, in that opinion, I must say I entirely concur. Therefore, I have to move your
Lordships that the judgment of the Court of Exchequer Chamber be affirmed, and that the present
appeal be dismissed with costs.
LORD CRANWORTH Lords, I concur with my noble and learned friend in thinking that the
rule of law was correctly stated by Mr. Justice Blackburn in delivering the opinion of the
Exchequer Chamber. If a person brings, or accumulates, on his land anything which, if it should
escape, may cause damage to his neighbour, he does so at his peril. If it does escape, and cause
damage, he is responsible, however careful he may have been, and whatever precautions he may
have taken to prevent the damage. . . .
. . . I come without hesitation to the conclusion that the judgment of the Exchequer
Chamber was right. . . . If water naturally rising in the Defendants’ land . . . had by percolation
found its way down to the Plaintiff’s mine through the old workings, and so had impeded his
operations, that would not have afforded him any ground of complaint. . . . But that is not the real
state of the case. The Defendants, in order to effect an object of their own, brought on to their
land, or on to land which for this purpose may be treated as being theirs, a large accumulated mass
of water, and stored it up in a reservoir. The consequence of this was damage to the Plaintiff, and
for that damage, however skillfully and carefully the accumulation was made, the Defendants,
according to the principles and authorities to which I have adverted, were certainly responsible.
I concur, therefore, with my noble and learned friend in thinking that the judgment below
must be affirmed, and that there must be judgment for the Defendant in Error.

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Notes

1. Is strict liability possible? In Rylands, the Court of Exchequer and the House of Lords
purported to identify a basis for liability other than negligence. Many have characterized the
Rylands case as a form of “strict liability.” But what does that mean? Strict liability, as Professor
Stephen 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
at issue; no injury would have taken place had the plaintiff not been mining coal, just as no injury
would have taken place had the defendant not built a reservoir. See Stephen R. Perry, The
Impossibility of Strict Liability, 1 CAN J. L. & JURISPRUDENCE 147, 169-70 (1988). To put it a
different way: causation alone does not distinguish between the two parties to the case. So what
then is the ground for liability offered by the judges in Rylands who differ with Judge Martin’s
negligence standard?

2. The reciprocity view. In discussing the defense of necessity in Vincent v. Lake Erie
Transportation Co., above, we noted the argument advanced by torts jurists like George Fletcher
that the real basis for the liability in torts is the imposition of a non-reciprocal risk. Fletcher
contends that Rylands is precisely such a case: “The critical feature of [Rylands] is that the
defendant created a risk of harm to the plaintiff that was of an order different from the risks that
the plaintiff imposed on the defendant.” George Fletcher, Fairness and Utility in Tort Theory, 85
HARV. L. REV. 537, 546 (1971). Does the reciprocity argument offer a sound basis for allocating
the cost of the harm to the reservoir-building defendant in Rylands? Critics insist that the
reciprocity argument is just as circular here in Rylands as it was in Vincent. It is circular because
the relative risks of the activities turn on tort law’s underlying allocation of those risks. If the
plaintiff coal miner has the right to compensation for the costs imposed by the defendant reservoir
builder’s conduct, then the defendant has created a risk of harm for itself, not for the plaintiff.
The risk to the coal mining plaintiff is only asymmetrical if we imagine a baseline of what
belongs to whom in the situation. But that of course is precisely what the torts judge is supposed
to do to resolve the dispute in the first place!

3. First in time? What about a first-in-time principle? The coal mine operator was removing
coal from the land before the construction of the defendant’s large new reservoir and mill. Should
this timing factor be enough to decide the case, or should temporal priority be disregarded? Does
it matter that the defendant already operated a much smaller reservoir and mill nearby? Note, too,
that the plaintiff and the defendant were linked in a web of contracts with a common landlord. If
the parties had contemplated risks like the one that came to fruition, what kind of a term would
they have adopted in their respective leases to deal with it?

4. Unusual behavior. Another possible justification for the Rylands outcome focuses on the
kinds of conduct that are ordinary in the neighborhood. When actors engage in new or otherwise
unusual activities, others may not be in a position to anticipate the risks that such conduct poses.
Does this distinction offer a ground for explaining the Rylands case?

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5. Rylands was met with strong opposition in some American courts, as the next two cases
make clear:

Brown v. Collins, 53 N.H. 442 (1873)
DOE, J.
It is agreed that the defendant was in the use of ordinary care and skill in managing his
horses, until they were frightened; and that they then became unmanageable, and ran against and
broke a post on the plaintiff’s land. . . .
[I]f there is a legal principle that makes a man liable for the natural consequences of the
escape of things which he brings on his land, the application of such a principle cannot be limited
to those things: it must be applied to all his acts that disturb the original order of creation; or, at
least, to all things which he undertakes to possess or control anywhere, and which were not used
and enjoyed in what is called the natural or primitive condition of mankind, whatever that may
have been. This is going back a long way for a standard of legal rights, and adopting an arbitrary
test of responsibility that confounds all degrees of danger, pays no heed to the essential elements
of actual fault, puts a clog upon natural and reasonably necessary uses of matter, and tends to
embarrass and obstruct much of the work which it seems to be man’s duty carefully to do. . . .
Even if the arbitrary test were applied only to things which a man brings on his land, it would still
recognize the peculiar rights of savage life in a wilderness, ignore the rights growing out of a
civilized state of society, and make a distinction not warranted by the enlightened spirit of the
common law: it would impose a penalty upon efforts, made in a reasonable, skilful, and careful
manner, to rise above a condition of barbarism. It is impossible that legal principle can throw so
serious an obstacle in the way of progress and improvement. . . .
In Fletcher v. Rylands . . . Mr. Justice Blackburn, commenting upon the remark of Mr.
Baron Martin, “that Traffic on the highways, whether by land or sea, cannot be conducted without
exposing those whose persons or property are near it to some inevitable risk; and that being so,
those who go on the highway, or have their property adjacent to it, may well be held to do so
subject to their taking upon themselves the risk of injury from that inevitable danger; and persons
who, by the license of the owner, pass near to warehouses where goods are being raised or
lowered, certainly do so subject to the inevitable risk of accident. In neither case, therefore, can
they recover without proof of want of care or skill occasioning the accident; and it is believed that
all the cases in which inevitable accident has been held an excuse for what, prima facie, was a
trespass, can be explained on the same principle, viz., that the circumstances were such as to show
that the plaintiff had taken that risk upon himself.” This would be authority for holding, in the
present case, that the plaintiff, by having his post near the street, took upon himself the risk of its
being broken by an inevitable accident carrying a traveller off the street. . . .
The defendant, being without fault, was as innocent as if the pole of his wagon had been
hurled on the plaintiff’s land by a whirlwind, or he himself, by a stronger man, had been thrown
through the plaintiff’s window. Upon the facts stated, taken in the sense in which we understand
them, the defendant is entitled to judgment.
Case discharged.
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Note

1. Does civilization really rest on the rejection of the Rylands rule? Was nineteenth-century
New Hampshire really more “civilized” and less prone to a condition of “barbarism” than
nineteenth-century Great Britain? The overheated rhetoric of Brown v. Collins tells us as much
about the cultural attitudes of late nineteenth-century jurists as it does about the law of torts. And
Judge Doe was not alone in thinking that important values were at stake. In New York, Judge
Earl added an additional dimension to the critique of Rylands:

Losee v. Buchanan, 51 N.Y. 476 (1872)
EARL, J.
. . . The claim on the part of the plaintiff is, that the casting of the [steam] boiler upon his
premises by [an] explosion [of the steam boiler in question] was a direct trespass upon his right to
the undisturbed possession and occupation of his premises, and that the defendants are liable just
as they would have been for any other wrongful entry and trespass upon his premises.
I do not believe this claim to be well founded . . . .
By becoming a member of civilized society, I am compelled to give up many of my
natural rights, but I receive more than a compensation from the surrender by every other man of
the same rights, and the security, advantage and protection which the laws give me. So, too, the
general rules that I may have the exclusive and undisturbed use and possession of my real estate,
and that I must so use my real estate as not to injure my neighbor, are much modified by the
exigencies of the social state. We must have factories, machinery, dams, canals and railroads.
They are demanded by the manifold wants of mankind, and lay at the basis of all our civilization.
If I have any of these upon my lands, and they are not a nuisance and are not so managed as to
become such, I am not responsible for any damage they accidentally and unavoidably do my
neighbor. . . . Most of the rights of property, as well as of person, in the social state, are not
absolute but relative, and they must be so arranged and modified, not unnecessarily infringing
upon natural rights, as upon the whole to promote the general welfare.
I have so far found no authorities and no principles which fairly sustain the broad claim
made by the plaintiff, that the defendants are liable in this action without fault or negligence on
their part to which the explosion of the boiler could be attributed.
But our attention is called to a recent English case, [Fletcher v. Rylands,] decided in the
Exchequer Chamber, which seems to uphold the claim made. . . .
It is sufficient, however, to say that the law, as laid down in those cases, is in direct
conflict with the law as settled in this country. Here, if one builds a dam upon his own premises
and thus holds back and accumulates the water for his benefit, or if he brings water upon his own
premises into a reservoir, in case the dam or the banks of the reservoir give away and the lands of
a neighbor are thus flooded, he is not liable for the damage without proof of some fault or
negligence on his part. . . .
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All concur.

Notes

1. Torts and the social contract. Judge Earl’s account seems to suggest that people in
civilized societies enter into a social contract under which they trade away their natural rights to
compensation for injuries caused without fault. Why would they do so in Judge Earl’s account?
Is a negligence rule necessarily one of the terms of the social contract? Taking up the social
contractarianism of John Rawls, Professor Gregory Keating argues that distributive fairness in tort
law would require the adoption not of a negligence standard but of a no-fault approach that
allocates injury costs to the enterprises that benefit from the activity creating the risk—an
approach that Keating calls “strict enterprise liability.” See Gregory C. Keating, Rawlsian
Fairness and Regime Choice in the Law of Accidents, 72 FORDHAM L. REV. 1857 (2004). How
does Keating know that it is the enterprise and not the injured party—or both—who created the
risk in the relevant sense? The plaintiff in Losee v. Buchanan engaged in and benefited from an
activity creating a risk: he built a structure that was at risk of collapse. This is not to say that the
plaintiff ought to be thought of as responsible for the structure’s collapse when the steam boiler
flew from the defendant’s property and smashed into it. That would be an unlikely way to
characterize the situation. But it does suggest that the reason for holding the defendant liable—or,
as in the actual case, holding the defendant not liable—cannot be that one party was engaged in a
beneficial activity and the other was not. They both were!
Note that in cases between parties with ongoing consensual relationships, an analysis of
which party was benefitting from the action will be even more difficult. In such situations, both
parties are (by hypothesis) beneficiaries of the activity in question. For example, when an
enterprise sells a product to a consumer, they both benefit from the activity of producing and
selling the product.

2. The floodgates of strict liability. Although Brown and Losee rejected Rylands, recent
research in the caselaw concludes that other American jurisdictions were far more open to the
Rylands doctrine than either Brown or Losee suggest. In his student note, Professor Jed
Shugerman found:
[A] significant majority of the states actually accepted Rylands in the late nineteenth
and early twentieth centuries, at the height of the “era of fault.” . . . A few states
split 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
Columbia solidly accepting Rylands, nine more leaning toward Rylands or its rule,
five states wavering, and only three states consistently rejecting it. Just after the
turn of the century, the California Supreme Court declared, more correctly than not,
that “[t]he American authorities, with hardly an exception, follow the doctrine laid
down in the courts of England [in Rylands].” In the following years, some states
shifted against Rylands, but an equivalent number of new states also adopted
Rylands. Accordingly, a strong majority of states has consistently recognized this
precedent for strict liability from about 1890 to the present.
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Jed Shugerman, Note, “The Floodgates of Strict Liability”: Bursting Reservoirs and the Adoption
of Fletcher v. Rylands in The Gilded Age, 110 YALE L.J. 333 (2000). Shugerman contends that
the embrace of the Rylands doctrine was prompted by a series of high-profile dam-breaks in late
nineteenth-century America. Most famously, the Johnstown Flood in Pennsylvania in 1889 killed
2000 people when a poorly built dam collapsed, flooding an entire valley and destroying the town
of Johnstown. The dam was on the property of a hunting and recreation club owned by some of
America’s wealthiest Gilded Age men. Shugerman notes that “three of the states most widely
recognized for their rejection of Rylands—New York, New Jersey, and Pennsylvania—reversed
their stance on Rylands in the 1890s, soon after the Johnstown Flood.”
Flood cases notwithstanding, the high-point of American judges’ resistance to no-fault
liability arguably came still later, in another New York case, this time a constitutional challenge to
the country’s first workers’ compensation law:

Ives v. South Buffalo Ry., 94 N.E. 431 (N.Y. 1911)
WERNER, J. . . .
[Earl Ives, a railway brakeman, was injured while working and brought an action under
New York’s new workmen’s compensation statute. Defendant railway answered that the statute
was unconstitutional because, among other things, it imposed liability on them in the absence of
negligence. Ives demurred, and the trial court awarded judgment to Ives.]
The statute, judged by our common-law standards, is plainly revolutionary. Its central and
controlling feature is that every employer who is engaged in any of the classified industries shall
be liable for any injury to a workman arising out of and in the course of the employment by ‘a
necessary risk or danger of the employment or one inherent in the nature thereof; . . . provided
that the employer shall not be liable in respect of any injury to the workman which is caused in
whole or in part by the serious and willful misconduct of the workman.’ This rule of liability,
stated in another form, is that the employer is responsible to the employe for every accident in the
course of the employment, whether the employer is at fault or not, and whether the employe is at
fault or not, except when the fault of the employe is so grave as to constitute serious and willful
misconduct on his part. The radical character of this legislation is at once revealed by contrasting
it with the rule of the common law, under which the employer is liable for injuries to his employe
only when the employer is guilty of some act or acts of negligence which caused the occurrence
out of which the injuries arise . . . .
[The Commission that drafted the statute advocated for it on the ground that the
negligence rule was “economically unwise and unfair”; “that in operation it is wasteful, uncertain,
and productive of antagonism between workmen and employers”; and “that, as matter of fact,
workmen in the dangerous trades do not, and practically cannot, provide for themselves adequate
accident insurance, and therefore the burden of serious accidents falls on the workmen least able
to bear it, and brings many of them and their families to want.”]
Under our form of government, however, courts must regard all economic, philosophical,
and moral theories, attractive and desirable though they may be, as subordinate to the primary
question whether they can be molded into statutes without infringing upon the letter or spirit of
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our written Constitutions. In that respect we are unlike any of the countries whose industrial laws
are referred to as models for our guidance. . . .
With these considerations in mind we turn to the purely legal phases of the controversy for
the purpose of disposing of some things which are incidental to the main question. . . .
This legislation is challenged as void under the fourteenth amendment to the federal
Constitution and under section 6, art. 1 of our state Constitution, which guarantee all persons
against deprivation of life, liberty, or property without due process of law. . . . One of the
inalienable rights of every citizen is to hold and enjoy his property until it is taken from him by
due process of law. When our Constitutions were adopted, it was the law of the land that no man
who was without fault or negligence could be held liable in damages for injuries sustained by
another. That is still the law, except as to the employers enumerated in the new statute, and as to
them it provides that they shall be liable to their employes for personal injury by accident to any
workman arising out of and in the course of the employment which is caused in whole or in part,
or is contributed to, by a necessary risk or danger of the employment or one inherent in the nature
thereof, except that there shall be no liability in any case where the injury is caused in whole or in
part by the serious and willful misconduct of the injured workman.
It is conceded that this is a liability unknown to the common law, and we think it plainly
constitutes a deprivation of liberty and property under the federal and state Constitutions, unless
its imposition can be justified under the police power which will be discussed under a separate
head. In arriving at this conclusion we do not overlook the cogent economic and sociological
arguments which are urged in support of the statute. There can be no doubt as to the theory of this
law. It is based upon the proposition that the inherent risks of an employment should in justice be
placed upon the shoulders of the employer, who can protect himself against loss by insurance and
by such an addition to the price of his wares as to cast the burden ultimately upon the consumer;
that indemnity to an injured employe should be as much a charge upon the business as the cost of
replacing or repairing disabled or defective machinery, appliances, or tools; that, under our
present system, the loss falls immediately upon the employe who is almost invariably unable to
bear it, and ultimately upon the community which is taxed for the support of the indigent; and that
our present system is uncertain, unscientific, and wasteful, and fosters a spirit of antagonism
between employer and employe which it is to the interests of the state to remove. We have already
admitted the strength of this appeal to a recognized and widely prevalent sentiment; but we think
it is an appeal which must be made to the people, and not to the courts. The right of property
rests, not upon philosophical or scientific speculations, nor upon the commendable impulses of
benevolence or charity, nor yet upon the dictates of natural justice. The right has its foundation in
the fundamental law. That can be changed by the people, but not by Legislatures. In a
government like ours, theories of public good or necessity are often so plausible or sound as to
command popular approval; but courts are not permitted to forget that the law is the only chart by
which the ship of state is to be guided.
...
The argument that the risk to an employe should be borne by the employer, because it is
inherent in the employment, may be economically sound; but it is at war with the legal principle
that no employer can be compelled to assume a risk which is inseparable from the work of the
employe, and which may exist in spite of a degree of care by the employer far greater than may be
exacted by the most drastic law. If it is competent to impose upon an employer, who has omitted
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no legal duty and has committed no wrong, a liability based solely upon a legislative fiat that his
business is inherently dangerous, it is equally competent to visit upon him a special tax for the
support of hospitals and other charitable institutions, upon the theory that they are devoted largely
to the alleviation of ills primarily due to his business. In its final and simple analysis that is taking
the property of A. and giving it to B., and that cannot be done under our Constitutions. Practical
and simple illustrations of the extent to which this theory of liability might be carried could be
multiplied ad infinitum, and many will readily occur to the thoughtful reader. . . .
[W]e therefore take up the discussion of the police power under which this law is sought
to be justified. The police power is, of course, one of the necessary attributes of civilized
government. . . . But it is a power which is always subject to the Constitution . . . . In order to
sustain legislation under the police power, the courts must be able to see that its operation tends in
some degree to prevent some offense or evil, or to preserve public health, morals, safety, and
welfare. . . . [T]he new addition to the labor law . . . does nothing to conserve the health, safety, or
morals of the employes, and it imposes upon the employer no new or affirmative duties or
responsibilities in the conduct of his business. Its sole purpose is to make him liable for injuries
which may be sustained wholly without his fault, and solely through the fault of the employe,
except where the latter fault is such as to constitute serious and willful misconduct. Under this
law, the most thoughtful and careful employer, who has neglected no duty, and whose workshop
is equipped with every possible appliance that may make for the safety, health, and morals of his
employes, is liable in damages to any employe who happens to sustain injury through an accident
which no human being can foresee or prevent, or which, if preventable at all, can only be
prevented by the reasonable care of the employe himself.
...
CULLEN, C. . [concurring]
I concur in the opinion of Judge WERNER for reversal of the judgment appealed from. . . .
It is the physical law of nature, not of government, that imposes upon one meeting with an injury,
the suffering occasioned thereby. Human law cannot change that. All it can do is to require
pecuniary indemnity to the party injured, and I know of no principle on which one can be
compelled to indemnify another for loss unless it is based upon contractual obligation or fault. It
might as well be argued in support of a law requiring a man to pay his neighbor’s debts that the
common law requires each man to pay his own debts, and the statute in question was a mere
modification of the common law so as to require each to pay his neighbor’s debts. . . .

Notes

1. Explaining Ives. Was Judge Werner correct in saying that when the federal and state
constitutions were adopted, “it was the law of the land that no man who was without fault or
negligence could be held liable in damages”? If he was not correct in saying this, then what is the
basis for his decision?

2. Workers’ compensation statutes. The New York statute underlying the Ives case was the
first workers’ compensation law in the country, but it was hardly the only such law. Starting in
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1910, every state in the U.S. adopted comprehensive no-fault workers’ compensation schemes.
See JOHN FABIAN WITT, THE ACCIDENTAL REPUBLIC (2004). Under workers’ compensation,
injured employees whose injuries arise out of and in the course of the work are typically entitled
to medical care and services and a fraction of their wage loss replacement—typically two-thirds of
the injured employee’s weekly wages, or two-thirds of the jurisdiction’s median weekly wage,
whichever is lower. Claimants may also receive payments for disabling injuries and for
“disfigurement.” N.Y. WORK COMP. LAW. § 13, 15. If the employee is killed, his or her
dependents may be eligible for death benefits. Id. § 16. In exchange for these obligations,
modern workers’ compensation statutes immunize employers from overlapping tort liability. Id. §
11. Note that the original New York statute from 1910 did not provide employers with the quid
pro quo of immunization from tort liability. It left injured employees with the choice to sue in tort
for negligence or to file a compensation claim—a choice to be exercised after suffering the injury.

3. The triumph of workers’ compensation—and the tragedy of William Werner. Coming as it
did in the face of such a widespread movement to enact workers’ compensation, the Ives decision
was hotly controversial. Moreover, just days after Judge Werner announced the decision, the
infamous Triangle Shirt-Waist Fire on the eastern edge of Washington Square Park in New York
City killed more than a hundred young women workers, many of whom leapt to their deaths from
the factory windows when they found the exits locked and impassable. An amendment to the
state constitution quickly passed, providing that workers’ compensation statutes were
constitutional as a matter of state law. Judge Werner, a self-made man from western New York
who had been an ambitious and promising candidate for nomination to the U.S. Supreme Court,
lost his campaign to become the chief judge of the state. His former political sponsor, Theodore
Roosevelt, condemned him as the worst kind of reactionary judge. Werner died soon thereafter a
broken and defeated man. In 1917, the U.S. Supreme Court put the last nail in his coffin by ruling
decisively that the Federal Constitution permitted workers’ compensation liability. For Werner’s
story, see WITT, THE ACCIDENTAL REPUBLIC, Chapter 6.

4. State constitutions and tort reform. Even though Ives seems like a cautionary tale for state
courts striking down legislation dealing with tort law, state courts regularly invalidate tort reform
statutes today. See John Fabian Witt, The Long History of State Constitutions and American Tort
Law, 36 RUTGERS L.J. 1159, 1163 (2005). In the past two decades, courts have struck down tort
reform statutes limiting awards for noneconomic damages, see, e.g., Atlanta Oculoplastic
Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (Ga. 2010) and Lebron v. Gottlieb Mem’l Hosp., 930
N.E.2d 895 (Ill. 2010); tort reform statutes that cap punitive damages, see, e.g., Bayer
CropScience LP v. Schafer, 385 S.W.3d 822 (Ark. 2011); tort reform statutes that cap total
damages, see, e.g., State ex rel. Ohio Acad. of Trial Lawyers v. Sherwood, 715 N.E.2d 1062 (Ohio
1999); tort reform statutes creating additional procedural hurdles for plaintiffs, see, e.g., Wall v.
Marouk, 302 P.3d 775 (Okla. 2013); tort reform statutes barring plaintiffs from suing individual
tortfeasors, see, e.g., Clarke v. Or. Health Sci. Univ., 175 P.3d 418 (Or. 2007); tort reform statutes
abolishing joint and several liability, see, e.g., Best v. Taylor Mach. Works, 689 N.E.2d 1057 (Ill.
1997); and discovery statutes mandating unlimited disclosure of plaintiffs’ medical records, see,
e.g., id. Should state courts override legislative action in the torts area?

5. Tort persists—third-party claims. Workers’ compensation was designed in significant
part to remove lawyers and expensive litigation from workplace injury disputes. The statutes
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remove many of the contested issues from a claimant’s case and replace common law courts and
juries with an administrative claims process. Moreover, workers’ compensation statutes typically
place low caps on lawyers’ fees, in part to prevent compensation claims from being heavily
litigated.
Even so, workers’ compensation has become the foundation for many plaintiffs’ lawyers’
practices. Plaintiffs’ lawyers often organize their offices by arranging for a steady intake of
workers’ compensation claims, which pay very little, but pay more quickly than tort claims and
bring in a steady stream of revenue. One function of the compensation cases for the plaintiffs’
lawyer is to find so-called “third-party cases”: cases where the involvement of a product in the
events leading to the injury allow for a tort suit against the product’s manufacturer. The product
manufacturer is a third party and thus not immunized from suit by the workers’ compensation
legislation. See Stephen Daniels & Joanne Martin, Texas Plaintiffs’ Practice in the Age of Tort
Reform: Survival of the Fittest—It’s Even More True Now, 51 N.Y.L. SCH. L. REV. 286 (2006).
Workers’ compensation statutes were designed to remove tort litigation from the
workplace. But the third-party cases reintroduce tort precisely where workers’ compensation
aimed to displace it. In some jurisdictions, third-party defendants in such suits are able to bring
claims for contribution or indemnity against employers if they can show that the employers’
negligence was a cause of the injury in question. The result is that employees and employers are
involved in tort litigation over work injuries, the aim of the compensation programs to the
contrary notwithstanding. In other jurisdictions, product manufacturer defendants are barred from
bringing contribution claims against employers. But even here, employers still pay for tort
liability over and above the workers’ compensation benefits to the extent that third parties, such as
product manufacturers or other vendors or service providers, price their products and services to
reflect the risk of third-party suits.

6. Settlement as a compensation system. The idea of workers’ compensation was to replace
the uncertainty and the expense of common law jury trials with a certain (though limited)
compensation regime. The two systems are typically described as polar opposites. But how
different they are in practice is unclear, since few common law tort cases ever get to a courtroom
and a jury. Indeed, some observers argue that a vast private settlement system has emerged in the
shadow of tort law that has come to resemble the administrative apparatus of workers’
compensation systems. As early as the 1930s, plaintiffs’ lawyers were converting many types of
injuries into settlement values. Since then, settlement practices in many areas of tort law and
workers’ compensation have converged on administrative schemes that adopt liability matrixes
and damages grids to manage settlements. See Samuel Issacharoff & John Fabian Witt, The
Inevitability of Aggregate Settlement: An Institutional Account of American Tort Law, 57 VAND.
L. REV. 1571, 1615, 1625-26 (2004); JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS 274-75
(2007). The common law tort litigant thus does not often find herself in a system providing each
individual with a “day in court” before a jury of her peers. To the contrary, tort litigants (like
workers’ compensation claimants) often find themselves in vast bureaucracies with easilyadministered, one-size-fits-all rules for claims resolution. The difference—and it is a significant
one—is that the tort litigant encounters a private bureaucracy, where the compensation claimant is
in a public one. See Issacharoff & Witt, supra, at 1625-26; see also John Fabian Witt,
Bureaucratic Legalism, American Style: Private Bureaucratic Legalism and the Governance of
the Tort System, 56 DEPAUL L. REV. 261, 268-69 (2007).
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The general phenomenon is especially striking in the area of automobile accident claims.
A half-century ago, public no-fault systems modeled on workers’ compensation were under
discussion in state legislatures across the nation. Some states enacted such no-fault statutes. But
their momentum soon ebbed. Professor Nora Engstrom argues that the progress of no-fault
statutes in auto cases slowed in part because fault and no-fault liability schemes had begun to
converge. Tort practice in auto cases became less adversarial and more administrative, with
plaintiffs’ lawyers and insurance company claims adjusters negotiating private settlement
arrangements 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
often become more adversarial than their rationalizing administrative founders had anticipated,
involving more lawsuits and more lawyers. See Nora Freeman Engstrom, An Alternative
Explanation for No-Fault’s “Demise”, 61 DEPAUL L. REV. 303, 374 (2012).
If torts practice and workers’ compensation converge, what is at stake in the choice
between them?

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CHAPTER 4. THE NEGLIGENCE STANDARD
So far our treatment of the law of unintentional torts has focused on the development of
fault-based and non-fault-based (or strict liability) approaches. Beginning here in Chapter 4, we
will spend the next five chapters pursuing the principal fault-based approach to tort law: the
negligence standard and the duty of reasonable care that Judge Shaw announced in Brown v.
Kendall.
But what is reasonable care? What does it mean to demand that a person act reasonably?
We will pursue the characteristics of the reasonable person. We will take up the influential (but
always controversial) idea that to behave reasonably is to make those choices that cost-benefit
analysis requires. We will ask who decides what reasonableness requires in any given situation.
Should a generalist judge or an untrained jury decide? Or perhaps the decision about
reasonableness 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
the question of what litigants need to do to establish that they or their adversaries acted reasonably
or unreasonably, as the case may be. The second steps back and asks a set of deep questions
about the theoretical basis of tort law and about its internal logic and structure.
First, though, we begin with what is in some sense the most basic of all questions: who is
the reasonable person?

A. The Reasonable Person
1. Introduction
Vaughan v. Menlove, 3 Bingham’s New Cases 468 (Court of Common Pleas, 1837)
The declaration alleged, in substance, that plaintiff was the owner of two cottages; that
defendant owned land near to the said cottages; that defendant had a rick or stack of hay near the
boundary of his land which was liable and likely to ignite, and thereby was dangerous to the
plaintiff’s cottages; that the defendant, well knowing the premises, wrongfully and negligently
kept and continued the rick in the aforesaid dangerous condition; that the rick did ignite, and that
plaintiff’s cottages were burned by fire communicated from the rick . . . .
At the trial it appeared that the rick in question had been made by the defendant near the
boundary of his own premises; that the hay was in such a state when put together, as to give rise
to discussions on the probability of fire; that though there were conflicting opinions on the
subject, yet during a period of five weeks the defendant was repeatedly warned of his peril; that
his stock was insured; and that upon one occasion, being advised to take the rick down to avoid all
danger, he said “he would chance it.” He made an aperture or chimney through the rick; but in
spite, or perhaps in consequence of this precaution, the rick at length burst into flames from the
spontaneous heating of its materials; the flames communicated to the defendant’s barn and
stables, and thence to the plaintiff’s cottages, which were entirely destroyed.
PATTESON, J., before whom the cause was tried, told the jury that the question for them to
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consider was, whether the fire had been occasioned by gross negligence on the part of the
defendant; adding, that he was bound to proceed with such reasonable caution as a prudent man
would have exercised under such circumstances.
A verdict having been found for the plaintiff, a rule nisi for a new trial was obtained,* on
the ground that the jury should have been directed to consider, not whether the defendant had
been guilty of a gross negligence with reference to the standard of ordinary prudence, a standard
too uncertain to afford any criterion, but whether he had acted bond fide to the best of his
judgment; if he had, he ought not to be responsible for the misfortune of not possessing the
highest order of intelligence. The action under such circumstances was of the first impression.
Talfourd, Serjt., and Whately, showed cause [for the plaintiff]. . . . [T]here were no means
of estimating the defendant’s negligence, except by taking as a standard the conduct of a man of
ordinary prudence: that has been the rule always laid down, and there is no other that would not
be open to much greater uncertainties.
R. V. RICHARDS, in support of the rule [for the defendant]. First, there was no duty
imposed on the defendant, as there is on carriers or other bailees, under an implied contract, to be
responsible for the exercise of any given degree of prudence: the defendant had a right to place his
stack as near to the extremity of his own land as he pleased . . . . [U]nder that right, and subject to
no contract, he can only be called on to act bona fide to the best of his judgment; if he has done
that, it is a contradiction in terms, to inquire whether or not he has been guilty of gross negligence.
At all events what would have been gross negligence ought to be estimated by the faculties of the
individual, and not by those of other men. The measure of prudence varies so with the varying
faculties of men, that it is impossible to say what is gross negligence with reference to the
standard of what is called ordinary prudence.
TINDAL, C. J. I agree that this is a case prime impressionis; but I feel no difficulty in
applying to it the principles of law as laid down in other cases of a similar kind. Undoubtedly this
is not a case of contract, such as a bailment or the like, where the bailee is responsible in
consequence of the remuneration he is to receive: but there is a rule of law which says you must
so enjoy your own property as not to injure that of another; and according to that rule the
defendant is liable for the consequence of his own neglect: and though the defendant did not
himself light the fire, yet mediately he is as much the cause of it as if he had himself put a candle
to the rick; for it is well known that hay will ferment and take fire if it be not carefully stacked. . .
.
It is contended, however, that . . . the question of negligence was so mixed up with
reference to what would be the conduct of a man of ordinary prudence that the jury might have
thought the latter the rule by which they were to decide; that such a rule would be too uncertain to
act upon; and that the question ought to have been whether the defendant had acted honestly and
bona fide to the best of his own judgment. That, however, would leave so vague a line as to afford
no rule at all, the degree of judgment belonging to each individual being infinitely various: and
though it has been urged that the care which a prudent man would take, is not an intelligible
proposition as a rule of law, yet such has always been the rule adopted in cases of bailment . . . .

*

[Recall from Chapter 3 that a “rule nisi” was essentially a device for obtaining appellate review; it was an order
requiring a new trial unless the other side could show cause why the original decision should be upheld—Ed.]
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The care taken by a prudent man has always been the rule laid down; and as to the supposed
difficulty of applying it, a jury has always been able to say, whether, taking that rule as their
guide, there has been negligence on the occasion in question.
Instead, therefore, of saying that the liability for negligence should be coextensive with
the judgment of each individual, which would be as variable as the length of the foot of each
individual, we ought rather to adhere to the rule, which requires in all cases a regard to caution
such as a man of ordinary prudence would observe. . . .
Rule discharged.
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 107-09 (1881)
Supposing it now to be conceded that the general notion upon which liability to an action
is founded is fault or blameworthiness in some sense, the question arises, whether it is so in the
sense of personal moral shortcoming . . . . Suppose that a defendant were allowed to testify that,
before acting, he considered carefully what would be the conduct of a prudent man under the
circumstances, and, having formed the best judgment he could, acted accordingly. If the story
was believed, it would be conclusive against the defendant’s negligence judged by a moral
standard which would take his personal characteristics into account. But supposing any such
evidence to have got before the jury, it is very clear that the court would say, Gentlemen, the
question is not whether the defendant thought his conduct was that of a prudent man, but whether
you think it was. . . .
The standards of the law are standards of general application. The law takes no account of
the infinite varieties of temperament, intellect, and education which make the internal character of
a given act so different in different men. It does not attempt to see men as God sees them, for
more than one sufficient reason. In the first place, the impossibility of nicely measuring a man’s
powers and limitations is far clearer than that of ascertaining his knowledge of law, which has
been thought to account for what is called the presumption that every man knows the law. But a
more satisfactory explanation is, that, when men live in society, a certain average of conduct, a
sacrifice of individual peculiarities going beyond a certain point, is necessary to the general
welfare. If, for instance, a man is born hasty and awkward, is always having accidents and
hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts
of Heaven, but his slips are no less troublesome to his neighbors than if they sprang from guilty
neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard,
and the courts which they establish decline to take his personal equation into account.
The rule that the law does, in general, determine liability by blameworthiness, is subject to
the limitation that minute differences of character are not allowed for. The law considers, in other
words, what would be blameworthy in the average man, the man of ordinary intelligence and
prudence, and determines liability by that. If we fall below the level in those gifts, it is our
misfortune; so much as that we must have at our peril, for the reasons just given. But he who is
intelligent and prudent does not act at his peril, in theory of law. On the contrary, it is only when
he fails to exercise the foresight of which he is capable, or exercises it with evil intent, that he is
answerable for the consequences.

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There are exceptions to the principle that every man is presumed to possess ordinary
capacity to avoid harm to his neighbors, which illustrate the rule, and also the moral basis of
liability in general. When a man has a distinct defect of such a nature that all can recognize it as
making certain precautions impossible, he will not be held answerable for not taking them. A
blind man is not required to see at his peril; and although he is, no doubt, bound to consider his
infirmity in regulating his actions, yet if he properly finds himself in a certain situation, the
neglect of precautions requiring eyesight would not prevent his recovering for an injury to
himself, and, it may be presumed, would not make him liable for injuring another. So it is held
that, in cases where he is the plaintiff, an infant of very tender years is only bound to take the
precautions of which an infant is capable; the same principle may be cautiously applied where he
is defendant. Insanity is a more difficult matter to deal with, and no general rule can be laid down
about it. There is no doubt that in many cases a man may be insane, and yet perfectly capable of
taking the precautions, and of being influenced by the motives, which the circumstances demand.
But if insanity of a pronounced type exists, manifestly incapacitating the sufferer from complying
with the rule which he has broken, good sense would require it to be admitted as an excuse.

Notes
1. The “reasonable man” is born. Together, Vaughan v. Menlove and the Holmes excerpt
above sketch the contours of the “reasonable man,” the standard at the heart of modern negligence
law. They do so by taking up the question of which features, if any, particular to the party ought
to be relevant to the evaluation of that person’s conduct. Vaughan concludes that lack of ordinary
intelligence is not an excuse for failing to live up to the standard of ordinary care. It adopts what
we call an objective approach to the reasonableness inquiry: rather than asking whether the
defendant acted reasonably in light of the defendant’s personal characteristics and capabilities
(which would privilege the defendant’s subjectivity), the chosen approach abstracts away from the
particular features of the defendant and asks whether the defendant’s conduct was reasonable on
the basis of an external social standard. The Restatement puts it this way: “Unless the actor is a
child” (more on this in the pages that follow), “the standard of conduct to which he must conform
to avoid being negligent is that of a reasonable man under like circumstances.” RESTATEMENT
(SECOND) OF TORTS § 283 (1965); see also RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.
HARM § 3 & cmt. a (2010) (defining negligence as failure to “exercise reasonable care under all
the circumstances,” where “the ‘reasonable care standard . . . is basically the same as a standard
expressed in terms of the ‘reasonably careful person’”). If a person does their best within the
limits of their own intellectual or cognitive capacities to act reasonably carefully—acting “bona
fide to the best of their judgment,” as the defendant’s lawyer put it in Vaughan—have they acted
wrongfully when they nonetheless fall short of society’s expectations? If not, why does tort law
embrace a standard that allows liability in this situation?

2. Is the reasonable person a rational actor? One view of the facts in Vaughan is that the
defendant acted in accordance with what a rational person in his circumstances might do. “[H]is
stock,” after all, “was insured.” Why not “chance it”? Does tort law’s “reasonable person”
behave in the same way as a “rational person”? If not, when might their actions diverge?

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3. Holmes’s account of the reasonableness inquiry is more or less congruent with Vaughan v.
Menlove, at least insofar as lack of ordinary intelligence goes. But Holmes begins to introduce
subjective considerations for certain characteristics such as blindness, “tender years,” and certain
forms (though not all forms) of insanity. What explains Holmes’s arguments in favor of taking
certain characteristics into account but not others? In what follows, we will review the major
controversies in this area of the law, beginning with the basic physical trait of blindness that
Holmes introduced.

2. Physical Traits
Smith v. Sneller, 26 A.2d 452 (Pa. 1942)
DREW, J.
Plaintiff recovered a verdict and judgment. On appeal, the Superior Court reversed the
judgment on the ground that plaintiff was guilty of contributory negligence, and entered judgment
n.o.v. for defendant Sneller, he alone having appealed. This appeal was then specially allowed. . .
.
Plaintiff, while engaged in a house to house canvass as a salesman of small articles, was
injured in falling into an open trench in the west sidewalk of North Fifth Street in the City of
Philadelphia. . . . The trench then extended from the curb across the sidewalk, three or four feet
wide, and had been dug to a depth of seven or eight feet. The earth from the excavation had been
thrown upon the sidewalk along both sides of the trench. . . . On the far side of the trench as
[plaintiff] approached it, there was a barricade but along the side nearest him there was only the
pile of excavated material between him and the trench, about two feet high according to the only
testimony on the subject. Plaintiff, because of defective eyesight, did not see the pile of earth and
had no notice that it was there until he felt it under his feet as he walked upon it. The loose
material slipped from under him causing him to lose his footing and he fell into the trench. . . .
He did not carry a cane and, because he was unable to see, did not have notice of the break
in the pavement, the pile of earth on the sidewalk, nor the open trench in front of him.
The Superior Court said further: “Under somewhat similar circumstances, recovery was
denied a blind plaintiff, who fell into an open cellarway extending into the sidewalk, in Fraser v.
Freeman, 87 Pa. Superior Ct. 454, in which Judge Porter said: ‘The law requires a degree of care
upon the part of one whose eye-sight is impaired proportioned to the degree of his impairment of
vision. . . . In the exercise of common prudence one of defective eye-sight must usually, as a
matter of general knowledge, take more care and employ keener watchfulness in walking upon the
streets and avoiding obstructions; in order to reach the standard established by law for all persons
alike, whether they be sound or deficient. The statement that a blind or deaf man is bound to a
higher degree of caution than a normal person does not mean that there is imposed upon him a
higher standard of duty, but rather that in order to measure up to the ordinary standard he must the
more vigilantly exercise caution through other senses and other means, in order to compensate for
the loss or impairment of those senses in which he is defective. . . .’”

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We cannot escape the conclusion of the Superior Court that the instant case is ruled by the
Fraser case. . . . The fact that plaintiff did not anticipate the existence of the ditch across the
sidewalk, in itself, does not charge him with negligence. But, it is common knowledge,
chargeable to plaintiff, that obstructions and defects are not uncommon in the sidewalks of a city,
any one of which may be a source of injury to the blind. . . . In such circumstances he was bound
to take precautions which one not so afflicted need not take. In the exercise of due care for his
own safety it was his duty to use one of the common, well-known compensatory devices for the
blind, such as a cane, a “seeing-eye” dog, or a companion. These are a poor substitute for sight,
but any one of them would probably have been sufficient to prevent this accident. . . . We are in
accord with that learned court, that plaintiff was guilty of contributory negligence as a matter of
law, and we must, therefore, affirm the judgment.

Davis v. Feinstein, 88 A.2d 695 (Pa. 1952)
STEARNE, J.
This is an appeal from judgment entered on a jury’s verdict for plaintiff in an action of
trespass. Defendants . . . rest their motion for judgment non obstante veredicto on the sole ground
that plaintiff was guilty of contributory negligence as matter of law. . . .
Plaintiff is a blind man. While walking south on 60th Street between Market and Arch
Streets in Philadelphia, he fell into an open cellarway in front of the furniture store maintained by
defendants. The opening was equipped with a cellar door, flush with the pavement when closed,
and consisting of two sections each about two and one-half feet wide. When the door was open,
an iron bar about five feet in length usually connected the two sections at the front, holding them
erect and thus presenting a barrier which would ordinarily prevent a pedestrian from stepping into
the opening. At the time of the accident, the north section was closed and even with the sidewalk;
the connecting bar was not in place; and the south section of the door was standing erect. It was
into the aperture thus left uncovered that the plaintiff fell and suffered the injuries which were the
basis of this suit. . . .
Both sides agree with the statement of the learned court below that the controlling
authority is Smith v. Sneller, 345 Pa. 68, 26 A. 2d 452. In that case the blind plaintiff employed
no cane or other compensatory aid. . . .
In the instant case plaintiff testified that he was employing his cane as a guide, moving it
laterally in order to touch the walls of abutting buildings and keep on a straight course, and also
tapping the ground before him to search out obstacles in his path. Defense counsel argues: “Even
as a man with sight cannot say he did not observe that which was open and obvious, neither can a
blind man say that he made proper use of the cane and was unable to learn of the existence of the
defect. It necessarily follows that he did not have a proper instrument, that is to say, the cane was
not adequate or he did not use it properly.”
We did not so decide in Smith v. Sneller, supra. A blind person is not bound to discover
everything which a person of normal vision would. He is bound to use due care under the
circumstances. Due care for a blind man includes a reasonable effort to compensate for his
unfortunate affliction by the use of artificial aids for discerning obstacles in his path. When an
effort in this direction is made, it will ordinarily be a jury question whether or not such effort was
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a reasonable one. The general rule applies that “Contributory negligence may be declared as a
matter of law only when it is so clearly revealed that fair and reasonable persons cannot disagree
as to its existence . . . .” Guca v. Pittsburgh Railways Company, 80 A. 2d 779.
It was not unreasonable for the jury to have concluded that plaintiff exercised due care for
his safety when he used his cane in the manner which he described. . . .
Judgment affirmed.

Notes

1. Why take physical traits into account? Vaughan v. Menlove stands for an objective
approach and the irrelevance of what Holmes called the “infinite varieties” of human
characteristics. Why do we see courts adopting a different approach here—subjectivizing, in a
way, a standard that is supposed to be objective? What makes vision impairment different from
intellectual impairment?

2. The Restatement view. The Restatement aligns with the holdings in Smith v. Sneller, 26
A.2d 452 (Pa. 1942), and Davis v. Feinstein, 88 A.2d 695 (Pa. 1952): “If the actor is ill or
otherwise physically disabled, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable man under like disability.” RESTATEMENT (SECOND) OF TORTS §
283C (1965). Note that sometimes this standard might require a person with a physical
impairment to take greater precautions than the person not so impaired. Simultaneously, it might
excuse the person from taking precautions that reasonable care would demand of others. Id. at
cmt. c. Such adjustments, according to prominent torts theorist William Lloyd Prosser, are the
common law’s way of declaring that “[t]he man who is blind, or deaf, or lame, or is otherwise
physically disabled, is entitled to live in the world.” WILLIAM LLOYD PROSSER, THE LAW OF
TORTS § 32, at 155 (3d ed. 1964).
3. The negligence standard and “the right to live in the world.” Perhaps the most famous
critique of tort law’s approach to physical traits is Professor Jacobus tenBroek’s The Right to Live
in the World: The Disabled in the Law of Torts, 54 CAL. L. REV. 841 (1966). Like Prosser,
tenBroek argues that tort law plays a crucial role in whether people with physical limitations feel
free “to move about and be in public places”—“to go about in the streets, sidewalks, roads and
highways, to ride upon trains, buses, airplanes, and taxi cabs, and to enter and to receive goods
and services in hotels, restaurants, and other places of public accommodation.” Id. at 842. But
tenBroek—drawing in part on his own experiences as a blind man—offers a much darker
assessment than Prosser of tort law’s accomplishments:
Dean Prosser's grand pronouncement . . . while purporting to be drawn from the
case law, and while seeming to express for the law of torts the legislatively
established policy of the integration of the disabled, is in no sense an accurate
summary of the law of torts as that law stands today. The judges either qualify or
ignore Dean Prosser's pronouncement and the integrationist policy. In some areas,
the pronouncement and the policy are completely rejected; in others, they are given
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only halting and partial credence; and in none are they fully and positively
implemented by the courts. Dean Prosser himself immediately emasculates his
proposition. He applies it only to a narrow realm of street accidents. And even
there, while freeing the disabled of negligence per se for being where they are, he
hobbles them with the views of the able-bodied as to what their reasonable conduct
should be. In these areas, the sum total of the law's beneficence to the disabled
seeking a full-fledged right to live in the world can be easily and briefly
summarized: The courts, prodding the tardy genius of the common law, have
extended a variant of the reasonable man concept to those who injure the disabled
on the streets, in traffic, and on common carriers. This constitutes a meager and
inadequate accomplishment in the light of the integrationist purpose and the
legislative declaration of policy. . . .
Id. at 852. Summarizing how courts have applied the negligence standard in cases involving
disabled people, tenBroek continues:
The majority of courts say that it is not negligence per se for a blind man to walk
the streets without a companion or attendant; others that he may do so only in certain
circumstances. Some say that it is contributory negligence as a matter of law to
travel without dog, cane, or companion; others, that the failure to use one or more
of these travel aids presents a question for the jury as to whether due care was
employed. No courts say that a blind man may not, when taking the proper
precautions, enter unfamiliar territory; most courts, however, emphasize the
plaintiff's knowledge of the surroundings and the frequency of his presence. Some
say that the plaintiff's knowledge that the streets are or may be defective or
dangerous creates a kind of assumption of risk; others, that in the circumstances, the
disabled person may proceed but must do so with due care in the light of his
knowledge. The latter rule is also applied by some courts to blind persons in railway
depots, at railway street crossings, and like places of similar danger, while others
say that it is gross negligence for blind persons to be in such places alone. Some
courts say that the disabled may proceed upon the assumption that the streets and
highways are kept in a reasonably safe condition, and that cities and abutting
property owners must expect the disabled to be abroad in the land and accordingly
must take precautions necessary to warn or otherwise protect them. Others say that
those who create, maintain, or tamper with the streets and public passageways are
only under a duty to safeguard the able-bodied pedestrian.
No courts have held or even darkly hinted that a blind man may rise in the morning,
help get the children off to school, bid his wife goodby, and proceed along the streets
and bus lines to his daily work, without dog, cane, or guide, if such is his habit or
preference, now and then brushing a tree or kicking a curb, but, notwithstanding,
proceeding with firm step and sure air, knowing that he is part of the public for
whom the streets are built and maintained in reasonable safety, by the help of his
taxes, and that he shares with others this part of the world in which he, too, has a
right to live. He would then be doing what any reasonable, or prudent, or reasonably
prudent blind man would do, and also what social policy must positively foster and
judges in their developing common law must be alert to sustain.

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Id. at 866-68. If tort law were really concerned with vindicating a “right to live in the world,”
tenBroek argues, it would ask “not whether the defendant created an unreasonable risk of harm [to
a disabled plaintiff], but whether he interfered with the effectuation of the policy of the social
integration of the disabled; not whether the [disabled] plaintiff conducted himself as a reasonable
man of ordinary prudence acting in the light of all the circumstances, but whether he acted
pursuant to his right to be a part of his community.” Id. at 914.
How radical is tenBroek’s proposal? How sound? The answer may depend on how you
understand disability. One conventional understanding of disability is that it is an individual
characteristic—a biologically or medically based trait, akin to sex or age. By contrast, the “social
model” of disability, which emerged in the 1960s, emphasizes the role of society, culture, and
other external forces in limiting what people with particular bodies and minds can do, thereby
creating disability where none necessarily had to exist. Today, many scholars of disability and
many people who identify as disabled have embraced the core insight of this social model (while
pulling back from any implication that individuals’ bodily experiences are entirely socially
constructed). See generally Sagit Mor, The Meaning of Injury: A Disability Perspective, in
INJURY AND INJUSTICE: THE CULTURAL POLITICS OF HARM AND REDRESS 27, 29 (Anne Bloom,
David M. Engel, & Michael McCann, eds., 2018). How might tort law’s approach to physical
difference “mediate” the experience of disablement? Could tort law alleviate the conditions that
cause particular individuals to feel disabled as they navigate the world? Should it? Note that
since tenBroek’s time, a bevy of state and federal statutes have emerged to protect the access
rights of people with disabilities, including Section 504 of the Rehabilitation Act of 1973, Pub. L.
No. 93-112, § 504, 87 Stat. 355, 394 (codified as amended at 29 U.S.C. § 794(a) (2012)), and the
Americans with Disabilities Act of 1990, Pub. L. No. 101-336, § 2, 104 Stat. 327, 328 (codified as
amended at 42 U.S.C. § 12101 (2012)). But much of what tenBroek critiqued in 1966 still holds
for tort law. See Adam A. Milani, Living in the World: A New Look at the Disabled in the Law of
Torts, 49 CATH. U. L. REV. 323 (1999).
If we do want to take seriously a “right to live in the world” as a concern of tort law, what
is the content of that right? Here it is worth saying more about tenBroek: in addition to being
blind, he was white, tall, and handsome; he was highly educated, with advanced degrees in
political science and law; at the time he wrote this article, he was a professor at one of the world’s
greatest universities (the University of California, Berkeley) and had served in a prominent
position in California state government; his wife, Hazel tenBroek, was extremely devoted to his
care and his work. Does tenBroek’s “right to live in the world” extend to disabled people whose
circumstances might require the actors around them to make much more significant adjustments
than would be required to vindicate his own “right to live in the world”? And what does it mean
to “live in the world” in a full and dignified way? Does tenBroek idealize too much the way that
able-bodied, adult, white, educated, male breadwinners navigate public space? Or should
everyone, with the aid perhaps of tort law, be entitled to experience the world in that way?

4. What about physical impairments that arise suddenly? See, for example, Lehman v.
Haynam, 133 N.E.2d 97 (Ohio 1956), where the court ruled that a defendant’s sudden and
unforeseeable unconsciousness would be relevant to the determination of whether he drove
negligently when his car veered across the center line of a highway and struck the plaintiff. (That
is, the court did not employ the metric of a reasonable person who was not so afflicted.) The Ohio
Supreme Court recently reaffirmed the Lehman rule and noted that it is supported by “the great
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weight of authority” in common law jurisdictions. Roman v. Estate of Gobbo, 791 N.E.2d 422,
427 (Ohio 2003). What logic supports this rule?
5. Disaggregating disability. Recall Holmes’s justification for not requiring “ordinary care”
from certain individuals: “When a man has a distinct defect of such a nature that all can recognize
it as making certain precautions impossible, he will not be held answerable for not taking them.”
HOLMES, supra. How should the law apply to actors whose physical impairments are less
apparent to the world than those of the paradigmatic blind man with a cane? This is not a
hypothetical. The majority of people who meet the conventional definition of disability have an
invisible disability. Common examples include chronic fatigue syndrome, chronic pain, epilepsy,
irritable bowel syndrome, food allergies, and chemical sensitivity. Does reasonableness require
that actors with invisible disabilities take extra precautions? What about actors who have multiple
disabilities? What about actors whose multiple disabilities include both an intellectual or
cognitive disability and a physical disability?

3. Children
Dellwo v. Pearson, 107 N.W.2d 859 (Minn. 1961)
LOEVINGER, J.
This case arises out of a personal injury to Jeanette E. Dellwo, one of the plaintiffs. She
and her husband, the other plaintiff, were fishing on one of Minnesota’s numerous and beautiful
lakes by trolling at a low speed with about 40 to 50 feet of line trailing behind the boat.
Defendant, a 12-year-old boy, operating a boat with an outboard motor, crossed behind plaintiffs’
boat. Just at this time Mrs. Dellwo felt a jerk on her line which suddenly was pulled out very
rapidly. The line was knotted to the spool of the reel so that when it had run out the fishing rod
was pulled downward, the reel hit the side of the boat, the reel came apart, and part of it flew
through the lens of Mrs. Dellwo’s glasses and injured her eye. Both parties then proceeded to a
dock where inspection of defendant’s motor disclosed 2 to 3 feet of fishing line wound about the
propeller.
The case was fully tried to the court and jury and submitted to the jury upon instructions
which, in so far as relevant here, instructed the jury that: (1) In considering the matter of
negligence the duty to which defendant is held is modified because he is a child, a child not being
held to the same standard of conduct as an adult and being required to exercise only that degree
of care which ordinarily is exercised by children of like age, mental capacity, and experience
under the same or similar circumstances . . . .
The jury returned a general verdict for defendant, and plaintiffs appeal. . . .
There is no doubt that the instruction given substantially reflects the language of
numerous decisions in this and other courts. . . . However, the great majority of these cases
involve the issue of contributory negligence and the standard of care that may properly be

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required of a child in protecting himself against some hazard.11 The standard of care stated is
proper and appropriate for such situations.
However, this court has previously recognized that there may be a difference between the
standard of care that is required of a child in protecting himself against hazards and the standard
that may be applicable when his activities expose others to hazards. . . . Certainly in the
circumstances of modern life, where vehicles moved by powerful motors are readily available and
frequently operated by immature individuals, we should be skeptical of a rule that would allow
motor vehicles to be operated to the hazard of the public with less than the normal minimum
degree of care and competence.13
To give legal sanction to the operation of automobiles by teen-agers with less than
ordinary care for the safety of others is impractical today, to say the least. We may take judicial
notice of the hazards of automobile traffic, the frequency of accidents, the often catastrophic
results of accidents, and the fact that immature individuals are no less prone to accidents than
adults. While minors are entitled to be judged by standards commensurate with age, experience,
and wisdom when engaged in activities appropriate to their age, experience, and wisdom, it would
be unfair to the public to permit a minor in the operation of a motor vehicle to observe any other
standards of care and conduct than those expected of all others. A person observing children at
play with toys, throwing balls, operating tricycles or velocipedes, or engaged in other childhood
activities may anticipate conduct that does not reach an adult standard of care or prudence. . . .
However, one cannot know whether the operator of an approaching automobile, airplane, or
powerboat is a minor or an adult, and usually cannot protect himself against youthful imprudence
even if warned. Accordingly, we hold that in the operation of an automobile, airplane, or
powerboat, a minor is to be held to the same standard of care as an adult.
Undoubtedly there are problems attendant upon such a view. However, there are problems
in any rule that may be adopted applicable to this matter. They will have to be solved as they may
present themselves in the setting of future cases. The latest tentative revision of the Restatement
of Torts proposes an even broader rule that would hold a child to adult standards whenever he
engages “in an activity which is normally undertaken only by adults, and for which adult
qualifications are required.”15 However, it is unnecessary to this case to adopt a rule in such broad
form, and, therefore, we expressly leave open the question whether or not that rule should be
adopted in this state. For the present it is sufficient to say that no reasonable grounds for
differentiating between automobiles, airplanes, and powerboats appears, and that a rule requiring a
single standard of care in the operation of such vehicles, regardless of the age of the operator,
appears to us to be required by the circumstances of contemporary life.
Reversed and remanded for a new trial.

11

As relevant to the issue of the instant case, it should be noted that this court has also said that a lower standard
of care for their own safety may be required of very old, as well as very young, people. Johnson v. St. Paul City
Ry. Co., 67 Minn. 260, 69 N.W. 900, 36 L.R.A. 586. It would follow that if minors are permitted to operate
motor vehicles with less than ordinary care, then so should the elderly and infirm.
13
Apparently sanctioning such a rule is: Charbonneau v. MacRury, 84 N.H. 501, 153 A. 457, 73 A.L.R. 1266. It
should be noted this case was decided in 1931. . . .
15
RESTATEMENT, TORTS, TENTATIVE DRAFT NO. 4, § 238A, Comment c. This is quoted with apparent approval
in Wittmeier v. Post, S.D., 105 N.W.2d 65.

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Notes

1. Headnotes: a cautionary tale. If you read this case in a West reporter, you will see the
following information preceding the text of the opinion:
West Headnotes
...
[6] Infants k61
211k61
In operation of automobile, airplane or powerboat, minor is to be held to same standard of
care as adult.
Syllabus by the Court
...
2. In the operation of an automobile, airplane, or powerboat, a minor is to be held to the
same standard of care as an adult.
What are “West Headnotes”? For that matter, what is the “Syllabus of the Court”? Are these
statements of law? Recall our discussion of holdings in the notes after Brown v. Kendall in
Chapter 3. What is the holding of Dellwo? Does the headnote excerpted above accurately capture
it?

2. What is a dangerous adult activity? The Dellwo court declined to adopt the Second
Restatement approach of creating a general category of dangerous adult activities. But the Second
Restatement has been widely influential and has been repeated in the Restatement (Third) of
Torts, which advises that children engaging in dangerous adult activities may be held to the same
standard of care required of an adult and that, in such instances, “no account is taken of their
childhood.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 10 cmt. f (2010).
The question remains, however: what counts as a dangerous adult activity? Courts have
held that dangerous adult activities include operating a motor vehicle, Harrelson v. Whitehead,
365 S.W.2d 868 (Ark. 1963); operating farm equipment, Jackson v. McCuiston, 448 S.W.2d 33
(Ark. 1969); operating a snowmobile, Robinson v. Lindsay, 598 P.2d 392 (Wash. 1979); and
operating a minibike, Frayer by Edenhofer v. Lovell, 529 N.W.2d 236 (Wis. Ct. App. 1995).
Firing a high-powered hunting rifle, however, is not a dangerous adult activity, at least not
in Arkansas. Purtle v. Shelton, 474 S.W.2d 123 (Ark. 1971). Nor is skiing in New Jersey, Goss v.
Allen, 360 A.2d 388 (N.J. 1976); starting a campfire in Michigan, Farm Bureau Ins. Group v.
Phillips, 323 N.W.2d 477 (Mich. App. 1982); operating a golf cart in Oregon, Hudson-Connor v.
Putney, 86 P.3d 106 (Or. App. 2004); or riding a bicycle in Illinois, Conway v. Tamborini, 215
N.E.2d 303 (Ill. App. 3d Dist. 1966); though Arizona courts disagree, see Barnes v. Tucson, 760
P.2d 566 (Ariz. App. 1988). Firing an air rifle, Swix v. Daisy Mfg. Co., 373 F.3d 678 (6th Cir.
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2004), is not a dangerous adult activity. Nor is driving on private roads or property, Ricketts v.
Norfolk S. Ry., 686 So. 2d 1100 (Ala. 1996); firing a BB gun, Huebner by Lane v. Koelfgren, 519
N.W.2d 488 (Minn. App. 1994); failing to yield the right of way, Ruby v. Easton, 207 N.W.2d 10
(Iowa 1973); firing a revolver, LaBarge v. Stewart, 501 P.2d 666 (N.M. App. 1972); or playing
softball, Jones v. Cobb, 834 So. 2d 13 (La. App. 2d Cir. 2002). Golfing is not a dangerous adult
activity in North Dakota, Kirchoffner v. Quam, 264 N.W.2d 203 (N.D. 1978), but it is in New
York, Neumann v. Shlansky, 312 N.Y.S.2d 951 (Sup. Ct. 1970).

3. Beginners. The traditional common law rule for children, in which tender years are taken
into account, seems to have reflected at least in part an intuition that it might be valuable to
encourage youth to develop new skills. This intuition could be generalized: what about
encouraging beginners more generally, regardless of age? Interestingly, courts have
overwhelmingly rejected any such approach that would take into account a party’s lack of
expertise in determining whether the party exercised reasonable care. See, for example, Stevens v.
Veenstra, 573 N.W.2d 341 (Mich. App. 1997), in which the Michigan Court of Appeals held that
an unlicensed driver in a drivers’ education course had to conform to the same standard of care
required of licensed drivers.
A beginner’s inexperience may be relevant to the standard of care owed to people with
whom the beginner is in a preexisting relationship that gives notice of the relevant inexperience.
The classic example is the case of the driving instructor injured while a student is at the wheel.
See RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 12 cmt. b (2010) (concluding that a
defendant driving student’s inexperience should be taken into account in considering the
defendant’s negligence in a case brought by the instructor). The same approach applies in the
instance of flight instruction. See Vee Bar Airport v. De Vries, 43 N.W.2d 369 (S.D. 1950).

4. Experts. What about parties with unusually developed expertise or skills? Here, too, the
question of encouraging or discouraging investment in expertise is raised. The Restatement
(Third) of Torts poses the following hypothetical: “Consider two cars that collide on the highway,
or two skiers who collide on a ski trail; if it turns out that one of the motorists is a professional
driver or one of the skiers a professional ski instructor, this is a fortuity as far as the other motorist
or the other skier is concerned.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 12
cmt. a (2010). Because increased liability for experts will reduce incentives to invest in expertise,
the Restatement reports that the best approach excludes expertise from consideration. See, e.g.,
Southard v. Belanger, 966 F. Supp. 2d 727, 740-41 (W.D. Ky. 2013) (holding that a plaintiff
could not hold the defendant, a professional tractor-trailer driver who was turning left while using
his cell phone, to a higher standard of care).
Some courts, however, have been uncomfortable allowing defendants to disclaim their
expertise. Experts who hold themselves out as expert professionals, for example, are held to the
standard of similarly situated professionals. See, e.g., Louisville & Nashville R.R. v. Perry’s
Adm’r, 190 S.W. 1064, 1066 (Ky. Ct. App 1917) (“When a Kentucky court says that an engineer
must use ordinary care . . . , this implies such care as a competent engineer would exercise and the
doing of such things as a capable engineer would do.”); Donathan v. McConnell, 193 P.2d 819,
825 (Mont. 1948) (holding that dentists are required to exercise “reasonable care and skill as is
usually exercised by a dentist in good standing”); Vigneault v. Dr. Hewson Dental Co., 15 N.E.2d
185 (Mass. 1938) (holding the same as Donathan v. McConnell). Cf. Alfonso v. Robinson, 514
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S.E.2d 615 (Va. 1999) (holding that defendant truck driver’s professional expertise was relevant
in determining whether his conduct amounted to willful and wanton negligence).
The Restatement (Third) of Torts supports taking expertise into account in determining
whether a defendant exercised reasonable care when (1) the defendant engages in an activity that
poses “distinctive and significant dangers” or (2) a plaintiff with a preexisting relationship with
the defendant has reasonably relied on the defendant’s expertise. See RESTATEMENT (THIRD) OF
TORTS: PHYS. & EMOT. HARM § 12 cmt. a (2010). Certain courts have applied the Restatement’s
view. See Levi v. Sw. La. Elec. Membership Coop., 542 So. 2d 1081, 1084 (La. 1989) (holding
the employees of defendant power company to the standard of “a reasonable person” with the
“superior attributes” of experts in view of the “distinctive and significant dangers” of high power
lines); Everett v. Bucky Warren, Inc., 380 N.E.2d 653, 659 (Mass. 1978) (holding that the
defendant, a high school hockey coach who had substantial experience in the game of hockey,
could be held to a higher standard of care than an average person in the selection of the helmets he
supplied his players when one of those helmets failed to protect the plaintiff from injuries).
Why are these cases not treated like those of the expert skiers and drivers who collide with
strangers?

5. Asymmetry in the application of the reasonableness standard. The Dellwo opinion flags
an interesting phenomenon: “a difference between the standard of care that is required of a child
in protecting himself against hazards and the standard that may be applicable when his activities
expose others to hazards.” As it turns out, this phenomenon is not limited to children. Professor
Avihay Dorfmann offers the following hypothetical:
(1) Roger, aged 85, drove his automobile across the city. Although not exceeding
the relevant speed limit, Roger failed to stop his automobile on time, striking down
a person innocently walking on a designated crosswalk. Roger’s failure is attributed
to his poor reflexes, probably the upshot of his old age. (2) Now consider the
opposite case where the same Roger is struck at the same place by an automobile.
The driver is negligent for driving unreasonably fast (whatever unreasonably fast
means). On his part, Roger’s slow reflexes have amplified the gravity of his
injury—had he responded quicker to the approaching automobile, the harm he
suffered could have been either reduced or even avoided altogether. For the sake
of clarity, suppose that the only risk produced by Roger [as] the pedestrian is risk
to himself . . . . In both cases, the conduct of Roger is assessed against the baseline
of 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
second one gives rise to the question of whether, and to what extent, his response to
the injurer’s negligence was itself unreasonable, which is to say contributory or
comparatively negligent.
Avihay Dorfmann, Negligence and Accommodation, 22 LEGAL THEORY 77, 82-83_(2016). How
should courts treat Roger’s age? Should his age work in his favor, potentially excusing his
behavior in Scenario #1 and posing no obstacle to his recovery of full damages in Scenario #2,
despite the fact that has age likely resulted in more costly injuries? Or, should his age work
against him, obliging him to expend additional effort or resources in order to meet a standard of
reasonable care? Dorfmann suggests that in the caselaw, the answer turns on whether Roger is the
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plaintiff or the defendant, although courts offer no justification for this asymmetry. Id. at 109.
What underlying rationales might explain this pattern? We will revisit this question in our
subsequent discussion of contributory negligence.

4. Mental Illness
Breunig v. American Family Ins. Co., 173 N.W.2d 619 (Wis. 1970)
[Plaintiff Phillip A. Breunig’s truck was struck by an automobile driven by Erma Veith
and insured by the defendant American Family Insurance Company. Breunig suffered serious
personal injuries. At the time of the accident, Veith’s car was proceeding west in an eastbound
lane. The jury returned a verdict for the plaintiff, and defendant insurance company appealed.]
HALLOWS, C.J.
The evidence established that Mrs. Veith, while returning home after taking her husband
to work, saw a white light on the back of a car ahead of her. She followed this light for three or
four blocks. Mrs. Veith did not remember anything else except landing in a field, lying on the
side of the road and people talking. She recalled awaking in the hospital.
The psychiatrist testified Mrs. Veith told him she was driving on a road when she believed
that God was taking ahold of the steering wheel and was directing her car. She saw the truck
coming and stepped on the gas in order to become airborne because she knew she could fly
because Batman does it. To her surprise she was not airborne before striking the truck but after
the impact she was flying. Actually, Mrs. Veith’s car continued west on Highway 19 for about a
mile. . . . When a traffic officer came to the car to investigate the accident, he found Mrs. Veith
sitting behind the wheel looking off into space. . . .
The psychiatrist testified Erma Veith was suffering from “schizophrenic reaction,
paranoid type, acute.” He stated that from the time Mrs. Veith commenced following the car with
the white light and ending with the stopping of her vehicle in the cornfield, she was not able to
operate the vehicle with her conscious mind and that she had no knowledge or forewarning that
such illness or disability would likely occur.
The insurance company argues Erma Veith was not negligent as a matter of law because
there is no evidence upon which the jury could find that she had knowledge or warning or should
have reasonably foreseen that she might be subject to a mental delusion which would suddenly
cause her to lose control of the car. Plaintiff argues there was such evidence of forewarning and
also suggests Erma Veith should be liable because insanity should not be a defense in negligence
cases.
The case was tried on the theory that some forms of insanity are a defense to and preclude
liability for negligence under the doctrine of Theisen v. Milwaukee Automobile Mut. Ins.
Co. (1962), 18 Wis. 2d 91 . . . .
In Theisen we recognized one was not negligent if he was unable to conform his conduct
through no fault of his own but held a sleeping driver negligent as a matter of law because one is
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always given conscious warnings of drowsiness and if a person does not heed such warnings and
continues to drive his car, he is negligent for continuing to drive under such conditions. But we
distinguished those exceptional cases of loss of consciousness resulting from injury inflicted by an
outside force, or fainting, or heart attack, or epileptic seizure, or other illness which suddenly
incapacitates the driver of an automobile when the occurrence of such disability is not attended
with sufficient warning or should not have been reasonably foreseen. . . .
The policy basis of holding a permanently insane person liable for his tort is: (1) Where
one of two innocent persons must suffer a loss it should be borne by the one who occasioned it;
(2) to induce those interested in the estate of the insane person (if he has one) to restrain and
control him; and (3) the fear an insanity defense would lead to false claims of insanity to avoid
liability. . . .
The cases holding an insane person liable for his torts have generally dealt with preexisting insanity of a permanent nature. . . .
[But] we think the statement that insanity is no defense is too broad when it is applied to a
negligence case where the driver is suddenly overcome without forewarning by a mental disability
or disorder which incapacitates him from conforming his conduct to the standards of a reasonable
man under like circumstances. These are rare cases indeed, but their rarity is no reason for
overlooking their existence and the justification which is the basis of the whole doctrine of
liability for negligence, i.e., that it is unjust to hold a man responsible for his conduct which he is
incapable of avoiding and which incapability was unknown to him prior to the accident.
We need not reach the question of contributory negligence of an insane person or the
question of comparative negligence as those problems are not now presented. All we hold is that
a sudden mental incapacity equivalent in its effect to such physical causes as a sudden heart
attack, epileptic seizure, stroke, or fainting should be treated alike and not under the general rule
of insanity. . . .
The insurance company argues that since the psychiatrist was the only expert witness who
testified concerning the mental disability of Mrs. Veith and the lack of forewarning that as a
matter of law there was no forewarning and she could not be held negligent; and [that] the trial
court should have so held. While there was testimony of friends indicating she was normal for
some months prior to the accident, the psychiatrist testified the origin of her mental illness
appeared in August, 1965, prior to the accident. . . .
The question is whether she had warning or knowledge which would reasonably lead her
to believe that hallucinations would occur and be such as to affect her driving an automobile.
Even though the doctor’s testimony is uncontradicted, it need not be accepted by the jury. It is an
expert’s opinion but it is not conclusive. It is for the jury to decide whether the facts underpinning
an expert opinion are true. . . . The jury could find that a woman, who believed she had a special
relationship to God and was the chosen one to survive the end of the world, could believe that
God would take over the direction of her life to the extent of driving her car. Since these mental
aberrations were not constant, the jury could infer she had knowledge of her condition and the
likelihood of a hallucination just as one who has knowledge of a heart condition knows the
possibility of an attack. While the evidence may not be strong upon which to base an inference,
especially in view of the fact that two jurors dissented on this verdict and expressly stated they
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could find no evidence of forewarning, nevertheless, the evidence to sustain the verdict of the jury
need not constitute the great weight and clear preponderance.
Judgment affirmed.

Notes

1. Mental illness as an immunity or an adjustment to the reasonable person standard? Is the
Breunig court suggesting that, absent foreknowledge, a suddenly ill defendant is immune from
tort liability? Or is mental illness something to be taken into account in determining what counts
as reasonable, just as the standard accounts for physical impairment? Would this amount to the
standard of a reasonable mentally ill person? What would that mean? Why not apply the rule of
Vaughan v. Menlove and exclude the mental impairment as irrelevant to the reasonableness of the
party’s conduct? Is taking mental illness into account more defensible—or less—when the
condition is temporary rather than permanent?

2. Confusion in the caselaw? Not all courts have held that sudden mental illness may shield
an actor from liability for negligence. See Bashi v. Wodarz, 53 Cal. Rptr. 2d 635 (Cal. App. 1996)
(holding that sudden and unanticipated mental illness does not preclude liability for negligence);
Turner v. Caldwell, 421 A.2d 876 (Conn. Super. Ct. 1980) (refusing to accept a temporary
insanity defense in automobile accidents); Kuhn v. Zabotsky, 224 N.E.2d 137 (Ohio 1967)
(holding that a defendant who struck a plaintiff’s car could not use sudden mental illness as a
defense). But do these divergent approaches in fact lead to different results? Note that in
Breunig-type scenarios, in jurisdictions that accept the Breunig approach, cases are in fact often
resolved in the plaintiff’s favor because of the defendant’s foreknowledge of the possibility of
sudden disability or illness. See Ramey v. Knorr, 124 P.3d 314, 316 (Wash. App. 2005)
(tortfeasor who wishes to plead sudden mental incapacity must establish “no prior notice or
forewarning of [his or her] potential for becoming disabled”). Note that the foreknowledge
solution is not limited exclusively to mental illness or delusion cases. Certain cases relating to the
standard of care for beginners might also be characterized as foreknowledge cases. See Navailles
v. Dielman, 50 So. 449, 450 (La. 1909) (holding that the defendant, an inexperienced driver, could
be held liable for his negligence because he “ventured upon the streets in an automobile without
knowing how to make an emergency stop”).

3. The narrow scope of the Breunig rule. The Wisconsin Supreme Court has applied
Breunig narrowly in subsequent decisions. See Burch v. American Family Mut. Ins. Co., 543
N.W.2d 277, 281 (Wis. 1996) (holding that a developmentally disabled defendant driver’s mental
capacity was not relevant to determining her liability for negligence). The Wisconsin Supreme
Court has also stressed that the rule of special treatment for sudden mental illness in Breunig is
limited and that the objective standard of care generally applies in mental illness cases. See
Jankee v. Clark County, 612 N.W.2d 297, 314 (Wis. 2000). Explaining why this approach
continues to make sense in the 21st century, the Court has supplemented the rationales in Breunig
with two others: (1) “in an era in which society is less inclined to institutionalize the mentally
disabled, the reasonable person standard of care obligates the mentally disabled to conform their
behavior to the expectations of the communities in which they live”; and (2) the reasonable person
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standard of care allows courts and juries to bypass the imprecise task of distinguishing among
variations in character, emotional equilibrium, and intellect.” Id. at 312. How persuasive do you
find these rationales? Are there other explanations for the state of the doctrine? After reviewing
courts’ approach to mental illness, professor of psychiatry Paul S. Applebaum concluded that the
caselaw is “difficult to understand other than as a reflection of deep-seated prejudices against
persons with mental illness and profound misunderstandings of the nature of mental disorders.”
Paul S. Appelbaum, Responsibility for Torts: Should the Courts Continue to Ignore Mental
Illness? 63 PSYCHIATRIC SERVICES 308, 310 (2012). What do you think?

4. Is there a basis for distinguishing cases like Breunig from cases like Lehman v. Haynam,
133 N.E.2d 97 (Ohio 1956), discussed in the notes above, in which defendants suffer from sudden
physical ailments or illnesses like epilepsy, heart attacks, or unconsciousness? Or do they stand
for the same principle? What are the relevant considerations for sorting out an actor’s
responsibility for injuries arising out of sudden and unanticipated conditions?
What if the party alleging negligence had notice of the allegedly negligent party’s
condition? Would that change the general treatment of mental illness? Consider the next case:

Gould v. American Family Mut. Ins. Co., 543 N.W.2d 282 (Wis. 2000)
BRADLEY, J.
. . . The judgment imposed liability against American Family for personal injuries caused
by its insured, Roland Monicken, who was institutionalized suffering from Alzheimer’s disease. . .
.
Monicken was diagnosed with Alzheimer’s disease after displaying bizarre and irrational
behavior. As a result of his deteriorating condition, his family was later forced to admit him to the
St. Croix Health Care Center. Sheri Gould [the plaintiff] was the head nurse of the center’s
dementia unit and took care of him on several occasions.
Monicken’s records from St. Croix indicate that he was often disoriented, resistant to care,
and occasionally combative. When not physically restrained, he often went into other patients’
rooms and sometimes resisted being removed by staff. On one such occasion, Gould attempted to
redirect Monicken to his own room by touching him on the elbow. She sustained personal
injuries when Monicken responded by knocking her to the floor. . . .
It is a widely accepted rule in most American jurisdictions that mentally disabled adults
are held responsible for the torts they commit regardless of their capacity to comprehend their
actions; they are held to an objective reasonable person standard. . . .
In Breunig, [supra] . . . [t]his court created a limited exception to the common law rule,
holding that insanity could be a defense in the rare case “where the [person] is suddenly overcome
without forewarning by a mental disability or disorder which incapacitates him from conforming
his conduct to the standards of a reasonable man under like circumstances.” . . .
[T]he actual holding was very limited:
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All we hold is that a sudden mental incapacity equivalent in its effect to such
physical causes as a sudden heart attack, epileptic seizure, stroke, or fainting should
be treated alike and not under the general rule of insanity.
Breunig, 45 Wis. 2d at 544. . . .
The record reveals that Gould was not an innocent member of the public unable to
anticipate or safeguard against the harm when encountered. Rather, she was employed as a
caretaker specifically for dementia patients and knowingly encountered the dangers associated
with such employment. It is undisputed that Gould, as head nurse of the dementia unit, knew
Monicken was diagnosed with Alzheimer’s disease and was aware of his disorientation and his
potential for violent outbursts. Her own notes indicate that Monicken was angry and resisted
being removed from another patient’s room on the day of her injury.
...
[O]rdinarily a mentally disabled person is responsible for his or her torts. However, we
conclude that this rule does not apply in this case . . . . When a mentally disabled person injures an
employed caretaker, the injured party can reasonably foresee the danger and is not “innocent” of
the risk involved. . . . Therefore, we hold that a person institutionalized, as here, with a mental
disability, and who does not have the capacity to control or appreciate his or her conduct cannot
be liable for injuries caused to caretakers who are employed for financial compensation.

Notes

1. Mental illness and caretakers. Why immunize mentally disabled defendants from liability
under such circumstances? Would it be an alternative to make the defendant’s condition a
relevant consideration in the inquiry into whether the defendant’s conduct was negligent? Or, if it
is nonsensical or unworkable to describe such defendants as behaving reasonably or unreasonably,
what about an approach that hinges the allocation of losses from caretaker injuries on whether the
plaintiff caretaker had notice of the specific kind of conduct that caused the plaintiff’s injury?
2. The “notice principle.” The result in the Gould case fits with a larger historical pattern,
one that may help us make sense of the way courts appear to toggle between objective and more
subjective standards depending on the actors in front of them. Professor Sarah Seo and one of
your authors argue that common law judges have typically tried to allocate the obligation to take
care to the party with the best information about the risks in question. Call this the “notice
principle”: in choosing how to evaluate an allegedly careless actor’s conduct (leading ultimately
to the question of who should bear the cost of the injury), the nineteenth-century judges that Seo
and Witt examine tended to ask which party had good information about the relevant disability
and its likely risks in the relevant setting; this, in turn, dictated whether the judges applied a
purely objective standard (“reasonable person”) or something more subjective:
For instance, if a train conductor noticed that a pedestrian suffered from a mental
illness that prevented exercise of requisite care when crossing the tracks, then it
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became the conductor’s duty to take more care than the objective standard required
to avoid a collision; and in the case of an accident, the pedestrian [accused of
contributory negligence] would be held to a subjective standard. Otherwise, if the
conductor was not aware of the mental condition, then the prevailing objective
standard still applied to both parties, regardless of whether it was impossible for the
mentally ill pedestrian to meet that standard.
Attaching liability to information furthered a number of practical goals. To begin
with, such an approach encouraged parties to account for observable disabilities in
others and thus promoted a kind of informal private ordering, guiding parties toward
an efficient allocation of the costs of taking extra precaution to avoid accidents. The
notice principle, moreover, had a mitigating effect on the strict-liability-like effects
of the objective standard for mentally unsound people. At the same time, by
triggering a heightened duty only with notice, railroads, cities, and other
[prospective] defendants were not required to adopt safety measures for their
general operations at an inefficiently high level solely to accommodate those who
could not meet the reasonable person standard. . . .
Sarah A. Seo & John Fabian Witt, The Metaphysics of the Mind and the Practical Science of the
Law, 26 L. & HIST. REV. 161, 165-66 (2006). Recall that Holmes stated a version of the notice
principle in a passage above: “When a man has a distinct defect of such a nature that all can
recognize it as making certain precautions impossible, he will not be held answerable for not
taking them.” The notice principle might also make sense of the Restatement and Dellwo
approach to cases involving youth. (Recall that the Dellwo court specifically observed that the
age of children engaged in driving, boating, or flying would not be observable by third parties.)

3. The reasonable person in the era of big data. One concern that courses beneath decisions
involving mentally ill and mentally disabled actors is the impossibility of knowing these actors’
individual capacities. Individually tailored standards of care might be the most fair, in the sense
of truly tethering liability to wrongfulness, but to this point, such standards have not seemed
pragmatic. Professors Omri Ben-Shahar and Ariel Porat argue that with the advent of “Big Data,”
we in fact have the ability to develop standards of care tailored to each person in society and their
particular ability to reduce risk, which he calls the “reasonable you standard.” Omri Ben-Shahar
& Ariel Porat, Personalizing Negligence Law, 91 N.Y.U. L. REV. 627 (2016). For example, if a
65-year-old man hit a small child with his car while driving 35 miles per hour, rather than asking
whether that was a reasonable speed for any driver, the “reasonable you” standard looks to Big
Data to determine what speed is slow enough to enable a 65-year-old man to react in time to stop
before hitting the child. Id. at 630-32. But not all 65-year-olds have the same reflexes, so the
standard could also incorporate the stop time for various vehicles—the driver of a nimble sports
car that can stop on a dime would therefore be treated differently than the driver of a clunky old
truck—and so on. If one important rationale for a universal “reasonable person” standard was the
unknowability of the capacities of each individual, is it now out of date in the era of Big Data? Or
does some other justification, such as setting society-wide norms, underlie the “reasonable
person” standard?

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5. Unreasonable Faiths?
Are a person’s religious convictions relevant in determinations of reasonableness?
Consider Friedman v. New York, 282 N.Y.S.2d 858 (N.Y. Ct. Cl. 1967). Stranded on a broken
chair lift with her male co-worker as darkness was approaching and after screaming in vain for
help, a sixteen-year-old Orthodox Jew named Ruth Friedman jumped off the ski lift, fell twenty to
twenty-five feet, and injured herself. Friedman sued the state of New York, which operated the
ski lift, claiming damages. The state argued that Friedman had been contributorily negligent for
jumping. Friedman countered that her belief in “the Jichud, which absolutely forbids a woman to
stay with a man in a place which is not available to a third person” compelled her to act as she did.
Id. at 862. The court took into account her religious beliefs and found that she was not
contributorily negligent. More recent cases have not been as accommodating of plaintiffs’
religious beliefs. See Munn v. Algee, 924 F.2d 568 (5th Cir. 1991) (holding as a matter of
Mississippi law that plaintiff’s Jehovah’s Witness faith was irrelevant in determining the
reasonableness of her decision to refuse blood transfusions); Braverman v. Granger, 844 N.W.2d
485, 496 (Mich. App. 2014) (holding that “the proper inquiry is not [into] a person’s subjective
reasons [but rather] whether the blood transfusion was an objectively reasonable means to avoid
or minimize damages”). Would taking a party’s religious beliefs into account require courts to
engage in constitutionally problematic evaluations of the reasonableness of particular religious
views? See, for example, Williams v. Bright, 658 N.Y.S.2d 910 (N.Y. App. Div. 1997), where the
court ruled that instructing the jury to consider the reasonableness of the plaintiff’s conduct by
reference to the tenets of her own religion would constitute a “government endorsement” of her
religious beliefs.
In all of the cases above, injured plaintiffs asked that the reasonableness inquiry take into
account the fact of their religious convictions. Should the inquiry be any different when
defendants contend that faith led them to adopt what objectively would be a less than reasonable
level of care? Some have argued that while subjective religious beliefs may sometimes be
relevant to the inquiry into the reasonableness of a plaintiff-victim’s conduct, such subjective
beliefs ought not be taken into account in evaluating the reasonableness of a defendant-injurer’s
conduct. See GUIDO CALABRESI, IDEALS, BELIEFS, ATTITUDES, AND THE LAW: PRIVATE LAW
PERSPECTIVES ON A PUBLIC LAW PROBLEM 66 (1985); see also Lange v. Hoyt, 159 A. 575 (Conn.
1932) (assuming for purposes of argument that a Christian Scientist mother might be found
negligent for failing to seek medical attention for her injured daughter). Does this distinction
make sense? If accommodating plaintiff-victim A’s subjective religious beliefs effectively shifts
the costs of injuries caused by those beliefs to defendant-injurer B, isn’t that essentially identical
to 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?
The Religious Freedom Restoration Act, or RFRA, might be understood to require that
tort law accommodate plaintiffs’ and defendants’ religious exercise equally. RFRA, enacted in
1993, provides that “[g]overnment shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability” unless the government’s actions are
“in furtherance of a compelling governmental interest and [are] the least restrictive means of
furthering that . . . interest.” Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (2012).
A 1993 Supreme Court case diluted the power of this law somewhat, by finding it unconstitutional
as applied to state governments (on the grounds that such application was beyond Congress’s
power to enforce the rights guaranteed by the 14th Amendment). City of Boerne v. Flores, 521
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U.S. 507, 508 (1997). As of 2015, however, thirty-one states have applied RFRA-like restrictions
to themselves, either through legislation or court rulings.
Can common law standards of reasonableness “substantially burden” a party’s exercise of
religious freedom under the mini RFRAs? Some courts have said no. See Osborne v. Power, 890
S.W.2d 574 (Ark. 1994) (holding that common law nuisance prohibitions against obnoxious
Christmas lights displays do not substantially burden a homeowner’s free exercise rights). Other
courts seem to have held that state religious freedom legislation may prohibit a reasonableness
inquiry into the exercise of a party’s religion freedom. In Connecticut, a plaintiff who fell and hit
her head during a prayer healing session sued for negligence. The court held that a
reasonableness inquiry would have substantially burdened the defendant’s rights of free exercise
and that there was no “compelling State interest in permitting the court to evaluate the plaintiff’s
claims in this case.” Kubala v. Hartford Roman Catholic Diocese, 41 A.3d 351, 365 (Conn.
Super. Ct. 2011). In contrast, a different Connecticut court found the state’s RFRA did not
“preclude a plaintiff from holding a religious institution responsible for its torts in the context of
sexual abuse of a child by a clergyman.” Noll v. Hartford Roman Catholic Diocesan Corp., 46
Conn. L. Rptr. 527, 532 (Conn. Super. Ct. 2008).

6. Sex and Gender: The Reasonable Woman?
The notion of a reasonable person is a concept, not a representation of an actual
person. There are no actually existing reasonable people, as the law understands that term, though
the co-authors of this book come close. Instead, human beings (even your co-authors) come
embodied in what often seems like an infinite variety of particularities. They are constituted by
actual characteristics, not average features. One of those characteristics is biological sex. Should
sex be taken into account, similarly to a child’s age or a physical impairment, in making
reasonableness determinations? What about gender—that is, the roles, behaviors, and
characteristics that societies ascribe to particular sexes?
A century ago, courts often took gender into account, albeit unsystematically, in cases
where women sought damages for personal injury:
[A] range of doctrinal options existed for a court confronting an accident involving
a female driver and a claim that gender difference was relevant: women might be
bound to take more care to compensate for their lack of skill; women might be held
to commit contributory negligence simply by driving; women might be held to a
standard of care that referenced only other women drivers (in practice, then, their
perceived lesser skill could excuse what otherwise might be contributory
negligence), or to a male standard of care, or to a bi-gender standard of care;
defendants might be required to take more care to accommodate women’s needs as
drivers. There are cases weighing each of these options, but no one approach
appears to have prevailed.
Margo Schlanger, Injured Women Before Common Law Courts, 1860-1930, 21 HARV. WOMEN’S
L.J. 79 (1998). Professor Schlanger finds that “[t]he largest constellation of early personal injury
cases in which gender appears, in text and subtext, arose when women passengers of trains and
streetcars were injured, usually boarding or disembarking.” The “[f]irst and foremost” problem
for courts was how to deal with the fact that “women’s physical agility was impaired by long
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skirts, corsets, and, often, high heels.” Id.; see also Barbara Y. Welke, Unreasonable Women:
Gender and the Law of Accidental Injury, 1870-1920, 19 LAW & SOC. INQ. 369 (1994).
Tort law today generally does not make reasonableness determinations turn on the sex or
gender of the actor, at least not explicitly. Should it? One body of caselaw where this debate has
surfaced is in judicial interpretations of Title VII of the Civil Rights Act of 1964 (prohibiting
employment discrimination on the basis of sex, among other characteristics). In the early 1990s,
some courts, notably the United States Court of Appeals for the Ninth Circuit, adopted a
“reasonable woman” standard for determining whether a female plaintiff had been subjected to a
sexually harassing hostile work environment in violation of Title VII:
[W]e believe that in evaluating the severity and pervasiveness of sexual harassment,
we should focus on the perspective of the victim. . . . If we only examined whether
a reasonable person would engage in allegedly harassing conduct, we would run the
risk of reinforcing the prevailing level of discrimination. Harassers could continue
to harass merely because a particular discriminatory practice was common, and
victims of harassment would have no remedy.
We therefore prefer to analyze harassment from the victim’s perspective. A
complete understanding of the victim’s view requires, among other things, an
analysis of the different perspectives of men and women. Conduct that many men
consider unobjectionable may offend many women. See, e.g., Lipsett v. University
of Puerto Rico, 864 F.2d 881, 898 (1st Cir.1988) (“A male supervisor might believe,
for example, that it is legitimate for him to tell a female subordinate that she has a
‘great figure’ or ‘nice legs.’ The female subordinate, however, may find such
comments offensive”) . . . . See also Nancy S. Ehrenreich, Pluralist Myths and
Powerless Men: The Ideology of Reasonableness in Sexual Harassment Law, 99
YALE L.J. 1177, 1207-08 (1990) (finding men tend to view some forms of sexual
harassment as “harmless social interactions to which only overly-sensitive women
would object”) . . . .
We realize that there is a broad range of viewpoints among women as a group, but
we believe that many women share common concerns which men do not necessarily
share.9 For example, because women are disproportionately victims of rape and
sexual assault, women have a stronger incentive to be concerned with sexual
behavior. Women who are victims of mild forms of sexual harassment may
understandably worry whether a harasser’s conduct is merely a prelude to violent
sexual assault. Men, who are rarely victims of sexual assault, may view sexual

One writer explains: “While many women hold positive attitudes about uncoerced sex, their greater physical
and social vulnerability to sexual coercion can make women wary of sexual encounters. Moreover, American
women have been raised in a society where rape and sex-related violence have reached unprecedented levels,
and a vast pornography industry creates continuous images of sexual coercion, objectification and violence.
Finally, women as a group tend to hold more restrictive views of both the situation and type of relationship in
which sexual conduct is appropriate. Because of the inequality and coercion with which it is so frequently
associated in the minds of women, the appearance of sexuality in an unexpected context or a setting of
ostensible equality can be an anguishing experience.” Kathryn Abrams, Gender Discrimination and the
Transformation of Workplace Norms, 42 VAND. L. REV. 1183, 1205 (1989).
9

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conduct in a vacuum without a full appreciation of the social setting or the
underlying threat of violence that a woman may perceive.
In order to shield employers from having to accommodate the idiosyncratic
concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states
a prima facie case of hostile environment sexual harassment when she alleges
conduct which a reasonable woman11 would consider sufficiently severe or
pervasive to alter the conditions of employment and create an abusive working
environment.
We adopt the perspective of a reasonable woman primarily because we believe that
a sex-blind reasonable person standard tends to be male-biased and tends to
systematically ignore the experiences of women. The reasonable woman standard
does not establish a higher level of protection for women than men. Cf. Rosenfeld
v. Southern Pacific Co., 444 F.2d 1219, 1225-1227 (9th Cir.1971) (invalidating
under Title VII paternalistic state labor laws restricting employment opportunities
for women). Instead, a gender-conscious examination of sexual harassment enables
women to participate in the workplace on an equal footing with men. By
acknowledging and not trivializing the effects of sexual harassment on reasonable
women, courts can work towards ensuring that neither men nor women will have to
“run a gauntlet of sexual abuse in return for the privilege of being allowed to work
and make a living.”
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991) (Beezer, C.J.).
In 1993, however, the U.S. Supreme Court decided Harris v. Forklift Systems, Inc., 510
U.S. 17 (1993), which adopted a “reasonable person” standard rather than the “reasonable
woman” standard of Ellison:
This standard, which we reaffirm today, takes a middle path between making
actionable any conduct that is merely offensive and requiring the conduct to cause
a tangible psychological injury. As we pointed out in Meritor, “mere utterance of
an . . . epithet which engenders offensive feelings in a employee,” . . . does not
sufficiently affect the conditions of employment to implicate Title VII. Conduct
that is not severe or pervasive enough to create an objectively hostile or abusive
work environment—an environment that a reasonable person would find hostile or
abusive—is beyond Title VII’s purview. Likewise, if the victim does not
subjectively perceive the environment to be abusive, the conduct has not actually
altered the conditions of the victim’s employment, and there is no Title VII violation.
510 U.S. at 21 (emphasis added).
Many interpreted Harris as rejecting the Ninth Circuit’s “reasonable woman” standard,
but the matter is not quite so clear. After the Harris decision, the Ninth Circuit held that

11

Of course, where male employees allege that co-workers engage in conduct which creates a hostile
environment, the appropriate victim’s perspective would be that of a reasonable man.

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“[w]hether the workplace is objectively hostile must be determined from the perspective of a
reasonable person with the same fundamental characteristics,” citing to its pre-Harris decision in
Ellison. See Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995). Is gender one of the
Fuller decision’s “fundamental characteristics”? If so, did the Ninth Circuit smuggle gender back
in, despite the apparent rejection of gender by the Supreme Court in Harris? More recently, the
Ninth Circuit has been explicit about its view that the sexual harassment question requires an
inquiry into the view of the “reasonable woman.” Brooks v. City of San Mateo, 229 F.3d 917, 922
(9th Cir. 2000); see also Hamilton v. RDI/Caesars Riverboat Casino, LLC, 179 F. Supp. 2d 929
(S.D. Ind. 2002).
The Second Circuit, by contrast, has rejected the inclusion of gender in the analysis of
reasonableness. In the 1999 decision Richardson v. New York State Department of Correctional
Services, the court adopted a “reasonable person” standard for Title VII sexual harassment cases
and explained:
[W]e reject the view of those courts that look to the perspective of the particular
ethnic or gender group, e.g., a “reasonable African-American” or a “reasonable Jew.”
While we recognize that there is dicta in this circuit supporting such an approach,
we believe that examining hostile environment claims from the perspective of a
“reasonable person who is the target of racially or ethnically oriented remarks” is
the proper approach. First, Title VII seeks to protect those that are the targets of
such conduct, and it is their perspective, not that of bystanders or the speaker, that
is pertinent. Second, this standard makes clear that triers of fact are not to determine
whether some ethnic or gender groups are more thin-skinned than others. Such an
inquiry would at best concern largely indeterminate and fluid matters varying
according to location, time, and current events. It might also lead to evidence,
argument, and deliberations regarding supposed group characteristics and to
undesirable, even ugly, jury and courtroom scenes.
180 F.3d 426, 436 n.3 (2d Cir. 1999), abrogated on other grounds by Burlington Northern & Santa
Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Which federal circuit do you think has the better of the argument, the Second or the
Ninth? Does either circuit court’s argument capture the correct perspective? As critical legal
theorist Kimberlé Crenshaw famously observed in her landmark 1991 article introducing the
concept of “intersectionality,” individuals are not just reasonable people with a gender identity;
they also have racial identities and class identities. Kimberlé Crenshaw, Mapping the Margins:
Intersectionality, Identity Politics, and Violence against Women of Color, 43 STAN. L. REV. 1241
(1991). People also have temperaments and personalities, likes and dislikes, and more. Is there
any hope of subcategorizing the reasonable person in light of the kaleidoscope of identity-making
characteristics with which people are endowed? Perhaps the law should pay attention to some
such characteristics but not others? Consider Susan Cain’s best-selling book Quiet, which argues
that society wrongly prefers extroverts to introverts. Is there a reason to be more concerned with
gendered injustice than introversion injustice?
As you consider the merits of a “reasonable woman” standard for tort law, note that
allegedly harassing conduct in the workplace is not the only context in which group characteristics
may correspond with significant differences in perception. A well-known phenomenon among
scholars of risk cognition is the so-called white male effect: researchers have found that when
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asked about the riskiness of a variety of hazards, ranging from firearms, to ozone depletion, to
commercial air travel, white men consistently perceived less risk than white women, nonwhite
men, and nonwhite women. Melissa L. Finucane, et al., Gender, Race, and Perceived Risk: The
‘White Male’ Effect, 2 HEALTH, RISK & SOC. 159 (2000). Law and psychology scholar Dan
Kahan and his collaborators have added nuance to this finding by considering race and gender
alongside “worldviews.” Building from anthropologist Mary Douglas’s typology of
worldviews—under which some views of the world are more hierarchical and others more
egalitarian, some more individualist and others more communitarian—they find that “gender
affects risk perception only in conjunction with particular worldviews.” Kahan and his co-authors
theorize that particular hazards (for example, gun possession) confer cultural status on
hierarchical and individualist men; for such men to characterize these hazards as risky would be to
invite 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
LEGAL STUDIES 465 (2007).
With all this in mind, do you think the explicit incorporation of sex or gender into the
reasonable person standard is a reform worth pursuing? Would it reify inaccurate assumptions
and status-based stereotypes? Or would it be a valuable recognition of the real differences in the
way that actually existing men and women tend to experience the world? What about people who
identify as transgender or genderqueer? Is it even useful to think about this issue in terms of
actually existing people of one or another sex or gender identity, or is it preferable to start with
ideal types? Is it possible to operationalize an ideal type that is un-gendered? Un-raced?

B. Cost / Benefit Calculations and the Learned Hand Formula
How does the reasonable person behave? What kinds of precautions does the reasonable
person take? What level of safety does the reasonable person aim to achieve? These sorts of
questions have proven to be just as vexing as questions about how to deal with the idiosyncratic
features of particular litigants, perhaps even more so.
In this section, we will study several different efforts at articulating the obligations of
reasonableness. One especially influential (but equally controversial) account of reasonableness
asserts that to behave reasonably is to behave in such a way as to maximize net benefits. This is
the so-called cost-benefit approach to identifying negligent conduct. It asks whether the costs and
benefits of a given precaution make it the kind of precaution that should have been taken.
As we shall see, however, the cost-benefit approach is not the only approach to evaluating
reasonableness. In the actual practice of torts judges, it is rarely invoked, though many believe
that it plays a large (even if tacit) role. Our first pair of cases does not seem to involve costbenefit reasoning at all.

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1. Negligence Basics
Stone v. Bolton, [1950] 1 K.B. 201 (C.A.)
On August 9, 1947, the plaintiff, Miss Bessie Stone, of 10, Beckenham Road, Cheetham,
near Manchester, had just stepped from her garden gateway on to the pavement of the highway
when she was struck on the head by a cricket ball and suffered injury. The ball had been driven
by a player of a visiting team over the fence or hoarding surrounding the Cheetham Cricket Club
ground, which at its northern boundary abuts on to the Beckenham Road. The said ground had
been in use as a cricket club for some 80 to 90 years [considerably longer than Beckenham Road
had existed]. The fence or hoarding surrounding it was 12 feet high and at the northern boundary,
owing to a rise in the ground, was 17 feet above the level of the wicket. . . . The distance from the
southern wicket to the northern boundary fence was estimated to be 78 yards. The “hit” in
question was described by a member of the club with long experience as “quite the biggest seen
on that ground,” but evidence was adduced at the trial that on some six to ten occasions cricket
balls had been hit over the fence into the road in the past 30 years.
The plaintiff sued the defendants, as representing all the members of the club, for damages
for personal injuries, alleging that the defendants were negligent. . . . The case came on for
hearing before Oliver J. at Manchester Assizes on December 20, 1948, and the learned judge
dismissed the claim. [The plaintiff appealed.]
JENKINS L.J. . . . [L]egitimate as the playing of cricket may be, a cricket ball hit out of the
ground into a public highway is obviously capable of doing serious harm to anyone using the
highway who may happen to be in its course, and I see no justification for holding the defendants
entitled to subject people in Beckenham Road to any reasonably foreseeable risk of injury in this
way. Accordingly, I am of opinion that the defendants were under a duty to prevent balls being hit
into Beckenham Road so far as there was any reasonably foreseeable risk of this happening. The
case as regards to negligence, therefore, seems to me to resolve itself into the question whether,
with the wickets sited as they were, and the fence at the Beckenham Road end as it was, on
August 9, 1947, the hitting into Beckenham Road of the ball which struck and injured the plaintiff
was the realization of a reasonably foreseeable risk, or was in the nature of an unprecedented
occurrence which the defendants could not reasonably have foreseen.
On the evidence this question seems to me to admit of only one answer. Balls had been
hit into Beckenham Road before. It is true this had happened only at rare intervals, perhaps no
more than six times in thirty seasons. But it was known from practical experience to be an actual
possibility in the conditions in which matches were customarily played on the ground from about
1910 onwards, that is to say, with the wickets sited substantially as they were, and the fence at the
Beckenham Road end, I gather, exactly as it was as regards height and position on August 9,
1947. What had happened several times before could, as it seems to me, reasonably be expected
to happen again sooner or later. It was not likely to happen often, but it was certainly likely to
happen again in time. When or how often it would happen again no one could tell, as this would
depend on the strength of the batsmen playing on the ground (including visitors about whose
capacity the defendants might know nothing) and the efficiency or otherwise of the bowlers. In
my opinion, therefore, the hitting out of the ground of the ball which struck and injured the
plaintiff was a realization of a reasonably foreseeable risk, which because it could reasonably be
foreseen, the defendants were under a duty to prevent.
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The defendants had, in fact, done nothing since the rearrangement of the ground on the
making of Beckenham Road in or about 1910, whether by heightening the fence (e.g., by means
of a screen of wire netting on poles) or by altering the position of the pitch, to guard against the
known possibility of balls being hit into Beckenham Road. It follows that, if I have rightly
defined the extent of the defendants’ duty in this matter, the hitting out of the ground of the ball
which injured the plaintiff did involve a breach of that duty for the consequences of which the
defendants must be held liable to the plaintiff in damages. . . .
The hitting of a ball into the road was a reasonably foreseeable event, and no steps at all
had been taken to prevent it beyond the erection and subsequent maintenance in its original form
of the fence put up in or about 1910, which had been shown by experience to be inadequate. We
were, in effect, invited to hold that in as much as the hitting of a ball into Beckenham Road was a
rarity, and the odds were against anyone in Beckenham Road being struck on one of the rare
occasions when this did happen, the risk of anyone being injured in this way was so remote that
the defendants were under no obligation to take any further precautions at all, but were entitled to
subject people in Beckenham Road (whether cricket enthusiasts or not) to this remote risk, so to
speak in the interests of the national pastime. I see no justification for placing cricketers in this
privileged position. . . .
It was also, I think, suggested that no possible precaution would have arrested the flight of
this particular ball, so high did it pass over the fence. This seems to me an irrelevant
consideration. If cricket cannot be played on a given ground without foreseeable risk of injury to
persons outside it, then it is always possible in the last resort to stop using that ground for cricket.
The plaintiff in this case might, I apprehend, quite possibly have been killed. I ask myself
whether in that event the defendants would have claimed the right to go on as before, because
such a thing was unlikely to happen again for several years, though it might happen again on any
day on which one of the teams in the match included a strong hitter. No doubt as a practical
matter the defendants might decide that the double chance of a ball being hit into the road and
finding a human target there was so remote that rather than go to expense in the way of a wire
screen or the like, or worse still abandon the ground, they would run the risk of such an
occurrence and meet any ensuing claim for damages if and when it arose. But I fail to see on what
principle they can be entitled to require people in Beckenham Road to accept the risk, and, if hit
by a ball, put up with the possibly very serious harm done to them as damnum sine injuria, unless
able to identify, trace, and successfully sue the particular batsman who made the hit.
For these reasons I am of opinion that the plaintiff is entitled to succeed on her claim in
negligence.

Bolton v. Stone, [1951] A.C. 850
[The defendant cricket club members appealed to the House of Lords.]
LORD REID. My Lords, it was readily foreseeable that an accident such as befell the
respondent might possibly occur during one of the appellants’ cricket matches. Balls had been
driven into the public road from time to time and it was obvious that, if a person happened to be
where a ball fell, that person would receive injuries which might or might not be serious. On the
other hand it was plain that the chance of that happening was small. The exact number of times a
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ball has been driven into the road is not known, but it is not proved that this has happened more
than about six times in about thirty years. If I assume that it has happened on the average once in
three seasons I shall be doing no injustice to the respondent’s ease. Then there has to be considered
the chance of a person being hit by a ball falling in the road. The road appears to be an ordinary
side road giving access to a number of private houses, and there is no evidence to suggest that the
traffic on this road is other than what one might expect on such a road. On the whole of that part
of the road where a ball could fall there would often be nobody and seldom any great number of
people. It follows that the chance of a person ever being struck even in a long period of years was
very small.
This case, therefore raises sharply the question what is the nature and extent of the duty of
a person who promotes on his land operations which may cause damage to persons on an
adjoining highway. Is it that he must not carry out or permit an operation which he knows or
ought to know clearly can cause such damage, however improbable that result may be, or is it that
he is only bound to take into account the possibility of such damage if such damage is a likely or
probable consequence of what he does or permits, or if the risk of damage is such that a
reasonable man, careful of the safety of his neighbour, would regard that risk as material? . . . .
Counsel for the respondent in this case had to put his case so high as to say that, at least as
soon as one ball had been driven into the road in the ordinary course of a match, the appellants
could and should have realized that that might happen again and that, if it did, someone might be
injured; and that that was enough to put on the appellants a duty to take steps to prevent such an
occurrence. . . .
It would take a good deal to make me believe that the law has departed so far from the
standards which guide ordinary careful people in ordinary life. In the crowded conditions of modern
life even the most careful person cannot avoid creating some risks and accepting others. What a
man must not do, and what I think a careful man tries not to do, is to create a risk which is
substantial. Of course there are numerous cases where special circumstances require that a higher
standard shall be observed and where that is recognized by the law. But I do not think that this case
comes within any such special category. It was argued that this case comes within the principle in
Rylands v. Fletcher, but I agree with your Lordships that there is no substance in this argument. In
my judgment the test to be applied here is whether the risk of damage to a person on the road was
so small that a reasonable man in the position of the appellants, considering the matter from the
point of view of safety, would have thought it right to refrain from taking steps to prevent the danger.
In considering that matter I think that it would be right to take into account not only how
remote is the chance that a person might be struck but also how serious the consequences are
likely to be if a person is struck; but I do not think that it would be right to take into account the
difficulty of remedial measures. If cricket cannot be played on a ground without creating a
substantial risk, then it should not be played there at all. . . . [H]aving given the whole matter
repeated and anxious consideration I find myself unable to decide this question in favour of the
respondent. I would have reached a different conclusion if I had thought that the risk here had
been other than extremely small, because I do not think that a reasonable man considering the
matter from the point of view of safety would or should disregard any risk unless it is extremely
small. . . .
LORD RADCLIFFE. My Lords, I agree that this appeal must be allowed. I agree with regret,
because I have much sympathy with the decision that commended itself to the majority of the
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members of the Court of Appeal. I can see nothing unfair in the appellants being required to
compensate the respondent for the serious injury that she has received as a result of the sport that
they have organized on their cricket ground at Cheetham Hill. But the law of negligence is
concerned less with what is fair than with what is culpable, and I cannot persuade myself that the
appellants have been guilty of any culpable act or omission in this case. . . .
[A] breach of duty has taken place if they show the appellants guilty of a failure to take
reasonable care to prevent the accident. One may phrase it as “reasonable care” or “ordinary care”
or “proper care”—all these phrases are to be found in decisions of authority—but the fact remains
that, unless there has been something which a reasonable man would blame as falling beneath the
standard of conduct that he would set for himself and require of his neighbour, there has been no
breach of legal duty. And here, I think, the respondent’s case breaks down. It seems to me that a
reasonable man, taking account of the chances against an accident happening, would not have felt
himself called upon either to abandon the use of the ground for cricket or to increase the height of
his surrounding fences. He would have done what the appellants did: in other words, he would have
done nothing. . . .
[The House of Lords ruled unanimously in favor of the appellant cricket club members.]

Notes

1. Judge Jenkins views the relevant consideration as the foreseeability of an injury. Lords
Reid and Radcliffe add an additional element, namely the gravity of the foreseeable injury. Are
these two factors sufficient in evaluating the reasonableness of a party’s behavior?

2. Does it matter that the homes on Beckenham Road were built after the cricket pitch was in
place?

3. Why does the case proceed on the assumption that the relevant precaution is one that the
cricket club might have taken, rather than one that Bessie Stone might have taken? Are there, for
example, helmets that could have protected her head from long hits?

4. In the next case below, Judge Learned Hand adds a further consideration to the analysis of
negligence, one that did not appear in any of the Stone v. Bolton opinions. Hand asks not merely
whether an injury was foreseeable, nor what the severity of any such injury would have been, but
also what the costs of avoiding that injury would have been.

United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947)
HAND, J.
These appeals concern the sinking of the barge, ‘Anna C,’ on January 4, 1944, off Pier 51,
North River. [The barge accident occurred when the tug Carroll (owned by the Carroll Towing
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Company) attempted to move a barge tied up just to the north of the Anna C, which was owned by
the Conners Company. The maneuver dislodged the Anna C. from its pier, and through a series of
unfortunate events, a six-barge pile-up including the Anna C slowly careened down the Hudson.
When the Anna C collided with a tanker, the tanker’s underwater propeller pierced the hull of the
Anna C, which began to take water. The Anna C dumped its cargo—flour owned by the United
States government—and sank. The United States, as owner of the flour, sued the Carroll Towing
Company, which raised a defense of contributory negligence. The Conners Company employee
who was supposed to mind the Anna C (the so-called “bargee”) had not been on board the barge
and indeed had been nowhere to be found when the barge broke loose of its moorings. Carroll
Towing argued that had the bargee been on board, he would have noticed the leak and been able
to call for help in time to save the barge and its cargo. The case thus turned on whether the
Conners Company (the Anna C’s owner) had been contributorily negligent because of the absence
of its bargee.]
It appears from the foregoing review that there is no general rule to determine when the
absence of a bargee or other attendant will make the owner of the barge liable for injuries to other
vessels if she breaks away from her moorings. However, in any cases where he would be so liable
for injuries to others obviously he must reduce his damages proportionately, if the injury is to his
own barge. It becomes apparent why there can be no such general rule, when we consider the
grounds for such a liability. Since there are occasions when every vessel will break from her
moorings, and since, if she does, she becomes a menace to those about her, the owner’s duty, as in
other similar situations, to provide against resulting injuries is a function of three variables: (1)
The probability that she will break away; (2) the gravity of the resulting injury, if she does; (3) the
burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in
algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends
upon whether B is less than L multiplied by P: i.e., whether B less than PL. Applied to the
situation at bar, the likelihood that a barge will break from her fasts and the damage she will do,
vary with the place and time; for example, if a storm threatens, the danger is greater; so it is, if she
is in a crowded harbor where moored barges are constantly being shifted about. On the other
hand, the barge must not be the bargee’s prison, even though he lives aboard; he must go ashore at
times. We need not say whether, even in such crowded waters as New York Harbor a bargee
must be aboard at night at all; it may be that the custom is otherwise, as Ward, J., supposed in
“The Kathryn B. Guinan,” and that, if so, the situation is one where custom should control. We
leave that question open; but we hold that it is not in all cases a sufficient answer to a bargee’s
absence without excuse, during working hours, that he has properly made fast his barge to a pier,
when he leaves her. In the case at bar the bargee left at five o’clock in the afternoon of January
3rd, and the flotilla broke away at about two o’clock in the afternoon of the following day,
twenty-one hours afterwards. The bargee had been away all the time, and we hold that his
fabricated story was affirmative evidence that he had no excuse for his absence. At the locus in
quo—especially during the short January days and in the full tide of war activity—barges were
being constantly “drilled” in and out. Certainly it was not beyond reasonable expectation that,
with the inevitable haste and bustle, the work might not be done with adequate care. In such
circumstances we hold—and it is all that we do hold—that it was a fair requirement that the
Conners Company should have a bargee aboard (unless he had some excuse for his absence),
during the working hours of daylight.

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Notes

1. Learned Hand’s formula. The so-called Hand Formula for determining negligence rounds
out the considerations cited in the opinions from Stone v. Bolton, and it adds an additional factor:
the burden of adequate precautions. But the algebra doesn’t by itself supply all the elements
needed to make the negligence inquiry. For example, to estimate the probability of the injury’s
occurrence, we need to know something about the temporality of the Hand Formula. Is it the
probability ex ante or ex post—before or after the fact? The typical Learned Hand test adopts an
ex ante perspective, comparing the cost of a precaution with the risk of loss at the time the
decision about whether to take the precaution in question ought to have been made. Ex post, the
probability of injury is typically 100%, since we only have a torts question if there has been some
injury. (Though note that we will see an ex post version of the Hand Formula when we get to
products liability in Chapter 9.)
Another element needed to operationalize the Hand Formula is to identify the kind of
person making this ex ante analysis. An expert with perfect information will often come to a
different conclusion than a layperson about the reasonableness of a particular course of conduct.
Typically, however, the Hand Formula imposes no such obligation of perfect information.
Instead, it asks what a reasonable person in the position of the party whose conduct is under
evaluation would have thought about the likely costs and benefits in question; in other words, it
asks what values the reasonable person would have inserted into the equation.
Two additional points round out our first pass at the Learned Hand approach. The first is
to observe that in the common law’s adversary system it is the party charging negligence—often
but not always the plaintiff—who sets the agenda by identifying the precaution that the defendant
allegedly ought to have taken. Judge and jury need not comb the world for precautions that might
have been taken in any given situation. They need only consider precautions that the party
charging negligence contends ought to have been taken. The second is that the cost-benefit
calculations required by the Hand formula are social cost benefit calculations, not private ones.
The question is whether the social costs of the precaution at issue seemed at the time to a
reasonable person in the position of the relevant party greater or less than its social benefits. We
are interested in the costs and benefits to society of taking any given precaution, not merely the
costs and benefits borne or captured by the decision-maker.
So there we have it! Taking a deep breath we can say that the Learned Hand test is an ex
ante, reasonable person formula for evaluating by reference to precautions identified by the parties
the social advisability of risky conduct. Whew!
The test has been influential in part because, as Judge Richard Posner observed in one of
his early articles, it can be read to embody an economic approach to tort law:
Hand was adumbrating, perhaps unwittingly, an economic meaning of negligence.
Discounting (multiplying) the cost of an accident if it occurs by the probability of
occurrence yields a measure of the economic benefit to be anticipated from
incurring the costs necessary to prevent the accident. The cost of prevention is what
Hand meant by the burden of taking precautions against the accident. It may be the
cost of installing safety equipment or otherwise making the activity safer. . . . If the
cost of safety measures . . . exceeds the benefit in accident avoidance to be gained
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by incurring that cost, society would be better off, in economic terms, to forgo
accident prevention. A rule making the enterprise liable for the accidents that occur
in such cases cannot be justified on the ground that it will induce the enterprise to
increase the safety of its operations. When the cost of accidents is less than the cost
of prevention, a rational profit-maximizing enterprise will pay tort judgments to the
accident victims rather than incur the larger cost of avoiding liability. Furthermore,
overall economic value or welfare would be diminished rather than increased by
incurring a higher accident-prevention cost in order to avoid a lower accident cost.
If, on the other hand, the benefits in accident avoidance exceed the costs of
prevention, society is better off if those costs are incurred and the accident averted,
and so in this case the enterprise is made liable, in the expectation that self-interest
will lead it to adopt the precautions in order to avoid a greater cost in tort judgments.
...
Perhaps, then, the dominant function of the fault system is to generate rules of
liability that if followed will bring about, at least approximately, the efficient—the
cost-justified—level of accidents and safety.
Richard Posner, A Theory of Negligence, 1 J. LEGAL STUD. 29, 32-34 (1972).
Negligence, in the Hand-Posner formulation, is a cost-benefit scheme designed to encourage
behavior that is rational from a cost-benefit perspective. It should induce rational decision-makers
to take into account the costs their behavior poses to others and to take all precautions that are
socially worthwhile in the sense that their social benefits exceed their social costs.
2. A cost-benefit analysis of cricket. What result if Learned Hand’s “BPL formula” (Burden
< Probability * Loss) had been used in Stone v. Bolton and Bolton v. Stone? Would the outcome
of the case have changed if the Lords had explicitly adopted the Hand approach?
Imagine, for example, two scenarios in which the probability of a ball causing damage on
Beckenham Road in any given season is 1 in 10. The expected harm from such damage is £100.
(Pounds rather than dollars, given that this is cricket after all.) Imagine further that the precaution
identified by plaintiff Bessie Stone is the building of a higher wall to prevent balls from flying
into the road. In scenario 1, the cost of such a wall is £15. In scenario 2, the cost of the wall is
£5. Under the Learned Hand test, the defendant cricket club would not be negligent for having
failed to build the wall in scenario 1, because the cost of building the wall (B = £15) is greater
than the expected cost of not building the wall (10% * £100 = £10). By contrast, the defendant
cricket club would be negligent not to have built a wall in scenario 2, because the cost of building
the wall (B = £5) is less than the expected cost of not building the wall (10% * £100 = £10).
Table 1 below presents the analysis:

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Table 1: The Negligence Analysis
Burden of the
precaution (B)

Scenario 1:
Expensive
Precaution
Scenario 2:
Inexpensive
Precaution

Probability of
harm absent the
precaution (P)

Expected
damages in the
event harm
occurs (L)

15

10%

100

Not negligent

5

10%

100

Negligent

3. The ex ante view. So far we’ve given consideration to what we might think of as the ex
post application of the Hand test. We have asked how someone in the position of a judge or jury
would operationalize it with respect to precautions not taken. But the deeper significance of the
Learned Hand test may be its ex ante implications. Parties knowing that in the event of an injury
they will be held liable for having failed to take certain precautions that were cost justified should
begin to take those precautions. Consider the cricket club: under a negligence regime, will they
build a higher wall at the beginning of the year? In scenario 2, assuming that they have a lawyer
who is worth her socks, they sure will. In scenario 1, on the other hand, they will not. Note that it
is very likely that in the actual world the cricket team will get decent advice on such a question.
They almost certainly will have a liability insurance policy. And if they do, the liability insurer
will have every incentive to inspect the field and require the team (on pain of a higher liability
insurance premium) to raise the fence.
We can see this in Table 2, which is a variation on the two scenario set-up in Table 1.
Here we include a fourth column that adds the ex ante decision that the negligence regime
incentivizes. You can see that where the precaution costs more than it is worth, the rational actor
will not build. But where the precaution is less costly than the expected cost of the injuries that
will take place absent the precaution, the rational actor will build.

Table 2: To Build or Not to Build (under a Negligence Regime)
(B)
(P)
(L)
Court
Ex ante view:
Determination in
Build the
event of injury
Higher Fence?
Scenario 1

15

10%

100

Not negligent—D
doesn’t pay

Not build

Scenario 2

5

10%

100

Negligent—D
pays

Yes build

4. Strict liability in the ex ante view. At this point in the analysis something striking
emerges. Let’s take the same scenarios as above but compare the incentives to take precautions
under a Learned Hand-style negligence regime with the incentives to take precautions under a
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strict liability approach that allocates the cost of cricket injuries on Beckenham Road to the
cricket club regardless of whether it was at fault in not taking the precaution. Table 3 illustrates
the basic set-up of the analysis. Where building the higher fence costs more than the expected
damages to others, the cricket club will choose not to build. Where building the higher fence
costs less than the expected damages to others, the cricket club will choose to build. At least as
between negligence and strict cricket club liability, the liability regime has no effect on the
behavior of the rational actor.

Table 3: To Build or Not to Build (under Negligence and Strict Liability)
(B)
(P)
(L)
Court
Determination in
event of injury

NEGLIGEN
CE

STRICT
LIABILITY

Ex ante view:
Build the
Higher Fence?

Scenario 1

15

10%

100

Not negligent—D
doesn’t pay

Not build

Scenario 2

5

10%

100

Negligent—D
pays

Yes build

Scenario 1

15

10%

100

D pays

Not build

Scenario 2

5

10%

100

D pays

Yes build

The startling revelation here is that the two liability regimes we have been analyzing for
unintentional injuries—negligence and non-fault liability—seem to induce precisely the same
behavior in rational actors.

2. Critiques of Cost-Benefit Reasoning
Critiques from First Principles
Posner’s influential articulation of the negligence test helped give rise to the economic
analysis of the law, which is now pervasive in the academy and influential in some areas outside
of it. The law and economics approach has also been the subject of controversy, however. Critics
object that Learned Hand’s formula imbues the tort system with a utilitarian philosophy that fails
to square either with the law as it is or with our moral intuitions about what it should be. We can
get a flavor of this from the so-called “trolley problem,” which is often invoked to establish that
utilitarian considerations of costs and benefits do not capture the nuances of our moral reasoning.
Consider Judith Jarvis Thomson’s widely discussed formulation:
Suppose you are the driver of a trolley. The trolley rounds a bend, and there come
into view ahead five track workmen, who have been repairing the track. The track
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goes through a bit of a valley at that point, and the sides are steep, so you must stop
the trolley if you are to avoid running the five men down. You step on the brakes,
but alas they don’t work. Now you suddenly see a spur of track leading off to the
right. You can turn the trolley onto it, and thus save the five men on the straight
track ahead. Unfortunately, . . . there is one track workman on that spur of track.
He can no more get off the track in time than the five can, so you will kill him if
you turn the trolley onto him. Is it morally permissible for you to turn the trolley?
Everybody to whom I have put this hypothetical case says, Yes, it is. Some people
say something stronger than that it is morally permissible for you to turn the trolley:
They say that morally speaking, you must turn it—that morality requires you to do
so. . . .
[Now c]onsider a case . . . in which you are standing on a footbridge over the trolley
track. You can see a trolley hurtling down the track, out of control. You turn around
to see where the trolley is headed, and there are five workmen on the track where it
exits from under the footbridge. What to do? Being an expert on trolleys, you know
of one certain way to stop an out-of-control trolley: Drop a really heavy weight in
its path. But where to find one? It just so happens that standing next to you on the
footbridge is a fat man, a really fat man. He is leaning over the railing, watching
the trolley; all you have to do is to give him a little shove, and over the railing he
will go, onto the track in the path of the trolley. Would it be permissible for you to
do this? Everybody to whom I have put this case says it would not be. But why?
Judith Jarvis Thomson, The Trolley Problem, 94 YALE L.J. 1395, 1409 (1985).
We might put the question slightly differently. We might ask whether the estates and
families of the workman or the man in the footbridge example have causes of action against the
driver or passerby. Or we might ask whether the estates and families of the five killed by a failure
either to switch the track or to push the man off the footbridge might have a cause of action
against the actor who failed to take the step that would have saved the five. Either way, however,
the puzzle of the trolley problem, which was first introduced by the twentieth-century British
philosopher Philippa Foot, is that measured in terms of costs and benefits; the spur scenario and
the footbridge scenario seem identical. One death for five lives. And yet, as Thomson says, the
two scenarios seem to most people to require quite different moral analyses. It seems to follow, at
least on one account, that non-utilitarian considerations are necessary to make sense of our
evaluations of right and wrong.
Even if the trolley problem illustrates the limits of utilitarian considerations, however,
does Thomson’s example rule out cost-benefit analysis altogether? Probably not. Observe that
the decision to switch the tracks in the spur scenario would be senseless absent the apparently
greater cost of the five deaths as compared to the one. Costs and benefits seem necessary for
rational moral decision-making even if they are not entirely sufficient.
The claim of critics of cost-benefit reasoning is thus not that this form of reasoning has no
place in law and morality. The claim, as the late legal philosopher Ronald Dworkin put it, is that
in some circumstances, rights “trump” utilities. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY ix
(1977). The trick, then, is to identify the circumstances in which rights take precedence over
utility, and the circumstances in which utilitarian goals might indeed be sufficient.
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Critiques from Distributive Justice
Is there a distributional impact to using cost-benefit analysis as the measure of
reasonableness? Professor Zachary Liscow describes how cost-benefit analysis interacts with the
common law of torts by focusing on the cost of injury (or the “L,” in the Learned Hand formula):
[W]orkers are typically eligible for compensation for lost wages resulting from
tortious behavior. Higher-income workers have higher wages and, thus, de facto
have a larger legal entitlement. For example, consider a dangerous driver driving
in a rich neighborhood versus a poor neighborhood. Drivers responding to
incentives would expect to pay more if they cause an injury in the rich neighborhood
than in the poor neighborhood. They may thus drive more dangerously in the poor
neighborhood, increasing the likelihood of an accident there, thereby reducing the
legal entitlement of poor groups to safe traffic conditions.
Zachary Liscow, Is Efficiency Biased?, 85 U. CHI. L. REV. 1649, 1692 (2018). Does cost-benefit
analysis legitimize this choice, deeming “reasonable” conduct that would burden poor people with
greater risks and ultimately more injuries?
This insight becomes all the more troubling when we bring the demographics of wealth
into view. Consider the long-standing wealth gap between black Americans and white
Americans. Do cost-benefit analyses lead American companies to target poor and minority
communities when making ex ante judgments about where to site risky behavior? Professors
Kimberly Yuracko and Ronen Avraham argue that the idea is hardly far-fetched:
A 2004 study, for example, found that the risk of accidents for chemical facilities
in heavily African-American counties is twice as high as the risk in other counties,
and a Harvard study conducted for the City of New York in 1990 documented higher
numbers of adverse actions caused by negligence in hospitals serving minority
communities. There is also a history of legislative bodies disproportionately siting
hazardous waste dumps in minority communities.
Kimberly A. Yuracko & Ronen Avraham, Valuing Black Lives: A Constitutional Challenge to the
Use of Race-Based Tables in Calculating Tort Damages, 106 CAL. L. REV. 325, 334-35 (2018).
The distributional critique can be bypassed if you believe, as some scholars do, that
distributional questions really are not the concern of private law fields like tort, because such
fields are ill-equipped to address them. According to this view, tort ought to maximize welfare
through cost-benefit reasoning and the like, and leave distributive questions to tax policy and
social provision policy. How has that strategy fared in practice? Liscow contends that the
distributive effects of private law allocations are “sticky”: tax policy doesn’t adjust to do the
distributive work we might desire, even if in theory the world would be better off if it did.
Liscow, Is Efficiency Biased?, supra, at 1662-66. Are there political institutions that would more
effectively translate distributional effects into redistributive tax or social policy?

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Critiques from Administrability
Even setting aside objections to the moral structure of utilitarianism, methodological
difficulties abound for cost-benefit analysis. Professors Frank Ackerman and Lisa Heinzerling
argue that the valuations commonly used by analysts are typically “inaccurate and implausible,”
and that analysts “trivialize . . . future harms and the irreversibility of some environmental
problems” by valuing present economic gains over future economic losses (through a process
economists call discounting). They also suggest that adding up all of society’s gains and losses
muddles opportunities for a full conversation about distributional and moral consequences,
making a supposedly transparent and objective process anything but. Frank Ackerman & Lisa
Heinzerling, Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection, 150 U. PA.
L. REV. 1553, 1563 (2002).
Other critics observe that the informational demands of Posner’s approach to cost-benefit
analysis are superhuman. In decentralized markets, well-informed market participants compound
vast quantities of information. The market’s capacity to crowd-source cost-benefit calculations is,
as Nobel laureate Amartya Sen puts it, “[t]he spectacular merit of the informational economy of
the market system for private goods.” But judicial cost-benefit analysis can claim no such market
advantage. “When all the requirements of ubiquitous market-centered evaluation have been
incorporated into the procedures of cost-benefit analysis,” Sen has remarked, “it is not so much a
discipline as a daydream.” Amartya Sen, The Discipline of Cost-Benefit Analysis, 29 J. LEGAL
STUD. 931, 951 (2000). See also David M. Driesen, Is Cost-Benefit Analysis Neutral?, 77 U.
COLO. L. REV. 335 (2006); Ulrich Hampicke & Konrad Ott (eds.), Reflections on Discounting, 6
INT. J. OF SUSTAINABLE DEVELOPMENT 7 (2003).

A Precautionary Alternative?
Critics further argue that there are better alternatives to cost-benefit analysis. Some
advocate a “precautionary principle” for making policy decisions about risk. For example, the
Declaration of the 1992 United Nations Conference on Environment and Development (also
known as the “Rio Declaration”) states that “where there are threats of serious and irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective
measures to prevent environmental degradation.” How might a precautionary principle approach
be adopted in tort law? Should we all have a duty to take special precautions to avoid irreversible
damage to life and limb, even when not cost-justified? Or are injuries to life and limb themselves
costs to be brought into the balance?
Can the precautionary principle handle decisions about risk that feature risks to human
health and life on both sides of the equation? It is an important question, since most decisions
about risk can be said to include risks to life on both sides of the equation. Consider safety
regulations that increase the cost of some consumer good. Safer cars will save lives. But more
expensive cars will cost lives, too, since they may reduce the number of cars sold, reduce wealth,
and cost some people their jobs. Such “life-life” or “risk-risk” situations, contend the defenders
of cost-benefit reasoning, preclude resort to any “precautionary” approach, since there are risks on
all sides. Even setting aside the risk-risk problem, opponents of the precautionary principle
contend that its advocates are simply trying to put an illicit thumb on the scale for difficult policy
balancing decisions. See Cass Sunstein, Beyond the Precautionary Principle, 151 U. PA. L. REV.
1003 (2003).
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Kysar’s Constructivist Critique
Professor Douglas Kysar has advanced a different defense of the precautionary principle.
According to Kysar, the regulatory approaches we use are not just tools we manipulate to advance
our social values. Our approaches to risk policy constitute our values, even as they implement
them.
The precautionary principle encourages . . . conscientiousness by reminding the
political community, poised on the verge of a policy choice with potentially serious
or irreversible environmental consequences, that its actions matter, that they belong
uniquely to the community and will form a part of its narrative history and identity,
helping to underwrite its standing in the community of communities, which includes
other states, other generations, and other forms of life. Like the Hippocratic adage
for physicians, the precautionary principle reminds the cautioned agent that life is
precious, that actions are irreversible, and that responsibility is unavoidable. Such
considerations, in contrast, hold no clear or secure place within the logic of welfare
maximization, tending, as it does, to deny the political community a view from
within itself and to ask the community, in essence, to regulate from nowhere.
Douglas A. Kysar, REGULATING FROM NOWHERE, ENVIRONMENTAL LAW AND THE SEARCH FOR
OBJECTIVITY 16 (2010). Kysar’s point is that we construct ourselves in the policies we adopt. His
precautionary principle is typically raised in debates over environmental law and regulation,
which usually operate on a forward-looking basis to deal with ongoing pollution problems. Does
the precautionary principle have a place in the tort system, which ostensibly is confronting past
wrongs?

3. In Defense of Cost-Benefit Reasoning
Defenders of cost-benefit reasoning have responded to these critiques with their own counterarguments, beginning with a response to the so-called “incommensurability problem”:

Robert H. Frank, Why is Cost-Benefit Analysis so Controversial?, 29 J. LEGAL STUD. 913, 914
(2000)
The cost-benefit principle says we should install a guardrail on a dangerous stretch
of mountain road if the dollar cost of doing so is less than the implicit dollar value
of the injuries, deaths, and property damage thus prevented. Many critics respond
that placing a dollar value on human life and suffering is morally illegitimate.
The apparent implication is that we should install the guardrail no matter how much
it costs or no matter how little it affects the risk of death and injury.
Given that we live in a world of scarcity, however, this position is difficult to defend.
After all, money spent on a guardrail could be used to purchase other things we
value, including things that enhance health and safety in other domains. Since we
have only so much to spend, why should we install a guardrail if the same money
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spent on, say, better weather forecasting would prevent even more deaths and
injuries?
More generally, critics object to the cost-benefit framework’s use of a monetary
metric to place the pros and cons of an action on a common footing. They complain,
for example, that when a power plant pollutes the air, our gains from the cheap
power thus obtained simply cannot be compared with the pristine view of the Grand
Canyon we sacrifice. . . .
This view has troubling implications. . . . Scarcity is a simple fact of the human
condition. To have more of one good thing, we must settle for less of another.
Claiming that different values are incommensurable simply hinders clear thinking
about difficult trade-offs.
Notwithstanding their public pronouncements about incommensurability, even the
fiercest critics of cost-benefit analysis cannot escape such trade-offs. For example,
they do not vacuum their houses several times a day, nor do they get their brakes
checked every morning. The reason, presumably, is not that clean air and auto
safety do not matter, but that they have more pressing uses of their time. Like the
rest of us, they are forced to make the best accommodations they can between
competing values.
Cass Sunstein articulates a different defense of cost-benefit reasoning, one that focuses on the
architecture of the decision-making process:

Cass Sunstein, Cognition and Cost-Benefit Analysis, 29 J. LEGAL STUD. 1059, 1060 (2000)
[C]ost-benefit analysis is best defended as a means of overcoming predictable
problems in individual and social cognition. Most of these problems might be
collected under the general heading of selective attention. Cost-benefit analysis
should be understood as a method for putting “on screen” important social facts that
might otherwise escape private and public attention. Thus understood, cost-benefit
analysis is a way of ensuring better priority setting and of overcoming predictable
obstacles to desirable regulation, whatever may be our criteria for deciding the
hardest questions about that topic. . . . [T]his method, conceived in a particular way,
might attract support from people with varying conceptions of the good and the right,
including, for example, neoclassical economists and those who are quite skeptical
about some normative claims in neoclassical economics, involving those who do
and who do not take private preferences, and willingness to pay, as the proper
foundation for regulatory policy.
Sunstein’s support of cost-benefit reasoning sees the method as the best—perhaps the
only—tool to make transparent, rational decisions in regulatory agencies and courtrooms. He
claims that cost-benefit analysis actually helps us organize a broad range of value judgments,
whether or not they fit neatly into existing markets.
Sunstein has also used behavioral science research to suggest that our moral intuitions
against utilitarianism, and potentially for alternatives like the precautionary principle, are
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fundamentally mistaken. Taking up Judith Jarvis Thomson’s trolley problem, which we
encountered above, Sunstein argues that in unusual cases our ordinary moral intuitions mislead us
and that the two trolley scenarios are morally identical:

Cass Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531, 540-41 (2005)
As a matter of principle, there is no difference between the two cases. People’s
different reactions are based on moral heuristics that condemn the throwing of the
stranger but support the throwing of the switch. As a matter of principle, it is worse
to throw a human being in the path of a trolley than to throw a switch that
(indirectly?) leads to a death. The relevant heuristics generally point in the right
direction. To say the least, it is desirable for people to act on the basis of a moral
heuristic that makes it extremely abhorrent to throw innocent people to their death.
But the underlying heuristics misfire in drawing a distinction between the two
cleverly devised cases. Hence, people struggle heroically to rescue their intuitions
and to establish that the two cases are genuinely different in principle. But they
aren’t. In this sense, a moral heuristic . . . leads to errors. And this objection does
not bear only on ingeniously devised hypothetical cases. It suggests that a moral
mistake pervades both commonsense morality and law, including constitutional
law, by treating harmful omissions as morally unproblematic or categorically
different from harmful actions.
Is there anything to be said to those who believe that their moral judgments,
distinguishing the trolley and footbridge problems, are entirely reflective, and
embody no heuristic at all? Consider a suggestive experiment designed to see how
the human brain responds to the two problems (Greene et al. 2001). The authors do
not attempt to answer the moral questions in principle, but they find “that there are
systematic variations in the engagement of emotions in moral judgment,” and that
brain areas associated with emotion are far more active in contemplating the
footbridge problem than in contemplating the trolley problem. An implication of
Greene et al.’s finding is that human brains are hard-wired to distinguish between
bringing about a death “up close and personal” and doing so at a distance. Of
course, this experiment is far from decisive; emotions and cognition are not easily
separable (Nussbaum 2002), and there may be good moral reasons why certain brain
areas are activated by one problem and not by the other. Perhaps the brain is closely
attuned to morally irrelevant differences. But consider the case of fear, where an
identifiable region of the brain makes helpfully immediate but not entirely reliable
judgments (Ledoux 1996), in a way that suggests a possible physical location for
some of the operations of [our moral heuristics]. The same may well be true in the
context of morality, politics, and law (Greene & Haidt, 2002).

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4. The Logic of Cost-Benefit
Cooley v. Public Service Co., 10 A.2d 673 (N.H. 1940)
PAGE, J.
On November 29, 1935, the Telephone Company maintained a cable on Taylor Street,
Manchester, running north and south. This cable consisted of a lead sheath, inside which were
carried a large number of wires connected with the service stations of its subscribers. The cable
was supported by rings from a messenger wire strung on the Telephone Company poles. The
construction conformed to standard practices, and the messenger wire was grounded every thousand
feet. The sheath of the cable also was grounded. The Telephone Company further maintained at
the station which the plaintiff was using when she received her injuries, two protective devices for
grounding foreign currents in order to prevent their entrance to the house and to the subscriber’s
instrument. There is no evidence that these devices did not operate perfectly.
At a point about a mile distant from the plaintiff’s house, the Public Service Company’s
lines, east and west along Valley Street, crossed the telephone cable at right angles and some eight
or ten feet above it. These lines were not insulated.
Shortly after midnight, during a heavy storm, several of the Public Service wires over the
intersection of Valley and Taylor Streets broke and fell to the ground. One of them came into
contact with the telephone messenger. This particular wire of the defendant carried a voltage of
about 2300. Consequently an arc was created, which burned through the messenger and nearly half
through the cable before the current was shut off. . . .
When the contact of the wires occurred, the plaintiff was standing at the telephone, engaged
in a long-distance conversation. The contact created a violent agitation in the diaphragm of the
receiver and a loud explosive noise. The plaintiff fell to the floor. She has since suffered from what
her physicians describe as traumatic neurosis, accompanied by loss of sensation on the left side.
Apparently there is no claim that the negligence of the defendant caused the wires to fall.
The plaintiff’s sole claim is that the defendant could have anticipated (1) that its wire might fall for
a variety of reasons, which is true; (2) that a telephone subscriber in such case might hear a great
noise, which also is true; (3) that as a result of fright thereby induced the user of the telephone would
suffer physical injuries, which, as we have seen, is a rare contingency, though it may be anticipated.
It is urged that the defendant’s consequent duty was to maintain such devices at cross-overs as
would prevent one of its falling wires from coming into contact with a telephone wire.
The devices suggested are two. The first is a wire-mesh basket suspended from the poles
of the defendant at the point of cross-over, above the cable and below the defendant’s wires. Two
forms were suggested. One would be about six by eight feet. The other would be of an unassigned
width and would stretch the full distance between defendant’s poles. In either case the basket would
be insulated. The theory is that falling wires, though alive, would remain harmless in the basket. .
..
There was evidence that baskets and similar devices were used by the Telephone Company,
some years ago, for the protection of their wires at cross-overs. But the verdict establishes its lack
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of duty thus to protect its customers in this particular instance. There was no evidence that electric
light companies ever erected baskets or insulated wires in such situations, and there was positive
evidence that standard construction practices do not require either. The plaintiff cannot claim that
the defendant maintained a system less carefully devised than one conforming to accepted practice.
It is conceded, however, that due care might require some device better than the usual one. If the
plaintiff and persons in her situation could be isolated, and duties to others ignored, due care might
require the use of such devices as are here urged.
But the same reasoning that would establish a duty to do so raises another duty to the people
in the street, not to lessen the protective effect of their circuit-breaking device. . . .
In the case before us, there was danger of electrocution in the street. As long as the
Telephone Company’s safety devices are properly installed and maintained, there is no danger of
electrocution 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
those on the ground near the broken wires is obvious and immediate. The balance would not be
improved by taking a chance to avoid traumatic neurosis of the plaintiff at the expense of greater
risk to the lives of others. To the extent that the duty to use care depends upon relationship, the
defendant’s duty of care towards the plaintiff is obviously weaker than that towards the man in the
street.
The defendant’s duty cannot, in the circumstances, be to both. If that were so, performance
of one duty would mean nonperformance of the other. If it be negligent to save the life of the
highway traveler at the expense of bodily injury resulting from the fright and neurosis of a telephone
subscriber, it must be equally negligent to avoid the fright at the risk of another’s life. The law
could tolerate no such theory of “be liable if you do and liable if you don’t”. The law does not
contemplate a shifting duty that requires care towards A and then discovers a duty to avoid injury
incidentally suffered by B because there was due care with respect to A. Such a shifting is entirely
inconsistent with the fundamental conception that the duty of due care requires precisely the
measure of care that is reasonable under all the circumstances. 2 Restatement Torts, §§ 291-295. .
..
If the duty to the man in the street be forgotten for the moment, the duty to the plaintiff
would depend upon anticipation of bodily injuries because of fright at a noise. Of a defendant in
such case it is to be remarked that “the likelihood that his conduct will cause bodily harm involves
two uncertain factors, the chance that his act will cause the [emotional] disturbance and the chance
that the disturbance if it occurs will result in bodily harm.” 2 Restatement, Torts, § 306, comment
c. The chance of physical contact with a live wire in the street, with consequent electrocution, is
much less remote and complicated than that. It is clearly more foreseeable and is the controlling
one of all the circumstances for present purposes. In this particular case, it could not be found that
it would be reasonable to neglect the protection of those more obviously at risk than the plaintiff.
It is not doubted that due care might require the defendant to adopt some device that would
afford protection against emotional disturbances in telephone-users without depriving the traveling
public of reasonable protection from live wires immediately dangerous to life. Such a device, if it
exists, is not disclosed by the record. The burden was upon the plaintiff to show its practicability.
Since the burden was not sustained, a verdict should have been directed for the defendant.
Other exceptions therefore require no consideration.
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Judgment for the defendant. All concurred.

Notes

1. A social endeavor. The plaintiff in Cooley tried to prove negligence by focusing on the
costs and benefits of the defendant’s actions in relation to her. Judge Page rejected this argument,
demonstrating the courts’ use of cost-benefit analysis as a social—rather than private—
calculation; he analyzes the reasonableness of the defendant’s safety technology as applied to all
foreseeable plaintiffs. Does this make sense? How well do you think a social cost-benefit
analysis fits into the plaintiff-driven, two-party nature of the tort system?

2. Activities and activity levels—and the strict liability alternative. The plaintiff in Cooley
offers an alternative technology to make operating phone lines safer. But what if the act of
operating phone lines with due care is not enough? What if engaging in the activity itself is
negligent? Can the tort system deter activities that are unsafe because of the levels of the activity
that people engage in? Steven Shavell criticizes the negligence regime for failing to adequately
address the problem of over-participation in unsafe activities:
By definition, under the negligence rule all that an injurer needs to do to avoid the
possibility of liability is to make sure to exercise due care if he engages in his
activity. Consequently he will not be motivated to consider the effect on accident
losses of his choice of whether to engage in his activity or, more generally, of the
level at which to engage in his activity; he will choose his level of activity in
accordance only with the personal benefits so derived. But surely any increase in
his level of activity will typically raise expected accident losses (holding constant
the level of care). Thus he will be led to choose too high a level of activity; the
negligence rule is not “efficient.” . . .
However, under a rule of strict liability, the situation is different. Because an injurer
must pay for losses whenever he is involved in an accident, he will be induced to
consider the effect on accident losses of both his level of care and his level of
activity. His decisions will therefore be efficient. Because drivers will be liable for
losses sustained by pedestrians, they will decide not only to exercise due care in
driving but also to drive only when the utility gained from it outweighs expected
liability payments to pedestrians.
Steven Shavell, Strict Liability versus Negligence, 9 J. LEGAL STUD. 1, 2-3 (1980).
Is there a way to incorporate unsafe levels of activity into a cost-benefit analysis of due
care? Calabresi offers another alternative to the negligence regime to address this problem in his
classic “The Decision for Accidents”:
There are acts or activities that we would bar in our society regardless of the
willingness of the doer to pay for the harm they cause. It is these that we call
“useless” and feel that there is no societal loss in deterring them specifically. But
certainly even if some such activities can be isolated, there are a great many other
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activities whose undesirability consists only in the fact that they result in accidents
and then only to the extent that people would, if they knew the costs of these
accidents, prefer to abstain from the activity rather than pay those costs. . . .
The question then is, Can we not deter these acts or activities more effectively than
through a system of fault liability which, together with insurance, merely raises
somewhat the cost to those who as an actuarial class tend to do these acts or
activities? I suggest, and it is not a particularly original suggestion, that a system
of noninsurable tort fines assessed on the individual doer of the “useless” act,
together with general nonfault liability, would do a far better job of deterring
valueless activities of this type.
This leaves those acts or activities that, as a society, we are unprepared to call
valueless—those activities that, subject to some subsequent political
reconsideration and modification, we want to permit to the extent that they can pay
for their accident costs. I would suggest, though it is not crucial to my analysis, that
these comprise the bulk of the decisions as to accidents. Despite Learned Hand’s
formulation that negligence is a balancing of the “danger of an activity” against
what must usefully be given up to avoid that danger, it is altogether too clear that a
system of fault liability is designed to deal only with “useless” conduct and not with
the more subtle interests involved in measuring the value and danger of an activity.
If using a threshold of terrazzo is not deemed careless, then a system based on
fault—as an all-or-nothing proposition—will have no effect whatever on this
activity. The best way we can establish the extent to which we want to allow such
activities is by a market decision based on the relative price of each of these
activities and of their substitutes when each bears the costs of the accidents it causes.
This can be done by a system of nonfault enterprise liability, a system that assesses
the costs of accidents to activities according to their involvement in accidents. By
contrast, our fault system, with insurance, assesses the cost of an activity not
according to the number of accidents it causes but according to the number of
accidents it causes in which certain predetermined indicia of fault can be attributed
to it. This results in a deterrence of only faultily caused accidents in an area where
by hypothesis we are interested in deterring activities not because of some moral
implications but because of the accidents they cause.
Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78
HARV. L. REV. 713, 718-20 (1965).
Elsewhere, Calabresi makes the point that the nonfault or strict liability standard for
accidents would accomplish the same economic goals as Learned Hand’s negligence test:
If we make the assumptions under which the Learned Hand test would work
adequately, the fascinating thing is that as good a result in terms of reducing primary
accident costs could be achieved by a liability rule which is the exact reverse of the
Learned Hand test. Under such a “reverse Learned Hand test,” the costs of an
accident would be borne by the injurer unless accident avoidance on the part of the
victim would have cost less than the accident. If a reverse contributory negligence
test were added, the victim would bear the accident costs only if the injurer could
not also have avoided the accident at less cost than the accident entailed. . . .
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Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts, 81 YALE L.J.
1055, 1058-59 (1972).
The two approaches—a cost-benefit fault theory and a nonfault theory of strict liability—
are not completely identical. “Under the Learned Hand test,” write Calabresi and Hirschoff, “the
costs of all accidents not worth avoiding are borne by victims, whereas under the reverse Learned
Hand test they would be borne by injurers.” Id. at 1059. Moreover, the choice between fault and
nonfault liability standards alters the institutional location of the necessary cost-benefit analysis:
When a case comes to judgment under either of the two Learned Hand type tests, a
cost-benefit analysis is made by an outside governmental institution (a judge or a
jury) as to the relative costs of the accident and of accident avoidance. . . . The strict
liability test we suggest does not require that a governmental institution make such
a cost-benefit analysis. It requires of such an institution only a decision as to which
of the parties to the accident is in the best position to make the cost-benefit analysis
between accident costs and accident avoidance costs and to act on that decision once
it is made.
Id. at 1060. Nonfault approaches may not eliminate cost-benefit analysis. In fact, by requiring
that private actors bear the social costs of their decisions, they create institutional incentives for
those actors to engage in preemptive cost-benefit analysis. Of course, it may matter a great deal
that the actors charged with engaging in the cost-benefit calculus are private actors rather than
public actors. For one thing, the allocation of the decision-making responsibility to the private
sphere means fewer decisions by the state. Is nonfault liability thus less interventionist—and
more favorable toward the private sector—than a liability standard that requires a state
determination of fault?

3. Cost-benefit in practice (I): Does tort law really deter? For much of the middle of the
twentieth century, leading scholars doubted that the prospect of tort liability dramatically affected
accident rates. Mid-twentieth-century Yale torts jurist Professor Fleming James, for example,
believed (as he argued in one especially distinctive article) that people are simply accident-prone
or not, as the case may be. Incentives, he insisted, were neither here nor there. See Fleming
James, Jr. & John Dickinson, Accident Proneness and Accident Law, 63 HARV. L. REV. 769
(1950). A generation of scholars followed James’s basic idea.
Today, the literature is considerably less skeptical, though some of the most heroic ideas
of tort damages as a perfect deterrence device remain far-fetched. Some of the best evidence we
have is in the much-studied field of medical malpractice. One recent study examined changes in
state common law making the liability standard hinge on compliance with a national physician’s
custom rather than a state-level physician’s custom; the author concluded that such state law
changes changed physician practice, making them more uniform across regions and bringing them
into line with the national standard. Michael Frakes, The Impact of Medical Liability Standards
on Regional Variations in Physician Behavior: Evidence from the Adoption of National-Standard
Rules, 103 AM. ECON. REV. 257 (2013). The same author finds that reform laws reducing tort
damages decrease the number of episiotomies during vaginal deliveries without altering outcomes
as shown by newborns’ Apgar test scores. Michael Frakes, Defensive Medicine and Obstetric
Practices, 9 J. EMPIRICAL LEGAL. STUD. 457 (2012).
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Evidence from other areas has been modest and mixed, but still indicates some deterrent
effect. For example, a leading study by Alma Cohen and Rajeev Dehejia found that transitions to
no-fault auto liability (and away from tort) led to a 6% increase in traffic-related deaths in the
United States. Alma Cohen & Rajeev Dehejia, The Effect of Automobile Insurance and Accident
Liability Laws on Traffic Fatalities, 47 J. L. & ECON. 357 (2004). Other studies in the same area
have been more equivocal, but the methodological obstacles are considerable.

4. Cost-benefit in practice (II): The problem of insurance. Assuming that tort law does
deter, at least sometimes, what happens when potential plaintiffs and defendants are insured?
How does liability insurance affect the viability of using negligence to deter unwanted and
uneconomic acts? Economists and legal scholars call the problem that insurance raises for the
behavior of insured actors “moral hazard.” If people are insured, the theory goes, they have less
incentive to take reasonable precautions to avoid accidents, and our negligence deterrence system
will fail. Recall, for example, the defendant in Vaughn v. Menlove from Chapter 4, who chose to
risk a fire because he had purchased property insurance.
Fleming James, who was skeptical of the significance of rational incentives, concluded
that there was no evidence available to prove that increasing rates of insurance led to increased
carelessness. Fleming James, Jr., Accident Liability Reconsidered: The Impact of Liability
Insurance, 57 YALE L.J. 549 (1948). But today many scholars, especially those of an economic
orientation, are more likely to credit the significance of moral hazard, at least in some forms. And
the empirical evidence suggests that there is some reason to think that the moral hazard effect is at
work in modern liability insurance markets. Cohen and Dehejia, for example, found that
compulsory auto insurance regimes produced an increase in fatalities; for each percentage point
decrease in uninsured motorists in a state (i.e., for an increase in drivers covered by insurance),
they found a one percent increase in traffic fatalities. Cohen & Dehejia, The Effect of Automobile
Insurance, supra.
But the connection between insurance and accident rates is not a simple one. Insurance
companies know all about moral hazard, of course. They would go bankrupt very quickly if they
did not take it into account in pricing and shaping their policies. Much of the structure of the
typical liability insurance business is designed to counteract the incentives that the fact of
insurance will create for their customers. Insurers try to screen out bad risks at the front-end of
the process. And once they enter into insurance contracts, they design those contracts to
encourage safe behavior; as Professor Tom Baker puts it, insurers seek to create insurance
contracts that do “not encourage the wicked to apply or tempt good people to do wrong.” Tom
Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237, 241 (1996).
One way insurers encourage safety is by developing and disseminating new safety
strategies and mechanisms. Insurance companies have powerful incentives—and an ideal
institutional position—to aggregate information about risks, to analyze it, and to share it with their
policy holders. In one of the most famous examples, firms offering insurance against the
catastrophic effects of early steam boilers were almost single-handedly responsible for
dramatically reducing the risks of boiler design and maintenance. See John Fabian Witt, Speedy
Fred Taylor and the Ironies of Enterprise Liability, 103 COLUM. L. REV. 1 (2003).

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Liability insurers also typically adopt “experience rating” for their insurance premiums.
Insured policy holders whose conduct generates covered accidents often find that their premiums
go up. In insurance areas like automobile insurance, insurers also use information such as traffic
infractions to gauge an insured driver’s likelihood of being in an accident. Experience rating can
thus generate incentives of its own for insured actors to take account of the risk of harm to
others—incentives that are one degree removed from tort law, but which some observers think
may be even more powerful deterrents than the prospect of paying tort damages. The close and
certain connections between accidents and traffic infractions, on the one hand, and increased
automobile insurance rates, on the other, may make the insurance policy incentives for safety
much more salient than the highly attenuated and uncertain connection between unsafe driving
and the prospect of tort liability. See, e.g., John G. Fleming, The Role of Negligence in Modern
Tort Law, 53 VA. L. REV. 815, 825 (1967).

5. Cost-benefit in practice (III): Juries and jury instructions. Finally, we are left with the
realist’s question: does cost-benefit analysis actually influence juries’ decisions? Law professors
Patrick Kelley and Laurel Wendt reviewed the recommended jury instructions in forty-eight states
to see how courts instruct juries on the negligence standard. They laid out five possible
interpretations of negligence: (1) whether the defendant’s conduct was morally wrong according
to prevailing community norms; (2) whether individuals in the jury, upon placing themselves in
the defendant’s shoes along with prudence and carefulness, would have acted as the defendant
actually did; (3) whether the defendant breached a safety convention commonly understood in the
community to protect the kinds of people like the plaintiff; (4) whether an ordinary, reasonable
person would have foreseen danger to others under known circumstances, as described by
Holmes; and, finally, (5) whether the defendant’s actions accorded with an ex ante cost-benefit
analysis, as described by Hand in Carroll Towing.
They found that the first three interpretations had varying support by states’ jury
instructions. However, they found judges rarely instructed juries using the fourth or fifth
interpretations of the negligence standard.
[T]here seems to be no support in the pattern negligence instructions for Holmes’s
theory of the negligence standard. Foreseeability is not mentioned in most of the
negligence instructions, and [in the five states] where it is, the foreseeability of
danger from the defendant’s conduct simpliciter is not presented as the negligence
standard . . . .
Second, the cost-benefit test of negligence does not seem to be the probable meaning
of even those five pattern negligence instructions couched in terms of unreasonable
foreseeable risk. . . . None of the foreseeability instructions except that of
Louisiana’s provision set out the detailed cost-benefit explanation of unreasonable
foreseeable risk. . . . Each instruction identifies foreseeability as the foresight of an
ordinary prudent person, and all but Wisconsin’s instructions ask the jury to
determine, in addition to foreseeable harm from the defendant’s act, whether that
conduct could reasonably be avoided, or whether the act is one that a reasonably
prudent person, in the exercise of ordinary care, would not do. . . . It seems to us
that a jury would interpret that standard not as an invitation to engage in cost-benefit
analysis, but as an invitation to determine how reasonably careful people in their
community would in fact act in light of all the circumstances, including the
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foreseeable risk of harm to others from the proposed conduct.
Patrick J. Kelley & Laurel A. Wendt, What Judges Tell Juries About Negligence: A Review of
Pattern Jury Instructions, 77 CHI.-KENT L. REV. 587, 619-20 (2002).
Kelley and Wendt believe their findings indicate that cost-benefit analysis plays only a
small role, if any, in both jury instructions or actual jury deliberations about negligence; instead,
they contend, the law asks jurors to determine whether a defendant’s actions falls outside the
bounds of a reasonably careful or prudent person. Are they right in thinking that the state jury
instructions they found rule out the cost-benefit approach? Wouldn’t a reasonably prudent person
engage in a cost-benefit analysis before acting? Do reasonably prudent people do some kind of
cost-benefit analysis, even if by the seat of their pants? Should they? Is there any alternative?
One possible alternative to the cost-benefit approach to reasonable care arises in those
settings where, in some jurisdictions, certain actors are said to be held to a standard of care higher
than reasonable care. Consider the next case, Andrews v. United Airlines.

Andrews v. United Airlines, 24 F.3d 39 (9th Cir. 1994)
KOZINSKI, J.
We are called upon to determine whether United Airlines took adequate measures to deal
with that elementary notion of physics—what goes up, must come down. For, while the skies are
friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from
overhead compartments.
I
During the mad scramble that usually follows hard upon an airplane’s arrival at the gate, a
briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews.
No one knows who opened the compartment or what caused the briefcase to fall, and Andrews
doesn’t claim that airline personnel were involved in stowing the object or opening the bin. Her
claim, rather, is that the injury was foreseeable and the airline didn’t prevent it.
The district court dismissed the suit on summary judgment, and we review de novo. . . .
II
The parties agree that United Airlines is a common carrier and as such “owe[s] both a
duty of utmost care and the vigilance of a very cautious person towards [its] passengers.” Acosta
v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, (1970). Though United is “responsible for any,
even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight
reasonably can do under all the circumstances,” it is not an insurer of its passengers’ safety.
“[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be
exercised consistent with the character and mode of conveyance adopted and the practical
operation of [its] business. . . .”
To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews
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presented the testimony of two witnesses. The first was Janice Northcott, United’s Manager of
Inflight Safety, who disclosed that in 1987 the airline had received 135 reports of items falling
from overhead bins. As a result of these incidents, Ms. Northcott testified, United decided to add
a warning to its arrival announcements, to wit, that items stored overhead might have shifted
during flight and passengers should use caution in opening the bins. This announcement later
became the industry standard.
Ms. Andrews’s second witness was safety and human factors expert Dr. David Thompson,
who testified that United’s announcement was ineffective because passengers opening overhead
bins couldn’t see objects poised to fall until the bins were opened, by which time it was too late.
Dr. Thompson also testified that United could have taken additional steps to prevent the hazard,
such as retrofitting its overhead bins with baggage nets, as some airlines had already done, or by
requiring passengers to store only lightweight items overhead.
United argues that Andrews presented too little proof to satisfy her burden. . . . One
hundred thirty-five reported incidents, United points out, are trivial when spread over the millions
of passengers travelling on its 175,000 flights every year. Even that number overstates the
problem, according to United, because it includes events where passengers merely observed items
falling from overhead bins but no one was struck or injured. Indeed, United sees the low
incidence of injuries as incontrovertible proof that the safety measures suggested by plaintiff’s
expert would not merit the additional cost and inconvenience to airline passengers.
III
It is a close question, but we conclude that plaintiff has made a sufficient case to
overcome summary judgment. United is hard-pressed to dispute that its passengers are subject to
a hazard from objects falling out of overhead bins, considering the warning its flight crews give
hundreds of times each day. The case then turns on whether the hazard is serious enough to
warrant more than a warning. Given the heightened duty of a common carrier, even a small risk
of serious injury to passengers may form the basis of liability if that risk could be eliminated
“consistent with the character and mode of [airline travel] and the practical operation of [that]
business. . . .” United has demonstrated neither that retrofitting overhead bins with netting (or
other means) would be prohibitively expensive, nor that such steps would grossly interfere with
the convenience of its passengers. Thus, a jury could find United has failed to do “all that human
care, vigilance, and foresight reasonably can do under all the circumstances.”
The reality, with which airline passengers are only too familiar, is that airline travel has
changed significantly in recent years. As harried travelers try to avoid the agonizing ritual of
checked baggage, they hand-carry more and larger items-computers, musical instruments, an
occasional deceased relative. The airlines have coped with this trend, but perhaps not well enough.
Given its awareness of the hazard, United may not have done everything technology permits and
prudence dictates to eliminate it.
Jurors, many of whom will have been airline passengers, will be well equipped to decide
whether United had a duty to do more than warn passengers about the possibility of falling
baggage. A reasonable jury might conclude United should have done more; it might also find that
United did enough. Either decision would be rational on the record presented to the district court,
which, of course, means summary judgment was not appropriate.
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Note

1. Common carriers. How is the negligence standard applied to United Airlines different
from that applied to an ordinary negligence defendant? Common carriers, traditionally including
innkeepers, landowners, and railroad operators, have been historically held to a higher standard of
care. Judge Kozinski’s opinion seems to follow this tradition. Is a standard that holds a common
carrier liable for even the slightest negligence actually different from a reasonable care standard?
Would it be rational to do “all that human care” can do in order to prevent injuries from
accidents? Will tort law damages induce a common carrier to take such steps? Does cost-benefit
analysis still have a role to play for common carriers?

5. Claim Resolution in the Real World
So far in our consideration of the negligence standard and cost-benefit calculations we
have 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
real world, the decision to adopt such a strategy is itself subject to a cost-benefit analysis. In
many of the most common tort situations, case-by-case evaluations have fallen away in favor of
what are essentially mass settlement systems.

Rules of Thumb in Auto Collision Cases
How do we define negligence in car accident cases? In a sociological study of how car
insurance companies’ claims adjusters determine settlement amounts, H. Laurence Ross (1980)
found that insurance adjusters used easy rules of thumb—like whether a traffic rule was
violated—to determine liability in an accident, “regardless of intention, knowledge, necessity, and
other such qualifications that might receive sympathetic attention even from a traffic court judge.”
In rear-end collisions, adjusters routinely did little investigation, giving a strong presumption of
liability to the rear driver. When a claimant had the formal right of way in the case of a stop sign
or green light, there was usually little follow-up investigation before paying the claimant. He
found similar rules of thumb for most other forms of auto accidents, including head-on collisions,
sideswipes, left-turns, and one-car cases. Instead of engaging in the complexities of the
reasonably prudent person standard, or any other aspect of the negligence standard, car insurance
adjusters rely on these rules of thumb to determine the vast majority of auto accident settlement
amounts. H. LAURENCE ROSS, SETTLED OUT OF COURT 98-104 (1980).
What does this mean for our understanding of the tort system as a provider of
individualized justice? Does every plaintiff get her day in court? John Witt and Samuel
Issacharoff examined how privatized information aggregation takes place in “mature torts”—torts
with common fact patterns like the car accidents Ross studied in Settled Out of Court. They argue
that the existence of repeat-play lawyers and claims agents on both the plaintiffs’ and the
defendants’ side “permits private settlement systems to emerge based on the information the
agents possess about the value of claims in the retail litigation market of adjudication.” Over
time, they claim, these private settlement systems depart substantially from the explicit negligence
calculus of the Learned Hand test. In the aggregate, the standardized negotiations of the repeat183

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play claims agents and defense lawyers can look less like tort law in the courts than like the public
bureaucratic systems that administer accident claims in programs like workers’ compensation.
Such private claims settlement systems emerged by the 1950s and 1960s:
The development and increased coordination of repeat-play claimants’ agents, of
course, promoted considerable anguish among certain sectors of the defense bar.
Yet as some defense-side agents noted, the presence of bargaining agents who knew
the short-cuts, the heuristics, and the rules-of-thumb often made the settlement
process considerably more efficient. In Chicago, for example, insurers found that
for precisely these reasons, the repeat-play plaintiffs’-lawyer specialist was “an
easier man to deal with than a general practitioner.” Insurers dealing with such
lawyers reported that they were regularly able to strike “package-deals” in which
they disposed of “a great many cases at one time.” Indeed, together the plaintiffs’
bargaining agent and the liability insurer’s claims adjuster were, as the vicepresident of one early casualty insurance organization put it, the “lubricant” that
made the law of torts “run with as little friction as possible. . . .” [B]y the mid1960s, automobile accident tort claims were being settled with much greater speed
than other personal injury tort claims.
John Fabian Witt & Samuel Issacharoff, The Inevitability of Aggregated Settlement: An
Institutional Account of American Tort Law, 57 VAND. L. REV. 1571, 1614 (2004).
One example of such repeat-play plaintiffs’-side claims agents are the so-called
“settlement mills”: high-volume personal injury practices that, as Professor Nora Engstrom
describes them, “aggressively advertise and mass produce the resolution of claims, typically with
little client interaction and without initiating lawsuits, much less taking claims to trial.” The eight
firms from around the country that Engstrom studied resolved three times the number of claims
heard by jury trials in all federal district courts in the same period. Intriguingly, in the absence of
individualized accident information or proven ability and willingness to take a claim to trial,
bargains between insurance companies and mill lawyers were informed by past settlements, rather
than past jury verdicts. Engstrom found that, by using these settlement mills, plaintiffs with very
small meritorious claims and plaintiffs with any size of unmeritorious claims fared fairly well,
with far lower costs than further litigation would have imposed. However, plaintiffs with
especially meritorious claims or serious injuries fared relatively poorly when they hired a
settlement mill lawyer. Thus insurance companies may be cooperating with settlement mills
because they “share two sets of overlapping interests: speed and certainty. Insurers, it appears,
cooperate with settlement mills, even in marginal cases, because cooperation is profitable.” Nora
Engstrom, Run-of-the-Mill Justice, 22 G. J. LEGAL ETHICS 1485, 1486, 1491 (2009).
Theoretically, the past settlements that such lawyers rely upon to produce new settlements
were once informed by a jury verdict in a related negligence case. Is that a satisfactory
relationship to the negligence standard and the formal tort system? If not, what would you do to
influence or change the settlement mill system? Does the merit or seriousness of a plaintiff’s
claim change your judgment? Is the existence of the settlement mill a good or a bad thing for the
plaintiff who wants her day in court?
Interestingly, Engstrom’s paper was published in a journal of legal ethics. Why do you
think that is? What kinds of ethical problems arise from the settlement mill system?
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The Failure of No-Fault Auto
In the mid-1960s, a group of professors responded to the expense of litigation in courts
over tort cases with a novel proposal: “no-fault.” Under their plan, only the gravely injured would
have access to the tort system; instead, all car accident victims, regardless of fault, would receive
partial but speedy compensation from their own insurers. Reformers modeled their plans on the
workers’ compensation systems that had displaced tort law in workplaces half a century before.
The plans spread widely—and quickly. By 1976, about half of the states in the U.S. adopted
some version of no-fault auto, or at least substantially restricted car accident victims’ ability to
sue.
But then the wave of reform halted. Resistance from the plaintiffs’ bar and some
unexpected problems could reasonably explain the rapid end of no-fault programs. Yet Engstrom
argues that the halt of no-fault auto expansion came when no-fault systems and the tort settlement
system began to converge. Repeat-play claims agents had begun to produce in the shadow of tort
law a system of settlement that resembled the no-fault systems of the reformers. Auto torts claims
became less adversarial, with more victims recovering modest settlement awards. Meanwhile,
modern no-fault systems became more adversarial, with more claims, money, lawyers, and
lawsuits. With less at stake, the momentum for no-fault systems faded. Nora Engstrom, An
Alternative Explanation for No-Fault’s ‘Demise,’ 61 DEPAUL L. REV. 303 (2011).
What is at stake in choosing between tort and public compensation mechanisms like
workers’ compensation and automobile no-fault systems?

C. Judges and Juries
Of course, there are still some cases that go to a civil jury. And even those cases that do
settle (which is the vast majority) settle in the shadow of the jury system such that their settlement
values reflect the fact of the jury.
The civil jury purports to be a shining hallmark of the American tort system—and only the
American tort system. While the English legal tradition invented the common law jury and then
revered it for nearly eight centuries as one of the great “ancient rights” of the unwritten English
constitution, the U.K. largely abandoned the civil jury trial by the middle of the twentieth century.
Every common law country that received the civil jury from the British, including Australia and
Canada, followed suit by the middle of the twentieth century. See NEIL VIDMAR, WORLD JURY
SYSTEMS (2000). The United States, in short, is an international outlier, which raises two
questions: Why has the U.S. held onto an institution that everyone else around the globe has
thrown aside? And should we join the crowd?
In American tort law, the civil jury has played a distinctively large role—so much so that
Dean Leon Green, a twentieth century giant in the field, once wrote that “probably there is no
class of cases which demands so much jury participation as those we label ‘negligence.’” On the
other hand, Green observed further, “there is no other group for which the courts have developed
so many subtle doctrines for effectually controlling jury judgment and reaching results that the
appellate courts themselves approve.” LEON GREEN, JUDGE AND JURY 386 (1930). Reviewing the
situation, another leading torts jurist contended that the “allocation of work” as between “judge
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and jury in torts cases” is “the end to which all doctrines, rules and formulae in current use in such
cases are directed.” Fowler V. Harper, Judge and Jury, 6 IND. L.J. 285, 285 (1931).

Baltimore & Ohio Railroad Co. v. Goodman, 275 U.S. 66 (1927)
HOLMES, J.
This is a suit brought by the widow and administratrix of Nathan Goodman against the
petitioner for causing his death by running him down at a grade crossing. The defence is that
Goodman’s own negligence caused the death. At the trial the defendant asked the Court to direct
a verdict for it, but the request and others looking to the same direction were refused, and the
plaintiff got a verdict and a judgment which was affirmed by the Circuit Court of Appeals.
Goodman was driving an automobile truck in an easterly direction and was killed by a
train running southwesterly across the road at a rate of not less than 60 miles an hour. The line
was straight but it is said by the respondent that Goodman ‘had no practical view’ beyond a
section house 243 feet north of the crossing until he was about 20 feet from the first rail, or, as the
respondent argues, 12 feet from danger, and that then the engine was still obscured by the section
house. He had been driving at the rate of 10 or 12 miles an hour but had cut down his rate to 5 or
6 miles at about 40 feet from the crossing. It is thought that there was an emergency in which, so
far as appears, Goodman did all that he could.
We do not go into further details as to Goodman’s precise situation, beyond mentioning
that it was daylight and that he was familiar with the crossing, for it appears to us plain that
nothing is suggested by the evidence to relieve Goodman from responsibility for his own death.
When a man goes upon a railroad track he knows that he goes to a place where he will be killed if
a train comes upon him before he is clear of the track. He knows that he must stop for the train
not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure
otherwise whether a train is dangerously near he must stop and get out of his vehicle, although
obviously he will not often be required to do more than to stop and look. It seems to us that if he
relies upon not hearing the train or any signal and takes no further precaution he does so at his
own risk. If at the last moment Goodman found himself in an emergency it was his own fault that
he did not reduce his speed earlier or come to a stop. It is true. . . that the question of due care
very generally is left to the jury. But we are dealing with a standard of conduct, and when the
standard is clear it should be laid down once for all by the Courts. . . .
Judgment reversed.

OLIVER WENDELL HOLMES, JR., THE COMMON LAW 111, 123-4 (1881)
If, now, the ordinary liabilities in tort arise from failure to comply with fixed and uniform
standards of external conduct, which every man is presumed and required to know, it is obvious
that it ought to be possible, sooner or later, to formulate these standards at least to some extent,
and that to do so must at last be the business of the court. It is equally clear that the featureless
generality, that the defendant was bound to use such care as a prudent man would do under the
circumstances, ought to be continually giving place to the specific one, that he was bound to use
this or that precaution under these or those circumstances. The standard which the defendant was
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bound to come up to was a standard of specific acts or omissions, with reference to the specific
circumstances in which he found himself. If in the whole department of unintentional wrongs the
courts arrived at no further utterance than the question of negligence, and left every case, without
rudder or compass, to the jury, they would simply confess their inability to state a very large part
of the law which they required the defendant to know, and would assert, by implication, that
nothing could be learned by experience. But neither courts nor legislatures have ever stopped at
that point. . . .
When a case arises in which the standard of conduct, pure and simple, is submitted to the
jury, the explanation is plain. It is that the court, not entertaining any clear views of public policy
applicable to the matter, derives the rule to be applied from daily experience, as it has been agreed
that the great body of the law of tort has been derived. But the court further feels that it is not
itself possessed of sufficient practical experience to lay down the rule intelligently. It conceives
that twelve men taken from the practical part of the community can aid its judgment. Therefore it
aids its conscience by taking the opinion of the jury.
But supposing a state of facts often repeated in practice, is it to be imagined that the court
is to go on leaving the standard to the jury forever? Is it not manifest, on the contrary, that if the
jury is, on the whole, as fair a tribunal as it is represented to be, the lesson which can be got from
that source will be learned? Either the court will find that the fair teaching of experience is that
the conduct complained of usually is or is not blameworthy, and therefore, unless explained, is or
is not a ground of liability; or it will find the jury oscillating to and fro, and will see the necessity
of making up its mind for itself. There is no reason why any other such question should not be
settled, as well as that of liability for stairs with smooth strips of brass upon their edges. The
exceptions would mainly be found where the standard was rapidly changing, as, for instance, in
some questions of medical treatment.
If this be the proper conclusion in plain cases, further consequences ensue. Facts do not
often exactly repeat themselves in practice; but cases with comparatively small variations from
each other do. A judge who has long sat at nisi prius [i.e., in a trial court] ought gradually to
acquire a fund of experience which enables him to represent the common sense of the community
in ordinary instances far better than an average jury. He should be able to lead and to instruct
them in detail, even where he thinks it desirable, on the whole, to take their opinion. Furthermore,
the sphere in which he is able to rule without taking their opinion at all should be continually
growing.

Notes

1. Rules and standards. Holmes saw great appeal in creating hard and fast rules to govern
cases with similar fact patterns. In doing so, Holmes helped to illuminate an important distinction
between two different kinds of legal norms. One is rules. The other is standards. Rules provide
crisp, on-off metrics for decision-making. For example, an administrative agency might require
that automobiles be designed with air bags, and a court might instruct a jury that any car designed
without air bags is negligently designed. Standards, in contrast, offer open-ended and flexible
criteria for deciding cases. The law of negligence, for example, might require that automobiles be
designed in a reasonably safe manner, which under some circumstances would require airbags,
but which under other circumstances would not.
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In Holmes’s view, a rule such as “all drivers crossing the railroad must stop, look, and
listen,” or “all stairs must have brass ‘nosing’ strips on their edges,” made for a cleaner decisionmaking tool than the “featureless generality” of the negligence standard. What are the general
considerations when choosing between standards and rules? Note that the choice between these
two decision strategies is pervasive in social life. Insurance companies rely heavily on rules. So
do bureaucracies of any number of kinds. Teachers often use rules in managing large classes.
The most famous social movement activists and military leaders, by contrast, have typically opted
for standards in developing strategy around their most important efforts. Professor Beverly Gage,
director of Yale’s Brady-Johnson Program in Grand Strategy, observes that Prussian military
theorist Carl von Clausewitz rejected “hard-and-fast rules” as “always too rigid for the
battlefield,” preferring instead “the application of principle,” which Clausewitz believed “allows
for a greater latitude of judgment.” Movement leader Saul Alinsky likewise asserted that “[t]here
can be no prescriptions for particular situations because the same situation rarely recurs, any more
than history repeats itself.” Alinsky insisted that it was “the principles that the organizer must
carry with him in battle.” The application of imagination, in Alinsky’s view, allows activists to
relate principles “tactically to specific situations” in a way that no uniform rule could capture. See
Beverly Gage, The Blob and the Mob, in RETHINKING GRAND STRATEGY (Christopher Nichols &
Andrew Preston eds., forthcoming Oxford University Press).
What are the considerations that prompt effective decisionmakers to choose rules over
standards or vice versa? For the law, note that the choice between these two legal technologies
may entail important consequences for the relative power of judges and juries.

2. Does a jury serve any role other than the updating function Holmes alludes to in his
discussion of medical malpractice cases, even in repeated fact pattern cases? Seven years after
Goodman, Holmes’s replacement on the Supreme Court, Benjamin Cardozo, revisited Holmes’s
hard and fast judge-made rule for railroad crossing cases.

Pokora v. Wabash Railroad Co., 292 U.S. 98 (1934)
CARDOZO, J.
John Pokora, driving his truck across a railway grade crossing in the city of Springfield,
Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court
held that he had been guilty of contributory negligence, and directed a verdict for the defendant.
The Circuit Court of Appeals (one judge dissenting) affirmed . . . resting its judgment on the
opinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66. A writ of certiorari brings the
case here.
Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The
tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a
crossing at Edwards street running east and west. Two ice depots are on opposite corners of
Tenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving
west along Edwards street, stopped at the first of these corners to get his load of ice, but found so
many trucks ahead of him that he decided to try the depot on the other side of the way. In this
crossing of the railway, the accident occurred.
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The defendant has four tracks on Tenth street; a switch track on the east, then the main
track, and then two switches. Pokora, as he left the northeast corner where his truck had been
stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet
east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet
from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At
the same time he listened. There was neither bell nor whistle. Still listening, he crossed the
switch, and reaching the main track was struck by a passenger train coming from the north at a
speed of twenty-five to thirty miles an hour.
. . . The record does not show in any conclusive way that the train was visible to Pokora
while there was still time to stop. A space of eight feet lay between the west rail of the switch and
the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a
half or three feet), as well as an overhang of the box cars, which brought the zone of danger even
nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was
farther back (perhaps five feet or even more), just how far we do not know, for the defendant has
omitted to make proof of the dimensions. . . . For all that appears he had no view of the main track
northward, or none for a substantial distance, till the train was so near that escape had been cut
off.
In such circumstances the question, we think, was for the jury whether reasonable caution
forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt
it was his duty to look along the track from his seat, if looking would avail to warn him of the
danger. This does not mean, however, that if vision was cut off by obstacles, there was
negligence in going on, any more than there would have been in trusting to his ears if vision had
been cut off by the darkness of the night. Pokora made his crossing in the daytime, but like the
traveler by night he used the faculties available to one in his position. A jury, but not the court,
might say that with faculties thus limited he should have found some other means of assuring
himself of safety before venturing to cross. The crossing was a frequented highway in a populous
city. Behind him was a line of other cars, making ready to follow him. To some extent, at least,
there was assurance in the thought that the defendant would not run its train at such a time and
place without sounding bell or whistle. Indeed, the statutory signals did not exhaust the
defendant’s duty when to its knowledge there was special danger to the traveler through
obstructions on the roadbed narrowing the field of vision. All this the plaintiff, like any other
reasonable traveler, might fairly take into account. All this must be taken into account by us in
comparing what he did with the conduct reasonably to be expected of reasonable men.
The argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is
a barrier in the plaintiff’s path, irrespective of the conclusion that might commend itself if the
question were at large. There is no doubt that the opinion in that case is correct in its result.
Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a
clear space of eighteen feet within which the train was plainly visible. With that opportunity, he
fell short of the legal standard of duty established for a traveler when he failed to look and see.
This was decisive of the case. But the court did not stop there. It added a remark, unnecessary
upon the facts before it, which has been a fertile source of controversy. “In such circumstances it
seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must
stop and get out of his vehicle, although obviously he will not often be required to do more than to
stop and look.” . . .
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Standards of prudent conduct are declared at times by courts, but they are taken over from
the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday
experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes
even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn
nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets
his car in motion, the hidden train may be upon him. Often the added safeguard will be dubious
though the track happens to be straight, as it seems that this one was, at all events as far as the
station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will
cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the
driver turns his back to regain the waiting car, and may then descend upon him suddenly when his
car is on the track. Instead of helping himself by getting out, he might do better to press forward
with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless,
may be transformed in a few seconds into an instrument of destruction. At times the course of
safety may be different. One can figure to oneself a roadbed so level and unbroken that getting
out will be a gain. Even then the balance of advantage depends on many circumstances and can
be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he
was to leave it on the switch, there was the possibility that the box cars would be shunted down
upon him before he could regain his seat. The defendant did not show whether there was a
locomotive at the forward end, or whether the cars were so few that a locomotive could be seen.
If he was to leave his vehicle near the curb, there was even stronger reason to believe that the
space to be covered in going back and forth would make his observations worthless. One must
remember that while the traveler turns his eyes in one direction, a train or a loose engine may be
approaching from the other.
Illustrations such as these bear witness to the need for caution in framing standards of
behavior that amount to rules of law. The need is the more urgent when there is no background of
experience out of which the standards have emerged. They are then, not the natural flowerings of
behavior in its customary forms, but rules artificially developed, and imposed from without.
Extraordinary situations may not wisely or fairly be subjected to tests or regulations that are
fitting for the commonplace or normal. In default of the guide of customary conduct, what is
suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the
judgment of a jury. The opinion in Goodman’s case has been a source of confusion in the federal
courts to the extent that it imposes a standard for application by the judge, and has had only
wavering support in the courts of the states. We limit it accordingly.
The judgment should be reversed, and the cause remanded for further proceedings in
accordance with this opinion.

Notes

1. Cardozo versus Holmes. Does Pokora overrule Goodman? Or are the two grappling with
different fact patterns? In Pokora, Cardozo suggests that the lower federal courts had not
supported 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
doctrine?

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2. Grade-crossing accidents in the 21st century. Grade-crossing accidents continue to vex
the twenty-first century tort system. In the mid-2000s, the New York Times found that, “[o]n
average, one person a day dies at a crossing in the United States.” In a series of stories, the paper
documented the challenges plaintiffs face in wrongful death suits against railroad companies.
Among other things, the Times series suggested that railroads systematically destroyed relevant
evidence in grade-crossing cases to avoid liability. See, e.g., Walt Bogdanish, In Deaths at Rail
Crossings, Missing Evidence and Silence, N.Y. TIMES, Jul. 11, 2004.
Despite Cardozo’s apparent win in the judges versus juries debate in railroad crossings in
the 1930s with Pokora, some state courts have continued to demand a Goodman rule-like
structure in grade-crossing accidents, especially in single-track and open country situations. In
Ridgeway v. CSX Transportation, Inc., 723 So. 2d 600, 605 (Ala. 1998), the court found the
Goodman rule “deeply rooted in Alabama law” and elaborated that the rule in Alabama meant that
“a person who fails to stop, look, and listen before crossing a railroad track is, in the absence of
special circumstances, contributorily negligent as a matter of law.” The Supreme Court of
Virginia also adopted a version of Goodman, calling a driver who had failed to adequately stop,
look, and listen “the architect of his own misfortune.” Wright v. Norfolk & W. Ry. Co., 427
S.E.2d 724, 730 (Va. 1993). The driver had flouted Virginia law, which required “the operator of
a vehicle approaching a grade crossing . . . to look and listen at a time and place when both
looking and listening will be effective, intelligently using both eyes and ears.” Id. (internal
citations omitted).
Other state courts side with Pokora and resolve the grade-crossing debate on the side of
juries rather than judges. Judge Posner analogized an old Illinois railroad crossing rule to the
Goodman rule and found that “[b]oth rules buck the twentieth-century trend—as strong in Illinois
as anywhere—toward leaving questions of care to the jury to be decided under the broad,
unelaborated standard of negligence.” Trevino v. Union Pac. R. Co., 916 F.2d 1230, 1235 (7th
Cir. 1990). And the more complicated the rail crossing, the more likely the plaintiff will get past
the judge to the jury. For example, in McKinney v. Yelavich, 90 N.W.2d 883 (Mich. 1958), the
Supreme Court of Michigan refused the lower court’s efforts towards “rule canonization” of
contributory negligence in crossing cases, given that the pedestrian plaintiff had been hit in a
complicated, poorly marked six-way intersection. The court gave a history of the Goodman and
Pokora before explaining its view of the problem with allowing judges to craft hard and fast rules
in negligence cases:
We have elaborated upon the history of the stop, look and listen “rule” because it is
characteristic of a host of others. Each has its origin in a justifiable holding in a
particular fact situation. By lazy repetition the holding becomes a “rule,” entirely
divorced from its creative facts. It grows as an excrescence of injustice until its very
strength concentrates a court’s attention upon it, with, normally, the result seen in
the Pokora case.
Id. Pokora reigns not only in most state courts, but also in the Third Restatement, which warns
that apparently “constant or recurring issue[s] of conduct” often turn out “on closer inspection” to
involve too many “variables” for one-size-fits-all treatment. Tort law, insist the editors of the
Restatement, adopts “an ethics of particularism, which tends to cast doubt on the viability of
general rules capable of producing determinate results.” RESTATEMENT (THIRD) OF TORTS: PHYS.
& EMOT. HARM § 8 (2010). On the other hand, even the Restatement editors concede that
“[o]ccasionally . . . the need for providing a clear and stable answer to the question of negligence
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is so overwhelming as to justify a court in withdrawing the negligence evaluation from the jury.”
They cite, for example, highway cases involving seatbelts, where the considerations are “of such
force as to make it acceptable for a state’s highest court to reach a final, general decision as to
whether not wearing seat belts is or is not contributory negligence.” Id.

3. The judge-jury debate. The judge versus jury debate is by no means confined to rail
crossing accidents. Similar debates have cropped up around other repeat fact pattern cases. For
example, New York courts sought to manage slip-and-fall cases in public spaces with the doctrine
that businesses have no duty to warn customers of “open and notorious” hazards over which they
could trip and fall. See, e.g., Michalski v. Home Depot, Inc., 225 F.3d 113 (2d Cir. 2000); Pinero
v. Rite Aid of New York, Inc., 294 A.D. 2d 251 (N.Y. App. Div. 2002). Where a hazard is “open
and notorious” as a matter of law, a defendant has no duty to warn.

4. Studying the jury. The canonical study of juries was done at the University of Chicago by
Professors Harry Kalven and Hans Zeisel, who studied 8,000 civil and criminal juries in the early
1960s. They concluded that juries and judges agreed on a case’s outcome in 78% of criminal
cases and 79% of civil cases. As they put it, “the jury agrees with the judge often enough to be
reassuring, yet disagrees often enough to keep it interesting.” Harry Kalven, Jr., The Dignity of
the Civil Jury, 50 VA. L. REV. 1055, 1064 (1964).
In the 20% of criminal cases in which the jury and judge disagreed, the jury was far more
likely than a judge to acquit rather than convict. See HARRY KALVEN, JR. & HANS ZEISEL, THE
AMERICAN JURY 55-81 (1966). But the asymmetry of judge-jury disagreement in criminal cases
did not extend to the civil cases in the Kalven and Zeisel sample. In civil cases involving
disagreement, judges and juries exhibited no systematic divergence from one another as between
plaintiffs and defendants. “Whereas the greater leniency of the jury toward the criminal defendant
is congruent with popular expectations, the equality of pro-plaintiff response between judge and
jury in civil cases is in sharp contrast to popular expectations.” Kalven, The Dignity of the Civil
Jury, supra at 1065.
Indeed, common popular perceptions of the jury tend to ascribe to the institution the
failures of costliness, inefficiency, and inexperience—and sometimes even sheer incompetence.
See, e.g., FRANKLIN STRIER, RECONSTRUCTING JUSTICE: AN AGENDA FOR TRIAL REFORM (1994).
Yet more recent surveys of empirical work on the jury system tend to confirm Kalven and Zeisel’s
initial work, suggesting that judges and juries are not as different decision-makers as one might
imagine. See, e.g., Neil Vidmar, The Performance of the American Civil Jury: An Empirical
Perspective, 40 ARIZ. L. REV. 849 (1998).
So if Kalven and Zeisel’s findings continue to hold true today—if judges and juries agree
the vast majority of the time and are as pro-plaintiff as one another—is there anything to be said
on behalf of juries than cannot also be said on behalf of judges? For example, neither judges nor
juries bring subject-matter expertise to the resolution of complicated questions of health and
safety.
One area where juries seem to behave differently on a systematic basis from judges is in
the awarding of punitive damages. We will turn to punitive damages at the end of this casebook.
For now, the important point is that juries seem to handle punitive damages awards quite
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differently from judges. One study of over 500 mock jury sessions found that the jury group
deliberation process produced radical changes in damages awards. They found that, “[a]s
compared with the median of individual predeliberation judgments, dollar awards increased after
group deliberation, often dramatically so: Among juries that voted to award punitive damages,
27% reached dollar verdicts that were as high or higher than the highest predeliberation judgment
among their own jurors.” David Schkade, Cass Sunstein & Daniel Kahneman, Deliberating
About Dollars: The Severity Shift, in PUNITIVE DAMAGES (2002) (emphasis omitted). In fact,
while moral judgments of fault did not change after deliberation, dollar amounts did.
Elsewhere, Sunstein has attributed this dollar-increasing phenomenon to the psychological
dynamics of intra-group polarization by which groups “go to extremes.” See Cass Sunstein, The
Law of Group Polarization 1, 18-19 (John M. Olin Law & Economics Working Paper No. 91,
2000).
Others have faulted juries for rejecting—and even punishing—explicit cost-benefit
reasoning through punitive damage awards. In the late 1990s, Professor Kip Viscusi surveyed
about 500 juror-eligible adults to determine how they determine damages in hypothetical cases.
He found that individuals awarded 50% larger punitive damages for companies that had
performed a cost-benefit analysis, as compared to a similarly at-fault company that did not
perform a cost-benefit analysis. In addition, individuals awarded larger punitive damages against
companies that placed a greater value on the loss of a human life, in comparison to a company
that devalued human life. Thus “companies are in the bizarre position of risking greater liability
if they place more weight on consumer safety.” W. Kip Viscusi, Corporate Risk Analysis: A
Reckless Act?, 52 STAN. L. REV. 547, 555-60 (2000).

5. Why are juries still around? If juries make the same decisions as judges, except when
juries admonish wrongdoers with extreme (and, according to many observers, unwarranted)
punitive damages, why are civil juries still around? What explains the persistence of the
American civil jury system? The Seventh Amendment, which guarantees a civil jury in federal
courts, has clear explanatory power for the federal civil jury system. But American tort law is
mostly state law, and the Seventh Amendment is not incorporated against the states and so does
not apply at all in state courts, which are the more important institutions for most tort cases. To
be sure, state constitutions have jury-trial guarantees, too. But these provisions cannot explain the
persistence of the civil jury, because state constitutions almost never entrench their provisions
against subsequent political reform. State constitutions are typically almost as easy to amend as
statutes. See Helen Herschkoff, Positive Rights and State Constitutions: The Limits of Federal
Rationality Review, 112 HARV. L. REV. 1131 (1999); G. Alan Tarr, Understanding State
Constitutions, 65 TEMP. L. REV. 1169, 1181-84 (1992).
The problem of explaining the durability of the jury grows when we look at its history.
When the Seventh Amendment was ratified, the civil jury may have been seen as “a bulwark
against tyranny.” But very quickly objections and critiques emerged. By the time of the adoption
of the Federal Rules of Civil Procedure in 1938, many scholars and judges “regarded civil juries
less as a bulwark . . . than as a nuisance.” Renee Lerner, The Rise of Directed Verdict: Jury
Power in Civil Cases Before the Federal Rules of 1938,” 81 G.W.U. L. REV. 448, 451-52 (2013).
So how did the jury survive, given such criticism? Lerner argues that the rise of jury-limiting
procedures in the nineteenth and twentieth centuries, along with substantive tort doctrines like
contributory negligence, and later the rise of a powerful summary judgment rule, narrowed the
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jury’s authority so substantially as to make abolishing the institution less imperative. Green
expressed much the same idea when he wrote that
the extravagant pains we take to preserve the integrity of jury trial in final analysis
are completely counteracted in the more extravagant provisions which we make for
[judicial] review, together with the remarkable technique . . . courts have developed
for subjecting every phase of trial to their own scrutiny and judgment.
LEON GREEN, JUDGE AND JURY 390-91 (1930). The Green and Lerner explanation of the
persistence of the civil jury system is that jury trials survive in the United States, and only in the
United States, in significant part because they exist in theory but barely exist in practice. The
pattern grows stronger when we see that jury trials are expressly disallowed in the Federal Tort
Claims Act, the Longshoreman and Harbor Workers Compensation Act, and the Miller and
Tucker Acts (governing contract claims against the federal government). There are no juries in
Tax Court, Customs Court, or the Court of Claims. Workers’ compensation did away with juries
for work accidents. And entire fields such as admiralty and maritime law, naturalization and
immigration law, and bankruptcy law are largely conducted in the absence of juries. See Edward
Devitt, Federal Civil Jury Trials Should Be Abolished, 60 A.B.A. J. 570 (1974).
Another distinctive factor in the U.S. is the politically influential plaintiffs’ bar, which
responded by embracing the beleaguered institution. Even as judges attempted to pry tort cases
away from the jury and scholars and politicians attempted to pry personal injury cases away from
civil trials entirely, in the 1950s and early 1960s, the plaintiffs’ bar became a powerful interest
group defending the common law trial and the jury. Rallying against administrative alternatives
as “bureaucratic socialism” and “modern totalitarianism,” against which only the jury could stand
tall, the plaintiffs’ bar lobbied loudly and in many cases successfully against the displacement of
the ancient Anglo-American institution. See JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS
209-10 (2007).
Setting aside the continuing controversy over the merits of the jury, virtually everyone
agrees that in day-to-day practice juries are deciding less and less. In a review of data on state and
federal court trials through the mid-2000s, Professor Marc Galanter discovered a century-long
decline in the proportion of civil trials terminating in or after trial: while about 20% of cases
ended in trial in 1938, just 2% did in 2003. In fact, even as the absolute number of cases in
federal and state systems has increased, there has still been a decline in the absolute number of
civil trials. In 1992, federal courts held 1,728 tort trials with juries, and state courts in the
seventy-five most populous counties held 9,431. Yet in 2001, federal courts held 1,471 tort trials
with juries, and the county courts held 7,218. That’s a respective 33% and 24% decline in jury
trials for tort cases over the course of a decade. Marc Galanter, The Hundred-Year Decline of
Trials and the Thirty Years War, 57 STAN. L. REV. 1255, 1256-59 (2005).

6. 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
processes, civil trials have been dominated by a heightened judicial role in scrutinizing expert
witnesses (in what are known as Daubert hearings). Professor Richard Nagareda contends that
“[t]he full-scale, front-to-back, common law trial before a jury has nearly vanished. Its
replacement effectively consists of a regime of sequenced trial-like proceedings on what are
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formally pretrial motions, all ruled upon by a judge alone.” Richard Nagareda, 1938 All Over
Again? Pretrial as Trial in Complex Litigation, 60 DEPAUL L. REV. 647, 667-68 (2010).
More broadly, Professor John Langbein argues that the Federal Rules of Civil Procedure
displaced both judge and jury by arming both plaintiff and defendant with the information they
need to settle early on in a case:
[A] civil procedure system serves two connected functions: investigating the facts
and adjudicating the dispute. The better the system investigates and clarifies the
facts, the more it promotes settlement and reduces the need to adjudicate. The
Anglo-American common law for most of its history paid scant attention to the
investigative function. . . . Pleading was the only significant component of pretrial
procedure, and the dominant function of pleading was to control the jury by
narrowing to a single issue the question that the jury would be asked to decide. This
primitive pretrial process left trial as the only occasion at which it was sometimes
possible to investigate issues of fact. Over time, the jury-free equity courts
developed techniques to enable litigants to obtain testimonial and documentary
evidence in advance of the adjudication. The fusion of law and equity in the Federal
Rules of Civil Procedure of 1938 brought those techniques into the merged
procedure, and expanded them notably. The signature reform of the Federal Rules
was to shift pretrial procedure from pleading to discovery. A new system of civil
procedure emerged, centered on the discovery of documents and the sworn
depositions of parties and witnesses. Related innovations, the pretrial conference
and summary judgment, reinforced the substitution of discovery for trial. This new
procedure system has overcome the investigation deficit that so afflicted common
law procedure, enabling almost all cases to be settled or dismissed without trial.
Pretrial procedure has become nontribal procedure by making trial obsolete.
John Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J. 522 (2012).
Ironically, the decline in jury trials may not be a sign of the decline of jury power at all.
In a world where discovery and pre-trial procedures such as Daubert hearings allow the parties to
have increasingly good information about the value of their claims, plaintiffs and defendants alike
will look to settle more often. But settlement happens in the shadow of the jury. Settlements, in
other words, reflect the expected costs and benefits of going to trial with a jury. Indeed, the
pervasiveness of settlement may undermine one of the main complaints with juries. Many object
that the random draw of lay juries injects an element of chance into the dispute resolution process.
It is not fair, critics say, that important cases are resolved by the luck of the draw in juror
selection. But in a world of pervasive private settlements, one bad jury hardly matters. The
quirks of any one jury’s outlier decision are washed away in the averaging that parties do when
they estimate settlement values.

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D. Custom
1. The Basic Rule—and Its Functions
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932)
HAND, J.
[This case arose out of the foundering of two coal barges off the mid-Atlantic coast in March,
1928. Two tugs, the T. J. Hooper and Montrose, left Hampton Roads, bound for New York and
New England ports on March 7. Each tug towed three barges. There were no storm warnings at
any station along the coast until 9:30 a.m. on March 9th, when the tugs were in the vicinity of
Atlantic City, or about 50 miles north of Delaware breakwater. Later that day, the tugs ran into
strong winds and heavy seas. Early the next morning, one barge in the tow of each tug sank with
their cargoes, though the crew of barges escaped unharmed. There was no allegation that the tugs
acted negligently in leaving Hampton bays on the 7th. Several other tugs traveling along the coast
that day pulled into the Delaware breakwater on the 8th, but the district court found that they did
so only because they were equipped with radios and received early warnings of the impending
storm. And once the storm broke, all the parties conceded that the wiser course was to try to push
through. The case thus came down to a single question: whether the cargo and barge owners were
right in their claim that “the two tugs were unseaworthy in not having effective radio sets, capable
of receiving the forecasts of unfavorable weather broadcast along the coast on March 8th.”]
A March gale is not unusual north of Hatteras; barges along the coast must be ready to
meet one, and there is in the case at bar no adequate explanation for the result except that these
were not well-found. . . .
The weather bureau at Arlington broadcasts two predictions daily, at ten in the morning
and ten in the evening. Apparently there are other reports floating about, which come at uncertain
hours but which can also be picked up. The Arlington report of the morning read as follows:
“Moderate north, shifting to east and southeast winds, increasing Friday, fair weather to-night.”
The substance of this, apparently from another source, reached a tow bound north to New York
about noon, and, coupled with a falling glass, decided the master to put in to the Delaware
Breakwater in the afternoon. The glass had not indeed fallen much and perhaps the tug was over
cautious; nevertheless, although the appearances were all fair, he thought discretion the better part
of valor. Three other tows followed him . . . .
Moreover, the “Montrose” and the “Hooper” would have had the benefit of the evening
report from Arlington had they had proper receiving sets. This predicted worse weather; it read:
“Increasing east and southeast winds, becoming fresh to strong, Friday night and increasing
cloudiness followed by rain Friday.” The bare “increase” of the morning had become “fresh to
strong.” To be sure this scarcely foretold a gale of from forty to fifty miles for five hours or more,
rising at one time to fifty-six; but if the four tows thought the first report enough, the second ought
to have laid any doubts. The master of the “Montrose” himself, when asked what he would have
done had he received a substantially similar report, said that he would certainly have put in. The
master of the “Hooper” was also asked for his opinion, and said that he would have turned back
also, but this admission is somewhat vitiated by the incorporation in the question of the statement
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that it was a “storm warning,” which the witness seized upon in his answer. All this seems to us
to support the conclusion of the judge that prudent masters, who had received the second warning,
would have found the risk more than the exigency warranted . . . .
They did not, because their private radio receiving sets, which were on board, were not in
working order. These belonged to them personally, and were partly a toy, partly a part of the
equipment, but neither furnished by the owner, nor supervised by it. It is not fair to say that there
was a general custom among coastwise carriers so as to equip their tugs. One line alone did it; as
for the rest, they relied upon their crews, so far as they can be said to have relied at all. An
adequate receiving set suitable for a coastwise tug can now be got at small cost and is reasonably
reliable if kept up; obviously it is a source of great protection to their tows. Twice every day they
can receive these predictions, based upon the widest possible information, available to every
vessel within two or three hundred miles and more. Such a set is the ears of the tug to catch the
spoken word, just as the master’s binoculars are her eyes to see a storm signal ashore. Whatever
may be said as to other vessels, tugs towing heavy coal laden barges, strung out for half a mile,
have little power to maneuver, and do not, as this case proves, expose themselves to weather
which would not turn back stauncher craft. They can have at hand protection against dangers of
which they can learn in no other way.
Is it then a final answer that the business had not yet generally adopted receiving sets?
There are yet, no doubt, cases where courts seem to make the general practice of the calling the
standard of proper diligence; we have indeed given some currency to the notion ourselves. . . .
Indeed in most cases reasonable prudence is in fact common prudence; but strictly it is never its
measure; a whole calling may have unduly lagged in the adoption of new and available devices. It
may never set its own tests, however persuasive be its usages. Courts must in the end say what is
required; there are precautions so imperative that even their universal disregard will not excuse
their omission. . . . But here there was no custom at all as to receiving sets; some had them, some
did not; the most that can be urged is that they had not yet become general. Certainly in such a
case we need not pause; when some have thought a device necessary, at least we may say that
they were right, and the others too slack. The statute (section 484, title 46, U.S. Code [46 USCA
§ 484]) does not bear on this situation at all. It prescribes not a receiving, but a transmitting set,
and for a very different purpose; to call for help, not to get news. We hold the tugs therefore
because had they been properly equipped, they would have got the Arlington reports. The injury
was a direct consequence of this unseaworthiness.
Decree affirmed.

Notes

1. What is the custom? In the District Court, Judge Alfred Coxe adopted a different view of
the custom in question, but came to the same outcome. As Judge Coxe saw it, there was a custom
on tugs to have radios on board. Coxe then applied the custom to conclude that The T.J. Hooper
and The Monrose were unseaworthy for failure to have complied with the custom. How did
Judge Hand reach the same end point even though he came to the opposite view of the relevant
practice?

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2. The Restatement. According to the Restatement (Third) of Torts, “complying with custom
confirms that the actor has behaved in an ordinary way.” RESTATEMENT (THIRD) OF TORTS: PHYS.
& EMOT. HARM § 13 cmt. a (2010). The Restatement further provides that compliance with
custom is “evidence that the actor’s conduct is not negligent but does not preclude a finding of
negligence.” Id. § 13.

3. When is a practice a custom? Customs may provide evidence of reasonableness. But
what constitutes a custom?
A custom, according to one prominent torts treatise, is “a fairly well-defined and regular
usage or way of doing a specific thing, among a group of people such as a trade, calling, or
profession.” 3 FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY, HARPER, JAMES &
GRAY ON TORTS § 17.3 (3d ed. 2006). The U.S. Supreme Court, in an 1838 action for ejectment
of land, defined custom as “the law or rule which is not written and which men have used for a
long time, supporting themselves by it in the things and reasons with respect to which they have
exercised it,” being introduced by the people, deriving its authority from the express or tacit
consent of the king, and having the force of law. See Strother v. Lucas, 37 U.S. 410, 445-46
(1838).
To count as a custom, a practice must be general, see Wise & Co. v. Wecoline Products,
36 N.E.2d 623 (N.Y. 1941); Alberts v. Mutual Serv. Cas. Ins. Co., 123 N.W.2d 96 (S.D. 1963),
definite, fixed, reasonable, and old enough to have been known to parties, see Dial v. Lathrop R-II
Sch. Dist., 871 S.W.2d 444, 449 (Mo. 1994). A custom does not have to be universal. See U.S. v.
Stanolind Crude Oil Purchasing Co., 113 F.2d 194 (C.C.A. 10th Cir. 1940). However, it has to
be known and practiced by more than a few people and cannot be limited to isolated instances.
See El Encanto, Inc. v. Boca Raton Club, Inc., 68 So.2d 819 (Fla. 1953).

4. Majoritarian default rules. Why defer to custom, as Judge Coxe suggests? One reason
might be that the groups that create customs and are responsible for the practices in a given field
have lots of very good information about the relevant field and are well positioned—much better
positioned than judges and juries—to make informed decisions about which risks are reasonable
and which risks are not. An industry practice or custom is something that arises out of those
informed decisions. The case for following custom is strongest when, as in The T.J. Hooper, the
parties are in contractual relationships with one another in which the customs of the relevant
industry are known to all involved.
We might think of industry customs or practices in such cases as default rules of
contractual interpretation, or contract presumptions. The question, one might say, is this: how
would the parties have allocated the losses arising out of the absence of radios on the tugs? In
many circumstances, the answer to this question might be said to lie in the custom of the trade. If
the custom is to have radios, then we might imagine that the preferred arrangement among barge
owners and tug boat companies is to have radios—and thus that the presumptive or default term of
the contract for cases of losses because of the absence of such a radio would be to allocate the
costs to the tugs. In most cases, the theory goes, the allocation that follows what the parties would
usually do—the so-called majoritarian default—will best reflect the expectations of the parties.
For this argument in contract law more generally, see Robert Scott, Theory of Default Rules, 19 J.
LEGAL STUD. 597, 607-08 (1990).
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5. Neighbors and strangers. Would Judge Coxe’s deference to the custom of the industry be
as warranted if the claimants had been strangers rather than the barge and cargo owners? For
example, what if the claimants were not the barges and cargo owners, but rather a third-party
vessel damaged by the tug in the storm? Or what about a coastal property owner suffering
damage if the tug or its barges were cast upon land in the storm? The parties to tug and barge
contracts may have very good information about the risks of storms and the costs and benefits of
radios. But do they have good reason—absent tort liability—for considering the interests of such
third parties?

6. The odd thing about Hand’s opinion is that he refuses to defer to the industry practice, as
he construes it, even though there were contracts among all the relevant parties. Why not defer to
custom in such an instance? How can Judge Hand be so certain that he is better positioned than
tugs and barges and cargo owners to know what is good for them? Of course, even where there
are contractual relations between the relevant parties, deference to the customary practice as a
governing term in that relation may not be warranted. For example, what if the parties have
asymmetric information about the risks in question? Customs and practices in a particular field
may not reflect the implicit contract terms that are best for everyone involved. Consider, for
example, the next case, Trimarco v. Klein:

Trimarco v. Klein, 436 N.E.2d 502 (N.Y. 1982)
[Plaintiff Vincent N. Trimarco recovered a judgment of $240,000 for personal injuries
suffered when he fell through a glass door enclosing the bathtub in the apartment plaintiff rented
in defendant’s building. The Court of Appeals summarized the following as facts a reasonable
trier of fact could have found:
“[A]ccording to the trial testimony, at the time of the incident [,] plaintiff . . . was in the
process of sliding the door open so that he could exit the tub. It is undisputed that the occurrence
was sudden and unexpected and the injuries he received from the lacerating glass most severe.
“The door, which turned out to have been made of ordinary glass variously estimated as
one sixteenth to one quarter of an inch in thickness, . . . presented no different appearance to the
plaintiff . . . than did tempered safety glass, which [plaintiff] assumed it to be. Nor was there any
suggestion that defendants ever brought its true nature to their attention.
“. . . [S]ince at least the early 1950’s, a practice of using shatterproof glazing materials for
bathroom enclosures had come into common use, so that by 1976 the glass door here no longer
conformed to accepted safety standards. . . . [D]efendants’ managing agent, who long had
enjoyed extensive familiarity with the management of multiple dwelling units in the New York
City area, [further testified] that, since at least 1965, it was customary for landlords who had
occasion to install glass for shower enclosures, whether to replace broken glass or to comply with
the request of a tenant or otherwise, to do so with “some material such as plastic or safety glass.”
The Appellate Division reversed plaintiff’s jury verdict and dismissed the complaint,
ruling that even “assuming that there existed a custom and usage at the time to substitute
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shatterproof glass” and that this was a “better way or a safer method of enclosing showers,”
plaintiff could not recover “unless prior notice of the danger came to the defendants either from
the plaintiff or by reason of a similar accident in the building.” . . . The dissenters in the Appellate
Division argued that there “indeed was ‘ample’ evidence of custom and usage to support the
plaintiff’s verdict.”]
FUCHSBERG, J.
. . . Which brings us to the well-recognized and pragmatic proposition that when “certain
dangers have been removed by a customary way of doing things safely, this custom may be
proved to show that [the one charged with the dereliction] has fallen below the required standard.”
. . . Such proof, of course, is not admitted in the abstract. It must bear on what is reasonable
conduct under all the circumstances, the quintessential test of negligence.
It follows that, when proof of an accepted practice is accompanied by evidence that the
defendant conformed to it, this may establish due care . . . , and, contrariwise, when proof of a
customary practice is coupled with a showing that it was ignored and that this departure was a
proximate cause of the accident, it may serve to establish liability . . . . Put more conceptually,
proof of a common practice aids in “formulat[ing] the general expectation of society as to how
individuals will act in the course of their undertakings, and thus to guide the common sense or
expert intuition of a jury or commission when called on to judge of particular conduct under
particular circumstances” (Pound, Administrative Application of Legal Standards, 44 ABA REP,
445, 456-57).
The source of the probative power of proof of custom and usage is described differently
by various authorities, but all agree on its potency. Chief among the rationales offered is, of
course, the fact that it reflects the judgment and experience and conduct of many (2 Wigmore,
Evidence [3d ed], § 461; Prosser, Torts [4th ed], § 33). Support for its relevancy and reliability
comes too from the direct bearing it has on feasibility, for its focusing is on the practicality of a
precaution in actual operation and the readiness with which it can be employed (Morris, Custom
and Negligence, 42 COL[UM]. L. REV. 1147, 1148 [(1942)]). Following in the train of both of
these boons is the custom’s exemplification of the opportunities it provides to others to learn of
the safe way, if that the customary one be. . . .
From all this it is not to be assumed customary practice and usage need be universal. It
suffices that it be fairly well defined and in the same calling or business so that “the actor may be
charged with knowledge of it or negligent ignorance” (Prosser, Torts [4th ed], § 33, p. 168 . . .).
However, once its existence is credited, a common practice or usage is still not necessarily
a conclusive or even a compelling test of negligence . . . . Before it can be, the jury must be
satisfied with its reasonableness, just as the jury must be satisfied with the reasonableness of the
behavior which adhered to the custom or the unreasonableness of that which did not . . . . After
all, customs and usages run the gamut of merit like everything else. That is why the question in
each instance is whether it meets the test of reasonableness. As Holmes’ now classic statement on
this subject expresses it, “[w]hat usually is done may be evidence of what ought to be done, but
what ought to be done is fixed by a standard of reasonable prudence, whether it usually is
complied with or not” (Texas & Pacific Ry. Co. v. Behymer, 189 U.S. 468, 470 [(1903)]).

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So measured, the case the plaintiff presented . . . was enough to send it to the jury and to
sustain the verdict reached. The expert testimony, [and] the admissions of the defendant’s
manager . . . easily filled that bill. Moreover, it was also for the jury to decide whether, at the
point in time when the accident occurred, the modest cost and ready availability of safety glass
and the dynamics of the growing custom to use it for shower enclosures had transformed what
once may have been considered a reasonably safe part of the apartment into one which, in the
light of later developments, no longer could be so regarded.
Furthermore, the charge on this subject was correct. The Trial Judge placed the evidence
of custom and usage “by others engaged in the same business” in proper perspective, when,
among other things, he told the jury that the issue on which it was received was “the
reasonableness of the defendant’s conduct under all the circumstances.” He also emphasized that
the testimony on this score was not conclusive, not only by saying so but by explaining that “the
mere fact that another person or landlord may have used a better or safer practice does not
establish a standard” and that it was for the jurors “to determine whether or not the evidence in
this case does establish a general custom or practice.”
[Notwithstanding its decision to reverse the Appellate Division, the Court of Appeals
remanded for a new trial on the ground that the trial judge had erroneously omitted evidence of a
non-retroactive statute requiring that newly-installed showers use tempered safety glass.]
Order reversed, with costs, and case remitted to Supreme Court, Bronx County, for a new
trial in accordance with the opinion herein.

Notes

1. What was the custom in the industry with respect to shower glass? Who instituted the
custom? And who would have been in a position to know about it and guide their conduct
accordingly?

2. Penalty default rules. Professors Ian Ayres and Robert Gertner take issue with deference
to custom, at least under conditions of asymmetric information. Their observation is that
deference to the majoritarian or customary practice will sometimes allow parties with better
information about the risks in question to take advantage of parties who, for lack of information,
have underestimated those risks. Ayres and Gertner therefore contend that the better approach to
filling in missing contract terms is not by inserting the customary rule, but rather by inserting a
rule that disfavors the party with more information. Moving forward, such a rule—which they
call a “penalty default” because it would penalize the party with better information—creates
powerful incentives for the informed party to lay its information on the table so that the less
informed counterparty has the chance to take it into account.
Does the Ayres and Gertner theory of penalty defaults help explain the outcome in
Trimarco? Here is the thought experiment: If the lease between the landlord and the tenant had
stated that the shower glass in the apartment was NOT safety glass, but that the landlord would
replace the glass with new safety glass upon request, would the tenant-plaintiff have won? If you
don’t think that anyone reads leases (note: you should read your leases!), then what if such a
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notice were posted on the shower glass itself? A penalty default in the Ayres-Gertner sense would
induce landlords to find some way to convey information about the risks in question. See Ian
Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default
Rules, 99 YALE L.J. 87, 127 (1989).

2. Custom and Medical Malpractice Cases
The custom rule takes on a different cast in medical care cases. The following materials
show that in a wide swath of medical negligence cases, the custom of the profession will set the
standard. In a smaller subset—involving negligence in disclosing treatment risks—it may not. As
you read, ask yourself why—if at all—the custom of the profession ought to be treated differently
in medical care than in other social domains.

Brune v. Belinkoff, 235 N.E.2d 793 (Mass. 1968)
SPALDING, J.
In this action of tort for malpractice Theresa Brune (plaintiff) seeks to recover from the
defendant because of alleged negligence in administering a spinal anesthetic. There is a count by
the plaintiff’s husband for consequential damages. The jury returned verdicts for the defendant on
each count. The case comes here on the plaintiffs’ exceptions to the judge’s refusal to grant
certain requests for instructions, to portions of the charge, and to the denial of the plaintiffs’
motion for a new trial.
The plaintiff was delivered of a baby on October 4, 1958, at St. Luke’s Hospital in New
Bedford. During the delivery, the defendant, a specialist in anesthesiology practising in New
Bedford, administered a spinal anesthetic to the plaintiff containing eight milligrams of
pontocaine in one cubic centimeter of ten per cent solution of glucose. When the plaintiff
attempted to get out of bed eleven hours later, she slipped and fell on the floor. The plaintiff
subsequently complained of numbness and weakness in her left leg, an affliction which appears to
have persisted to the time of trial.
Testimony was given by eight physicians. Much of it related to the plaintiff’s condition.
There was ample evidence that her condition resulted from an excessive dosage of pontocaine.
There was medical evidence that the dosage of eight milligrams of pontocaine was
excessive and that good medical practice required a dosage of five milligrams or less. There was
also medical evidence, including testimony of the defendant, to the effect that a dosage of eight
milligrams in one cubic centimeter of ten per cent dextrose was proper. There was evidence that
this dosage was customary in New Bedford in a case, as here, of a vaginal delivery. . . .
The plaintiffs’ exception to the refusal to give their first request for instruction and their
exception to a portion of the charge present substantially the same question and will be considered
together. The request reads: “As a specialist, the defendant owed the plaintiff the duty to have
and use the care and skill commonly possessed and used by similar specialist[s] in like
circumstances.” The relevant portion of the charge excepted to was as follows: “[The defendant]
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must measure up to the standard of professional care and skill ordinarily possessed by others in
his profession in the community, which is New Bedford, and its environs, of course, where he
practices, having regard to the current state of advance of the profession. If, in a given case, it
were determined by a jury that the ability and skill of the physician in New Bedford were fifty
percent inferior to that which existed in Boston, a defendant in New Bedford would be required to
measure up to the standard of skill and competence and ability that is ordinarily found by
physicians in New Bedford.”
The basic issue raised by the exceptions to the charge and to the refused request is
whether the defendant was to be judged by the standard of doctors practising in New Bedford.
The instruction given to the jury was based on the rule, often called the “community” or
“locality” rule first enunciated in Small v. Howard, 128 Mass. 131, a case decided in 1880. There
the defendant, a general practitioner in a country town with a population of 2,500, was consulted
by the plaintiff to treat a severe wound which required a considerable degree of surgical skill. In
an action against the defendant for malpractice this court defined his duty as follows: “It is a
matter of common knowledge that a physician in a small country village does not usually make a
specialty of surgery, and, however well informed he may be in the theory of all parts of his
profession, he would, generally speaking, be but seldom called upon as a surgeon to perform
difficult operations. He would have but few opportunities of observation and practice in that line
such as public hospitals or large cities would afford. The defendant was applied to, being the
practitioner in a small village, and we think it was correct to rule that ‘he was bound to possess
that skill only which physicians and surgeons of ordinary ability and skill, practising in similar
localities, with opportunities for no larger experience, ordinarily possess; and he was not bound to
possess that high degree of art and skill possessed by eminent surgeons practising in large cities,
and making a specialty of the practice of surgery. . . .’”
The rationale of the rule of Small v. Howard is that a physician in a small or rural
community will lack opportunities to keep abreast with the advances in the profession and that he
will not have the most modern facilities for treating his patients. Thus, it is unfair to hold the
country doctor to the standard of doctors practising in large cities. The plaintiffs earnestly
contend that distinctions based on geography are no longer valid in view of modern developments
in transportation, communication and medical education, all of which tend to promote a certain
degree of standardization within the profession. Hence, the plaintiffs urge that the rule laid down
in Small v. Howard almost ninety years ago now be reexamined in the light of contemporary
conditions. . . .
Because of the importance of the subject, and the fact that we have been asked to abandon
the “locality” rule we have reviewed the relevant decisions at some length. We are of opinion that
the “locality” rule of Small v. Howard which measures a physician’s conduct by the standards of
other doctors in similar communities is unsuited to present day conditions. The time has come
when the medical profession should no longer be Balkanized by the application of varying
geographic standards in malpractice cases. Accordingly, Small v. Howard is hereby overruled.
The present case affords a good illustration of the inappropriateness of the “locality” rule to
existing conditions. The defendant was a specialist practising in New Bedford, a city of 100,000,
which is slightly more than fifty miles from Boston, one of the medical centers of the nation, if
not the world. This is a far cry from the country doctor in Small v. Howard, who ninety years ago
was called upon to perform difficult surgery. Yet the trial judge told the jury that if the skill and
ability of New Bedford physicians were “fifty percent inferior” to those obtaining in Boston the
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defendant should be judged by New Bedford standards, “having regard to the current state of
advance of the profession.” This may well be carrying the rule of Small v. Howard to its logical
conclusion, but it is, we submit, a reductio ad absurdum of the rule.
The proper standard is whether the physician, if a general practitioner, has exercised the
degree of care and skill of the average qualified practitioner, taking into account the advances in
the profession. In applying this standard it is permissible to consider the medical resources
available to the physician as one circumstance in determining the skill and care required. Under
this standard some allowance is thus made for the type of community in which the physician
carries on his practice. See Prosser, Torts (3d ed.) § 32 (pp. 166-167).
One holding himself out as a specialist should be held to the standard of care and skill of
the average member of the profession practising the specialty, taking into account the advances in
the profession. And, as in the case of the general practitioner, it is permissible to consider the
medical resources available to him.
Because the instructions permitted the jury to judge the defendant’s conduct against a
standard that has now been determined to be incorrect, the plaintiffs’ exceptions to the charge and
to the refusal of his request must be sustained. . . .

Notes

1. Compare Brune to Trimarco or T.J. Hooper. Why is the rule for custom in medical
malpractice different from the rule for custom in negligence cases more generally?

2. Custom in medical malpractice cases. Although most courts have deferred to custom in
medical malpractice cases, the Washington Supreme Court did the opposite in Helling v. Carey.
In Helling, the plaintiff, a 32-year-old patient, consulted the defendants, two ophthalmologists, for
what seemed to be myopia. The physicians did not administer a pressure or field of vision test
until nine years after the plaintiff’s first consultation. Upon administering the test, however, the
physicians discovered that the patient was actually suffering from glaucoma, a disease that is
undetectable in the absence of a pressure test “until the damage has become irreversible.” Helling
v. Carey, 519 P.2d 981, 981 (Wash. 1974). At the time of test, the plaintiff had “essentially lost
her peripheral vision.” Id. at 982. The plaintiff sued the ophthalmologists, alleging that she
“sustained severe and permanent damage to her eyes as a proximate result of the defendants’
negligence in failing to administer a timely glaucoma test.” Id. Even though medical experts
testified that the “standards for the profession . . . do not require routine pressure test[s] for
glaucoma” for patients under forty, the court disagreed. Id. Overriding physicians’ customary
practices, the Washington Supreme Court held that the “reasonable standard that should have been
followed [by the physicians] . . . was the timely giving of [a] simple, harmless pressure test to
th[e] plaintiff.” Id. at 984.
In later cases, Washington courts curtailed Helling’s holding. For example, just two years
after Helling was decided, the Washington Court of Appeals noted, “[Helling’s] holding . . . was
intended to be restricted solely to its own ‘unique’ facts, i.e., cases in which an ophthalmologist is
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alleged to have failed to test for glaucoma under the same or similar circumstances.” Meeks v.
Marx, 550 P.2d 1158, 1162 (Wash. Ct. App. 1976).

3. The glaucoma case. Glaucoma testing is now standard, though probably not as a result of
the Washington Supreme Court’s decision in Helling. Because “glaucoma is a process,”
physicians often use glaucoma tests to establish a baseline to determine whether the optic nerve
has changed. George L. Spaeth, Glaucoma Testing: Too Much of a Good Thing, 20 REV.
OPHTHALMOLOGY 100, 103 (2013). Frequent and unnecessary glaucoma testing, however, has
“develop[ed] a standard of care that says [glaucoma testing] should be done.” Some combination
of third-party-payment for medical services, tort liability risk, and professional standardization
has had the effect of “driv[ing] up the cost of care significantly and unnecessarily.” Id. at 102.

4. Negligent treatment versus negligence in disclosing risks. Doctors, like all actors, can be
negligent in multiple ways. Imagine a different infant-delivery scenario from Brune, where at
some point in the patient’s labor, she is given the option to continue trying for a vaginal birth or
opting for birth by Cesarean section (a surgical procedure involving incisions in the mother’s
abdomen and uterus). After a brief conversation with her doctor, focusing entirely on the risks
and benefits to the as-yet unborn baby, the patient opts for the Cesarean. The procedure is
performed skillfully but nonetheless leads to debilitating complications for the mother, including
persistent pain, an infected incision, and loss of normal bowel functioning, none of which the
doctor discussed with the patient prior to the surgery. Given that the procedure was performed
skillfully, is there no recognizable injury here? If there is an injury that the law might remedy,
what conduct on the doctor’s part should we focus on and how should we judge it? If the doctor
followed the disclosure customs of the profession, should that shield the doctor from liability? Or
are there reasons for preferring a different standard here? These are the questions that the next
case takes up.

Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972)
ROBINSON, J.
...
At the time of the events which gave rise to this litigation, appellant was nineteen years of
age, a clerk-typist employed by the Federal Bureau of Investigation. In December, 1958, he
began to experience severe pain between his shoulder blades. He consulted two general
practitioners, but the medications they prescribed failed to eliminate the pain. Thereafter,
appellant secured an appointment with Dr. Spence, who is a neurosurgeon.
Dr. Spence examined appellant in his office at some length but found nothing amiss. On
Dr. Spence’s advice appellant was x-rayed, but the films did not identify any abormality. Dr.
Spence then recommended that appellant undergo a myelogram–a procedure in which dye is
injected into the spinal column and traced to find evidence of disease or other disorder–at the
Washington Hospital Center.

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Appellant entered the hospital on February 4, 1959. The myelogram revealed a “filling
defect” in the region of the fourth thoracic vertebra. Since a myelogram often does no more than
pinpoint the location of an aberration, surgery may be necessary to discover the cause. Dr.
Spence told appellant that he would have to undergo a laminectomy–the excision of the posterior
arch of the vertebra–to correct what he suspected was a ruptured disc. Appellant did not raise any
objection to the proposed operation nor did he probe into its exact nature.
Appellant explained to Dr. Spence that his mother was a widow of slender financial means
living in Cyclone, West Virginia, and that she could be reached through a neighbor’s
telephone. . . . Dr. Spence told her that the surgery was occasioned by a suspected ruptured disc.
Mrs. Canterbury then asked if the recommended operation was serious and Dr. Spence replied
“not any more than any other operation.”
...
Dr. Spence performed the laminectomy on February 11 at the Washington Hospital
Center. Mrs. Canterbury traveled to Washington, arriving on that date but after the operation was
over, and signed a consent form at the hospital. The laminectomy revealed several anomalies: a
spinal cord that was swollen and unable to pulsate, an accumulation of large tortuous and dilated
veins, and a complete absence of epidural fat which normally surrounds the spine. . . .
For approximately the first day after the operation appellant recuperated normally, but
then suffered a fall and an almost immediate setback. Since there is some conflict as to precisely
when or why appellant fell, we reconstruct the events from the evidence most favorable to him.
Dr. Spence left orders that appellant was to remain in bed during the process of voiding. These
orders were changed to direct that voiding be done out of bed, and the jury could find that the
change was made by hospital personnel. Just prior to the fall, appellant summoned a nurse and
was given a receptacle for use in voiding, but was then left unattended. Appellant testified that
during the course of the endeavor he slipped off the side of the bed, and that there was no one to
assist him, or side rail to prevent the fall.
Several hours later, appellant began to complain that he could not move his legs and that
he was having trouble breathing; paralysis seems to have been virtually total from the waist down.
Dr. Spence was notified on the night of February 12, and he rushed to the hospital. Mrs.
Canterbury signed another consent form and appellant was again taken into the operating room.
The surgical wound was reopened and Dr. Spense created a gusset to allow the spinal cord greater
room in which to pulsate.
Appellant’s control over his muscles improved somewhat after the second operation but
he was unable to void properly. . . . For several years after his discharge he was under the care of
several specialists, and at all times was under the care of a urologist. At the time of the trial in
April, 1968, appellant required crutches to walk, still suffered from urinal incontinence and
paralysis of the bowels, and wore a penile clamp.
. . . The damages appellant claims include extensive pain and suffering, medical expenses,
and loss of earnings.
II
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Appellant filed suit in the District Court on March 7, 1963, four years after the
laminectomy and approximately two years after he attained his majority. . . . Against Dr. Spence it
alleged, among other things, . . . failure to inform him beforehand of the risk involved.
. . . At trial . . . Dr. Spence . . . admitted that trauma can be a cause of paralysis. Dr.
Spence further testified that even without trauma paralysis can be anticipated “somewhere in the
nature of one percent” of the laminectomies performed, a risk he termed “a very slight
possibility.” He felt that communication of that risk to the patient is not good medical practice
because it might deter patients from undergoing needed surgery and might produce adverse
psychological reactions which could preclude the success of the operation.
At the close of appellant’s case in chief, each defendant moved for a directed verdict and
the trial judge granted both motions. The basis of the ruling, he explained, was that appellant had
failed to produce any medical evidence indicating negligence on Dr. Spence’s part in diagnosing
appellant’s malady or in performing the laminectomy… The judge did not allude specifically to
the alleged breach of duty by Dr. Spence to divulge the possible consequences of the
laminectomy.
We reverse. The testimony of appellant and his mother that Dr. Spence did not reveal the
risk of paralysis from the laminectomy made out a prima facie case of violation of the physician’s
duty to disclose which Dr. Spence’s explanation did not negate as a matter of law. . . .
III
Suits charging failure by a physician adequately to disclose the risks and alternatives of
proposed treatment are not innovations in American law. They date back a good half-century, and
in the last decade they have multiplied rapidly. There is, nonetheless, disagreement among the
courts and the commentators on many major questions, and there is no precedent of our own
directly in point. . . .
The root premise is the concept, fundamental in American jurisprudence, that “[e]very
human being of adult years and sound mind has a right to determine what shall be done with his
own body. . . .” True consent to what happens to one’s self is the informed exercise of a choice,
and that entails an opportunity to evaluate knowledgeably the options available and the risks
attendant upon each. The average patient has little or no understanding of the medical arts, and
ordinarily has only his physician to whom he can look for enlightenment with which to reach an
intelligent decision. From these almost axiomatic considerations springs the need, and in turn the
requirement, of a reasonable divulgence by physician to patient to make such a decision possible.
A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and
therapy is not the full measure of his responsibility. The cases demonstrate that the physician is
under an obligation to communicate specific information to the patient when the exigencies of
reasonable care call for it. Due care may require a physician perceiving symptoms of bodily
abnormality to alert the patient to the condition. It may call upon the physician confronting an
ailment which does not respond to his ministrations to inform the patient thereof. It may
command the physician to instruct the patient as to any limitations to be presently observed for his
own welfare, and as to any precautionary therapy he should seek in the future. It may oblige the
physician to advise the patient of the need for or desirability of any alternative treatment
promising greater benefit than that being pursued. Just as plainly, due care normally demands that
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the physician warn the patient of any risks to his well-being which contemplated therapy may
involve.
The context in which the duty of risk-disclosure arises is invariably the occasion for
decision as to whether a particular treatment procedure is to be undertaken. To the physician,
whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the
prerogative of the patient, not the physician, to determine for himself the direction in which his
interests seem to lie. To enable the patient to chart his course understandably, some familiarity
with the therapeutic alternatives and their hazards becomes essential.
A reasonable revelation in these respects is not only a necessity but, as we see it, is as
much a matter of the physician’s duty. It is a duty to warn of the dangers lurking in the proposed
treatment, and that is surely a facet of due care. It is, too, a duty to impart information which the
patient has every right to expect. The patient’s reliance upon the physician is a trust of the kind
which traditionally has exacted obligations beyond those associated with arms length transactions.
His dependence upon the physician for information affecting his well-being, in terms of
contemplated treatment, is well-nigh abject. . . . We now find, as a part of the physician’s overall
obligation to the patient, a similar duty of reasonable disclosure of the choices with respect to
proposed therapy and the dangers inherently and potentially involved.
This disclosure requirement . . . reflects much more of a change in doctrinal emphasis than
a substantive addition to malpractice law. It is well established that the physician must seek and
secure his patient's consent before commencing an operation or other course of treatment. It is
also clear that the consent, to be efficacious, must be free from imposition upon the patient. It is
the settled rule that therapy not authorized by the patient may amount to a tort–a common law
battery–by the physician. And it is evident that it is normally impossible to obtain a consent
worthy of the name unless the physician first elucidates the options and the perils for the patient's
edification. Thus the physician has long borne a duty, on pain of liability for unauthorized
treatment, to make adequate disclosure to the patient. The evolution of the obligation to
communicate for the patient's benefit as well as the physician's protection has hardly involved an
extraordinary restructuring of the law.
IV
Duty to disclose has gained recognition in a large number of American jurisdictions, but
more largely on a different rationale. The majority of courts dealing with the problem have made
the duty depend on whether it was the custom of physicians practicing in the community to make
the particular disclosure to the patient. If so, the physician may be held liable for an unreasonable
and injurious failure to divulge, but there can be no recovery unless the omission forsakes a
practice prevalent in the profession. We agree that the physician’s noncompliance with a
professional custom to reveal, like any other departure from prevailing medical practice, may give
rise to liability to the patient. We do not agree that the patient’s cause of action is dependent upon
the existence and nonperformance of a relevant professional tradition.
...
. . . We sense the danger that what in fact is no custom at all may be taken as an
affirmative custom to maintain silence, and that physician-witnesses to the so-called custom may
state merely their personal opinions as to what they or others would do under given
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conditions . . . . Nor can we ignore the fact that to bind the disclosure obligation to medical usage
is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of
self-determination on particular therapy demands a standard set by law for physicians rather than
one which physicians may or may not impose upon themselves.
...
V
Once the circumstances give rise to a duty on the physician’s part to inform his patient,
the next inquiry is the scope of the disclosure the physician is legally obliged to make. The courts
have frequently confronted this problem but no uniform standard defining the adequacy of the
divulgence emerges from the decisions. Some have said “full” disclosure, a norm we are
unwilling to adopt literally. It seems obviously prohibitive and unrealistic to expect physicians to
discuss with their patients every risk of proposed treatment–no matter how small or remote–and
generally unnecessary from the patient’s viewpoint as well. . . .
The larger number of courts, as might be expected, have applied tests framed with
reference to prevailing fashion within the medical profession. Some have measured the disclosure
by “good medical practice,” others by what a reasonable practitioner would have bared under the
circumstances, and still others by what medical custom in the community would demand. We
have explored this rather considerable body of law but are unprepared to follow it. The duty to
disclose, we have reasoned, arises from phenomena apart from medical custom and practice. The
latter, we think, should no more establish the scope of the duty than its existence. Any definition
of scope in terms purely of a professional standard is at odds with the patient’s prerogative to
decide on projected therapy himself. That prerogative, we have said, is at the very foundation of
the duty to disclose, and both the patient’s right to know and the physician’s correlative obligation
to tell him are diluted to the extent that its compass is dictated by the medical profession.
In our view, the patient’s right of self-decision shapes the boundaries of the duty to reveal.
That right can be effectively exercised only if the patient possesses enough information to enable
an intelligent choice. The scope of the physician’s communications to the patient, then, must be
measured by the patient’s need, and that need is the information material to the decision. Thus the
test for determining whether a particular peril must be divulged is its materiality to the patient’s
decision: all risks potentially affecting the decision must be unmasked. And to safeguard the
patient’s interest in achieving his own determination on treatment, the law must itself set the
standard for adequate disclosure.
Optimally for the patient, exposure of a risk would be mandatory whenever the patient
would deem it significant to his decision, either singly or in combination with other risks. Such a
requirement, however, would summon the physician to second-guess the patient, whose ideas on
materiality could hardly be known to the physician. That would make an undue demand upon
medical practitioners, whose conduct, like that of others, is to be measured in terms of
reasonableness. Consonantly with orthodox negligence doctrine, the physician’s liability for
nondisclosure is to be determined on the basis of foresight, not hindsight; no less than any other
aspect of negligence, the issue on nondisclosure must be approached from the viewpoint of the
reasonableness of the physician’s divulgence in terms of what he knows or should know to be the
patient’s informational needs. If, but only if, the fact-finder can say that the physician’s
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communication was unreasonably inadequate is an imposition of liability legally or morally
justified…
From these considerations we derive the breadth of the disclosure of risks legally to be
required. The scope of the standard is not subjective as to either the physician or the patient; it
remains objective with due regard for the patient’s informational needs and with suitable leeway
for the physician’s situation. In broad outline, we agree that “[a] risk is thus material when a
reasonable person, in what the physician knows or should know to be the patient’s position, would
be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego
the proposed therapy.”
The topics importantly demanding a communication of information are the inherent and
potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the
results likely if the patient remains untreated. The factors contributing significance to the
dangerousness of a medical technique are, of course, the incidence of injury and the degree of the
harm threatened. A very small chance of death or serious disablement may well be significant; a
potential disability which dramatically outweighs the potential benefit of the therapy or the
detriments of the existing malady may summons discussion with the patient.
There is no bright line separating the significant from the insignificant; the answer in any
case must abide a rule of reason. Some dangers–infection, for example–are inherent in any
operation; there is no obligation to communicate those of which persons of average sophistication
are aware. Even more clearly, the physician bears no responsibility for discussion of hazards the
patient has already discovered, or those having no apparent materiality to patients’ decision on
therapy. The disclosure doctrine, like others marking lines between permissible and
impermissible behavior in medical practice, is in essence a requirement of conduct prudent under
the circumstances. Whenever nondisclosure of particular risk information is open to debate by
reasonable-minded men, the issue is for the finder of the facts.
...
X
. . . [T]he evidence was clearly sufficient to raise an issue as to whether Dr. Spence’s
obligation to disclose information on risks was reasonably met or was excused by the surrounding
circumstances. . . . There was no emergency to frustrate an opportunity to disclose, and Dr.
Spence’s expressed opinion that disclosure would have been unwise did not foreclose a contrary
conclusion by the jury. . . . The jury, not Dr. Spence, was the final arbiter of whether
nondisclosure was reasonable under the circumstances.
...
Reversed and remanded for a new trial.

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Notes

1. Disclosure, medical custom, and materiality to patients. Are you persuaded that cases
involving injurious failures to disclose risks in the course of medical treatment should be treated
differently from cases involving injurious missteps in administering medical treatment? Why or
why not? Note that “a little more than half” of U.S. jurisdictions, many by statute, have adopted a
disclosure standard anchored in the custom of the medical community. But since 1972, when
Canterbury was decided, courts considering the issue for the first time and doing so unconstrained
by statutes have gravitated toward the patient-centered materiality standard. DAN B. DOBBS, THE
LAW OF TORTS § 250 655 (2000).

2. The causation hurdle. As we will discuss in a subsequent chapter, a finding of liability in
a negligence case requires more than a finding that the defendant behaved unreasonably; it also
requires a finding that the defendant’s unreasonable conduct caused the plaintiff’s injury. The
court in Canterbury elaborated on what the causation requirement demands in a medical
negligence case where the gist of the negligence is failure to disclose:
A causal connection exists when, but only when, disclosure of significant risks
incidental to treatment would have resulted in a decision against it. The patient
obviously has no complaint if he would have submitted to the therapy
notwithstanding awareness that the risk was one of its perils. On the other hand, the
very purpose of the disclosure rule is to protect the patient against consequences
which, if known, he would have avoided by foregoing the treatment. The more
difficult question is whether the factual issue on causality calls for an objective or a
subjective determination.
...
[W]e believe [courts should] resolve the causality issue on an objective basis: in
terms of what a prudent person in the patient’s position would have decided if
suitably informed of all perils bearing significance. If adequate disclosure could
reasonably be expected to have caused that person to decline the treatment because
of the revelation of the kind of risk or danger that resulted in harm, causation is
shown, but otherwise not. The patient’s testimony is relevant on that score of course
but it would not threaten to dominate the findings. And since that testimony would
probably be appraised congruently with the factfinder’s belief in its reasonableness,
the case for a wholly objective standard for passing on causation is strengthened.
Such a standard would in any event ease the fact-finding process and better assure
the truth as its product.
464 F.2d 772, 790-91.

3. Failure to disclose cases in practice. Taking into account the standard of care articulated
in Canterbury and the causation approach noted above, how easy or difficult do you think it is in
practice for plaintiffs to win damages in failure-to-disclose cases? What kind of evidence does
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the legal standard in Canterbury demand of plaintiffs? Note that the retrial of this case resulted in
a verdict in the defendant’s favor. 509 F.2d 537 (D.C. Cir. 1975).

4. What risks are material? Cases like Canterbury prompt hard questions about the types of
health risks that can fairly be deemed “material.” They also raise questions about other categories
of information that might make a medical treatment more or less risky. Is a doctor’s dependency
on drugs or alcohol material information that a doctor has a duty to disclose? What about a
doctor’s pecuniary interest in the procedure, such as having a financial stake in the experimental
medical device being used? Should a doctor disclose any disciplinary history?

5. Facts versus opinions. Patients rely on medical professionals not only for information but
also for interpretation—expert guidance on what the information in front of them means. What
kind of interpretations are patients entitled to? A case that highlights this question is Doe v.
Planned Parenthood, 956 N.E.2d 564 (Ill. 2011):
According to the complaint, the plaintiff, about three months pregnant, visited a
help center because of uncertainty over her pregnancy. At the pregnancy help
center she was told that the fetus she was carrying was a “human being.”
Thereafter, she visited the Planned Parenthood office in Chicago, which she
identifies as an “abortion clinic.” According to her complaint, she was counseled
at Planned Parenthood that the fetus she was carrying was not a “human being.”
While at Planned Parenthood, the plaintiff signed a form consenting to a pregnancy
termination procedure that same day, which she underwent.
Two years after this procedure, Doe filed a complaint asserting that she would not have consented
to an abortion had the defendant not “incorrectly denied th[e] fact” of “a human being in
existence.” Id. Upholding the trial court’s dismissal of her complaint, the court declined to
characterize the requested information as “fact,” instead describing it as a “scientific, moral, or
philosophical viewpoint” on a “profound” and divisive question. Id. at 572-73. Whether medical
providers ought to have a duty to disclose such information, the court implied, was better left to
the legislature. (“No court . . . has found a common law duty requiring doctors to tell their
pregnant patients that aborting an embryo, or fetus, is the killing of an existing human being.”)
Id. at 572.
Many commentators think that medical malpractice is one of the least well-functioning
areas of American tort law. Consider the views of some of the leading authorities on medical
malpractice, David Studdert, Michelle Mello, and Troyen Brennan:

David M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice, 350 NEW
ENG. J. MED. 283, 283-86 (2004)
Prompted by the malpractice crisis of the mid-1980s, a research team at Harvard
University embarked on a review of medical records from over 30,000 hospital discharges and
3500 malpractice claims in New York. The reviewers found rates of adverse events and negligent
adverse events (3.7 percent and 1.0 percent, respectively) that were remarkably close to those in
California. Extrapolations from these rates produced alarming estimates of the burden of medical
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injury, including projections that negligent care caused approximately 20,000 disabling injuries
and 7000 deaths in New York hospitals in 1984. Overall, there were 7.6 times as many negligent
injuries as there were claims.
But it was the matching of specific claims to specific injuries in New York that threw the
troubling relationship between malpractice claims and injuries into sharp relief. Only 2 percent of
negligent injuries resulted in claims, and only 17 percent of claims appeared to involve a negligent
injury. . . . In a third study, conducted in Utah and Colorado in the late 1990s, the injury rates
detected were similar to those in New York, and the disconnections observed between injury and
litigation were virtually identical, suggesting that the core problems were neither regionally nor
temporally idiosyncratic. . . .
The overall picture that emerges from these studies is disheartening. When all patients
with negligent injuries are considered, not just those who manage to seek compensation as
plaintiffs, the findings from the studies in California, in New York, and in Utah and Colorado are
a searing indictment of the performance of the malpractice system. The data reveal a profoundly
inaccurate mechanism for distributing compensation. It is also tremendously inefficient.
Approximately 60 cents of every dollar expended on the system is absorbed by administrative
costs (predominantly legal fees), an amount that is twice the overhead rate for an average
workers’ compensation scheme. . . .

Notes

1. State malpractice judgments. In recent years, state medical malpractice judgments have
been declining. In Washington, the number of malpractice payments “declined 6.1% from 1991
to 2004.” The total number of payments declined 35.6 percent over the same period. Fewer
Lawsuits and More Doctors: The Myths of Washington State’s Medical Malpractice “Crisis,”
PUB. CITIZEN (Sept. 2005), https://perma.cc/C6S9-QEQF. And the declines seem to be
continuing. In Oklahoma, a 2012 report found the number of malpractice judgments to be at a
decade low. See below.

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OKLAHOMA MALPRACTICE JUDGMENTS
114

2011

124

2010

159

2009
146

2008

160

2007
148

2006
2005

168

2004

167
153

2003
127

2002

135

2001

Source: Data obtained from Wayne Green, State Malpractice Judgments Down 28 Percent Since 2009, TULSA
WORLD, July 31, 2012, available at https://perma.cc/2SNT-5TPU.

These state-level trends are not aberrations. A recent study of nationwide medical
malpractice claims showed that between 1994 and 2014, the rate of medical malpractice claims
paid on behalf of physicians decreased by 55.7 percent. Adam C. Schaffer, M.D., et al., Rates and
Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014,
JAMA INTERN. MED. (Mar. 27, 2017), https://perma.cc/L5PZ-JKNE.

2. Medical malpractice and insurance premiums. Doctors complain mightily (and often
with good reason!) about the costs of their malpractice insurance. Physicians’ insurance
premiums rose in the 1970s, 1980s, and 2000s. But the increase does not seem to have been
driven by a medical malpractice crisis. Through studying Texas Department of Insurance data,
Bernard Black and his co-authors argue that the number of large paid malpractice claims (over
$25,000 per claim in constant 1998 dollars) was constant from 1991 to 2002. The number of
small paid claims (less than $10,000 per claim in constant 1998 dollars) actually declined over the
same period. See Bernard Black, Charles Silver, David A. Hyman & William M. Sage, Stability,
Not Crisis: Medical Malpractice Claim Outcomes in Texas: 1988-2002, 2 J. EMPIRICAL LEGAL
STUD. 207, 207 (2005).
3. Changing the supply of physicians? Rising premiums, however, “seem not to have an
effect on the total number of physicians in each state.” Katherine Baicker & Amitabh Chandra,
Defensive Medicine and Disappearing Doctors, 28 REG. 24, 29 (2005). Older practitioners in
rural areas may leave their practices when premiums increase because they have “fewer patients
over whom to spread their increased costs of malpractice premiums.” Id. But it is not clear that
these departures wouldn’t have happened anyway even absent any change in medical malpractice
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rates. Nor is it clear, though it can be hard to say so, that these departures are always a bad thing.
Perhaps because of the pervasiveness of third-party-payer fee-for-service health care, or perhaps
because of the small size of medical malpractice costs as a fraction of health care costs generally,
rising premiums seem not to have had an effect on the supply of physicians, despite widespread
anecdotal evidence to the contrary.
Consider also the data from Texas, which in 2003 adopted a series of tort reform measures
to protect physicians from medical malpractice claims and thereby diminish a perceived incentive
for doctors to leave the state. The measures certainly succeeded in reducing physicians’ liability:
between 2003 and 2009, Texas saw a 70 percent drop in payouts on medical malpractice claims.
David A. Hyman, et al., Does Tort Reform Affect Physician Supply? Evidence from Texas, 42
INT’L REV. OF L. AND ECON. 203, 203 (2015), https://perma.cc/QWM9-RWT7. And sure enough,
the number of physicians applying for and receiving medical licenses in Texas increased after
2003, a cause for celebration for many tort reform supporters. But is correlation necessarily
causation here? A 2015 study says no, finding “no evidence that the number of active Texas
physicians per capita is any larger than it would have been without tort reform” and that increases
in the number of doctors in Texas after 2003 were more likely the result of other forces, such as
increasing numbers of physicians nationwide and an influx of doctors moving to Texas after
Hurricane Katrina. Id. at 204.

4. Medical malpractice and health care costs. According to a 2010 publication, the costs of
the medical liability system amount to $55.6 billion per year, or 2.4% of the United States’ total
health care expenditures. Michelle M. Mello, Amitabh Chandra, Atul A. Gawande & David M.
Studdert, National Costs of the Medical Liability System, 29 HEALTH AFFAIRS 1569 (2010). The
authors of the study included in that figure $45 billion in so-called defensive medicine, which they
defined as “tests, procedures, or visits, or [decisions to] avoid certain high-risk patients or
procedures, primarily (but not solely) because of concern about malpractice liability.” Defensive
medicine includes “supplemental care, such as additional testing or treatment; replaced care, such
as referral to other physicians; and reduced care, including refusal to treat particular patients.”
Lee Black, Health Law: Effect of Malpractice Law on the Practice of Medicine, 9 AM. MED.
ASS’N J. ETHICS 437, 437 (2007). But as the authors of the Health Affairs study emphasize, there
are at least two problems with their defensive medicine estimate. First, it is exceedingly difficult
to distinguish defensive care from care that has been caused by incentives to provide more care
that are inherent in the third-party payer system; any estimates of the costs of defensive medicine
must therefore be treated with great caution. Second, the estimate tells us nothing about either the
benefits (or perhaps additional harms) for patients of the additional care produced by the threat of
malpractice suits. After all, one of the aims of tort law is to incentivize sensible expenditures on
safety. One thing that seems clear is that absent such complicated questions about the costs of
altered care, the cost of medical malpractice premiums themselves is a tiny fraction of the costs of
the health care system generally. See The Medical Malpractice Scapegoat, PUB. CITIZEN 5 (Feb.
28, 2017), https://perma.cc/3PZZ-RETN (noting that in 2015, medical malpractice payments on
behalf of doctors amounted to about 0.2 percent of costs for hospital and physician services and
about 0.1 percent of all healthcare costs).

5. How important really is medical malpractice reform to doctors? Even though the
American Medical Association (AMA) has taken strong public positions in favor of malpractice
reform to reduce malpractice costs, the AMA apparently did not make malpractice reform a
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priority in closed-door Affordable Care Act negotiations with the White House. Instead, the
AMA focused on increasing physicians’ Medicare payments, purportedly to the exclusion of
virtually all else. See Ezekiel Emanuel, Inside the Making of Obamacare, WALL ST. J., Mar. 8,
2014, at C3 (noting that the final version of the Affordable Care Act merely “funded states to test
their own malpractice reforms”). Does this tell us anything about the real politics of medical
malpractice?

6. Is there an effect of medical malpractice liability on health outcomes? One goal of
medical malpractice liability is to improve health outcomes by creating good incentives for
medical professionals. Yet many observers doubt that liability has any consistent relationship to
health outcomes. One empirical study used Medicare claims data to examine the impact of states’
malpractice regimes on patients’ health outcomes post-surgery. The researchers found no
consistent relationship between a state’s malpractice laws and patients’ risk of death or
complications arising from surgery. Christina A. Minami et al., Association Between State
Medical Malpractice Environment and Postoperative Outcomes in the United States, 224 J. AM.
COLLEGE SURGEONS 310 (2017); see also Michael Frakes & Anupam B. Jena, Does Medical
Malpractice Law Improve Health Care Quality?, 143 J. PUBLIC ECON. 142 (2016) (suggesting that
damage caps play “at most a modest role” in improving patient outcomes). Nor do state damage
caps seem to affect rates of births by cesarean section, though the evidence is mixed. Sabrina
Safrin, The C-Section Epidemic: What’s Tort Reform Got to Do with It?, 2018 U. ILL. L. REV. 747
(2018); see also Janet Currie & W. Bentley MacLeod, First Do No Harm? Tort Reform and Birth
Outcomes, 123 Q. J. ECON. 795 (2008). On the other hand, studies of medical malpractice have
found that in at least some areas of medical care, there are good reasons to think that tort liability
has played a substantial and constructive role in improving outcomes. Anesthesiology, which
proved susceptible to monitoring and automation, and which was far more dangerous than it is
now, is the lead example. See TOM BAKER, THE MEDICAL MALPRACTICE MYTH 108-10 (2008);
see also Robert A. Caplan, Karen L. Posner, Richard J. Ward & Frederick W. Cheney, Adverse
Respiratory Events in Anesthesia: A Closed Claims Analysis, 72 ANESTHESIOLOGY 828 (1990)
(using malpractice claims to identify the leading cause of injury in anesthetic practice—adverse
respiratory events—and observing that 72 percent of these injuries could be prevented with better
monitoring and equipment); Steven E. Pegalis & B. Sonny Bal, Closed Medical Negligence
Claims Can Drive Patient Safety and Reduce Litigation, 470 CLINICAL ORTHOPAEDICS &
RELATED RES. 1398, 1401 (2012), https://perma.cc/92LS-46FJ (summarizing anesthesiology
findings, as well as the findings of two studies from the field of obstetrics).

E. Statutes and Regulations
So far we have dealt mostly with court-made, common law materials. But a pervasive
question in the modern state is how to deal with legislation and regulatory directives. Writing
more than thirty years ago, Guido Calabresi put it this way:
The last fifty to eighty years have seen a fundamental change in American law. In
this time we have gone from a legal system dominated by the common law, divined
by courts, to one in which statutes, enacted by legislatures, have become the primary
source of law. The consequences of this “orgy of statute making,” in Grant
Gilmore’s felicitous phrase, are just beginning to be recognized. The change itself
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and its effect on our whole legal system have not been systematically treated.
GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 1 (1982). The statutory revolution
has had vast implications for tort law. What do legislative rules governing conduct mean for
questions about the reasonableness of that conduct? Does it matter whether the rule in question is
a permission or a prohibition? What are the distinctive virtues and vices of legislatures and courts
in making judgments about tort liability standards?
In what follows in this section, we take up three specific problems arising out of
legislative and regulatory directives in the torts field. (1) What is the significance of deviation
from a legislative or regulatory safety standard for determinations of common law reasonableness
and negligence? (2) What is the significance of compliance with a legislative or regulatory safety
standard for determinations of common law reasonableness and negligence? (3) When does a
statutory safety standard imply a private cause of action in tort that would not have existed at
common law?

1. Violations of Statutory Standards
Martin v. Herzog, 19 N.E.2d 987 (N.Y. 1920)
CARDOZO, J.
The action is one to recover damages for injuries resulting in death. Plaintiff and her
husband, while driving toward Tarrytown in a buggy on the night of August 21, 1915, were struck
by the defendant’s automobile coming in the opposite direction. They were thrown to the ground,
and the man was killed. At the point of the collision the highway makes a curve. The car was
rounding the curve, when suddenly it came upon the buggy, emerging, the defendant tells us, from
the gloom. Negligence is charged against the defendant, the driver of the car, in that he did not
keep to the right of the center of the highway. Highway Law, § 286, subd. 3, and section 332
(Consol. Laws, c. 25). Negligence is charged against the plaintiff’s intestate, the driver of the
wagon, in that he was traveling without lights. Highway Law, § 329a, as amended by Laws 1915,
c. 367. There is no evidence that the defendant was moving at an excessive speed. There is none
of any defect in the equipment of his car. The beam of light from his lamps pointed to the right as
the wheels of his car turned along the curve toward the left; and, looking in the direction of the
plaintiff’s approach, he was peering into the shadow. The case against him must stand, therefore,
if at all, upon the divergence of his course from the center of the highway. The jury found him
delinquent and his victim blameless. The Appellate Division reversed, and ordered a new trial.
We agree with the Appellate Division that the charge to the jury was erroneous and
misleading. . . . In the body of the charge the trial judge said that the jury could consider the
absence of light “in determining whether the plaintiff’s intestate was guilty of contributory
negligence in failing to have a light upon the buggy as provided by law. I do not mean to say that
the absence of light necessarily makes him negligent, but it is a fact for your consideration.” The
defendant requested a ruling that the absence of a light on the plaintiff’s vehicle was “prima facie
evidence of contributory negligence.” This request was refused, and the jury were again
instructed that they might consider the absence of lights as some evidence of negligence, but that
it was not conclusive evidence. The plaintiff then requested a charge that “the fact that the
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plaintiff’s intestate was driving without a light is not negligence in itself,” and to this the court
acceded. The defendant saved his rights by appropriate exceptions.
We think the unexcused omission of the statutory signals is more than some evidence of
negligence. It is negligence in itself. Lights are intended for the guidance and protection of other
travelers on the highway. Highway Law, § 329a. By the very terms of the hypothesis, to omit,
willfully or heedlessly, the safeguards prescribed by law for the benefit of another that he may be
preserved in life or limb, is to fall short of the standard of diligence to which those who live in
organized society are under a duty to conform. That, we think, is now the established rule in this
state. . . . Whether the omission of an absolute duty, not willfully or heedlessly, but through
unavoidable accident, is also to be characterized as negligence, is a question of nomenclature into
which we need not enter, for it does not touch the case before us. There may be times, when, if
jural niceties are to be preserved, the two wrongs, negligence and breach of statutory duty, must
be kept distinct in speech and thought. . . .
In the conditions here present they come together and coalesce. A rule less rigid has been
applied where the one who complains of the omission is not a member of the class for whose
protection the safeguard is designed. . . . Some relaxation there has also been where the safeguard
is prescribed by local ordinance, and not by statute. . . . Courts have been reluctant to hold that the
police regulations of boards and councils and other subordinate officials create rights of action
beyond the specific penalties imposed. This has led them to say that the violation of a statute is
negligence, and the violation of a like ordinance is only evidence of negligence. An ordinance,
however, like a statute, is law within its sphere of operation, and so the distinction has not escaped
criticism. . . . Whether it has become too deeply rooted to be abandoned, even if it be thought
illogical, is a question not now before us. . . .
In the case at hand, we have an instance of the admitted violation of a statute intended for
the protection of travelers on the highway, of whom the defendant at the time was one. Yet the
jurors were instructed in effect that they were at liberty in their discretion to treat the omission of
lights either as innocent or as culpable. . . . They might as well have been told that they could use
a like discretion in holding a master at fault for the omission of a safety appliance prescribed by
positive law for the protection of a workman. . . . Jurors have no dispensing power, by which they
may relax the duty that one traveler on the highway owes under the statute to another. It is error
to tell them that they have. The omission of these lights was a wrong, and, being wholly
unexcused, was also a negligent wrong. No license should have been conceded to the triers of the
facts to find it anything else.
...
We are persuaded that the tendency of the charge, and of all the rulings, following it, was
to minimize unduly, in the minds of the triers of the facts, the gravity of the decedent’s fault.
Errors may not be ignored as unsubstantial, when they tend to such an outcome. A statute
designed for the protection of human life is not to be brushed aside as a form of words, its
commands reduced to the level of cautions, and the duty to obey attenuated into an option to
conform. The order of the Appellate Division should be affirmed, and judgment absolute directed
on the stipulation in favor of the defendant, with costs in all courts.

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Note

1. Why should the common law rely so heavily on statutes? Does Cardozo offer reasons for
the deference to statutes on which he insists? Relevant considerations include the vindication of
democratic processes and the relative virtues of legislatures and courts as institutions for riskregulation.
Does the case for deference to statutes seem the same after reading the next case?

Tedla v. Ellman, 19 N.E.2d 287 (N.Y. 1939)
LEHMAN, J.
While walking along a highway, Anna Tedla and her brother, John Bachek, were struck
by a passing automobile, operated by the defendant Hellman. She was injured and Bachek was
killed. Bachek was a deaf-mute. His occupation was collecting and selling junk. His sister, Mrs.
Tedla, was engaged in the same occupation. They often picked up junk at the incinerator of the
village of Islip. At the time of the accident they were walking along “Sunrise Highway” [a major
route connecting New York City and Long Island] and wheeling baby carriages containing junk
and wood which they had picked up at the incinerator. It was about six o’clock, or a little earlier,
on a Sunday evening . . . . Darkness had already set in. Bachek was carrying a lighted lantern, or,
at least, there is testimony to that effect. The jury found that the accident was due solely to the
negligence of the operator of the automobile. The defendants do not, upon this appeal, challenge
the finding of negligence on the part of the operator. They maintain, however, that Mrs. Tedla
and her brother were guilty of contributory negligence as matter of law.
Sunrise Highway, at the place of the accident, consists of two roadways, separated by a
grass plot. There are no footpaths along the highway and the center grass plot was soft. It is not
unlawful for a pedestrian, wheeling a baby carriage, to use the roadway under such circumstances,
but a pedestrian using the roadway is bound to exercise such care for his safety as a reasonably
prudent person would use. The Vehicle and Traffic Law (Consol. Laws, c. 71) provides that
“Pedestrians walking or remaining on the paved portion, or traveled part of a roadway shall be
subject to, and comply with, the rules governing vehicles, with respect to meeting and turning out,
except that such pedestrians shall keep to the left of the center line thereof, and turn to their left
instead of right side thereof, so as to permit all vehicles passing them in either direction to pass on
their right. Such pedestrians shall not be subject to the rules governing vehicles as to giving
signals.” . . . Mrs. Tedla and her brother did not observe the statutory rule, and at the time of the
accident were proceeding in easterly direction on the east bound or right-hand roadway. . . . The
trial judge left to the jury the question whether failure to observe the statutory rule was a
proximate cause of the accident . . . . Upon this appeal, the only question presented is whether, as
matter of law, disregard of the statutory rule that pedestrians shall keep to the left of the center
line of a highway constitutes contributory negligence which bars any recovery by the plaintiff.
. . . Custom and common sense have always dictated that vehicles should have the right of
way over pedestrians and that pedestrians should walk along the edge of a highway so that they
might step aside for passing vehicles with least danger to themselves and least obstruction to
vehicular traffic. Otherwise, perhaps, no customary rule of the road was observed by pedestrians
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with the same uniformity as by vehicles; though, in general, they probably followed, until
recently, the same rules as vehicles.
. . . Until . . . 1933, [when the Legislature enacted the Vehicle and Traffic Law], there was
no special statutory rule for pedestrians walking along a highway. Then for the first time it
reversed, for pedestrians, the rule established for vehicles by immemorial custom, and provided
that pedestrians shall keep to the left of the center line of a highway.
The plaintiffs showed by the testimony of a State policeman that “there were very few
cars going east” at the time of the accident, but that going west there was “very heavy Sunday
night traffic.” Until the recent adoption of the new statutory rule for pedestrians, ordinary
prudence would have dictated that pedestrians should not expose themselves to the danger of
walking along the roadway upon which the “very heavy Sunday night traffic” was proceeding
when they could walk in comparative safety along a roadway used by very few cars. It is said that
now, by force of the statutory rule, pedestrians are guilty of contributory negligence as matter of
law when they use the safer roadway, unless that roadway is left of the center of the road. . . . If
that be true, then the Legislature has decreed that pedestrians must observe the general rule of
conduct which it has prescribed for their safety even under circumstances where observance
would subject them to unusual risk; that pedestrians are to be charged with negligence as matter of
law for acting as prudence dictates. . . .
The appellants lean heavily upon [Martin v. Herzog] and kindred cases and the principle
established by them. The analogy is, however, incomplete. The “established rule” should not be
weakened either by subtle distinctions or by extension beyond its letter or spirit into a field where
“by the very terms of the hypothesis” it can have no proper application. At times the indefinite
and flexible standard of care of the traditional reasonably prudent man may be, in the opinion of
the Legislature, an insufficient measure of the care which should be exercised to guard against a
recognized danger; at times, the duty, imposed by custom, that no man shall use what is his to the
harm of others provides insufficient safeguard for the preservation of the life or limb or property
of others. Then the Legislature may by statute prescribe additional safeguards and may define
duty and standard of care in rigid terms; and when the Legislature has spoken, the standard of the
care required is no longer what the reasonably prudent man would do under the circumstances but
what the Legislature has commanded. That is the rule established by the courts and “by the very
terms of the hypothesis” the rule applies where the Legislature has prescribed safeguards “for the
benefit of another that he may be preserved in life or limb.” In that field debate as to whether the
safeguards so prescribed are reasonably necessary is ended by the legislative fiat. Obedience to
that fiat cannot add to the danger, even assuming that the prescribed safeguards are not reasonably
necessary and where the legislative anticipation of dangers is realized and harm results through
heedless or willful omission of the prescribed safeguard, injury flows from wrong and the
wrongdoer is properly held responsible for the consequent damages.
The statute upon which the defendants rely is of different character. It does not prescribe
additional safeguards which pedestrians must provide for the preservation of the life or limb or
property of others, or even of themselves, nor does it impose upon pedestrians a higher standard
of care. What the statute does provide is rules of the road to be observed by pedestrians and by
vehicles, so that all those who use the road may know how they and others should proceed, at
least under usual circumstances. A general rule of conduct—and, specifically, a rule of the
road—may accomplish its intended purpose under usual conditions, but, when the unusual occurs,
strict observance may defeat the purpose of the rule and produce catastrophic results.
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Negligence is failure to exercise the care required by law. Where a statute defines the
standard of care and the safeguards required to meet a recognized danger, then, as we have said,
no other measure may be applied in determining whether a person has carried out the duty of care
imposed by law. Failure to observe the standard imposed by statute is negligence, as a matter of
law. On the other hand, where a statutory general rule of conduct fixes no definite standard of
care which would under all circumstances tend to protect life, limb or property but merely codifies
or supplements a common-law rule, which has always been subject to limitations and exceptions;
or where the statutory rule of conduct regulates conflicting rights and obligations in manner
calculated to promote public convenience and safety, then the statute, in the absence of clear
language to the contrary, should not be construed as intended to wipe out the limitations and
exceptions which judicial decisions have attached to the common-law duty; nor should it be
construed as an inflexible command that the general rule of conduct intended to prevent accidents
must be followed even under conditions when observance might cause accidents. We may assume
reasonably that the Legislature directed pedestrians to keep to the left of the center of the road
because that would cause them to face traffic approaching in that lane and would enable them to
care for their own safety better than if the traffic approached them from the rear. We cannot
assume reasonably that the Legislature intended that a statute enacted for the preservation of the
life and limb of pedestrians must be observed when observance would subject them to more
imminent danger.
...
Even under that construction of the statute, a pedestrian is, of course, at fault if he fails
without good reason to observe the statutory rule of conduct. The general duty is established by
the statute, and deviation from it without good cause is a wrong and the wrongdoer is responsible
for the damages resulting from his wrong. . . .
In each action, the judgment should be affirmed, with costs.
O’BRIEN and FINCH, JJ., dissent on the authority of Martin v. Herzog . . . .

Notes

2. Distinguishing Martin v. Herzog. How does Judge Lehman distinguish Cardozo’s
approach in Martin v. Herzog? Does the distinction between safety statutes and “rules of the
road” explain the difference between Martin and Tedla?

3. Irving Lehman. In 1939, Irving Lehman’s brother, Herbert Lehman, was governor of New
York. Both Lehmans were highly-respected mid-century liberals. The New York Times obituary
for Irving, who died in 1945, described him as a jurist “whose interpretation of the law made it a
living force subject to change and development with the appearance of new problems and new
outlooks.” Irving Lehman, 69, Noted Jurist, Dies, N.Y. TIMES, Sept. 23, 1945. Does a flexible
theory of the law as a living and evolving institution help explain Lehman’s decision in Tedla?
Does Judge Lehman’s “living law” theory have implications for the relationship between statutes
and the common law more generally? Note that the book with which we began this section,
Guido Calabresi’s A Common Law for the Age of Statutes, was principally concerned with the
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problem of statutes that had become, by passage of time and changes in values, out of date or
otherwise out of step with the spirit of the times.

4. Meta institutional choice. Does Lehman’s opinion require a general theory of the relative
virtues of courts as opposed to legislatures as decision-makers about risk? Or does Lehman need
merely to establish a meta rule about which institution is properly authorized to decide which
institution is the better decision-maker under the circumstances?

5. Statutory standards. Even when a court does defer to the statute as supplying the relevant
standard of conduct, it does not necessarily follow that any loss caused by a departure from the
statutory standard is a loss for which the departing party may be held liable. As Cardozo wrote in
Martin, courts are “less rigid” when the party charging negligence on the basis of a statutory
safeguard “is not a member of the class for whose protection the safeguard is designed.”
Moreover, courts have generally held that statutory standards are only to be treated as negligence
per se when the losses that occur are the kinds of losses the legislature sought to guard against in
passing the statute. Consider the terrible case of the very wet sheep:

Gorris v. Scott, [1874] L.R. 9 Ex. 125
KELLY, C.B.
This is an action to recover damages for the loss of a number of sheep which the
defendant, a shipowner, had contracted to carry, and which were washed overboard and lost by
reason (as we must take it to be truly alleged) of the neglect to comply with a certain order made
by the Privy Council, in pursuance of the Contagious Diseases (Animals) Act, 1869. The Act was
passed merely for sanitary purposes, in order to prevent animals in a state of infectious disease
from communicating it to other animals with which they might come in contact. Under the
authority of that Act, certain orders were made; amongst others, an order by which any ship
bringing sheep or cattle from any foreign port to ports in Great Britain is to have the place
occupied by such animals divided into pens of certain dimensions, and the floor of such pens
furnished with battens or foot holds. The object of this order is to prevent animals from being
overcrowded, and so brought into a condition in which the disease guarded against would be
likely to be developed. This regulation has been neglected, and the question is, whether the loss,
which we must assume to have been caused by that neglect, entitles the plaintiffs to maintain an
action.
The argument of the defendant is, that the Act has imposed penalties to secure the
observance of its provisions, and that, according to the general rule, the remedy prescribed by the
statute must be pursued . . . .
But, looking at the Act, it is perfectly clear that its provisions were all enacted with a
totally different view; there was no purpose, direct or indirect, to protect against such damage;
but, as is recited in the preamble, the Act is directed against the possibility of sheep or cattle being
exposed to disease on their way to this country. . . . [T]he damage complained of here is
something totally apart from the object of the Act of Parliament, and it is in accordance with all
the authorities to say that the action is not maintainable.
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PIGOTT, B.
The object . . . of the regulations which have been broken was, not to prevent cattle from
being washed overboard, but to protect them against contagious disease. . . . If, indeed, by reason
of the neglect complained of, the cattle had contracted a contagious disease, the case would have
been different. But as the case stands on this declaration, the answer to the action is this: Admit
there has been a breach of duty; admit there has been a consequent injury; still the legislature was
not legislating to protect against such an injury, but for an altogether different purpose; its object
was not to regulate the duty of the carrier for all purposes, but only for one particular purpose. . . .
Judgment for the defendant.

The Restatement Approach
The Restatement (Second) of Torts’s provisions for statutes and tort liability restate the
approach found in Martin, Tedla, and Gorris. A statutory or regulatory standard of conduct may
be adopted as the standard of reasonableness where that statute’s or regulation’s purpose is, at
least in part, “to protect a class of persons” that includes the plaintiff, and where the statute’s or
regulation’s purpose is to protect the “particular interest invaded” against the particular sort of
harm complained of. RESTATEMENT (SECOND) OF TORTS § 286 (1965). Section 288 further
provides that an actor’s violations of statutory or regulatory standards are excused, and thus are
not negligence, when the actor’s incapacity makes the violation reasonable; where the actor
“neither knows nor should know of the occasion for compliance”; where the actor is “unable after
reasonable diligence or care to comply”; where the actor is “confronted by an emergency not due
to his own misconduct”; or where “compliance would involve a greater risk of harm to the actor
or to others.” RESTATEMENT (SECOND) OF TORTS § 288A (1965).
Do Section 288’s exceptions comport with the basic rule of negligence per se set out in
Section 286 and in Martin v. Herzog? Does the Restatement offer a coherent reformulation of the
caselaw? Or does it merely reproduce the caselaw’s tensions, in particular the tension between
Martin and Tedla? The Restatement (Third) of Torts offers a more linguistically economical
formulation, but not one that does any better than its predecessor. See RESTATEMENT (THIRD) OF
TORTS: PHYS. & EMOT. HARM §§ 14-15 (2010).

2. A Regulatory Compliance Defense?
So far the cases we have considered arise out of the violations of statutory standards. But
what about when a party complies with such a standard? If violations are negligence per se, does
compliance constitute reasonableness as a matter of law?
Controversially, the traditional answer is no. In Lugo v. LJN Toys, for example, a New
York court rejected the defendant’s contention that its compliance with safety regulations
absolved it from liability, citing the long-standing rule that “while compliance with a statute may
constitute some evidence of due care, it does not preclude a finding of negligence.” 539 N.Y.S.2d
922, 924 (1989), aff’d, 552 N.E.2d 162 (1990). The standard rationale is that legislation sets a
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floor on conduct, not a ceiling, and that courts and juries are entitled to insist that actors surpass
statutory safety standards when, under the circumstances, reasonableness so requires. Moreover,
defenders of the common law rule insist that there are good reasons underlying it. Administrative
agencies and legislatures, they contend, are subject to the phenomenon known as “regulatory
capture,” under which regulations serve not the interest of the public, but the interests of the
regulated entity. The basic problem, as influentially identified by political scientist Theodore
Lowi in the late 1960s, is that regulators unavoidably interact with the industries they regulate.
Those industries have ample opportunity and motive to advance their interests with regulators.
The public, by contrast, is diffuse and disorganized and may not press its interests nearly as
forcefully in the regulatory process. The problem grows worse in systems like the United States,
with the so-called “revolving door” between the regulator and the regulated entities. If regulators
are former employees of the firms they regulate—and hope to be employees of such firms once
again in the future—then critics contend that the regulations will almost certainly favor the
regulated entities interests over those of the public in situations where the two diverge.
Critics, however, contend that the absence of a regulatory compliance defense means that
regulated actors face two separate regulatory systems, one statutory and the other common law.
The absence of a such a defense means that they bear the burdens of both but not the benefits.
In the early 1990s, the American Law Institute (publisher of the Restatements) issued a
Reporter’s Study that made recommendations for a revised regulatory compliance defense. The
ALI reporter, Richard B. Steward, proposed that compliance with a safety standard be made a
complete defense to the charge of negligence when: (a) the standard was promulgated by a
specialized administrative agency charged with the power to monitor and assess and regulate the
risk in question; and (b) when the regulated entity seeking to invoke the defense made disclosures
to the agency about the risks in question. In particular, Stewart’s proposal would have required
that:
the defendant must have publicly disclosed to the relevant regulatory agency any
material information in its possession (or of which it has reason to be aware)
concerning the risks posed by the defendant’s activities and/or the means of
controlling them. This requirement would extend to information indicating that
agency standards or tests may be inadequate or inappropriate . . . .
Regulatory Compliance Preclusion of Tort Liability: Limiting the Dual-Track System, 88 GEO.
L.J. 2167 (2000). Is Stewart’s proposal superior to the traditional common law approach to
regulatory compliance? Defenders of the traditional approach often cite the risk of regulatory
capture. Stewart’s public disclosure requirement was designed to ameliorate the capture problem
while preserving the virtues of the risk regulators as against the decisions of lay juries in common
law courts.
In the end, controversy over Stewart’s proposal prevented it from being added to the
Restatement, though the Third Restatement did add a more modest alteration, contending that the
common law reasonableness standard should not require a course of conduct that is forbidden by
some a statutory or administrative standard. See RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR
PHYSICAL AND EMOTIONAL HARM § 16(b):

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3. Torts in the Modern State: Implied Private Causes of Action
A further question for statutes and tort suits arises when a statute imposes an obligation
that did not exist at common law. Does failure to comply with that statutory obligation, when
such failure causes harm, give rise to a separate cause of action for damages (i.e., something other
than common law negligence) to enforce the public standard? When the legislation explicitly
authorizes private causes of action, the answer is a relatively straightforward yes. Subject to the
limitations of the Constitution’s standing requirements, Congress and the state legislatures are
generally free to authorize private parties to act as the enforcers of publicly enacted norms.
But what about legislation that does not specify whether private parties may enforce its
provisions? Here the problem is more difficult.

Uhr v. East Greenbush Central School District, 94 N.Y.2d 32 (1999)
ROSENBLATT, J.
Education Law § 905 (1) requires school authorities in the State of New York to examine
students between 8 and 16 years of age for scoliosis at least once in each school year. The
principal issue on this appeal is whether the statute authorizes a private right of action.
During the 1992-1993 school year, the infant plaintiff was a seventh grade student at the
Goff Middle School, operated by defendant East Greenbush Central School District. In October
1992, as part of a school program, a nurse screened her for scoliosis. The results were negative.
She was examined during the following school year (1993-1994) by a school nurse who checked
her height, weight and vision but allegedly did not screen her for scoliosis.
In March 1995, when the infant plaintiff was a ninth grader during the 1994-1995 school
year at Columbia High School . . . a school nurse screened her for scoliosis and the examination
proved positive. . . . [A]n orthopedic doctor . . . concluded that her scoliosis had progressed to the
point that surgery was required instead of the braces that often can be utilized when the condition
is diagnosed earlier. The infant plaintiff underwent surgery in July 1995.
Plaintiffs have alleged two causes of action . . . . One is based on a claimed violation
of Education Law § 905 (1), one on common-law negligence. Plaintiffs assert, in essence, that
the 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
detriment. Supreme Court granted the District's motion for summary judgment, holding
that Education Law § 905 (1) does not create a private right of action, and that plaintiffs had
otherwise failed to state a claim for common-law negligence. The Appellate Division affirmed.
We granted leave to appeal to this Court and now affirm.
...
The Test For the Availability of a Private Right of Action

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. . . A statutory command . . . does not necessarily carry with it a right of private
enforcement by means of tort litigation . . . .
When a statute is silent, as it is here, courts have had to determine whether a private right
of action may be fairly implied. . . . In making the determination, we ask:
“(1) whether the plaintiff is one of the class for whose particular benefit the statute was
enacted;
“(2) whether recognition of a private right of action would promote the legislative
purpose; and
“(3) whether creation of such a right would be consistent with the legislative scheme”
(Sheehy v. Big Flats Community Day, 73 NY2d, at 633, supra).
There is no doubt that the infant plaintiff is a member of the class for whose
particular benefit Education Law § 905 (1) was enacted. The first prong is satisfied.
The second prong is itself a two-part inquiry. We must first discern what the Legislature
was seeking to accomplish when it enacted the statute, and then determine whether a private right
of action would promote that objective (see, e.g., Burns Jackson Miller Summit & Spitzer v
Lindner, 59 NY2d, at 330, supra).
Here, the purpose of the statute is obvious. Scoliosis is a curvature of the spine which, if
left undetected in children, can be crippling . . . . Upon early detection, scoliosis can be treated
successfully, often without the need for surgery. . . .
Early detection of the condition serves the dual legislative purpose of promoting public
health and avoiding costly hospitalization.
In arguing that a private right of action would promote these objectives, plaintiffs assert
that the risk of liability for failure to screen will encourage compliance with Education Law § 905
(1), and thereby further the statute’s purpose of providing broad-based screenings that benefit the
public. In response, the District argues that the risk of liability will prompt school districts to
seek waivers of the requirement to screen and thus defeat the statute’s purpose.
. . . Although the District’s “waiver” argument is not entirely implausible it is an
insufficient basis on which to conclude that private enforcement would not promote the statute’s
purpose. . . . [W]e conclude that a private right of action would promote the legislative purpose
and, therefore, the second prong is satisfied.
We turn next to the third Sheehy prong—whether a private right of action is consistent
with the legislative scheme. . . . [P]rivate avenues of enforcement do not always harmonize [with
public enforcement] . . . . Both may . . . promote statutory compliance . . . but . . . are born of
different motivations and may produce a different allocation of benefits owing to differences in
approach . . . .
Plaintiffs argue that a private right of action is not only consistent with Education Law §
905 (1) but also necessary for its operation. They assert that the statute offers no other practical
means of enforcement and that a private right of action is imperative, in order to give it life. We
disagree and conclude that a private right of action would not be consistent with the statutory
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scheme. . . . [T]he statute carries its own potent official enforcement mechanism. The Legislature
has expressly charged the Commissioner of Education with the duty to implement Education Law
§ 905 (1) and has equipped the Commissioner with authority to adopt rules and regulations for
such purpose (see, Education Law § 905 [1]; § 911). Moreover, the Legislature has vested the
Commissioner with power to withhold public funding from noncompliant school districts. Thus,
the Legislature clearly contemplated administrative enforcement of this statute. The question then
becomes whether, in addition to administrative enforcement, an implied private right of action
would be consistent with the legislative scheme.
It would not. The evolution of Education Law § 905 (2) is compelling evidence of the
Legislature’s intent to immunize the school districts from any liability that might arise out of the
scoliosis screening program. . . . [T]he Legislature deemed that the school district “shall not suffer
any liability to any person as a result of making such test or examination” (emphasis added). . . .
[P]laintiffs would interpret the statute as conferring immunity for misfeasance but not
nonfeasance. . . .
Plaintiffs’ reading of the statute might have some appeal if we did not have persuasive
evidence as to the Legislature’s intent to immunize the school districts for both nonfeasance and
misfeasance. The Legislature revealed its stance, in support of the District’s interpretation, when
in 1994 it amended Education Law § 905 (2) in reaction to an Appellate Division ruling in Bello
v. Board of Educ. (139 AD2d 945). The Bello Court ruled that Education Law § 905 (2) did not
impose liability for the school district’s failure to notify a child’s parents of the positive results of
the screening (Bello v. Board of Educ., 139 AD2d, at 945, supra). . . . The Legislature specifically
responded to Bello by amending Education Law § 905 (2) to require parental notification of
positive test results within 90 days after the test (L 1994, ch 197). Revealingly, the Legislature
evidently saw no need to amend Education Law § 905 in any other way . . . . Its failure to
otherwise amend the statute is strong evidence of the Legislature’s conclusion that the Appellate
Divisions had correctly interpreted the statute’s immunity provision.
There is also the matter of cost to the school districts, as evidenced by the Legislature’s
expressed sensitivity in that regard. . . .
Given the Legislature’s concern over the possible costs to the school districts—as
evidenced by the statutory immunity provision and the other legislative statements reflecting those
concerns—we conclude that the Legislature did not intend that the districts bear the potential
liability for a program that benefits a far wider population. If we are to imply such a right, we
must have clear evidence of the Legislature’s willingness to expose the governmental entity to
liability that it might not otherwise incur. The case before us reveals no such legislative intent.
In sum, we conclude that a private right of action to enforce Education Law § 905 (1) is
inconsistent with the statute’s legislative scheme and therefore cannot be fairly implied.
Common-Law Negligence
. . . [P]laintiffs argue that the District assumed a duty to the infant plaintiff and her parents
by creating a special relationship with them in connection with the Education Law § 905
(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
state a claim for common-law negligence.
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Accordingly, the order of the Appellate Division should be affirmed, with costs.

Notes

1. Torts in the modern state. State courts (and federal courts applying state tort law) have
addressed implied cause of action claims in a variety of contexts. In Sheehy v. Big Flats
Community Day, Inc., 73 N.Y.2d 629 (1989), the New York Court of Appeals held that a state law
prohibiting the furnishing of alcoholic beverages to anyone under the legal age did not create a
private cause of action for a minor plaintiff who was injured while intoxicated because the law
was intended to authorize suits by those injured by intoxicated minors. In Lu v. Hawaiian
Gardens Casino, 50 Cal. 4th 592 (2010), the Supreme Court of California held that employees
could not sue to enforce a provision of the state’s labor code, which prohibited employers from
taking gratuities left for employees.
Note that private right of action analyses ask whether the statute in question imposes a
duty on the defendant owed to and enforceable by the plaintiff in a private suit for damages, rather
than whether the statutory standard sets the measure of negligence for purposes of a common law
negligence claim. But sometimes, as in Uhr, plaintiffs advance both types of claims—they are,
after all, functionally very similar—and the analysis can become muddy. For an example of a
case that elucidates better than Uhr the distinction between a statute-based private cause of action
and a common law negligence claim that relies on a statutorily created standard, consider
Marquay v. Eno, 662 A.2d 272 (N.H. 1995), involving three plaintiffs who alleged that, as middle
and high school students, school district employees subjected them to sexual and other abuse;
claims of negligence against some of the defendants turned on their failure to report suspected
child abuse, as required by New Hampshire state law. Taking up the relationship of a statutory
violation to civil liability, the court explained:
. . . whether or not the common law recognizes a cause of action, the plaintiff may
maintain an action under an applicable statute where the legislature intended
violation of that statute to give rise to civil liability. The doctrine of negligence per
se, on the other hand, provides that where a cause of action does exist at common
law, the standard of conduct to which a defendant will be held may be defined as
that required by statute, rather than as the usual reasonable person standard. The
doctrine of negligence per se, however, plays no role in the creation of common law
causes of action. Thus, in many cases, the common law may fail to recognize
liability for failure to perform affirmative duties that are imposed by statute.
Id. at 713-14. In other words, the court recognized a scenario in which a common law negligence
claim might fail, because the common law does not recognize the kind of duty that the statute
imposes, but a statutory violation might nonetheless translate into civil liability, producing
functionally the same result (monetary damages); see also Cuyler v. United States, 362 F.3d 949
(7th Cir. 2004) (discussing whether violation of an Illinois child abuse reporting statute constitutes
negligence per se and, in doing so, distinguishing between a common law cause of action and a
statutory one).

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2. Federal implied causes of action. Federal implied causes of action have a relatively short
history. The Supreme Court first recognized an implied cause of action in Texas & Pacific
Railway Co. v. Rigsby, 241 U.S. 33 (1916) (authorizing private parties to sue under the Safety
Appliance Act of 1910). The modern wave of implied federal cause of action cases began after
the onslaught of New Deal legislation, when the Court liberally authorized private causes of
action under the Securities and Exchange Act of 1934 and the Investment Advisers Act of 1940.
See John A. Maher, Implied Private Rights of Action and the Federal Securities Laws: A
Historical Perspective, 37 WASH. & LEE L. REV. 783, 789-804 (1980). The capstone of the New
Deal private cause of action cases came in Cort v. Ash, 422 U.S. 66 (1975). Although the Cort
Court held that 18 U.S.C. § 610, a criminal statute prohibiting corporations from making federal
election contributions, did not authorize a plaintiff stockholder to sue to enjoin the corporation
from 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
years later, however, the Court backtracked in Touche Ross & Co. v. Redington, 442 U.S. 560,
576 (1979), reading the Cort test as an application of traditional principles of legislative intent.
Nonetheless, many state courts, including the New York Court of Appeals in Sheehy and Uhr,
apply tests based on Cort’s first three factors. In the twenty-first century, the Supreme Court has
cut back still further on implied causes of action under federal statutes. In Alexander v. Sandoval,
532 U.S. 275 (2001), the respondent sued to enforce disparate-impact regulations promulgated
under Title VI of the Civil Rights Act of 1964. The respondent alleged that Alabama’s Englishonly driver’s license test violated Title VI’s prohibition on discrimination in public programs
because of race, color, or national origin. The Sandoval Court held that Title VI did not create a
private cause of action for disparate impact claims. For a criticism of the Court’s decision, see
Bradford C. Mank, Legal Context: Reading Statutes in Light of Prevailing Legal Precedent, ARIZ.
ST. L.J. 816, 856-66 (2002).

3. A logic for implied causes of action. When should governments authorize private
enforcement? Lawyer economist Steven Shavell argues that the effectiveness of private damages
actions as an enforcement mechanism turns on several factors, chief among which are (a) whether
private parties have access to the information necessary to be effective regulators of risky
activities, and (b) whether the actors whose conduct is to be regulated can pay for the full
magnitude of the harm. If private parties do not have enough information to bring enforcement
actions, then their effectiveness will of course be severely limited. Consider, for example, using
private enforcement to police safety regulations in a nuclear power plant. Similarly, if the
regulated actor or actors present a risk of harm to others that exceeds their ability to pay, then the
threat of tort damages after the fact will prove to be an insufficient deterrent. The paradigmatic
example here is the judgment-proof individual, but, although it is somewhat terrifying, we might
just as well consider nuclear power plants again, since the chances that a power plant operator
could be made to internalize the costs of a Chernobyl-like meltdown are slim to none. For the
basic analysis, see Steven Shavell, Liability for Harm Versus Regulation of Safety, 13 J. LEGAL
STUD. 357, 357-64 (1984).

4. Private enforcement and public enforcement. Objections to private causes of action often
focus on the risk of over deterrence, which can arise when regulated actors face both public and
private sanctions, each of which might be effective on its own, but which together require too
much care. See W. KIP VISCUSI, REGULATION THROUGH LITIGATION 1-6 (2002). One especially
problematic version of this occurs when plaintiffs’ lawyers piggyback on regulatory action that
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would have been sufficient in and of itself. (Chapter 9 of this book takes this problem up in more
detail.) Still others criticize private litigation on democracy grounds. Negotiated tort settlements,
they 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
exist if courts conclude that the statutes they enforce imply the availability of such causes of
action, then these suits are themselves the creatures of democratic legislation. Legislatures are
entirely free to abolish such private causes of action.
Defenders of certain private causes of action observe that courts and juries are less
vulnerable than legislatures and regulators to interest group politics. Moreover, where
bureaucratic systems often become ossified and rigid, judges and juries continuously update their
damages evaluations. See generally John Fabian Witt, Bureaucratic Legalism, American Style:
Private Bureaucratic Legalism and the Governance of the Tort System, 56 DEPAUL L. REV. 261,
272 (2007).

5. The False Claims Act. One interesting model for public and private enforcement is the
False Claims Act’s (FCA) qui tam provisions, which permit private persons (styled as “relators”)
to bring civil actions against private parties who defraud the federal government. In return,
relators receive 15% to 25% of the proceeds of the action or settlement or 25% to 30% if the
government chooses not to pursue the litigation. 31 U.S.C. § 3730(b)-(d). Critics of these qui tam
provisions claim that inefficient, specialized relator-side firms increasingly dominate qui tam
litigation. Others argue that these firms have positive effects on the system because they enjoy
higher success rates and expose larger frauds than less experienced firms. David Freeman
Engstrom, Harnessing the Private Attorney General: Evidence from Qui Tam Litigation, 112
COLUM. L. REV. 1244, 1248-50 (2012).

6. Bivens v. Six Unknown Named Agents. Constitutional provisions have been held to
imply private causes of action for damages as well as statutory provisions. In Bivens v. Six
Unknown Named Agents, 403 U.S. 388 (1971), the Supreme Court ruled that federal officials may
be sued in their personal capacity for damages caused by constitutional violations. In the Bivens
case, the Court held that the Fourth Amendment implied a private cause of action against the
federal officers who violated the petitioner’s right to be free from unreasonable searches and
seizures. The Court subsequently expanded Bivens liability to violations of the Fifth, Davis v.
Passman, 442 U.S. 228 (1979), and Eighth Amendments, Carlson v. Green, 446 U.S. 14 (1980).
But Carlson marked the high-water mark for Bivens-style implied constitutional causes of action.
As in the implied statutory causes of action cases, the Court has been much more reluctant in
recent decades to find implied private actions; the justices have not extended liability to new
defendants or new constitutional claims since 1980. For a recent example, see Hernandez v.
Mesa, 589 U.S. __ (2020) (declining to recognize a Bivens claim in the “new ‘context’” of a
cross-border shooting). For a discussion of Bivens and its consequences for official liability, see
Alexander A. Reinert, Measuring the Success of Bivens Litigation and Its Consequences for the
Individual Liability Model, 62 STAN. L. REV. 809 (2010). Plaintiffs may sue state and local
officials for similar constitutional violations under a federal statute that explicitly authorizes
private causes of action. See 42 U.S.C. § 1983.

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7. The Restatement approach. Section 874 of the Second Restatement recommends that
implied private causes of action be recognized when such a cause of action “is appropriate in
furtherance of the purpose of the legislation and needed to assure the effectiveness of the
provision. RESTATEMENT (SECOND) OF TORTS, § 874A.
The Third Restatement contains no analog to Section 874. However, the Third
Restatement does note that in “a suit brought by the victim of [a statutory violation], the court,
relying on ordinary principles of legislative interpretation, may in appropriate cases infer from the
statute a cause of action for damages against a violator.” RESTATEMENT (THIRD) OF TORTS: PHYS.
AND EMOT. HARM §14, cmt. b (2010). Additionally, the Third Restatement permits a court to rely
on a statute to find that the plaintiff owes an affirmative duty to the defendant, which, when
breached, creates a common law cause of action. See id. § 38 (“Affirmative Duty Based on
Statutory Provisions Imposing Obligations to Protect Another”).
For a discussion of the relationship between Section 38 and Section 874A of the Second
Restatement, see RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §38, cmt. A (2010); see
also id. at §38, cmt. d.

F. Proof of Negligence
It is one thing to understand the basic elements of the negligence cause of action. But in
practice, a plaintiff needs to prove her case, too. The question of what precisely it means to meet
a plaintiff’s burden of proof turns out to be a tricky one. Consider Judge Posner’s opinion in
Howard v. Wal-Mart:

1. The Basic Problem
Howard v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998)
POSNER, C.J.
We have before us a charming miniature of a case. In 1993 Dolores Howard, age 65,
slipped and fell in a puddle of liquid soap that someone—no one knows who—had spilled on the
floor of the aisle in a Wal-Mart store in Cahokia, Illinois. . . . The jury awarded her $18,750.
Wal-Mart has appealed out of fear (its lawyer explained to us at argument) of the precedential
effect in future slip-and-fall cases of the judge’s refusal to grant judgment for Wal-Mart as a
matter of law. We don’t tell people whether to exercise their rights of appeal, but we feel
impelled to remind Wal-Mart and its lawyer that a district court’s decision does not have
precedential authority . . . let alone a jury verdict or an unreported order by a magistrate judge . . .
refusing on unstated grounds to throw out a jury’s verdict.
The issue on appeal is whether there was enough evidence of liability to allow the case to
go to a jury, and, specifically, whether there was enough evidence that an employee rather than a
customer spilled the soap. . . . Even if a customer spilled it, Wal-Mart could be liable if it failed to
notice the spill and clean it up within a reasonable time. . . . It has a legal duty to make its
premises reasonably safe for its customers. But there is no evidence with regard to how much
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time elapsed between the spill and the fall; it may have been minutes. Wal-Mart is not required to
patrol the aisles continuously, but only at reasonable intervals. . . . So Howard could prevail only
if there was enough evidence that an employee spilled the soap to satisfy the requirement of
proving causation by a preponderance of the evidence.
The accident occurred in the morning, and morning is also when the employees stock the
shelves. The defendant presented evidence that the puddle of liquid soap on which Howard
slipped was about the diameter of a softball and was in the middle of the aisle. Howard testified
that it was a large puddle on the right side of the aisle and “when I got up, I had it all over me, my
coat, my pants, my shoes, my socks.” An employee could have dropped one of the plastic
containers of liquid soap on the floor while trying to shelve it and the container could have broken
and leaked. Or the cap on one of the containers might have come loose. Or the containers might
have been packed improperly in the box from which they were loaded onto the shelves and one of
them might have sprung a leak. Alternatively, as Wal-Mart points out, a customer, or a
customer’s child, might have knocked a container off the shelf. A curious feature of the case,
however, is that the container that leaked and caused the spill was never found. Howard argues,
not implausibly, that a customer who had come across a damaged container or had damaged it
would be unlikely to purchase it, having lost part of its contents—a large part, if Howard’s
testimony was believed; and the jury was entitled to believe it—or indeed to put it in her shopping
cart and risk smearing her other purchases with liquid soap. In light of this consideration, we
cannot say that the jury was irrational in finding that the balance of probabilities tipped in favor of
the plaintiff, though surely only by a hair’s breadth.
Is a hair’s breadth enough, though? Judges, and commentators on the law of evidence,
have been troubled by cases in which the plaintiff has established a probability that only minutely
exceeds 50 percent that his version of what happened is correct. The concern is illuminated by the
much-discussed bus hypothetical. Suppose that the plaintiff is hit by a bus, and it is known that
51 percent of the buses on the road where the plaintiff was hit are owned by Bus Company A and
49 percent by Company B. The plaintiff sues A and asks for judgment on the basis of this statistic
alone (we can ignore the other elements of liability besides causation by assuming they have all
been satisfied, as in this case); he tenders no other evidence. If the defendant also puts in no
evidence, should a jury be allowed to award judgment to the plaintiff? The law’s answer is “no.”
See Richard W. Wright, Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof:
Pruning the Bramble Bush by Clarifying the Concepts, 73 IOWA L. REV. 1001, 1050-51 (1988),
and cases cited there. Our hypothetical case is a variant of Smith v. Rapid Transit, 317 Mass. 469,
58 N.E.2d 754 (1945), where the court held that it “was not enough” “that perhaps the
mathematical chances somewhat favor the proposition that a bus of the defendant caused the
accident.” Id. at 755. . . .
Smith . . . involve[s] explicitly probabilistic evidence. But as all evidence is probabilistic
in the sense of lacking absolute certainty, all evidence can be expressed in probabilistic terms, and
so the problem or dilemma presented by those cases is general. The eyewitness might say that he
was “99 percent sure” that he had seen the defendant, and jurors appraising his testimony might
reckon some different probability that he was correct. What powers the intuition that the plaintiff
should lose the bus case is not the explicitly probabilistic nature of the evidence, but the
evidentiary significance of missing evidence. If the 51/49 statistic is the plaintiff’s only evidence,
and he does not show that it was infeasible for him to obtain any additional evidence, the
inference to be drawn is not that there is a 51 percent probability that it was a bus owned by A that
hit the plaintiff. It is that the plaintiff either investigated and discovered that the bus was actually
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owned by B (and B might not have been negligent and so not liable even if a cause of the
accident, or might be judgment-proof and so not worth suing), or that he simply has not bothered
to conduct an investigation. If the first alternative is true, he should of course lose; and since it
may be true, the probability that the plaintiff was hit by a bus owned by A is less than 51 percent
and the plaintiff has failed to carry his burden of proof. If the second alternative is true—the
plaintiff just hasn’t conducted an investigation—he still should lose. A court shouldn’t be
required to expend its scarce resources of time and effort on a case until the plaintiff has
conducted a sufficient investigation to make reasonably clear that an expenditure of public
resources is likely to yield a significant social benefit. This principle is implicit in the law’s
decision to place the burden of producing evidence on the plaintiff rather than on the defendant.
Suppose it would cost the court system $10,000 to try even a barebones case. This expenditure
would be worthless from the standpoint of deterring accidents should it turn out that the bus was
owned by B. It makes sense for the court to require some advance investigation by the plaintiff in
order to increase the probability that a commitment of judicial resources would be worthwhile.
These objections to basing a decision on thin evidence do not apply to the present case.
Not only is there no reason to suspect that the plaintiff is holding back unfavorable evidence; it
would have been unreasonable, given the stakes, to expect her to conduct a more thorough
investigation. This is a tiny case; not so tiny that it can be expelled from the federal court system
without a decision, but so tiny that it would make no sense to try to coerce the parties to produce
more evidence, when, as we have said, no inference can be drawn from the paucity of evidence
that the plaintiff was afraid to look harder for fear that she would discover that a customer and not
an employee of Wal-Mart had spilled the soap.
We conclude, therefore, that the jury verdict must stand. And, Wal-Mart, this decision, a
reported appellate decision, unlike the decision of the district court, will have precedential
authority!
Affirmed.

Notes

1. Statistical evidence in the common law. Why is it not enough for plaintiffs to prove their
case using statistical evidence that establishes a “more likely than not” probability that the
defendant was negligent?
According to Professor Daniel Shaviro, courts refuse to rule for plaintiffs in such cases for
three reasons. First, relying on such evidence “makes the unjust punishment of innocent persons
certain, rather than probable,” effectively allowing such defendants “to be sacrificed for general
social benefit.” Daniel Shaviro, Commentary, Statistical-Probability Evidence and the
Appearance of Justice, 103 HARV. L. REV. 530, 535 (1989) (emphasis omitted). Second, such
evidence “violates the principle that defendants should be treated as unique individuals.” Id. at
537 (emphasis omitted). Third, “defendants should not be held . . . liable absent ‘actual belief’ by
the jury, and such belief cannot be derived from statistical-probability evidence.” Id. at 539.
Professor Laurence Tribe similarly argues that courts’ reliance on statistical evidence
“dehumaniz[es] . . . justice,” directing jurors to focus on defendants’ liability, rather than
innocence, and “distort[ing] . . . important values . . . that society means to express or to pursue
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through . . . legal trials.” Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the
Legal Process, 84 HARV. L. REV. 1329, 1375, 1330 (1971). For more information on statistical
evidence in trials, see infra Chapter 6, Causation.
Recall, however, the case of Martin v. Herzog, in which Mrs. Martin could not recover
damages after her husband was killed by a car that crossed the median simply because their buggy
was not equipped with a light. The rule of per se negligence forbids courts from taking into
account some of the values that Professor Tribe and others might think important. A rule
characterizing certain conduct as per se negligent is a kind of statistical judgment about the class
of cases covered by the rule. Why isn’t the use of rules, as opposed to standards, similarly
perceived to be objectionable as statistical proof?
Note, too, that of course insurers use statistics all the time to generalize about the riskiness
of certain groups. Even if a teenage boy is, himself, incredibly cautious, and even if detailed
inquiry into his behavior would produce a low risk assessment, he will nevertheless almost
certainly face a higher insurance premium than a middle aged woman. Professor Frederick
Schauer argues that the stereotype of teenage boys being riskier drivers is a “nonspurious”
generalization—i.e., there is sound empirical evidence that a higher percentage of teenage boys
drive recklessly than other groups—and therefore should be fair to rely on as insurance companies
evaluate premiums and risk. FREDERICK SCHAUER, PROFILES, PROBABILITIES & STEREOTYPES, 15
(2003). Schauer goes on to argue that empirically sound generalizations are often superior ways
to organize decision-making than the particularized evaluations defended by Professor Tribe. Not
only might a generalized decision-making regime make fewer errors in the long run, it may also
“serve other important goals and embody other important values,” such as efficiency and
objectivity. Id. at 24.
While the teenage driver example of the use of the “reasonable person” may seem
acceptable, what about charging homebuyers a higher interest rate on their mortgage because their
buyers in their low-income neighborhood are statistically more likely to default?

2. Burdens of production, burdens of persuasion. The burden of proof consists of the burden
of production and the burden of persuasion. The burden of production requires a party, initially
the plaintiff, to produce “sufficient evidence to support a finding in favor of that [party].” Bruner
v. Office of Pers. Mgmt., 996 F.2d 290, 293 (Fed. Cir. 1993). Once the plaintiff has met her
burden of production, the defendant may be required to offer evidence showing otherwise or
calling into question a material fact lest the defendant be defeated by a motion for summary
judgment. Id. Not all prima facie cases by the plaintiff—cases presenting sufficient evidence to
support a finding in the plaintiff’s favor—will support a plaintiff’s summary judgment motion
absent evidence offered by the defendant. But some will. And in this sense, although the burden
of production starts with the plaintiff, we can think of it as shifting back and forth during a
proceeding whenever either party develops evidence that would require a reasonable trier of fact
to find for that party absent an additional showing of contrary evidence. The burden of
persuasion, by contrast, generally “rests with one party throughout the case.” Rivera v. Philip
Morris, Inc., 209 P.3d 271, 275 (Nev. 2009). To meet the burden of persuasion, a party must
“produce sufficient evidence to convince a judge that a fact has been established.” Id. In civil
cases, the threshold is a preponderance of the evidence. The party bearing the burden of
persuasion, typically the plaintiff, at least as to the prima facie case, bears the risk that the
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evidence is in perfect equipoise. But she can win if the jury decides that her version of the events
in question is just that much more likely than her adversary’s version.

3. Status Quo Bias? One view is that the basis for this basic feature of virtually all civil
litigation is a bias for the status quo. According to a leading treatise on the law of evidence, for
example, pleading and proof burdens are usually assigned to the plaintiff because the plaintiff is
the one seeking “to change the present state of affairs” and therefore “naturally should be
expected to bear the risk of failure of proof or persuasion.” JOHN W. STRONG, MCCORMICK ON
EVIDENCE § 337, at 412 (5th ed., 1999). Is this a good argument for the initial allocation? What
other arguments might be made?

2. Res Ipsa Loquitur
The problem of cases in which proof is difficult to establish is a longstanding one, of
course. Courts have used the doctrine of res ipsa loquitur (“the thing speaks for itself”) to assign
liability in such cases. Consider the two cases and notes below:

Byrne v. Boadle, 159 Eng. Rep. 299 (Court of Exchequer and Exchequer Chamber, 1863)
The plaintiff was walking in a public street past the defendant’s shop when a barrel of
flour fell upon him from a window above the shop, and seriously injured him. Held sufficient
prima facie evidence of negligence for the jury, to cast on the defendant the onus of proving that
the accident was not caused by his negligence. . . .
At the trial . . . , the evidence adduced on the part of the plaintiff was as follows:—A
witness named Critchley said: “On the 18th July, I was in Scotland Road, on the right side going
north, defendant’s shop is on that side. When I was opposite to his shop, a barrel of flour fell
from a window above in defendant’s house and shop, and knocked the plaintiff down. . . . I did
not see the barrel until it struck the plaintiff. It was not swinging when it struck the plaintiff. It
struck him on the shoulder and knocked him towards the shop. No one called out until after the
accident.” The plaintiff said: “On approaching Scotland Place and defendant’s shop, I lost all
recollection. I felt no blow. I saw nothing to warn me of danger. I was taken home in a cab. I
was helpless for a fortnight.” (He then described his sufferings.) “I saw the path clear. I did not
see any cart opposite defendant’s shop.” Another witness said: “I saw a barrel falling. I don’t
know how, but from defendant’s [shop].” . . . It was admitted that the defendant was a dealer in
flour.
It was submitted, on the part of the defendant, that there was no evidence of negligence
for the jury. The learned Assessor was of that opinion, and nonsuited the plaintiff, reserving leave
to him to move the Court of Exchequer to enter the verdict for him. . . .
Littler, in the present term, obtained a rule nisi to enter the verdict for the plaintiff, on the
ground of misdirection of the learned Assessor in ruling that there was no evidence of negligence
on the part of the defendant; against which Charles Russell now shewed cause. First, there was no
evidence to connect the defendant or his servants with the occurrence. It is not suggested that the
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defendant himself was present, and it will be argued that upon these pleadings it is not open to the
defendant to contend that his servants were not engaged in lowering the barrel of flour. But
the declaration alleges that the defendant, by his servants, so negligently lowered the barrel of
flour, that by and through the negligence of the defendant, by his said servants, it fell upon the
plaintiff. That is tantamount to an allegation that the injury was caused by the defendant’s
negligence, and it is competent to him, under the plea of not guilty, to contend that his servants
were not concerned in the act alleged. The plaintiff could not properly plead to this declaration
that his servants were not guilty of negligence, or that the servants were not his servants. If it had
been stated by way of inducement that at the time of the grievance the defendant’s servants were
engaged in lowering the barrel of flour, that would have been a traversable allegation, not in issue
under the plea of not guilty. Then, assuming the point is open upon these pleadings, there was no
evidence that the defendant, or any person for whose acts he would be responsible, was engaged
in lowering the barrel of flour. It is consistent with the evidence that the purchaser of the flour
was superintending the lowering of it by his servant, or it may be that a stranger was engaged to
do it without the knowledge or authority of the defendant. [Pollock, C. B. The presumption is that
the defendant’s servants were engaged in removing the defendant’s flour; if they were not it was
competent to the defendant to prove it.] Surmise ought not to be substituted for strict proof when
it is sought to fix a defendant with serious liability. The plaintiff should establish his case by
affirmative evidence.
Secondly, assuming the facts to be brought home to the defendant or his servants, these
facts do not disclose any evidence for the jury of negligence. The plaintiff was bound to give
affirmative proof of negligence. But there was not a scintilla of evidence, unless the occurrence is
of itself evidence of negligence. There was not even evidence that the barrel was being lowered
by a jigger-hoist as alleged in the declaration. [Pollock, C. B. There are certain cases of which it
may be said res ipsa loquitur, and this seems one of them. In some cases the Courts have held that
the mere fact of the accident having occurred is evidence of negligence, as, for instance, in the
case of railway collisions.] . . . [Bramwell, B. No doubt, the presumption of negligence is not
raised in every case of injury from accident, but in some it is. We must judge of the facts in a
reasonable way; and regarding them in that light we know that these accidents do not take place
without a cause, and in general that cause is negligence.] The law will not presume that a man is
guilty of a wrong. It is consistent with the facts proved that the defendant’s servants were
using the utmost care and the best appliances to lower the barrel with safety. Then why should
the fact that accidents of this nature are sometimes caused by negligence raise any presumption
against the defendant? There are many accidents from which no presumption of negligence can
arise. [Bramwell, B. Looking at the matter in a reasonable way it comes to this—an injury is done
to the plaintiff, who has no means of knowing whether it was the result of negligence; the
defendant, who knows how it was caused, does not think fit to tell the jury.] Unless a plaintiff
gives some evidence which ought to be submitted to the jury, the defendant is not bound to offer
any defence. The plaintiff cannot, by a defective proof of his case, compel the defendant to give
evidence in explanation. [Pollock, C. B. I have frequently observed that a defendant has a right to
remain silent unless a prima facie case is established against him. But here the question is
whether the plaintiff has not shewn such a case.] In a case of this nature, in which the sympathies
of a jury are with the plaintiff, it would be dangerous to allow presumption to be substituted for
affirmative proof of negligence.
POLLOCK, C.B. We are all of opinion that the rule must be absolute to enter the verdict for
the plaintiff. The learned counsel was quite right in saying that there are many accidents from
which no presumption of negligence can arise, but I think it would be wrong to lay down as a rule
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that in no case can presumption of negligence arise from the fact of an accident. Suppose in this
case the barrel had rolled out of the warehouse and fallen on the plaintiff, how could he possibly
ascertain from what cause it occurred? It is the duty of persons who keep barrels in a warehouse
to take care that they do not roll out, and I think that such a case would, beyond all doubt, afford
prima facie evidence of negligence. A barrel could not roll out of a warehouse without some
negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse
to prove negligence seems to me preposterous. So in the building or repairing a house, or putting
pots on the chimneys, if a person passing along the road is injured by something falling upon him,
I think the accident alone would be prima facie evidence of negligence. Or if an article calculated
to cause damage is put in a wrong place and does mischief, I think that those whose duty it was to
put it in the right place are prima facie responsible, and if there is any state of facts to rebut the
presumption of negligence, they must prove them. The present case upon the evidence comes to
this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a
barrel of flour. I think it apparent that the barrel was in the custody of the defendant who
occupied the premises, and who is responsible for the acts of his servants who had the control of
it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff
who was injured by it is not bound to shew that it could not fall without negligence, but if there
are any facts inconsistent with negligence it is for the defendant to prove them.
BRAMWELL, B. I am of the same opinion.
CHANNELL, B. I am of the same opinion. The first part of the rules assumes the existence
of negligence, but takes this shape, that there was no evidence to connect the defendant with the
negligence. The barrel of flour fell from a warehouse over a shop which the defendant occupied,
and therefore prima facie he is responsible. Then the question is whether there was any evidence
of negligence, not a mere scintilla, but such as in the absence of any evidence in answer would
entitle the plaintiff to a verdict. I am of opinion that there was. I think that a person who has a
warehouse by the side of a public highway, and assumes to himself the right to lower from it a
barrel of flour into a cart, has a duty cast upon him to take care that persons passing along the
highway are not injured by it. I agree that it is not every accident which will warrant the inference
of negligence. On the other hand, I dissent from the doctrine that there is no accident which will
in itself raise a presumption of negligence. In this case I think that there was evidence for the
jury, and that the rule ought to be absolute to enter the verdict for the plaintiff.
PIGOTT, B. I am of the same opinion.
Rule absolute.

Grajales-Romero v. American Airlines, Inc., 194 F.3d 288 (1st Cir. 1999)
LIPEZ, J.
. . . American Airlines, Inc. appeals from a judgment of $150,000 in favor of Ananias
Grajales-Romero, who was injured by a collapsing check-in counter sign at an airport in St. Kitts.
. . . American . . . claims that there was insufficient evidence of negligence to sustain the jury
verdict in this case. . . .
I.

Factual background
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We present the facts as a jury might have found them, consistent with the record but in the
light most favorable to the verdict. On July 29, 1994, Plaintiff Ananias Grajales-Romero
(“Grajales”) was waiting in line at an American Eagle 1 check-in counter in the St. Kitts airport
for a return flight to San Juan, Puerto Rico. His acquaintance Terry Connor had accompanied him
to the check-in counter. Connor attempted to load Grajales’s luggage onto the weigh-in scale
adjacent to the check-in counter. In doing so, he grabbed onto an ashtray built into the countertop
to gain some leverage in lifting the luggage. The countertop was attached by a hinge to the
vertical front facing of the counter. When Connor pulled on the ashtray, the countertop came
loose, and pivoted forward on its hinge. A metal signpost and sign were attached to the
countertop, and this signpost and sign also pivoted forward with the countertop. As this was
happening, plaintiff Grajales was looking down at his ticket. The signpost and/or sign struck
Grajales on the top of his head, opening up a two-inch long wound. Although he did not lose
consciousness or fall to the floor, he was taken to the St. Kitts hospital, where he received four
stitches. After the accident, Grajales experienced neck pains, headaches, and forgetfulness. He
was diagnosed by a neurologist as suffering from post-concussion syndrome and a cervical sprain
secondary to the accident.
Grajales filed a complaint against American, AMR Corp., and AMR Eagle, Inc. in the
federal district court for the District of Puerto Rico on July 28, 1995. . . . The court refused to give
an instruction on the doctrine of res ipsa loquitur requested by Grajales, and refused several
instructions offered by American. The jury found American liable in the amount of
$150,000. The court issued its judgment accordingly. . . . Both parties appealed. . . .
[Part II is omitted]
III.

Sufficiency of the Evidence of Negligence

(a) Res Ipsa Loquitur
American states that plaintiff produced no evidence—either through customary airline
practices, past practices, or expert testimony—to establish a standard of care by which American
should have operated. Further, plaintiff presented no evidence regarding the inspection,
maintenance, and operation of the ticket counter, and made no attempt to explain in what manner
any such conduct might have constituted negligence.
From these assertions, and the fact that the court refused to give the jurors Grajales’s
proposed res ipsa loquitur instruction, American argues that “no jury could reasonably conclude
that American exercised less than reasonable care from the unexplained fact that an accident
occurred.”
We agree with American that Grajales did not produce either direct or circumstantial
evidence explaining how American violated its duty of care. Grajales offered no evidence, for
example, suggesting that the ticket counter had been improperly designed, installed, maintained,
or operated. Instead, Grajales relied on the fact of an unexpected occurrence, arguing that the
counter top would not have fallen over and struck him unless American had violated its duty of
care. The Supreme Court of Puerto Rico has ruled that the fact of an unexplained occurrence
cannot establish an inference of negligence unless the conditions of res ipsa loquitur are satisfied:
“(1) the accident must be of a kind which ordinarily does not occur in the absence of someone’s
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negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of
defendant; [and] (3) it must not be due to any voluntary action on the part of plaintiff.” Given the
lack of direct or other circumstantial evidence on American’s violation of its duty of care, we
must consider whether the conditions of res ipsa loquitur were satisfied here.
We conclude that they were. Indeed, the first two elements of res ipsa loquitur were
easily established. A reasonable jury could have concluded that the accident was of a kind which
“ordinarily does not occur in the absence of someone’s negligence,” and that the accident was
“caused by an . . . instrumentality within the exclusive control of [the] defendant.”
The res ipsa loquitur requirement that the accident not be caused by any “voluntary
action” on the part of the plaintiff posed a more difficult challenge for Grajales. American argues
that a res ipsa loquitur inference was unreasonable because the evidence indicates that plaintiff’s
acquaintance Connor took the “voluntary action” of pulling on the counter-top. Even if Connor’s
actions could be attributed to Grajales, American’s argument misses its mark. The test is not
whether the plaintiff took any voluntary action, but whether that voluntary action can be blamed
for the accident. . . . The evidence here was sufficient to support a finding that Grajales and his
colorable agent Connor were blameless, having done nothing more than “attempt to [use the
instrumentality] in the ordinary manner[.]” So long as the jurors could have concluded from the
evidence that Connor’s use of the counter for leverage constituted a normal usage of the counter
by a customer, the jury could have inferred American’s negligence.
While there was sufficient evidence on each of the conditions of res ipsa loquitur, the
district court did not provide the jury with a res ipsa loquitur instruction, as Grajales had
requested. We must therefore consider an argument implicit in American’s challenge to the
sufficiency of the evidence of negligence—that a jury verdict cannot be justified on the basis of
res ipsa loquitur when the jurors were never instructed on the doctrine.
Puerto Rico’s statement of the three elements of res ipsa loquitur is derived from the first
edition of a well-known treatise on evidence. See W. Page Keeton et al., Prosser and Keeton on
Torts 244 (Lawyer’s 5th ed. 1984). That origin confirms that a res ipsa loquitur instruction
explains to the jury a specific form of permissible inference from circumstantial evidence of
negligence. Given this purpose, jurors who can draw the inference of negligence even without a
res ipsa loquitur instruction should be permitted to do so.
In this case, the jurors were adequately instructed on inference and circumstantial
evidence, and Grajales made the specific inference contemplated by a res ipsa loquitur instruction
the linchpin of his theory of the case. Given that there was sufficient evidence
on each of the res ipsa loquitur requirements, the jurors were entitled to make the res ipsa loquitur
inference even in the absence of a specific instruction. . . .

Affirmed.

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Notes

1. The elements of res ipsa. Under what conditions can plaintiffs establish res ipsa loquitur?
According to many courts, the doctrine of res ipsa loquitur requires proof of “casualty of a kind
(1) that does not ordinarily occur absent negligence; (2) that was caused by an instrumentality
exclusively in the defendant’s control; and (3) that was not caused by an act or omission of the
plaintiff.” See, e.g., Holzhauer v. Saks & Co., 697 A.2d 89, 92-93 (Md. 1997). Courts have used
the second element to preclude res ipsa loquitur claims when parties other than the defendant can
control the instrumentality causing injury to the plaintiff. For example, in Holzhauer, the
Maryland Court of Appeals precluded a res ipsa loquitur claim from a plaintiff who was injured
when a mall escalator stopped abruptly. Because “hundreds of [the defendant’s] customers ha[d]
unlimited access to the [escalator’s] emergency stop buttons,” the court held that it was
“impossible to establish that the escalator was in [Defendant’s] exclusive control.” Id. at 94.
Courts in other jurisdictions have diverged from the Maryland Court of Appeals’s holding in
Holzhauer. For example, in Rose v. Port of New York Authority, the New Jersey Supreme Court
held that the plaintiff, who was struck by an automatic glass door at an airport, could recover
under the doctrine of res ipsa loquitur. Because “members of the public pass . . . through
automatic doors . . . without sustaining injury,” the court held that the plaintiff’s injury was
“unusual and not commonplace, . . . strongly suggest[ing] a malfunction, which in turn suggests
neglect.” Rose v. Port of N.Y. Auth., 293 A.2d 371, 375 (N.J. 1972). But see Kmart Corp. v.
Bassett, 769 So. 2d 282, 283 (Ala. 2000) (rejecting res ipsa doctrine in automatic doors case).

2. Res ipsa discriminator? A falling barrel or check-in kiosk are not the only scenarios in
which the burden of production is shifted to the defendant. In the same way a person walking
down the street may not be able to prove what led to a barrel falling on their head, employees
often lack the evidence to prove that they were the objects of a discriminatory adverse
employment action. In McDonnell Douglas v. Green, 411 U.S. 792 (1973), the Supreme Court
created a burden shifting scheme to fix this problem. When an employee can make out a prima
facie case of discrimination under Title VII of the Civil Rights Act, the burden of production
shifts to the employer to provide a non-discriminatory reason for the decision. Id. at 802. Once
the defendant provides a reason, the burden shifts back to the plaintiff to show that this reason is
mere pretext. Id. at 798. Even if the plaintiff can prove the employer’s proffered decision is
pretextual, the plaintiff is not automatically entitled to summary judgement. St. Mary’s Honor
Center v. Hicks, 509 U.S. 502 (1993). Rather, a jury must decide whether the pretextual rationale
is a front for invidious discrimination or some other justification the employer would rather keep
quiet, like a particularly petty personal dispute. Fisher v. Vassar College, 114 F. 3d 1332 (2d Cir.
1997). In Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000), the Supreme Court
clarified that when a plaintiff proves a prima facie case of discrimination and also proves that the
employer’s proffered reason is pretextual, the plaintiff does not automatically gain summary
judgment, but such a plaintiff may sometimes be entitled to summary judgment, depending on the
facts in the record.
Why not make adjudication in employment discrimination cases turn on the fate of the
employer’s proffered reason? In this approach, the plaintiff would win if the jury were persuaded
by a preponderance of the evidence that the defendant’s proferred reason was a pretext, regardless
whether or not the plaintiff has also proven by a preponderance that the real reason was unlawful
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discrimination. Such a plaintiff would be automatically entitled to summary judgment if after
discovery no reasonable jury could find from the evidence in the record that the employer’s
proferred reason was the actual reason for the employment decision at issue.

3. What does res ipsa do? What is the effect of successfully invoking the res ipsa doctrine?
Does a successful invocation of res ipsa entitle a plaintiff to a directed verdict, at least absent
rebuttal evidence from the defendant? Does a successful invocation shift the burden of proof
(production or persuasion) to the defendant? Or is the doctrine of res ipsa better thought of as a
doctrine of circumstantial evidence?

Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944)
GIBSON, C.J.
. . . This is an action for damages for personal injuries alleged to have been inflicted on
plaintiff by defendants during the course of a surgical operation. The trial court entered
judgments of nonsuit as to all defendants and plaintiff appealed.
On October 28, 1939, plaintiff consulted defendant Dr. Tilley, who diagnosed his ailment
as appendicitis, and made arrangements for an appendectomy to be performed by defendant Dr.
Spangard at a hospital owned and managed by defendant Dr. Swift. Plaintiff entered the hospital,
was given a hypodermic injection, slept, and later was awakened by Doctors Tilley and Spangard
and wheeled into the operating room by a nurse whom he believed to be defendant Gisler, an
employee of Dr. Swift. Defendant Dr. Reser, the anesthetist, also an employee of Dr. Swift,
adjusted plaintiff for the operation, pulling his body to the head of the operating table and,
according to plaintiff’s testimony, laying him back against two hard objects at the top of his
shoulders, about an inch below his neck. Dr. Reser then administered the anesthetic and plaintiff
lost consciousness. When he awoke early the following morning he was in his hospital room
attended by defendant Thompson, the special nurse, and another nurse who was not made a
defendant.
Plaintiff testified that prior to the operation he had never had any pain in, or injury to, his
right arm or shoulder, but that when he awakened he felt a sharp pain about half way between the
neck and the point of the right shoulder. . . . He was unable to rotate or lift his arm, and developed
paralysis and atrophy of the muscles around the shoulder. . . .
Plaintiff . . . consulted Dr. Wilfred Sterling Clark, who . . . [concluded that] plaintiff’s
condition was due to trauma or injury by pressure or strain, applied between his right shoulder and
neck.
Plaintiff was also examined by Dr. Fernando Garduno, who expressed the opinion that
plaintiff’s injury was a paralysis of traumatic origin, not arising from pathological causes . . . .
Plaintiff’s theory is that the foregoing evidence presents a proper case for the application
of the doctrine of res ipsa loquitur, and that the inference of negligence arising therefrom makes
the granting of a nonsuit improper. Defendants take the position that . . . there is no showing that
the act of any particular defendant . . . was the cause thereof. They attack plaintiff’s action as an
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attempt to fix liability “en masse” on various defendants, some of whom were not responsible for
the acts of others . . . . We are satisfied, however, that these objections are not well taken in the
circumstances of this case.
The doctrine of res ipsa loquitur has three conditions: “(1) the accident must be of a kind
which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by
an agency or instrumentality within the exclusive control of the defendant; (3) it must not have
been due to any voluntary action or contribution on the part of the plaintiff.” (Prosser, Torts, p.
295.) . . .
There is, however, some uncertainty as to the extent to which res ipsa loquitur may be
invoked in cases of injury from medical treatment. This is in part due to the tendency, in some
decisions, to lay undue emphasis on the limitations of the doctrine, and to give too little attention
to its basic underlying purpose. The result has been that a simple, understandable rule of
circumstantial evidence, with a sound background of common sense and human experience, has
occasionally been transformed into a rigid legal formula, which arbitrarily precludes its
application in many cases where it is most important that it should be applied. If the doctrine is to
continue to serve a useful purpose, we should not forget that particular force and justice of the
rule, regarded as a presumption throwing upon the party charged the duty of producing evidence,
consists in the circumstance that the chief evidence of the true cause, whether culpable or
innocent, is practically accessible to him but inaccessible to the injured person.” . . .
The present case is of a type which comes within the reason and spirit of the doctrine
more fully perhaps than any other. The passenger sitting awake in a railroad car at the time of a
collision, the pedestrian walking along the street and struck by a falling object or the debris of an
explosion, are surely not more entitled to an explanation than the unconscious patient on the
operating table. Viewed from this aspect, it is difficult to see how the doctrine can, with any
justification, be so restricted in its statement as to become inapplicable to a patient who submits
himself to the care and custody of doctors and nurses, is rendered unconscious, and receives some
injury from instrumentalities used in his treatment. Without the aid of the doctrine a patient who
received permanent injuries of a serious character, obviously the result of someone’s negligence,
would be entirely unable to recover unless the doctors and nurses in attendance voluntarily chose
to disclose the identity of the negligent person and the facts establishing liability. If this were the
state of the law of negligence, the courts, to avoid gross injustice, would be forced to invoke the
principles of absolute liability, irrespective of negligence, in actions by persons suffering
injuries during the course of treatment under anesthesia. But we think this juncture has not yet
been reached, and that the doctrine of res ipsa loquitur is properly applicable to the case before
us. . . .
[I]t should be noted that while the assisting physicians and nurses may be employed by the
hospital, or engaged by the patient, they normally become the temporary servants or agents of the
surgeon in charge while the operation is in progress, and liability may be imposed upon him for
their negligent acts under the doctrine of respondeat superior. Thus a surgeon has been held liable
for the negligence of an assisting nurse who leaves a sponge or other object inside a patient, and
the fact that the duty of seeing that such mistakes do not occur is delegated to others does not
absolve the doctor from responsibility for their negligence.
It may appear at the trial that, consistent with the principles outlined above, one or more
defendants will be found liable and others absolved, but this should not preclude the application of
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the rule of res ipsa loquitur. The control, at one time or another, of one or more of the various
agencies or instrumentalities which might have harmed the plaintiff was in the hands of every
defendant or of his employees or temporary servants. This, we think, places upon them the
burden of initial explanation. . . .
The number of those in whose care the patient is placed is not a good reason for denying
him 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.
We do not at this time undertake to state the extent to which the reasoning of this case
may be applied to other situations in which the doctrine of res ipsa loquitur is invoked. We
merely hold that where a plaintiff receives unusual injuries while unconscious and in the course of
medical treatment, all those defendants who had any control over his body or the instrumentalities
which might have caused the injuries may properly be called upon to meet the inference of
negligence by giving an explanation of their conduct.
The judgment is reversed.

3. Federal Constitutional Constraints on the Burden of Proof
Legislatures have sometimes sought to alter burdens of proof and persuasion. In response,
some courts have suggested constitutional limits on legislative alterations of the proof process.
For example, in Mobile, Jackson & Kansas City R.R. v. Turnipseed, 219 U.S. 35 (1910), the
petitioner, a railroad company, challenged a Mississippi statute that provided:
In all actions against railroad companies for damages done to persons or property,
proof of injury inflicted by the running of the locomotives or cars of such company
shall be prima facie evidence of the want of reasonable skill and care on the part of
the servants of the company in reference to such injury. This section shall also
apply to passengers and employes of railroad companies.
MISSISSIPPI CODE OF 1906, § 1985 (1906). The petitioner claimed that the statute violated the
Equal Protection Clause, depriving railroad companies “of the general rule of law which places
upon one who sues in tort the burden of not only proving an injury, but also that the injury was the
consequence of some negligence in respect of a duty owed to the plaintiff.” Id. at 42. The Court,
however, ruled against the petitioner, holding:
Legislation providing that proof of one fact shall constitute prima facie evidence of
the main fact in issue is but to enact a rule of evidence, and quite within the general
power of government. Statutes, National and state, dealing with such methods of
proof in both civil and criminal cases abound, and the decisions upholding them are
numerous. . . .
The statute does not, therefore, deny the equal protection of the law or otherwise
fail in due process of law, because it creates a presumption of liability, since its
operation is only to supply an inference of liability in the absence of other evidence
contradicting such inference.
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That a legislative presumption of one fact from evidence of another may not
constitute a denial of due process of law or a denial of the equal protection of the
law it is only essential that there shall be some rational connection between the fact
proved and the ultimate fact presumed, and that the inference of one fact from proof
of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also,
it must not, under guise of regulating the presentation of evidence, operate to
preclude the party from the right to present his defense to the main fact thus
presumed.
If a legislative provision not unreasonable in itself prescribing a rule of evidence, in
either criminal or civil cases, does not shut out from the party affected a reasonable
opportunity to submit to the jury in his defense all of the facts bearing upon the
issue, there is no ground for holding that due process of law has been denied him.
Id. at 42-43. Two decades after Turnipseed, however, the Court invalidated a similar state statute
passed by the Georgia Legislature. See W. & Atl. R.R. v. Henderson, 279 U.S. 639 (1929). The
statute in question in Henderson provided, in relevant part:
A railroad company shall be liable for any damages done to persons . . . by the
running of the locomotives, or cars, or other machinery of such company unless the
company shall make it appear that their agents have exercised all ordinary and
reasonable care and diligence, the presumption in all cases being against the
company.
Id. at 640 (quoting § 2780 of the Georgia Civil Code). The Court held that the foregoing statute
violated the Due Process Clause:
Legislation declaring that proof of one fact or group of facts shall constitute prima
facie evidence of an ultimate fact in issue is valid if there is a rational connection
between what is proved and what is to be inferred. A prima facie presumption casts
upon the person against whom it is applied the duty of going forward with his
evidence on the particular point to which the presumption relates. A statute creating
a presumption that is arbitrary or that operates to deny a fair opportunity to repel it
violates the due process clause of the Fourteenth Amendment. Legislative fiat may
not take the place of fact in the judicial determination of issues involving life, liberty
or property. . . .
Appellee relies principally upon Mobile, J. & K. C. R. R. v. Turnipseed, 219 U.S.
35. . . . That case is essentially different from this one. Each of the state enactments
raises a presumption from the fact of injury caused by the running of locomotives
or cars. The Mississippi statute created merely a temporary inference of fact that
vanished upon the introduction of opposing evidence. . . .
The presumption raised by § 2780 is unreasonable and arbitrary and violates the due
process clause of the Fourteenth Amendment. . . .
Nearly fifty years after these two decisions, the Court held that Congress could reduce plaintiffs’
burden of proof without violating any constitutional provisions. For example, in Usery v. Turner
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Elkhorn Mining Co., 428 U.S. 1 (1976), the Court upheld the constitutionality of the Black Lung
Benefits Act, which provided benefits to coal miners suffering from black lung disease
(pneumoconiosis). In particular, the Act reduced certain miners’ burden of proof that they
contracted pneumoconiosis from a particular operator’s mine. The respondents challenged two
particular provisions of the Act:
[T]he Operators challenge . . . . the presumptions contained in §§ 411 (c)(1) and (2).
Section 411 (c)(1) provides that a coal miner with 10 years’ employment in the
mines who suffers from pneumoconiosis will be presumed to have contracted the
disease from his employment. Section 411 (c)(2) provides that if a coal miner with
10 years’ employment in the mines dies from a respiratory disease, his death will
be presumed to have been due to pneumoconiosis. Each presumption is explicitly
rebuttable, and the effect of each is simply to shift the burden of going forward with
evidence from the claimant to the operator.
Id. at 27. In response, the Court held:
The Operators insist . . . that the 10-year presumptions are arbitrary, because they
fail to account for varying degrees of exposure, some of which would pose lesser
dangers than others. We reject this contention. In providing for a shifting of the
burden of going forward to the operators, Congress was no more constrained to
require a preliminary showing of the degree of dust concentration to which a miner
was exposed, a historical fact difficult for the miner to prove, than it was to require
a preliminary showing with respect to all other factors that might bear on the danger
of infection. It is worth repeating that mine employment for 10 years does not serve
by itself to activate any presumption of pneumoconiosis; it simply serves along with
proof of pneumoconiosis under § 411(c)(1) to presumptively establish the cause of
pneumoconiosis, and along with proof of death from a respirable disease under §
411(c)(2) to presumptively establish that death was due to pneumoconiosis. . . . We
certainly cannot say that the presumptions, by excluding other relevant factors,
operate in a “purely arbitrary” manner. . . . Mobile, J & KC R. v. Turnipseed, supra,
at 43.
Id. at 29-30.

4. A Note on Settlement Mills
One of the most striking features of contemporary tort practice is the rise of whole areas
of practice in which proof almost never happens. These are the so-called “settlement mills”:
personal injury law firms that achieve speedy recoveries for their clients in the absence of proof,
without ever going to trial. According to Professor Nora Engstrom, some plaintiffs’-side practices
have become a volume business. Settlement mill attorneys handle two hundred to three hundred
open files per day. By getting standardized sums for their clients with virtually no lawyer-client
interaction, the settlement mills radically lower transaction costs. They also substantially reduce
uncertainty for their clients.

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The big question for the settlement mills is why the defendants cooperate: Why do
defendants enter into settlements with lawyers who never bring a case to trial? The short answer
is that it is very hard to tell, since all these settlements happen in private without disclosure
obligations. Lawyer-client confidentiality rules mean that there is virtually no way to pry open
the secrecy of the settlement world to see what is going on inside. (Lawyer-client confidentiality
poses a number of problems for the regulation of the market in legal services in tort cases.)
Nonetheless, we can speculate and try to game out what is going on in these settlements. A
leading possibility is that settlement mill settlements systematically undercompensate those who
have been most seriously injured, thus providing a benefit to defendants and inducing them to
participate in the settlement system. Is this a good way to run a tort system? See generally Nora
Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. REV. 805, 805 (2011).

5. Aggregation and Sampling by Bellwether Trials
Samuel Issacharoff, Commentary, “Shocked”: Mass Torts and Aggregate Asbestos Litigation
after Amchem and Ortiz, 80 TEX. L. REV. 1925, 1927-29, 1935-36 (2001)
The world of mature mass torts is simply the world of evolved aggregation of claims and
defenses. Exposed firms enter into joint-defense agreements, coordinate negotiations with
plaintiffs, and create centralized operations to combat the onslaught of litigation. The plaintiffs’
market operates through an elaborate referral system that concentrates cases in the hands of a
small number of repeat-player firms. These firms are able to realize tremendous economies of
scale in processing cases, developing ongoing relations with experts and trial teams across the
country, and amortizing the significant costs of actually going to trial across a large portfolio of
cases that will likely settle based on established trial outcomes. As Professor Hensler aptly sums
up . . . , “[I]ndividual treatment of asbestos cases—with individual plaintiffs controlling the course
of their litigation and the decision to settle—was largely a myth.” The private market is every bit
as aggregated as the class actions presented for Supreme Court review, with two critical
differences: there is no public scrutiny of the aggregation mechanisms established through private
ordering, and the private mechanisms do not offer the same prospect of closure as did the
proposed class action settlements.
One of the consequences of a concentrated and developed market in asbestos claims is
that there is little dispute about the value of particular claims. While any individual case that is
pursued to trial might produce a range of outcomes, the sheer number of cases that have gone to
trial yields a highly evolved valuation of claims. Certainly there will be fluctuations in individual
results . . . but mass torts conform to the law of large numbers. In speaking to lawyers on both
sides of the aisle . . . , one repeatedly hears that experienced participants in asbestos litigation can
agree across a very high percentage of cases about the expected value of any particular claim. . . .
If neither valuation nor liability is at issue in the vast majority of asbestos claims, the
question is then what role the court system plays in this process. . . . In asbestos litigation, there is
relatively little informational value added by the fact of any particular case going to trial. Instead,
the courts serve as a filtering mechanism over the pace at which claims are resolved . . . and in
determining which claims are processed at what rate. . . .
The asbestos crisis is best approached by comparing it to what might be the ideal
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mechanism for the compensation of the injured. If we could posit a world in which there are no
transaction costs and no informational barriers to determining who is actually injured and what
resources are available for payment, the process would be relatively straightforward. The ideal
resolution would be to aggregate all the funds available for asbestos injury, calculate the value of
all the potential claims based upon historic averages of awards, discount for the time benefit and
lack of risk in administrative resolution (as opposed to the litigation process), and distribute the
available funds to the injured on that basis. Assuming accurate forecasting of future claims (in
itself no small matter), full information would yield the total demand, the total compensation
available, and what pro rata discount would have to be applied should demand for compensation
exceed available funds. In effect, this is what happens on a smaller scale in the aggregate
settlements that characterize the mature mass tort arena. The question is whether the settlement
structures that have evolved to deal with the large inventory of cases can be replicated more
broadly in some coordinated fashion.
Looking back from this perspective, it is worth noting the consistency with which the
failed attempts at aggregate resolution of asbestos claims have conformed to the same basic
structure for their attempted solutions. Each relied primarily on a payout matrix defined by injury
and exposure. Indeed, for all the controversy surrounding each asbestos resolution approach put
forward over the past decade or so, there is almost complete silence on the question of how the
payout matrices were (or will be) structured or how the estimated litigation value of the claims is
to be calculated. Each of the central approaches returns to the same basic structure.
The starting point for the formal aggregate treatment of asbestos cases in litigation is
Cimino v. Raymark Industries. Cimino formalized the intuition that asbestos had long ceased to
be meaningfully addressed through case-by-case adjudication; the evidence in each case was
largely duplicative and the valuations of the individualized aspects of the harm incurred could be
predicted with a fair degree of statistical certainty. Cimino attempted to create a trial mechanism
to replicate the settlement grids that had emerged with the concentration of the plaintiffs’ bar in
the 1980s. The key was to reduce each claim to a series of variables . . . that were typically used
in settling cases, but then use those same variables to select representative cases for trial among
the cohort of all asbestos cases then pending in the Eastern District of Texas. Although this
approach was unceremoniously rejected by the Fifth Circuit, the Cimino grids were soon to be
integrated into every subsequent aggregate settlement approach. . . .

Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)
Asbestos is the paradigmatic story of modern mass tort litigation. Although there are some
unique features to the asbestos litigation, it raised for the first time many of the recurring issues in
mass tort litigation. This story has been told at length elsewhere, but it is worth briefly reviewing
to understand why a judge might think binding bellwether trials are the best solution to the
seemingly intractable problems posed by mass torts. . . .
In 1990, Judge Robert Parker, then a federal district court judge for the Eastern District of
Texas, had approximately 3000 wrongful death suits arising out of asbestos exposure before him.
The court could not have tried all these suits in a reasonable time frame, so he adopted an
innovative procedure: binding bellwether trials. He approved a trial plan that was to proceed in
three phases. The first phase provided class-wide determinations of failure to warn and punitive
damages. The second phase determined causation. The court intended to have a jury establish
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asbestos exposure on a craft and worksite basis during the relevant time periods, rather than on the
basis of individual proof. Instead, this phase was resolved by stipulation, with defendants
reserving their right to appeal. The third phase, which is the one that concerns us here, was the
damages phase.
Judge Parker selected 160 cases to be tried before two jury panels. Each jury was told that
the causation requirement had been met and was charged only with determining damages in each
individual case before it. The trials took 133 days, involving hundreds of witnesses and thousands
of exhibits. The effort expended in the proceeding was enormous, and Judge Parker noted, “If all
that is accomplished by this is the closing of 169 cases then it was not worth the effort and will
not be repeated.”
Of the 160 bellwether verdicts, the court remitted 35 and 12 were awarded no damages. The
court allocated the cases into five disease categories and averaged the awards, including the zero
awards, within those categories. The average verdict in each disease category was
“mesothelioma, $1,224,333; lung cancer, $545,200; other cancer, $917,785; asbestosis, $543,783;
pleural disease, $558,900.” After hearing expert testimony, the judge determined that these cases
were typical or representative of the remaining plaintiffs. The judge held a hearing in which he
assigned the remaining cases to one of the five disease categories. He made an award in each case
according to the average award for that disease category. Thus, for example, each plaintiff with
mesothelioma was awarded $1,224,333—even those whose cases had not actually been tried.
The plaintiffs agreed to this procedure, likely because the alternative was an untenably long
wait for a trial. The defendants, by contrast, objected and appealed. They argued that under
Texas law and the Seventh Amendment they were entitled to an individual trial on causation and
damages for each plaintiff. The Fifth Circuit, perhaps hoping for legislative intervention, waited
eight years before reversing the district court’s trial plan. The circuit court rejected the bellwether
trial procedure, reasoning that the Seventh Amendment and Texas law entitled the defendants to
individual trials against each plaintiff on both causation and damages. . . .

Notes

1. The persistence of bellwether trials. Although the Fifth Circuit rejected bellwether trials
in Cimino, courts in other jurisdictions continue to hold such trials in recent mass tort cases:
The terrorist attacks on September 11, 2001, left in their wake thousands of
bereaved families and injured individuals. Congress created the September 11th
Victims Compensation Fund, an administrative body, to rationalize compensation
for these victims. By participating in this expedited, administrative process, the
families and victims of the attacks gave up their right to sue. The fund distributed
$7.049 billion to victims of the terrorist attacks who filed claims. Ninety-seven
percent of the victims and their families participated in the administrative procedure
instead of pursuing court cases. Forty-one plaintiffs, representing forty-two victims
and their families, filed lawsuits in federal court. These forty-one cases were
consolidated before a single judge, the Honorable Judge Alvin K. Hellerstein, in the
Southern District of New York.
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Six years after the attacks, these lawsuits were still pending. As Judge Hellerstein
observed, the slow pace of the litigation frustrated the plaintiffs. Some of the
victims were adamantly against settlement because they wanted the publicity of a
trial. But others, the judge believed, wanted to settle, and the only obstacle to
settling those cases was that the parties could not agree on their monetary value. So
he proposed holding bellwether trials for selected plaintiffs who would volunteer to
participate. The trials were to be for damages only; the jury would not consider
questions of liability or causation. The results were intended to be available to other
plaintiffs and to defendants to assist them in valuing cases for settlement. As a
result of the decision to conduct bellwether trials using reverse bifurcation, fourteen
of the cases have settled so far.
This is how the bellwether trial is used today. Cases are chosen, not quite randomly,
for trial on a particular issue. The results of the trials are not binding on the other
litigants in the group. The outcomes can be used by the parties to assist in settlement,
but the parties can also ignore these results and insist on an individual trial. . . .
Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)

2. Binding bellwethers? Note that the bellwether trials following the terrorist attacks of
September 11, 2001 were nonbinding on other litigants. How can such trials be binding on all
plaintiffs, given that the bellwether plaintiffs are typical of the rest of the plaintiff group?
Professor Lahav describes one possible approach:
In a binding bellwether trial procedure, the court will choose a random sample of
cases to try to a jury. The judge may then bifurcate the cases into liability and
damages phases, or perhaps even trifurcate them into liability, causation, and
damages phases. The parties will try each bellwether case before a jury that will
render a verdict in that case. Finally, the results of the bellwether trials will be
extrapolated to the remaining plaintiffs. The underlying principle of such an
extrapolation is that the bellwether plaintiffs are typical of the rest of the plaintiff
group such that the results of the bellwether trials represent the likely outcome of
their cases as well. What these extrapolation plaintiffs get in a bellwether trial
procedure is not individuated justice but rather group typical justice.
The following example explains how the extrapolation process might work.
Imagine that a court tries 100 sample cases and 50% of them result in plaintiff
victories. Of these 50, half are awarded $200 and the other half are awarded $300.
Taking all of these results into account, and counting the defense verdicts as $0, the
average award would be $125. Under a simple averaging regime, every plaintiff
would receive $125. If this result seems too rough, the court could calculate
separate averages based on relevant variables.
Alexandra D. Lahav, Bellwether Trials, 76 GEO. WASH. L. REV. 576, 580-89 (2008)

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3. Mass torts? If the bellwether strategy violates the parties’ due process rights, what is to
be done in mass torts cases? As U.S. District Judge Jack Weinstein observed in Schwab v. Philip
Morris U.S.A., Inc., 449 F. Supp. 2d 992 (E.D.N.Y. 2006):
In mass fraud cases with hundreds of thousands or millions of injured the cost of
one-on-one procedures is insuperable and unsuitable for either a jury or a bench trial.
The consequence of requiring individual proof from each smoker would be to allow
a def0endant which has injured millions of people and caused billions of dollars in
damages to escape almost all liability.
Does excluding bellwether trials mean that the resolution of these cases will inevitably happen in
settlements outside of the courtroom—settlements in which the party not holding the cash will be
at a decided disadvantage?

G. Negligence Puzzles
We end our initial treatment of the negligence standard with three puzzles in the law of
negligence:

1. Should Wealth Matter?
Should the defendant’s wealth matter in setting the reasonable care standard in a
negligence case? Won’t wealthy actors often be able to go ahead with risky behavior, confident
that the damages suffered by others will have little effect on their own relative wealth? Professors
Ken Abraham and John Jeffrey argue the contrary. Wealth, they insist, should not matter if we
want to achieve optimal deterrence:
[T]he defendant’s wealth is irrelevant to deterrence. . . . Deterrence theory is based
on the (usually and to one or another extent plausible) assumption that actors weigh
the expected costs and benefits of their future actions. Specifically, a potentially
liable defendant will compare the benefits it will derive from an action that risks
tort liability against the discounted present expected value of the liability that will
be 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
greater benefit from a given action than a poor defendant, then both will be equally
deterred (or equally undeterred) by the threat of tort liability. A defendant’s existing
assets do not increase the expected value of a given future action. Therefore they
do not require any adjustment in the level of sanction needed to offset that expected
value. The defendant’s wealth or lack of it is thus irrelevant to the deterrence of
socially undesirable conduct, and evidence on the subject is inadmissible in the
typical tort action claiming compensatory damages.
Kenneth Abraham & John Jeffries, Jr., Punitive Damages and the Rule of Law: The Role of
Defendant’s Wealth, 18 J. LEGAL STUD. 415, 417 (1989).

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In response, Professor Jennifer Arlen argues that wealth must matter if we care about
achieving optimal deterrence. Using an economic analysis assuming that individuals are riskaverse instead of risk-neutral, she finds that a defendant’s wealth should be taken into account in a
negligence case, effectively calling for wealthy people to adhere to a higher standard of care than
poor people:
Consider a very wealthy potential defendant contemplating an additional $100
expenditure on care. The $100 expenditure on care will not affect the wealthy
individual’s ability to purchase necessities and may little affect his ability to
purchase other goods. The expenditure will accordingly not adversely affect his
total utility. A very poor defendant, however, will probably have to pay for a $100
expenditure on care with money set aside for necessities such as food and shelter.
Thus, the $100 expenditure on care will have a substantial adverse effect on the poor
individual’s utility. The cost to society of this $100 expenditure on care is
minimized by allocating most of it to the wealthier individual since the wealthier
individual 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
be required to take more care than less wealthy defendants. . . . Accordingly, if
individuals are risk averse, current law, by which wealth differences are excluded
from the assessment of due care, will not induce optimal deterrence.
Jennifer H. Arlen, Should Defendants’ Wealth Matter?, 21 J. LEGAL STUD. 413, 422-23 (1992).
Does it matter that poor actors are almost never worth suing in tort because they are effectively
judgment proof? Does it matter that liability insurance is widely available to working- and
middle-class people, and required for the most common dangerous activity people engage in
(namely driving)?
Would a negligence standard that takes wealth into account function mainly to redistribute
wealth? Or are there non-redistributive reasons to take wealth into account?
Does Arlen’s argument resonate with a corrective justice understanding of the tort system
or only a deterrence framework? What about a framework that focuses on expressing community
norms and values? How would her theory work in a case with a poor plaintiff and a poor
defendant—or a rich plaintiff and a rich defendant? Whose argument—Arlen’s or Abraham and
Jeffries’s —do you find more persuasive?

2. Seavey’s Paradox
Almost a century ago, torts jurist Warren Seavey observed a paradox in the way tort law
handles intentional torts in comparison to negligent torts:
[I]f, to save his life, A intentionally destroys ten cents worth of B’s property, A must
pay; if, however, he takes a ten per cent chance of killing B in an effort to save his
own life, his conduct might not be found to be wrongful, although obviously B
would much prefer, antecedently, to lose ten cents worth of property than to submit
to a ten per cent chance of being killed.

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Warren A. Seavey, Negligence—Subjective or Objective?, 41 HARV. L. REV. 1, 8, n.7 (1927). Is
Seavey’s paradox evidence of some logical defect in the law of torts? Note that it is a cop-out to
try to resolve the paradox by reference to the idea that in the probabilistic scenario B has not been
killed. Seavey’s point is that even if B is killed, B’s estate may have no tort action against A,
whereas B would have had a tort action for the intentional destruction of the ten cents.
Can the paradox be resolved by reference to a policy of promoting consensual transactions
when they can be made? Is there a reason to think that intentional tort plaintiffs are identifiable in
advance in a way that negligence plaintiffs are not?

3. The Utility Monster
What if B in Seavey’s paradox values her or his life more highly than A? What if B really
preferred to not be killed—so much so that the expected utility loss of B’s being subject to a ten
percent chance of death would be greater than the utility loss of A’s actually dying? Should these
differentials matter? It is an important question, because we might need to incorporate different
values for different lives in our Hand Formula calculations.
Libertarian philosopher Robert Nozick famously puzzled over the conundrum in
utilitarianism of “utility monsters”: people “who get enormously greater gains in utility from any
sacrifice of others than these others lose.” Nozick objects that the theory of utilitarianism, taken
seriously, “seems to require that we all be sacrificed in the monster’s maw, in order to increase
total utility.” ROBERT NOZICK, ANARCHY, STATE, AND UTOPIA 41 (1974). Does the tort system
leave out utility monsters by using an objective negligence standard instead of a subjective one?
Or is the subjective utility of Novick’s monster simply an item to be factored into the Learned
Hand negligence formula? Should it be?
Is the answer different if the value of B’s life is high relative to that of A not because of
B’s subjective utility curve, but because of the high social value of B relative to A? What if A is
an 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
soccer star?

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CHAPTER 5. PLAINTIFFS’ CONDUCT
A. Contributory and Comparative Negligence
1. Contributory Negligence
Butterfield v. Forrester, 103 Eng. Rep. 926 (K.B. 1809)
This was an action on the case for obstructing a highway, by means of which obstruction
the plaintiff, who was riding along the road, was thrown down with his horse, and injured, &c. At
the trial before Bayley J. at Derby, it appeared that the defendant, for the purpose of making some
repairs to his house, which was close by the road side at one end of the town, had put up a pole
across this part of the road, a free passage being left by another branch or street in the same
direction. That the plaintiff left a public house not far distant from the place in question at 8
o’clock in the evening in August, when they were just beginning to light candles, but while there
was light enough left to discern the obstruction at 100 yards distance: and the witness, who proved
this, said that if the plaintiff had not been riding very hard he might have observed and avoided it:
the plaintiff however, who was riding violently, did not observe it, but rode against it, and fell
with his horse and was much hurt in consequence of the accident; and there was no evidence of
his being intoxicated at the time. On this evidence Bayley J. directed the jury, that if a person
riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they
were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary
care, they should find a verdict for the defendant: which they accordingly did . . . .
BAYLEY, J. The plaintiff was proved to be riding as fast as his horse could go, and this was
through the streets of Derby. If he had used ordinary care he must have seen the obstruction; so
that the accident appeared to happen entirely from his own fault.
LORD ELLENBOROUGH, C.J. A party is not to cast himself upon an obstruction which has been
made by the fault of another, and avail himself of it, if he do not himself use common and
ordinary caution to be in the right. In cases of persons riding upon what is considered to be the
wrong side of the road, that would not authorise another purposely to ride up against them.
One person being in fault will not dispense with another’s using ordinary care for himself.
Two things must concur to support this action, an obstruction in the road by the fault of the
defendant, and no want of ordinary care to avoid it on the part of the plaintiff.

Notes

1. A public policy rationale? In just a few short paragraphs, Butterfield laid out the
contributory negligence regime that would govern British and American tort law for over a
century. Under the contributory negligence rule, a plaintiff’s negligence acts as a complete bar to
her recovery, even as against a negligent defendant. Why should that be so? The American jurist
Charles Fisk Beach sought to explain the rule:
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The reasons of the rule which denies relief to a plaintiff guilty of contributory
negligence have been variously stated. The common law refuses to apportion
damages which arise from negligence. This it does upon considerations of public
convenience and public policy, and upon this principle, it is said, depends also the
rule which makes the contributory negligence of a plaintiff a complete defense. For
the same reason, when there is an action in tort, where injury results from the
negligence of two or more persons, the sufferer has a full remedy against any one
of them, and no contribution can be enforced between the tort feasors. The policy
of the law in this respect is founded upon the inability of human tribunals to mete
out exact justice. A perfect code would render each man responsible for the
unmixed consequences of his own default; but the common law, in view of the
impossibility of assigning all effects to their respective causes, refuses to interfere
in those cases where negligence is the issue, at the instance of one who hands are
not free from the stain of contributory fault, and where accordingly the impossibility
of apportioning the damage between the parties does not exist, the rule is held not
to apply.
“The true ground,” says Dr. Wharton, “for the doctrine is that, by the interposition
of the plaintiff’s independent will, the causal connection between the defendant’s
negligence and the injury is broken.”. . . [But, i]n my judgment no more satisfactory
reason for the rule in question has been assigned than that which assumes it to have
been founded upon considerations of public policy. We need not seek for any better
reason for a rule of law than that, among all the possible rules that might be adopted,
it is plainly the best—that indeed it is the only rule upon the subject for an instant
practicable.
CHARLES FISK BEACH, JR., THE LAW OF CONTRIBUTORY NEGLIGENCE 11-13 (1885).

2. The public policy critique. Are Professor Beach’s policy considerations—when combined
with contributory negligence’s real-world application—convincing? By 1953, their luster had
dimmed to at least some juries and state legislatures. William Prosser, a dean of the torts bar,
wrote:
There has been much speculation as to why the rule thus declared found such ready
acceptance in later decisions, both in England and in the United States. The
explanations given by the courts themselves never have carried much conviction.
Most of the decisions have talked about “proximate cause,” saying that the
plaintiff’s negligence is an intervening, insulating cause between the defendant’s
negligence and the injury. But this cannot be supported unless a meaning is
assigned to proximate cause which is found nowhere else. If two automobiles
collide and injure a bystander, the negligence of one driver is not held to be a
superseding cause which relieves the other of liability; and there is no visible reason
for any different conclusion when the action is by one driver against the other. It
has been said that the defense has a penal basis, and is intended to punish the
plaintiff for his own misconduct; or that the court will not aid one who is himself at
fault, and he must come into court with clean hands. But this is no explanation of
the many cases, particularly those of the last clear chance, in which a plaintiff clearly
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at fault is permitted to recover. It has been said that the rule is intended to
discourage accidents, by denying recovery to those who fail to use proper care for
their own safety; but the assumption that the speeding motorist is, or should be,
meditating on the possible failure of a lawsuit for his possible injuries lacks all
reality, and it is quite as reasonable to say that the rule promotes accidents by
encouraging the negligent defendant. Probably the true explanation lies merely in
the highly individualistic attitude of the common law of the early nineteenth
century. The period of development of contributory negligence was that of the
industrial revolution, and there is reason to think that the courts found in this
defense, along with the concepts of duty and proximate cause, a convenient
instrument of control over the jury, by which the liabilities of rapidly growing
industry were curbed and kept within bounds. . . .
No one ever has succeeded in justifying that as a policy, and no one ever will.
William L. Prosser, Comparative Negligence, 51 MICH. L. REV. 465, 468-9 (1953). Prosser’s
critique enjoyed wide acclaim in the following decades as state legislatures and state supreme
courts began softening and repealing their contributory negligence regimes, swapping them out
for various rules that allowed negligent plaintiffs to still recover some of their damages.

3. Doctrinal ameliorations I: last clear chance. The most notorious of these doctrines was
the so-called rule of “last clear chance.” The rule achieved a wide variety of forms but is perhaps
best summarized as follows: “When an accident happens through the combined negligence of two
persons, he alone is liable to the other who had the last opportunity of avoiding the accident by
reasonable care.” JOHN SALMOND, LAW OF TORTS 480 (8th ed. 1934). Last clear chance was thus
an opposite to the “she started it!” defense in childhood squabbles; it was a “she finished it!”
loophole to the harshness of contributory negligence regimes. As long as a negligent defendant
had the “last clear chance” to stop an accident, a negligent plaintiff could still recover her
damages from the defendant.
One difficulty was that, on a practical level, determining exactly who had possessed the
last chance was often a tricky question. Professor Fleming James—Yale’s great torts scholar of
the first half of the twentieth century—identified this problem nearly one hundred years ago:
[Last clear chance] is still a matter of carefully measuring times and distances in an
effort to find the last wrongdoer. The paths of a pedestrian and a street car cross at
an acute angle. The pedestrian is walking with his back partly towards the car
engrossed in thought; the motorman is counting his fares. Before either wakes to
the situation there is a collision. . . . [T]he pedestrian’s right to recover will depend
on whether, after he came into its path, the motorman could have stopped or slowed
the car or given warning in time to prevent the accident. This calls for a
determination of the relative speeds of the parties, the exact position of the car when
plaintiff reached the crucial point, and a measurement of the efficiency of the
available equipment.

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Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704, 718 (1938).
On top of such measurement difficulties came absurd implications:
If the car had no brakes or warning device, the defendant will not be held. Nor will
he be if the car was going so fast that the equipment was inadequate to prevent the
accident after plaintiff has come into the zone of peril. . . . Under the formula, it will
be seen, it is sometimes true that the greater the defendant’s negligence, the less its
liability. The trolley company may be held for its motorman’s failure to look. But
if we add to this failure enough other negligence (e.g., as to speed, or equipment) so
that looking would not do any good, the trolley company will be let off. Similarly,
if the motorman does look and is careful, the company cannot be held where
defective equipment renders his care unavailing. It is in a better position, when it
has supplied a bad brake but a good motorman, than when the motorman is careless
but the brake efficient.
The last clear chance doctrine faced problems of principle as well. “The worst wrongdoer,”
James wrote simply but powerfully, “is by no means always a last wrongdoer, and there is the
difficulty.” Fleming James, Jr., Last Clear Chance: A Transitional Doctrine, 47 YALE L.J. 704,
716-19 (1938) (internal quotations omitted).
4. Doctrinal ameliorations II: subjectivizing the “reasonable person” standard. In general,
courts describe the standard they use to evaluate a plaintiff’s allegedly negligent conduct as the
same standard they use to evaluate a defendant’s allegedly negligent conduct. In the Restatement
formulation, it is the standard “of a reasonable man under like circumstances.” RESTATEMENT
(SECOND) OF TORTS § 464 (1965). To the extent that courts tailor this standard for particular
plaintiffs—for example, for children and people with physical impairments—that tailoring
supposedly follows the same rules as for defendants with those characteristics. Id. The case law
also shows, however, that when courts apply these standards, conduct that might be deemed
negligent when done by a defendant is not deemed negligent when done by a plaintiff. As the
authors of the Restatement explain:
There may be circumstances in which a jury may reasonably conclude that a reasonable
man would take more, or less, precaution for the protection of others than for his own
safety. Thus the risk of harm to others may be more apparent, or apparently more serious,
than the risk of harm to the actor himself; or the actor may have reasonable confidence in
his own awareness of the risk, and his ability to avoid it, where he cannot reasonably have
such confidence in the awareness or ability of others. He may have undertaken a
responsibility toward another which requires him to exercise an amount of care for the
protection of the other which he would not be required to exercise for his own safety. The
relation of the parties, the particular circumstances, and all other relevant factors are to be
taken into account. In the great majority of cases it is probably true that the same conduct
will constitute both negligence and contributory negligence, but it does not necessarily
follow in all cases.
Id. at cmt. f.
The Restatement authors emphasize that these seemingly contradictory results are not a
matter of different standards, but of differences in facts, which in turn affect how the standards
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apply. But as discussed in previous notes, see supra Chapter 4, Section A, courts sometimes have
appeared to adjust the negligence standard when confronted with particularly sympathetic
categories of plaintiffs. Consider, for example, plaintiffs who are mentally ill, or who have some
other impairment that significantly affects their mental functioning. Where the plaintiff was
completely incapable of apprehending the risk that the plaintiff’s conduct created, courts have
typically treated contributory negligence arguments as unavailing. And when confronted with
plaintiffs with greater but still diminished ability to apprehend dangers, some jurisdictions
expressly allow juries to take into account the plaintiff’s actual mental capacities. The North
Carolina Court of Appeals follows this approach: “where an injured plaintiff suffers from
diminished mental capacity not amounting to insanity or total incompetence, it is a question for
the trier of fact as to whether he exercised the required degree of care for his own safety, and the
effect of his diminished mental faculties and capabilities may be taken into account in determining
his ability to perceive and avoid a particular risk of harm”; “such a person should be held only to
the exercise of such care as he was capable of exercising, i.e., the standard of care of a person of
like mental capacity under similar circumstances.” Stacy v. Jedco Const., Inc., 457 S.E.2d 875,
879 (N.C. Ct. App. 1995). Courts appear more likely to take this view when the defendant has
assumed some kind of caretaking or custodial role vis-à-vis the plaintiff. See, e.g., Birkner v. Salt
Lake Cty., 771 P.2d 1053 (Utah 1989) (involving a former patient in a county mental health
facility who alleged that the therapist at that facility sexually abused her). But even where this is
true, courts have accorded less sympathetic treatment to plaintiffs who had notice of their
condition and had some power to reduce the risks they posed to themselves. See, e.g., Jankee v.
Clark Cty., 612 N.W.2d 297, 301-04 (Wis. 2000) (applying an objective “reasonable person”
standard to a plaintiff patient who failed to take prescribed medication to address his manic
depressive illness and was injured after attempting to escape from a psychiatric facility). Should
tort law apply the same standard of care to plaintiffs and defendants? If you think different
standards are appropriate, how might you articulate them?

5. Contributory negligence in the jury box. Even with puzzling efforts to establish
ameliorative exceptions like last clear chance, contributory negligence seemed to be a ruthless,
cut-and-dry rule that denied negligent plaintiffs any and all relief. But the rule often produced
different results in practice. By 1933, one observer noted that while the rule remained on the
books in all states, there was more to the story:
Liability in Torts is frequently more sentimental than rational. If anyone be shocked
at this thesis let him cast a critical eye at what has happened to the doctrine of
contributory negligence. This tall timber in the legal jungle has been whittled down
to toothpick size by the sympathetic sabotage of juries, whose inability to perceive
contributory negligence in suits against certain defendants is notorious; by the
emotional antagonism of judges who have placed constrictions on the doctrine
which suggest the more evident purpose to destroy it entirely, rather than to attempt
any logical limitation; by the popular prejudices of legislators who have pulled the
teeth of the common-law dogma or damned it outright. Little remains to be written
about contributory negligence save its obituary.
Charles L. B. Lowndes, Contributory Negligence, 22. GEO. L.J. 674 (1933). Two decades later,
Prosser wrote similarly that the remedy for the defects of the contributory negligence rule “has
been in the hands of the jury”:
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Every trial lawyer is well aware that juries often do in fact allow recovery in cases
of contributory negligence, and that the compromise in the jury room does result in
some diminution of the damages because of the plaintiff’s fault. But the process is
at best a haphazard and most unsatisfactory one. There are still juries which
understand and respect the court’s instructions on contributory negligence, just as
there are other juries which throw them out of the window and refuse even to reduce
the recovery by so much as a dime. Above all there are many directed verdict cases
where the plaintiff’s negligence, however slight it may be in comparison with that
of the defendant, is still clear beyond dispute, and the court has no choice but to
declare it as a matter of law.
Prosser, Comparative Negligence, 51 MICH. L. REV. at 469.
Many observers in the middle of the 20th century reported that when faced with a slightly
negligent plaintiff and a very negligent defendant, juries were appalled by the draconian
consequences of the contributory negligence rule. So they just ignored it and reduced plaintiffs’
recoveries by their proportional fault. See, e.g., Harry Kalven, Jr., The Jury, The Law, and the
Personal Injury Damage Award, 19 OHIO ST. L.J. 158, 167-68 (1958); Lewis F. Powell, Jr.,
Contributory Negligence: A Necessary Check on the American Jury, 43 A.B.A.J. 1005, 1006
(1957). In fact, in a before-and-after study of the contributory negligence rule, Professor Maurice
Rosenberg concluded that there was no change in the size of plaintiffs’ recoveries after the
abolition of the rule, indicating that juries had been factoring in plaintiffs’ negligence all along.
Maurice Rosenberg, Comparative Negligence in Arkansas: A “Before and After” Survey, 13 ARK.
L. REV. 89, 103 (1959).

6. Contributory negligence outside of the courtroom. Of course, even in the first half of the
twentieth century, when there were far more trials than there are today, relatively few cases ever
got to juries. The pervasiveness of settlement undermined the all-or-nothing character of the
contributory negligence rule. A standard outcome in the settlement process was for settlement
values simply to be discounted by the probability that the jury would return, or that the judge
would insist on, a finding of contributory negligence. Risk-averse parties—often the plaintiffs—
would have been willing to accept especially steep discounts from their damages in return for
escaping the possibility of a devastating contributory negligence finding.
The limited application of the contributory negligence rule in settlement was perhaps most
apparent in the work of the claims adjusters who settled tort claims for insurance companies. In
his classic sociological study of insurance claim adjusters, Settled Out of Court, Hugh Laurence
Ross reported how they settled cases in the event of a plaintiff’s negligence in contributory
negligence states:
[A]djusters generally treat questionable liability [including situations where the
plaintiff might be negligent] in bodily injury claims as a factor to lower their
evaluation, but not to extinguish value. There is variation from office to office and
from adjuster to adjuster in how this is done. Impressionistically, departure from
the formalistic [contributory negligence] approach seems greatest in the
metropolitan offices, and among adjusters who have been employed longest and
who are the most legally sophisticated. The new employees, the supervisors, and
the more naïve men seem more ready to endorse formalism in the matter. . . .
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The facts appearing in [various data on insurance settlements] . . . indicate . . . that,
controlling for liability and injury, the proportion of claimants recovering in the
comparative negligence states is not higher than that in contributory negligence
states. Although the average recovery in paid cases is somewhat higher in the
comparative negligence states, the difference is not significant. It is not possible to
press this analysis further with the number of cases available, and differences in
region, urbanization, and other factors between the two groups of states hinder
interpretation of these findings. However, the comparative negligence rule is not
shown to produce necessarily higher settlements than the contributory negligence
rule. Moreover, the comparative rule appears to offer a time savings in settling
doubtful liability cases, which may benefit all parties to the negotiation.”
HUGH LAWRENCE ROSS, SETTLED OUT OF COURT: THE SOCIAL PROCESS OF INSURANCE CLAIMS
ADJUSTMENT 128, 211 (1970).
Yet for all the real-world limits on the contributory negligence rule’s effect, or perhaps
because of them, the rule gave way in virtually every state to a regime known as comparative
negligence. Keeping in mind the public policy problem, consider the following two cases:

2. Comparative Negligence
Li v. Yellow Cab Company of California, 532 P.2d 1226 (Cal. 1975)
SULLIVAN, J.
The accident here in question occurred near the intersection of Alvarado Street and Third
Street in Los Angeles. At this intersection Third Street runs in a generally east-west direction
along the crest of a hill, and Alvarado Street, running generally north and south, rises gently to the
crest from either direction. At approximately 9 p.m. on November 21, 1968, plaintiff Nga Li was
proceeding northbound on Alvarado in her 1967 Oldsmobile. She was in the inside lane, and
about 70 feet before she reached the Third Street intersection she stopped and then began a left
turn across the three southbound lanes of Alvarado, intending to enter the driveway of a service
station. At this time defendant Robert Phillips, an employee of defendant Yellow Cab Company,
was driving a company-owned taxicab southbound in the middle lane on Alvarado. He came over
the crest of the hill, passed through the intersection, and collided with the right rear portion of
plaintiff’s automobile, resulting in personal injuries to plaintiff as well as considerable damage to
the automobile.
The court, sitting without a jury, found as facts that defendant Phillips was traveling at
approximately 30 miles per hour when he entered the intersection, that such speed was unsafe at
that time and place, and that the traffic light controlling southbound traffic at the intersection was
yellow when defendant Phillips drove into the intersection. It also found, however, that plaintiff’s
left turn across the southbound lanes of Alvarado “was made at a time when a vehicle was
approaching from the opposite direction so close as to constitute an immediate hazard.” The
dispositive conclusion of law was as follows: “That the driving of [Nga Li] was negligent, that
such negligence was a proximate cause of the collision, and that she is barred from recovery by
reason of such contributory negligence.”
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Judgment for defendants was entered accordingly.
I
“Contributory negligence is conduct on the part of the plaintiff which falls below the
standard to which he should conform for his own protection, and which is a legally contributing
cause cooperating with the negligence of the defendant in bringing about the plaintiff’s harm.”
RESTATEMENT (SECOND) TORTS, § 463. Thus the American Law Institute, in its second
restatement of the law, describes the kind of conduct on the part of one seeking recovery for
damage caused by negligence which renders him subject to the doctrine of contributory
negligence. What the effect of such conduct will be is left to a further section, which states the
doctrine in its clearest essence: ‘Except where the defendant has the last clear chance, the
plaintiff’s contributory negligence bars recovery against a defendant whose negligent conduct
would otherwise make him liable to the plaintiff for the harm sustained by him.’ ([Id. §] 467.)
This rule, rooted in the long-standing principle that one should not recover from another
for damages brought upon oneself . . . , has been the law of this state from its beginning. . . .
Although criticized almost from the outset for the harshness of its operation, it has weathered
numerous attacks, in both the legislative1 and the judicial arenas, seeking its amelioration or
repudiation. We have undertaken a thorough reexamination of the matter, giving particular
attention to the common law and statutory sources of the subject doctrine in this state. As we
have indicated, this reexamination leads us to the conclusion that the ‘all-or-nothing’ rule of
contributory negligence can be and ought to be superseded by a rule which assesses liability in
proportion to fault.
It is unnecessary for us to catalogue the enormous amount of critical comment that has
been directed over the years against the ‘all-or-nothing’ approach of the doctrine of contributory
negligence. The essence of that criticism has been constant and clear: the doctrine is inequitable
in its operation . . . .
Furthermore, practical experience with the application by juries of the doctrine of
contributory negligence has added its weight to analyses of its inherent shortcomings: ‘Every trial
lawyer is well aware that juries often do in fact allow recovery in cases of contributory negligence
. . . . It is manifest that this state of affairs, viewed from the standpoint of the health and vitality
of the legal process, can only detract from public confidence in the ability of law and legal
institutions to assign liability on a just and consistent basis. . . .
It is in view of these theoretical and practical considerations that to this date 25 states,
have abrogated the ‘all or nothing’ rule of contributory negligence and have enacted in its place
general apportionment statutes calculated in one manner or another to assess liability in
proportion to fault. In 1973 these states were joined by Florida, which effected the same result by
Judicial decision. Hoffman v. Jones (Fla. 1973). We are likewise persuaded that logic, practical

1

(See, for example, Sen.Bill No. 43 (1971 Reg.Sess.); Assem.Bill No. 694 (1971 Reg.Sess.); Sen.Bill No. 132
(1972 Reg.Sess.); Assem.Bill No. 102 (1972 Reg.Sess.); Sen.Bill No. 10 (1973 Reg.Sess.); Sen.Bill No. 557
(1973 Reg.Sess.); Assem.Bill No. 50 (1973 Reg.Sess.); Assem.Bill No. 801 (1973 Reg.Sess.); Assem.Bill No.
1666 (1973 Reg.Sess.); Sen.Bill No. 2021 (1974 Reg.Sess.).)

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experience, and fundamental justice counsel against the retention of the doctrine rendering
contributory negligence a complete bar to recovery—and that it should be replaced in this state by
a system under which liability for damage will be borne by those whose negligence caused it in
direct proportion to their respective fault.6a
...
II
It is urged that any change in the law of contributory negligence must be made by the
Legislature, not by this court. Although the doctrine of contributory negligence is of judicial
origin—its genesis being traditionally attributed to the opinion of Lord Ellenborough in
Butterfield v. Forrester, 103 Eng.Rep. 926 (K.B. 1809)—the enactment of section 1714 of the
Civil Code7 in 1872 codified the doctrine as it stood at that date and, the argument continues,
rendered it invulnerable to attack in the courts except on constitutional grounds . . . .
We have concluded that th[is] argument, in spite of its superficial appeal, is fundamentally
misguided. . . . [I]t was not the intention of the Legislature in enacting section 1714 of the Civil
Code, as well as other sections of that code declarative of the common law, to insulate the matters
therein expressed from further judicial development; rather it was the intention of the Legislature
to announce and formulate existing common law principles and definitions for purposes of orderly
and concise presentation and with a distinct view toward continuing judicial evolution. . . .
III
We are thus brought to the second group of arguments which have been advanced by
defendants and the amici curiae supporting their position. Generally speaking, such arguments
expose considerations of a practical nature which, it is urged, counsel against the adoption of a
rule of comparative negligence in this state even if such adoption is possible by judicial means.
The most serious of these considerations are those attendant upon the administration of a
rule of comparative negligence in cases involving multiple parties. One such problem may arise
when all responsible parties are not brought before the court: it may be difficult for the jury to
evaluate relative negligence in such circumstances, and to compound this difficulty such an
evaluation would not be res judicata in a subsequent suit against the absent wrongdoer. Problems
of contribution and indemnity among joint tortfeasors lurk in the background. . . .

In employing the generic term ‘fault’ throughout this opinion we follow a usage common to the literature on
the subject of comparative negligence. In all cases, however, we intend the term to import nothing more than
‘negligence’ in the accepted legal sense. [Editors Note: In the advance sheets of the court’s decision, the text at
footnote 6a stated that comparative negligence allocated liability “in direct proportion to the extent of the parties’
causal responsibility.” Between the publication of the advance sheets and the publication of Li in the West
Publishing Company reports, the court changed the text and added footnote 6a, which had not appeared in the
advance sheets at all.]
7
Section 1714 of the Civil Code has never been amended. It provides as follows: ‘Everyone is responsible, not
only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or
skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary
care, brought the injury upon himself. The extent of liability in such cases is defined by the Title on
Compensatory Relief.’
6a

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A second and related major area of concern involves the administration of the actual
process of fact-finding in a comparative negligence system. The assigning of a specific
percentage factor to the amount of negligence attributable to a particular party, while in theory a
matter of little difficulty, can become a matter of perplexity in the face of hard facts. The
temptation for the jury to resort to a quotient verdict in such circumstances can be great. . . .
These inherent difficulties are not, however, insurmountable. Guidelines might be provided the
jury which will assist it in keeping focussed upon the true inquiry . . . , and the utilization of
special verdicts . . . or jury interrogatories can be of invaluable assistance in assuring that the jury
has approached its sensitive and often complex task with proper standards and appropriate
reverence. . . .
Finally there is the problem of the treatment of willful misconduct under a system of
comparative negligence. In jurisdictions following the ‘all-or-nothing’ rule, contributory
negligence is no defense to an action based upon a claim of willful misconduct . . ., and this is the
present rule in California. A s Dean Prosser has observed, “(this) is in reality a rule of
comparative fault which is being applied, and the court is refusing to set up the lesser fault against
the greater.” PROSSER, TORTS, § 65. The thought is that the difference between willful and
wanton misconduct and ordinary negligence is one of kind rather than degree in that the former
involves conduct of an entirely different order, and under this conception it might well be urged
that comparative negligence concepts should have no application when one of the parties has been
guilty of willful and wanton misconduct. In has been persuasively argued, however, that the loss
of deterrent effect that would occur upon application of comparative fault concepts to willful and
wanton misconduct as well as ordinary negligence would be slight, and that a comprehensive
system of comparative negligence should allow for the apportionment of damages in all cases
involving misconduct which falls short of being intentional. . . .
It remains to identify the precise form of comparative negligence which we now adopt for
application in this state. Although there are many variants, only the two basic forms need be
considered here. The first of these, the so-called ‘pure’ form of comparative negligence,
apportions liability in direct proportion to fault in all cases. This was the form adopted by the
Supreme Court of Florida in Hoffman v. Jones, and it applies by statute in Mississippi, Rhode
Island, and Washington. Moreover it is the form favored by most scholars and commentators. . . .
The second basic form of comparative negligence, of which there are several variants,
applies apportionment based on fault up to the point at which the plaintiff’s negligence is equal to
or greater than that of the defendant—when that point is reached, plaintiff is barred from
recovery. Nineteen states have adopted this form or one of its variants by statute. The principal
argument advanced in its favor is moral in nature: that it is not morally right to permit one more at
fault in an accident to recover from one less at fault. Other arguments assert the probability of
increased insurance, administrative, and judicial costs if a ‘pure’ rather than a ‘50 percent’ system
is adopted, but this has been seriously questioned. . . .
We have concluded that the ‘pure’ form of comparative negligence is that which should
be adopted in this state. In our view the ‘50 percent’ system simply shifts the lottery aspect of the
contributory negligence rule to a different ground. As Dean Prosser has noted, under such a
system ‘(i)t is obvious that a slight difference in the proportionate fault may permit a recovery;
and there has been much justified criticism of a rule under which a plaintiff who is charged with
49 percent of a total negligence recovers 51 percent of his damages, while one who is charged
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with 50 percent recovers nothing at all.’22 In effect ‘such a rule distorts the very principle it
recognizes, i.e., that persons are responsible for their acts to the extent their fault contributes to an
injurious result. The partial rule simply lowers, but does not eliminate, the bar of contributory
negligence.’ . . .
We also consider significant the experience of the State of Wisconsin, which until recently
was considered the leading exponent of the ‘50 percent’ system. There that system led to
numerous appeals on the narrow but crucial issue whether plaintiff’s negligence was equal to
defendant’s. . . . Numerous reversals have resulted on this point, leading to the development of
arcane classifications of negligence according to quality and category. . . .
It remains for us to determine the extent to which the rule here announced shall have
application to cases other than those which are commenced in the future. . . [W]e hold that the
present opinion shall be applicable to all cases in which trial has not begun before the date this
decision becomes final in this court, but that it shall not be applicable to any case in which trial
began before that date (other than the instant case)—except that if any judgment be reversed on
appeal for other reasons, this opinion shall be applicable to any retrial. . . .
CLARK, J., dissenting.
I dissent. For over a century this court has consistently and unanimously held that Civil
Code section 1714 codifies the defense of contributory negligence. Suddenly—after 103 years—
the court declares section 1714 shall provide for comparative negligence instead. In my view, this
action constitutes a gross departure from established judicial rules and role. . . .

Notes

1. Courts versus legislatures. Was the California Supreme Court right to think that the
institutional authority to alter the contributory negligence rule properly lay with it rather than with
the legislature? What are the relevant considerations in the question of institutional choice?

2. The Restatement joins in. The above case describes two main kinds of comparative
negligence regimes: a “pure” form and a “50 percent” form. The Third Restatement recommends
the pure form, asserting that where a plaintiff’s negligence is “a legal cause of an indivisible
injury,” courts are to reduce a plaintiff’s recovery “in proportion to the share of responsibility the
factfinder assigns to the plaintiff. RESTATEMENT (THIRD) OF TORTS: APPORTIONMENT LIABILITY §
7 (2000).

3. Comparing negligence? The Li court raises an interesting question in the course of
adopting a comparative negligence regime: how exactly do we compare one party’s negligent act

22

This problem is compounded when the injurious result is produced by the combined negligence of several
parties. For example in a three-car collision a plaintiff whose negligence amounts to one-third or more recovers
nothing; in a four-car collision the plaintiff is barred if his negligence is only one-quarter of the total.

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with another party’s different negligent act? Consider the facts of the Li case itself. How should
a jury apportion percentages of fault to the plaintiff, who made a negligent left turn, and the
defendant, who was driving over the speed limit? Is it 50-50? Or something else?
Alternatively, try comparing two parties’ faults when they do varying degrees of the same
negligent act. Consider an accident between Car P (the plaintiff car) and Car D (the defendant
car) on a road with a 35 mile per hour (mph) speed limit. Before the accident, Car P was driving
45 mph and Car D was driving 60 mph. Is their comparative fault 50-50, since they were both
driving over the speed limit? Or should their comparative fault scale with each additional mile
per hour they were driving over the speed limit, such that their fault split would be about 30-70?
Or is driving 25 miles per hour over the speed limit exponentially more dangerous than driving 10
miles per hour over the speed limit, such that their fault split should be something more like 1090?
Consider another wrinkle for comparative negligence regimes. In footnote 6a, the Li court
attempted to clarify that California tort law forces judges and juries to compare parties’ respective
faults rather than their respective causal responsibilities. The court modified the decision a month
after it was published to clarify that California’s negligence regime would only focus on fault.
But what’s the difference between a party’s fault and a party’s causal contribution? If the
California Supreme Court was confused between the two, what are the chances that future courts
and juries will understand the distinction?
Perhaps frustrated with questions like these, some state supreme courts have passed up
their opportunities to adopt comparative negligence regimes:

Coleman v. Soccer Ass’n. of Columbia, 432 Md. 679 (2013)
Thirty years ago, in Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 444
(1983), this Court issued a writ of certiorari to decide “whether the common law doctrine of
contributory negligence should be judicially abrogated in Maryland and the doctrine of
comparative negligence adopted in its place as the rule governing trial of negligence actions in
this State.” In a comprehensive opinion by then Chief Judge Robert C. Murphy, the Court in
Harrison declined to abandon the doctrine of contributory negligence in favor of comparative
negligence, pointing out that such change “involves fundamental and basic public policy
considerations properly to be addressed by the legislature.”
The petitioner in the case at bar presents the same issue that was presented in Harrison,
namely whether this Court should change the common law and abrogate the defense of
contributory negligence in certain types of tort actions. After reviewing the issue again, we shall
arrive at the same conclusion that the Court reached in Harrison.
I
The petitioner and plaintiff below, James Kyle Coleman, was an accomplished soccer
player who had volunteered to assist in coaching a team of young soccer players in a program of
the Soccer Association of Columbia, in Howard County, Maryland. On August 19, 2008,
Coleman, at the time 20 years old, was assisting the coach during the practice of a team of young
soccer players on the field of the Lime Kiln Middle School. While the Soccer Association of
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Columbia had fields of its own, it did not have enough to accommodate all of the program’s
young soccer players; the Association was required to use school fields for practices. At some
point during the practice, Coleman kicked a soccer ball into a soccer goal. As he passed under the
goal’s metal top rail, or crossbar, to retrieve the ball, he jumped up and grabbed the crossbar. The
soccer goal was not anchored to the ground, and, as he held on to the upper crossbar, Coleman fell
backwards, drawing the weight of the crossbar onto his face. He suffered multiple severe facial
fractures which required surgery and the placing of three titanium plates in his face. Coleman
instituted the present action by filing a complaint, in the Circuit Court for Howard County,
alleging that he was injured by the defendants’ negligence. The defendant and respondent, the
Soccer Association of Columbia, asserted the defense of contributory negligence.
...
[T]he jury concluded that the Soccer Association of Columbia was negligent and that the
Soccer Association’s negligence caused Coleman’s injuries. The jury also found that Coleman
was negligent, and that his negligence contributed to his own injuries. Because of the
contributory negligence finding, Coleman was barred from any recovery. . . .
II
This Court last addressed the continuing viability of the contributory negligence doctrine
in Harrison v. Montgomery County Bd. of Educ., [decided in 1983]. In Harrison, the Court held
that the contributory negligence principle remained the valid standard in Maryland negligence
cases and that “any change in the established doctrine [should be made by] the Legislature.” 295
Md. at 463.
Chief Judge Murphy, for the Court in Harrison, began his review of the contributory
negligence standard by tracing the standard’s historical origins to Lord Chief Justice
Ellenborough’s opinion in Butterfield v. Forrester, 11 East 60, 103 Eng. Rep. 926 (K.B. 1809). . .
. The Harrison opinion explained that, when the contributory negligence standard was first
judicially adopted in the United States, the courts at the time were concerned that juries would
award to plaintiffs sums that had the potential to stifle “newly developing industry.” Early
American courts were also concerned that they should not adopt a policy in which “courts . . .
assist a wrongdoer who suffered an injury as a result of his own wrongdoing.”. . .
The Court in Harrison also pointed out that, as of 1983, of the thirty-nine states that had
adopted comparative negligence, thirty-one had done so by statute, with the eight remaining states
having adopted the principle by judicial action. The Court noted that it was “clear” that legal
scholars “favored” the comparative negligence standard . . . .
Nevertheless, the Harrison Court pointed to other considerations involved in changing the
standard from contributory negligence to comparative negligence (295 Md. at 454–455):
Also to be considered is the effect which a comparative fault system would have on
other fundamental areas of negligence law. The last clear chance doctrine,
assumption of the risk, joint and several liability, contribution, setoffs and
counterclaims, and application of the doctrine to other fault systems, such as strict
liability in tort, are several of the more obvious areas affected by the urged shift to
comparative negligence. Even that change has its complications; beside the ‘pure’
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form of comparative negligence, there are several ‘modified’ forms, so that
abrogation of the contributory negligence doctrine will necessitate the substitution
of an alternate doctrine. Which form to adopt presents its own questions and the
choice is by no means clear. . . . That a change from contributory to comparative
negligence involves considerably more than a simple common law adjustment is
readily apparent.
. . . Harrison concluded . . . :
[I]n considering whether a long-established common law rule—unchanged by the
legislature and thus reflective of this State’s public policy—is unsound in the
circumstances of modern life, we have always recognized that declaration of the
public policy of Maryland is normally the function of the General Assembly; that
body, by Article 5 of the Maryland Declaration of Rights, is expressly empowered
to revise the common law of Maryland by legislative enactment. The Court,
therefore, has been particularly reluctant to alter a common law rule in the face of
indications that to do so would be contrary to the public policy of the State.
In the years immediately prior to Harrison, from 1966 to 1982, the Maryland General
Assembly had considered twenty-one bills seeking to change the contributory negligence
standard. None of the bills had been enacted. The Harrison Court accorded a great deal of
weight to the General Assembly’s failure to enact any of these bills, stating: “[T]he legislature’s
action in rejecting the proposed change is indicative of an intention to retain the contributory
negligence doctrine.”
The Court further pointed out that enactment of a comparative negligence standard is be
made, beginning with the initial inquiry of what form of comparative negligence to adopt, “pure”
or one “of the several types of modified comparative negligence.” If Maryland’s common law
were to change, the Harrison opinion explained, the decision as to which form of comparative
negligence to adopt “plainly involves major policy considerations” of the sort best left to the
General Assembly.
III
Since the time of Harrison, this Court has continued to recognize the standard of
contributory negligence as the applicable principle in Maryland negligence actions. Although the
contributory negligence principle has been part of this State’s common law for over 165 years,
petitioners and numerous amici in this case urge this Court to abolish the contributory negligence
standard and replace it with a form of comparative negligence. They argue contributory
negligence is an antiquated doctrine, that it has been roundly criticized by academic legal
scholars, and that it has been rejected in a majority of our sister states. It is also pointed out that
contributory negligence works an inherent unfairness by barring plaintiffs from any recovery,
even when it is proven, in a particular case, that a defendant’s negligence was primarily
responsible for the act or omission which resulted in a plaintiff’s injuries. It is said that
contributory negligence provides harsh justice to those who may have acted negligently, in minor
ways, to contribute to their injuries, and that it absolves those defendants from liability who can
find any minor negligence in the plaintiffs’ behavior.

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Petitioners correctly contend that, because contributory negligence is a court-created
principle, and has not been embodied in Maryland statutes, this Court possesses the authority to
change the principle. This Court has recognized that (Ireland v. State, 310 Md. 328, 331–332
(1987)),
[b]ecause of the inherent dynamism of the common law, we have consistently held
that it is subject to judicial modification in light of modern circumstances or
increased knowledge. Equally well established is the principle that the common
law should not be changed contrary to the public policy of this State set forth by the
General Assembly. Kelley v. R.G. Industries, Inc., 304 Md. 124, 141. In the area
of civil common law this Court has not only modified the existing law but also
added to the body of law by recognizing new causes of action. Kelley (recognizing
cause of action against manufacturers or marketers for damages caused by ‘Saturday
Night Special’ handguns); Boblitz v. Boblitz, 296 Md. 242 (1983) (permitting
negligence action by one spouse against another); Moxley v. Acker, 294 Md. 47
(1982) (deleting force as a required element of the action of forceable detainer);
Adler v. American Standard Corp., 291 Md. 31 (1981) (recognizing tort of abusive
or wrongful discharge); Lusby v. Lusby, 283 Md. 334 (1978) (abolishing the defense
of interspousal immunity in the case of outrageous intentional torts); Harris v. Jones,
281 Md. 560 (1977) (recognizing tort of intentional infliction of emotional distress).
...
Since the Harrison case, the General Assembly has continually considered and failed to
pass bills that would abolish or modify the contributory negligence standard. The failure of so
many bills, attempting to change the contributory negligence doctrine, is a clear indication of
legislative policy at the present time. . . . [T]he legislative policy in Maryland is to retain the
principle of contributory negligence.

Dissenting Opinion by HARRELL, J., which BELL, C.J., joins.
Paleontologists and geologists inform us that Earth’s Cretaceous period (including in what
is present day Maryland) ended approximately 65 million years ago with an asteroid striking Earth
(the Cretaceous–Paleogene Extinction Event), wiping-out, in a relatively short period of geologic
time, most plant and animal species, including dinosaurs. As to the last premise, they are wrong.
A dinosaur roams yet the landscape of Maryland (and Virginia, Alabama, North Carolina and the
District of Columbia), feeding on the claims of persons injured by the negligence of another, but
who contributed proximately in some way to the occasion of his or her injuries, however slight
their culpability. The name of that dinosaur is the doctrine of contributory negligence. With the
force of a modern asteroid strike, this Court should render, in the present case, this dinosaur
extinct. It chooses not to do so. Accordingly, I dissent. . . .

Notes

1. The persistence of contributory negligence? Is the Coleman court right to refrain from
altering its long-settled rule on grounds of democratic values and institutional choice? Note that
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the legislature could almost certainly switch the rule back to contributory negligence if the court
had opted to follow Li v. Yellow Cab. As a result, the choice reduces to one about proper starting
points and the court’s role as an agenda-setter in the political process.

2. The seat belt defense. What happens when a plaintiff takes an action that does not directly
cause an accident, but instead only aggravates her own injuries in that accident? Courts have
struggled with this principle since the inception of the comparative negligence regime—one only
has to look to the seat belt dilemma to grasp the problem.
Can a defendant prove a plaintiff’s negligence by submitting evidence that the plaintiff
was not wearing a seat belt during the accident? Under contributory negligence regimes, courts
were hesitant to deny an un-seatbelted plaintiff’s recovery outright. This may be because
contributory negligence regimes were most prominent before cars were required to have seatbelts.
Or, perhaps, the courts just found this application of contributory negligence “too harsh” for
something that didn’t even cause the accident. See VICTOR SCHWARTZ, COMPARATIVE
NEGLIGENCE § 4.06 (5th ed. 2013).
Perhaps more surprisingly, the vast majority of states have also been loath to allow
defendants to raise a “seat belt defense” under comparative negligence regimes. For example, the
state legislatures in Indiana, North Dakota, and Minnesota have all passed laws prohibiting
evidence of a plaintiff’s un-seatbeltedness from being used to prove negligence. IND. STAT. ANN.
§ 9-8-14-5; N.D. CENT. CODE § 39-21-41.2(3); Cressy v. Grassman, 536 N.W.2d 39 (Minn. App.
1995). Even Michigan—one of the few states that does allow a version of the seat belt defense in
tort cases—limits damages reductions due to plaintiffs’ seatbelt-related negligence to 5% of total
damages. MICH. COMP. LAWS. ANN. § 257.710(e).
In fact, the seat belt defense has not even gained traction in “Click It or Ticket” states that
impose nominal criminal fines on drivers’ failures to wear seatbelts. For example, New Mexican
traffic police impose twenty-five to fifty dollar fines on all individuals who fail to wear a seat belt.
N.M. STAT. ANN. §66-7-370 et seq. Yet the same statute authorizing the police to impose the fine
also prohibits courts from finding a plaintiff negligent for failing to wear a seat belt. How could
this particular contradiction come to be? As Professor Schwartz suggests, “[t]he answer regarding
a change in public policy was clear: voters know that seat belts are a good idea, but will not accept
significant legal consequences for failure to use them.” VICTOR SCHWARTZ, COMPARATIVE
NEGLIGENCE § 4.06 (5th ed. 2013).

B. Assumption of Risk
Sometimes a plaintiff behaves in a careless and unreasonably dangerous manner, without
taking conscious note of the risks involved. We call such behavior contributory or comparative
negligence. Other times, however, a plaintiff enters into a course of conduct knowing the risks of
that conduct. And in some of these situations, though not all, the law treats a plaintiff’s
knowledge of the risks as grounds for allocating those risks to the plaintiff—or at least to
distributing those risks among the negligent parties according to their relative fault. We call these
instances ones in which the plaintiff assumes the risk. A plaintiff may assume risks tacitly or

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impliedly, on one hand, or expressly, on the other. We will take up these two categories of
assumption of the risk in turn in the materials that follow.
Assumption of the risk is hugely significant as a doctrine in modern tort law. Any number
of social situations are covered by implied assumption of the risk rules, ranging from amateur and
professional sporting events to amusement park rides and more. Indeed, myriad other social
situations might be covered by implied assumption of the risk rules. Why not say, for example,
that drivers assume the risk of automobile accidents on dangerous stretches of a highway? The
common law of torts does not say any such thing. But why not? What is it about certain
activities, and not about others, that warrants the creation of an implied assumption of the risk
rule?

1. Implied Assumption of Risk
Murphy v. Steeplechase Amusement Co., 250 N.Y. 479 (N.Y. 1929)
CARDOZO, C.J.
The defendant, Steeplechase Amusement Company, maintains an amusement park at
Coney Island, N.Y. One of the supposed attractions is known as “the Flopper.” It is a moving
belt, running upward on an inclined plane, on which passengers sit or stand. Many of them are
unable to keep their feet because of the movement of the belt, and are thrown backward or aside.
The belt runs in a groove, with padded walls on either side to a height of four feet, and with
padded flooring beyond the walls at the same angle as the belt. An electric motor, driven by
current furnished by the Brooklyn Edison Company, supplies the needed power.
Plaintiff, a vigorous young man, visited the park with friends. One of them, a young
woman, now his wife, stepped upon the moving belt. Plaintiff followed and stepped behind her.
As he did so, he felt what he describes as a sudden jerk, and was thrown to the floor. His wife in
front and also friends behind him were thrown at the same time. Something more was here, as
every one understood, than the slowly moving escalator that is common is shops and public
places. A fall was foreseen as one of the risks of the adventure. There would have been no point
to the whole thing, no adventure about it, if the risk had not been there. The very name, above the
gate, ‘the Flopper,’ was warning to the timid. If the name was not enough, there was warning
more distinct in the experience of others. We are told by the plaintiff’s wife that the members of
her party stood looking at the sport before joining in it themselves. Some aboard the belt were
able, as she viewed them, to sit down with decorum or even to stand and keep their footing; others
jumped or fell. The tumbling bodies and the screams and laughter supplied the merriment and
fun. ‘I took a chance,’ she said when asked whether she thought that a fall might be expected.
Plaintiff took the chance with her, but, less lucky than his companions, suffered a fracture
of a knee cap. He states in his complaint that the belt was dangerous to life and limb, in that it
stopped and started violently and suddenly and was not properly equipped to prevent injuries to
persons who were using it without knowledge of its dangers, and in a bill of particulars he adds
that it was operated at a fast and dangerous rate of speed and was not supplied with a proper
railing, guard, or other device to prevent a fall therefrom. No other negligence is charged.

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We see no adequate basis for a finding that the belt was out of order. It was already in
motion when the plaintiff put his foot on it. He cannot help himself to a verdict in such
circumstances by the addition of the facile comment that it threw him with a jerk. One who steps
upon a moving belt and finds his heels above his head is in no position to discriminate with nicety
between the successive stages of the shock, between the jerk which is a cause and the jerk,
accompanying the fall, as an instantaneous effect. There is evidence for the defendant that power
was transmitted smoothly, and could not be transmitted otherwise. If the movement was
spasmodic, it was an unexplained and, it seems, an inexplicable departure from the normal
workings of the mechanism. An aberration so extraordinary, if it is to lay the basis for a verdict,
should rest on something firmer than a mere descriptive epithet, a summary of the sensations of a
tense and crowded moment. . . . But the jerk, if it were established, would add little to the case.
Whether the movement of the belt was uniform or irregular, the risk at greatest was a fall. This
was the very hazard that was invited and foreseen.
Volenti non fit injuria. One who takes part in such a sport accepts the dangers that inhere
in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his
antagonist or a spectator at a ball game the chance of contact with the ball. . . . The antics of the
clown are not the paces of the cloistered cleric. The rough and boisterous joke, the horseplay of
the crowd, evokes its own guffaws, but they are not the pleasures of tranquility. The plaintiff was
not seeking a retreat for meditation. Visitors were tumbling about the belt to the merriment of
onlookers when he made his choice to join them. He took the chance of a like fate, with whatever
damage to his body might ensue from such a fall. The timorous may stay at home.
A different case would be here if the dangers inherent in the sport were obscure or
unobserved, or so serious as to justify the belief that precautions of some kind must have been
taken to avert them. Nothing happened to the plaintiff except what common experience tells us
may happen at any time as the consequence of a sudden fall. Many a skater or a horseman can
rehearse a tale of equal woe. A different case there would also be if the accidents had been so
many as to show that the game in its inherent nature was too dangerous to be continued without
change. The president of the amusement company says that there had never been such an
accident before. A nurse employed at an emergency hospital maintained in connection with the
park contradicts him to some extent. She says that on other occasions she had attended patrons of
the park who had been injured at the Flopper, how many she could not say. None, however, had
been badly injured or had suffered broken bones. Such testimony is not enough to show that the
game was a trap for the unwary, too perilous to be endured. According to the defendant’s
estimate, 250,000 visitors were at the Flopper in a year. Some quota of accidents was to be
looked for in so great a mass. One might as well say that a skating rink should be abandoned
because skaters sometimes fall.
There is testimony by the plaintiff that he fell upon wood, and not upon a canvas padding.
He is strongly contradicted by the photographs and by the witnesses for the defendant, and is
without corroboration in the testimony of his companions who were witnesses in his behalf. If his
observation was correct, there was a defect in the equipment, and one not obvious or known. The
padding should have been kept in repair to break the force of any fall. The case did not go to the
jury, however, upon any such theory of the defendant’s liability, nor is the defect fairly suggested
by the plaintiff’s bill of particulars, which limits his complaint. The case went to the jury upon
the theory that negligence was dependent upon a sharp and sudden jerk.

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The judgment of the Appellate Division and that of the Trial Term should be reversed, and
a new trial granted, with costs to abide the event.
POUND, CRANE, LEHMAN, KELLOG, and HUBBS, JJ., concur.
O’BRIEN, J., dissents . . .

Notes

1. Negligence in the Flopper case? What, if anything, did the operator of the Flopper do
wrong? If the answer is nothing, then why are we talking about the plaintiff’s conduct? Isn’t this
a case in which the plaintiff loses simply because he cannot show negligence on the part of the
defendant?
2. Primary assumption of the risk. Flopper-like cases are often said to deal with “primary
assumption of risk.” As the California Supreme Court has put it,
these are instances in which the assumption of risk doctrine embodies a legal
conclusion that there is “no duty” on the part of the defendant to protect the plaintiff
from a particular risk—the category of assumption of risk that the legal
commentators generally refer to as “primary assumption of risk.”
Knight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But if that is so, why craft an independent
doctrine for such cases? Why aren’t these simply dealt with as cases in which the plaintiff wins
because the defendant did not breach a duty of care?

3. A monster flopper? Cardozo observes in the Flopper case that the outcome might be
different “if the accidents had been so many as to show that the game in its inherent nature was
too dangerous to be continued without change.” One New Jersey theme park in the 1980s and
1990s may have been such a place. Customers reported 14 broken bones and 26 head injuries in
1984 and 1985. The park acquired its own ambulance. Six people died at the park between 1978
and 1996. Test dummies used to simulate rides were said to come out decapitated. One teenage
customer recalled driving to the park with his friends. “It wasn’t ‘If someone gets hurt,’” he
recalled, “it was ‘Who’s going to get hurt?’” Another long-time customer remembered “People
were bleeding all over the place.” Did the notoriety and visible dangerousness of Action Park
mean that its ordinary operation was not negligent as a matter of law? Or was Action Park so
dangerous that people should not have been allowed to assume the risks it posed? Notably, a
young New Jersey man named Cory Booker loved the place. “I’ve got stories 2 tell,” he tweeted
in 2014. See James Barron, People Were Bleeding All Over, N.Y. TIMES, Oct. 19, 2019.

4. The fellow servant rule. Historically, many cases of primary assumption of the risk dealt
with workplace risks. Workers in the pre-worker’s compensation era were regularly said to
assume the risks of the work in which they were engaged. In Lamson v. American Ax & Tool Co.,
for example, the plaintiff was a painter of hatchets in the defendant’s manufacturing
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establishment. When the defendant installed a new axe rack, plaintiff complained to the
superintendent of the factory that the new rack was dangerous. The superintendent answered that
“he would have to use the racks or leave.” Plaintiff stayed and was injured when a hatchet fell
from the rack. Massachusetts Supreme Judicial Court Chief Justice Oliver Wendell Holmes, Jr.,
soon to be appointed to the United States Supreme Court, ruled in favor of the defendant on the
ground that Lamson had assumed the risk:
The plaintiff, on his own evidence, appreciated the danger more than any one else. He
perfectly understood what was likely to happen. That likelihood did not depend upon the doing of
some negligent act by people in another branch of employment, but solely on the permanent
conditions of the racks and their surroundings and the plaintiff’s continuing to work where he did.
He complained, and was notified that he could go if he would not face the chance. He stayed and
took the risk.
Lamson v. American Ax & Tool Co., 58 N.E. 585, 585 (Mass. 1900).
The assumption of the risk rule in the nineteenth- and early twentieth-century workplace
encompassed the assumption of virtually all risks arising out of the negligence of a co-worker.
This was the so-called “fellow servant rule.” Articulated most famously by Chief Justice Lemuel
Shaw of Massachusetts (you will recall Shaw as the author of the opinion in Brown v. Kendall),
the fellow servant rule was grounded in two theories. The first was that employees are better
positioned than an employer to minimize the risks involved in the workplace:
Where several persons are employed in the conduct of one common enterprise or
undertaking, and the safety of each depends much on the care and skill with which
each other shall perform his appropriate duty, each is an observer of the conduct of
the others, can give notice of any misconduct, incapacity or neglect of duty, and
leave the service . . . . By these means, the safety of each will be much more
effectually secured, than could be done by a resort to the common employer for
indemnity in case of loss by the negligence of each other.
Farwell v. Boston & Worcester R. Corp., 45 Mass. 49, 59 (1842). Does Shaw’s description of the
workplace hold true for modern firms? Did it hold true for railroad firms in the middle of the
nineteenth century?

5. Compensating wage premiums? A second theoretical basis for the assumption of the risk
rule was that even if employees were not better positioned, the employees’ wages would be higher
ex ante to reflect the allocation of the risk of work accidents to workers ex post; as Shaw put it,
even if workers lost when they brought injury suits, their compensation was “adjusted
accordingly.” Farwell, 45 Mass. at 57.
Contemporary economists refer to this theory as the wage premium theory: employees
earn, or so it is said, a higher wage to reflect the risks they face in the workplace. If the
background tort rules make recovery for work accidents difficult, the wage will be higher still to
reflect the true costs of the job to the employee. Conversely, if the risk of accidents were
transferred to the employer (the theory goes) wages would decrease accordingly to reflect the
employer’s new costs.
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Economists have tried hard to determine empirically whether wages adjust to reflect work
accident risk and background tort rules. The evidence is split. Some have purported to find little
or no effect of added risk on wages, especially among non-unionized workers. See Peter Dorman
& Paul Hagstrom, Wage Compensation for Dangerous Work Revisited, 52 Indus. & Labor
Relations Rev. 116 (1998). Others find considerable compensating wage differentials in risky
workplaces. See W. Kip Viscusi & Joseph E. Aldy, The Value of a Statistical Life: A Critical
Review of Market Estimates Throughout the World, 27 J. RISK & UNCERTAINTY 5, 23 (2003)
(finding that workers’ wage differentials place an implicit value of $3 to $7 million dollars on the
average worker life). Similarly, studies of the transition from tort to workers’ compensation
conclude that the shift to a more ex post compensation was accompanied by a reduction in wages,
suggesting that workers traded off increased after-the-fact injury compensation for decreased ex
ante risk premiums. See PRICE V. FISHBACK & SHAWN E. KANTOR, PRELUDE TO THE WELFARE
STATE: THE ORIGINS OF WORKERS’ COMPENSATION (2000).
Note that to the extent there are wage premiums, such premiums create a built-in market
incentive for employers to improve safety conditions for their workers. Safer workplaces would
allow employers to pay lower wages or attract better talent, since they would be more attractive
places to work. One difficulty with this theory is that even if employees demand higher wages in
return for the increased risks of certain industries, the evidence suggests that they usually do not
have 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
implausible, given employees’ limited information about the relevant risks, to think that the
market wage for any given position accurately includes the risk of injury and the background tort
rule. See Susan Rose-Ackerman, Progressive Law and Economics, 98 YALE L.J. 341, 355-57
(1988).

6. Assumption of the risk is no longer a live doctrine in most workplaces. The enactment of
workers’ compensation laws has displaced most tort suits between employer and employee.
Today the most common setting for the doctrine of primary assumption of the risk is athletic
events.

Maddox v. City of New York, 487 N.E.2d 553 (N.Y. 1985)
MEYER, J.
[P]laintiff, a member of the New York Yankees team, was injured on June 13, 1975, when
he slipped and fell during the ninth inning of a night game with the Chicago White Sox. . . .
Plaintiff testified that he was playing centerfield and was fielding a fly ball hit to right centerfield,
that he was running to his left and as he sought to stop running his left foot hit a wet spot and slid,
but his right foot stuck in a mud puddle, as a result of which his right knee buckled. The knee
injury required three separate surgical procedures and ultimately forced him to retire prematurely
from professional baseball.
Plaintiff and his wife (hereafter collectively referred to as plaintiff) sued the city, as owner
of Shea Stadium [predecessor stadium to the New York Mets’s Citi Field], and the Metropolitan
Baseball Club, Inc., as lessee. In a separate action plaintiff sued the general contractor who built
Shea Stadium and the architect and the consulting engineer. Both actions charge that the drainage
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system was negligently designed, constructed or maintained. [The Appellate Division ruled in
favor of defendants’ motion for summary judgment. Maddox appealed, arguing that “he assumed
the risks of the game, not of the playing field, which was in an unreasonably dangerous condition,
that the risk had in any event been enhanced, that he had no choice but to continue to play, and
that the evidence did not establish his subjective awareness that his foot could get stuck in the
mud.”]
In the instant case we deal not with express assumption of risk, but with assumption of
risk to be implied from plaintiff’s continued participation in the game with the knowledge and
appreciation of the risk which his deposition testimony spelled out and which established his
implied assumption as a matter of law. . . .
The risks of a game which must be played upon a field include the risks involved in the
construction of the field, as has been held many times before. . . . [T]he assumption doctrine
“applies to any facet of the activity inherent in it and to any open and obvious condition of the
place where it is carried on”. . . .
There is no question that the doctrine requires not only knowledge of the injury-causing
defect but also appreciation of the resultant risk, but awareness of risk is not to be determined in a
vacuum. It is, rather, to be assessed against the background of the skill and experience of the
particular plaintiff, and in that assessment a higher degree of awareness will be imputed to a
professional than to one with less than professional experience in the particular sport. In that
context plaintiff’s effort to separate the wetness of the field, which he testified was above the
grass line, from the mud beneath it in which his foot became lodged must be rejected for not only
was he aware that there was “some mud” in the centerfield area, but also it is a matter of common
experience that water of sufficient depth to cover grass may result in the earth beneath being
turned to mud. We do not deal here . . . with a hole in the playing field hidden by grass, but with
water, indicative of the presence of mud, the danger of which plaintiff was sufficiently aware to
complain to the grounds keepers. It is not necessary to the application of assumption of risk that
the injured plaintiff have foreseen the exact manner in which his or her injury occurred, so long as
he or she is aware of the potential for injury of the mechanism from which the injury results. Nor
do the enhancement cases to which plaintiff refers in arguing that the risk of water on the field
was enhanced by the failure to install proper drainage facilities avail plaintiff, for in each of those
cases the enhanced risk that resulted was unknown to the particular plaintiff, whereas here the
resulting risk (mud) was evident to plaintiff as is shown by his observation of mud and water and
his complaints to the grounds keepers concerning the presence of water to the grass line.
Finally, although the assumption of risk to be implied from participation in a sport with
awareness of the risk is generally a question of fact for a jury dismissal of a complaint as a matter
of law is warranted when on the evidentiary materials before the court no fact issue remains for
decision by the trier of fact. We are satisfied that this is such a case for, on the basis of those parts
of plaintiff’s deposition above set forth, the defense of assumption of risk was clearly established,
and plaintiff has not, as it was his burden to do . . . present[ed] evidence in admissible form that he
had no choice in the matter but to obey a superior’s direction to continue notwithstanding the
danger. Indeed, nothing in plaintiff’s affidavit or in so much of his deposition as is contained in
the record suggests that he acted under such an order or compulsion, nor can we agree,
notwithstanding the dictum in or the irascibility of some baseball owners or managers, that we
should infer that such an order had been given or that plaintiff acted under the compulsion of an
unspoken order.
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Accordingly, the order of the Appellate Division should be affirmed, with costs.
WACHTLER, C.J., and JASEN, SIMONS, KAYE and ALEXANDER, JJ., concur.
TITONE, J., taking no part.

Notes

1. Elliot Maddox. Elliot Maddox was a promising young member of a struggling Yankees
team when he was injured. He never played effectively again. Why did Maddox not sue the
Yankees? It was the Yankees, after all, that sent him out into the wet outfield and required him to
play. The answer is that, as Maddox’s employer, the Yankees were immune from suit in tort,
though they were responsible for any workers’ compensation benefits. Maddox’s action against
the city as owner of Shea Stadium and against the Mets as the stadium’s lessee is emblematic of
the way in which employers’ workers’ compensation immunity has generated pressure to bring
tort actions against more distant tort defendants.
Note that fifteen years after the New York Court of Appeals decided his tort claim,
Maddox was back in the news, this time for fraudulent worker’s compensation claims. After
getting work as a counselor in Florida’s Division of Children and Families, Maddox filed a
workers’ compensation claim based on the knee injury he suffered in Shea Stadium in 1975. Now
51 years old, Maddox claimed that he was “at home in Coral Springs and too hobbled to work.”
The Tuscaloosa News, however, reported that in fact Maddox was running baseball camps.
Investigators with the Florida Division of Risk Management say they videotaped
Maddox “walking, running, bending both knees, performing pitching windups and
carrying equipment” during the times he claimed to be too injured to report to
work.
Tuscaloosa News, Jan. 25, 2000, p. 3B. Maddox was arrested on charges of workers’
compensation fraud, grand theft, and perjury in official proceedings. He was eventually acquitted
by a jury on all charges.
2. “The Baseball Rule.” Primary assumption of the risk also finds application in the class of
cases brought by spectators at professional sporting events. The Missouri Supreme Court recently
had occasion to set forth the so-called “Baseball Rule”:
[A]n overwhelming majority of courts recognized that spectators at sporting events
are exposed to certain risks that are inherent merely in watching the contest.
Accordingly, under what is described . . . as implied primary assumption of the risk,
these courts held that the home team was not liable to a spectator injured as a result
of such risks.
The archetypal example of this application of implied primary assumption of the
risk is when a baseball park owner fails to protect each and every spectator from the
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risk of being injured by a ball or bat flying into the stands. Just as Missouri teams
have led (and continue to lead) professional baseball on the field, Missouri courts
helped lead the nation in defining this area of the law off the field. More than 50
years ago, this Court was one of the first to articulate the so-called “Baseball Rule”:
[W]here a baseball game is being conducted under the customary and usual
conditions prevailing in baseball parks, it is not negligence to fail to protect all seats
in the park by wire netting, and that the special circumstances and specific
negligence pleaded did not aid plaintiff or impose upon the defendant a duty to warn
him against hazards which are necessarily incident to baseball and are perfectly
obvious to a person in possession of his faculties.
...
[W]hen due care has been exercised to provide a reasonable number of screened
seats, there remains a hazard that spectators in unscreened seats may be struck and
injured by balls which are fouled or otherwise driven into the stands. This risk is a
necessary and inherent part of the game and remains after ordinary care has been
exercised to provide the spectators with seats which are reasonably safe. It is a risk
which is assumed by the spectators because it remains after due care has been
exercised and is not the result of negligence on the part of the baseball club. It is
clearly not an unreasonable risk to spectators which imposes a duty to warn [or
protect].
[M]any dozens of cases around the country hold[] that, as long as some seats directly
behind home plate are protected, the team owes “no duty” to spectators outside that
area who are injured by a ball or bat while watching a baseball game.
Coomer v. Kansas City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014).
But courts have been unwilling to allow the baseball rule to defeat all the tort claims that
arise in this context. For instance, in Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. 1967), an Illinois
appellate court held that where the plaintiff was struck by an errant ball coming from the bullpen
in Chicago’s Wrigley Field, rather than by a ball coming from the field, the baseball rule did not
apply. Similarly, where the antics of the mascot at a minor league game distracted the plaintiff
from the progress of the game, the court held that the baseball rule’s assumption of the risk
argument did not defeat the plaintiff’s suit for injuries. Lowe v. Cal. League of Prof’l Baseball,
65 Cal. Rptr. 2d 105 (Cal. Ct. App. 1997). Most recently, the Missouri Supreme Court held that
the baseball rule of primary assumption of the risk did not apply where a hot dog thrown by the
Kansas City Royals’ mascot between innings struck the plaintiff in the eye and detached his
retina. Coomer, 437 S.W.3d at 184.
Note also that courts are not the only institution involved in fashioning the baseball rule.
In Maisonave v. Newark Bears, 881 A.2d 700 (N.J. 2005), the New Jersey Supreme Court held
that the baseball rule did not apply in a suit by a spectator injured by a foul ball while waiting at a
concession stand in the stadium concourse. The next year, the New Jersey legislature passed a
law limiting team liability for any “injuries which result from being struck by a baseball or a
baseball bat anywhere on the premises during a professional baseball game.” N.J. STAT. ANN. §
2A53A-46 (2006).
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3. Amateur or “pick-up” sports. Primary assumption of risk is a comprehensive doctrine
that applies not only to spectators at professional sporting events, but also to players in amateur or
even “pick-up” games. The Indiana Court of Appeals recently stated the doctrine as follows:
A participant in a sporting event, including any person who is part of the sporting
event or practice involved such as players and coaches, does not have a duty to
fellow participants to refrain from conduct which is inherent and foreseeable in the
play of the game, even though such conduct may be negligent and may result in
injury absent evidence that the other participant either intentionally caused injury
or engaged in conduct so reckless as to be totally outside the range of ordinary
activity.
Geiersbach v. Frieje, 807 N.E.2d 114 (Ind. Ct. App. 2004) (emphasis added).
In Maddox, the court reasoned that “a higher degree of awareness will be imputed to a
professional than to one with less than professional experience in the particular sport.” But the
Geiersbach court suggests that any person participating in a sporting game, regardless of its level
of professionalism or lack thereof, is deemed to have assumed risk inherent and foreseeable in the
particular sport. Which is the better approach?

4. So far the cases we have seen have been primary assumption of the risk cases in which the
doctrine of assumption of the risk is a different way of saying that the defendant did not breach a
duty to the plaintiff. What about the next case: is this a case in which the defendant was not
negligent? Or is this a case about the plaintiff’s behavior creating a defense for a defendant
whose conduct might have made it liable under other circumstances?

Landings Association, Inc. v. Williams, 728 S.E.2d 577 (Ga. 2012)
MELTON, J.
[T]he Court of Appeals held that the trial court properly denied in part motions for
summary judgment brought by The Landings Association, Inc., . . . finding that a question of fact
remained as to whether The Landings . . . failed, pursuant to the law of premises liability, to take
reasonable steps to protect Gwyneth Williams from being attacked and killed by an alligator in the
planned residential community and golf club owned and/or managed by The Landings . . . .
As is relevant to our holding, the facts, in the light most favorable to Williams, show that,
at the time of the alligator attack, Williams was house-sitting for her daughter and son-in-law at
The Landings, a planned residential development with a golf course located on Skidaway Island
off the Georgia coast. Before The Landings was developed, the land within and surrounding its
boundaries was largely marsh, where indigenous alligators lived and thrived. In order to develop
the property, The Landings entities installed a lagoon system which allowed enough drainage to
create an area suitable for a residential development. After the project was completed in the
1970s, the indigenous alligators subsequently began to move in and out of The Landings through
its lagoon systems.
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Although alligators inhabited the area of The Landings before and after its establishment,
no person had ever been attacked until the night of October 5, 2007, when Williams, who was 83
at the time, went for a walk near one of the lagoons near her daughter’s home some time after
6:00 p.m. The following morning, Williams’s body was found floating in the lagoon. Williams’s
right foot and both forearms had been bitten off. Later, an eight-foot alligator was caught in the
same lagoon, and, after the alligator was killed, parts of Williams’s body were found in its
stomach.
The record shows that, prior to the attack, Williams was aware that the property was
inhabited by alligators. Williams’s son-in-law testified that, on at least one occasion, he was
driving with Williams on property in The Landings when he stopped the car to allow Williams to
look at an alligator. Williams’s son-in-law also testified that Williams was, in fact, aware that
there were alligators in the lagoons at The Landings and that he believed that Williams had a
“normal” respect for wild animals. When asked whether he had ever discussed how to behave
around wild alligators with Williams, her son-in-law responded: “No. There was never—quite
frankly, there was never any reason to. I mean she was an intelligent person. She would—there
was no question in my mind that—I guess I have to answer that as it’s not like talking to a five
year old child . . . stay away from alligators.” In addition, Williams’s son recalled a similar
instance when he stopped the car to allow his mother to look at an alligator. At that time Williams
mentioned that she did not like alligators and did not want to go anywhere near them.
Generally, in premises liability cases, . . . . “‘[t]he true ground of liability is the
proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to
persons going upon the property. It is when the perilous instrumentality is known to the owner or
occupant and not known to the person injured that a recovery is permitted.’ . . .”
In this case, testimony shows that Williams was aware that wild alligators were present
around The Landings and in the lagoons. Therefore, she had knowledge equal to The Landings
entities about the presence of alligators in the community. . . . Nonetheless, Williams chose to go
for a walk at night near a lagoon in a community in which she knew wild alligators were present.
This act undisputably shows that Williams either knowingly assumed the risks of walking in areas
inhabited by wild alligators or failed to exercise ordinary care by doing so. . . .
The dissent, like the Court of Appeals, attempts to avoid this conclusion by arguing that
summary judgment for The Landings is precluded because there is no “competent evidence that
the decedent knew there were alligators over seven feet in size living in the community or living
in the lagoon in which [Williams’s] body was found.” While there is no doubt that Williams’s
death was a tragic event, Williams was not incompetent. A reasonable adult who is not disabled
understands that small alligators have large parents and are capable of moving from one lagoon to
another, and such an adult, therefore, assumes the risk of an alligator attack when, knowing that
wild alligators are present in a community, walks near a lagoon in that community after dark.
Judgment reversed.
BENHAM, J., dissenting.
I write because I respectfully disagree with the majority’s opinion reversing the decision
of the Court of Appeals to allow this premises liability case to go to a jury. . . .
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Notably absent from the majority’s opinion are facts which, if construed in appellees’
favor, require the denial of appellants’ motions for summary judgment. For example, the
Landings Association had an advertised policy that it removed from the 151 lagoons in the
community alligators which were seven feet long or larger and/or alligators which were
aggressive toward humans or pets; the appellants did not patrol or inspect the lagoons in order to
remove large or aggressive alligators according to its policy, but rather relied on residents and
employees to report said animals; and appellants did not post signs near the lagoons warning
guests about alligators. An expert opined that the over eight foot long, 130 pound alligator that
attacked the decedent had likely been in the lagoon where the decedent’s body was found for
some time because such mature alligators tend to be territorial and nest. There was also evidence
in the record that the decedent called for help during the attack, but that appellants’ security
forces, which were not trained in dealing with alligators, responded to the wrong location and then
stopped investigating, assuming that the sounds in question were bird calls. . . .
Based on the facts presented at the time of summary judgment in this case, reasonable
minds could differ as to the essential elements of appellees’ premises liability claim.

Notes

1. Secondary assumption of the risk. In the Flopper case and in Maddox, we concluded that
the assumption of the risk doctrine was an alternative way to say that the defendant breached no
duty to the plaintiff. Is it correct to say that the Landings Association breached no duty to
Gwyneth Williams? To ask this a different way: is it non-negligent as a matter of law for a
development association to fail to take precautions against large alligators in the lagoons of a golf
course and housing development? The court in Landings Association does not say so. Instead,
the court seems to focus on Mrs. Williams’s own conduct as the grounds for its conclusion that
the defendant is not liable.
This feature of the decision makes Landings Association a case of what commentators call
“secondary assumption of the risk.” As the California Supreme Court has put it, secondary
assumption of the risk cases comprise “those instances in which the defendant does owe a duty of
care to the plaintiff but the plaintiff knowingly encounters a risk of injury caused by the
defendant’s breach of that duty.” Knight v. Jewett, 834 P.2d 696, 701 (Cal. 1992). But there is a
puzzle. Recall that primary assumption of the risk cases turned out simply to be cases of no duty
and no breach repackaged into a new doctrinal formulation. Secondary assumption of the risk
turns out to be a repackaging of a different doctrine as well, the doctrine of comparative or
contributory negligence. It is no defense to show that the plaintiff encountered a reasonable risk
and proceeded with her conduct notwithstanding that reasonable risk. People knowingly take
reasonable risks all the time. We do it on highways every day when we take the risk of being
struck and injured. But since our doing so is deemed reasonable, we are not deemed
comparatively or contributorily negligent.
Secondary assumption of the risk requires that the defendant show that the plaintiff
knowingly took an unreasonable risk. In this sense, secondary assumption of the risk is simply a
subcategory of contributory or comparative negligence. In some comparative negligence states
like California, this means that “cases involving ‘secondary assumption of risk’” have simply
been “merged into [a] comprehensive comparative fault system.” Knight, 834 P.2d at 701.
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If primary assumption of the risk and secondary assumption of the risk are both different
doctrines in disguise, perhaps we should not have them at all. For much of the twentieth century,
leading jurists thought so. In a Federal Employers’ Liability Act case from 1943, Associate
Justice Felix Frankfurter put it this way:
The phrase “assumption of risk” is an excellent illustration of the extent to which
uncritical use of words bedevils the law. A phrase begins life as a literary
expression; its felicity leads to its lazy repetition; and repetition soon establishes it
as a legal formula, undiscriminatingly used to express different and sometimes
contrary ideas.
Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68 (1943) (Frankfurter, J., concurring). As
Justice Frankfurter saw it, “the phrase ‘assumption of risk’ gave judicial expression to a social
policy that entailed much human misery.” Id. at 69. Indeed, some commentators sympathetic to
Frankfurter’s view took him a step further and concluded that the “doctrine [of implied
assumption of risk] deserves no separate existence . . . and is simply a confusing way of stating
certain no-duty rules.” Fleming James, Jr., Assumption of Risk: Unhappy Reincarnation, 78 YALE
L.J. 185, 187–188 (1968); see also Francis H. Bohlen, Voluntary Assumption of Risk, 20 HARV. L.
REV. 14 (1906).

2. The durability of assumption of the risk. Notwithstanding the withering critique in the
middle of the last century, the doctrinal label “assumption of the risk” has proven exceedingly
durable. The Restatement (Second) of Torts retained the language, despite criticism. And in
some jurisdictions, assumption of the risk in the secondary sense has neither been done away
with, nor treated as a mere subcategory of comparative negligence. That is the lesson of the
Landings Association case: Georgia is a comparative fault state, but the Georgia Supreme Court
treated Mrs. Williams’s conduct as different from ordinary unreasonable conduct. Her conscious
decision to take the risk in question did not get factored in on the balance alongside that of the
Landings Association in a comparative fault analysis, as the California approach of Knight v.
Jewett would require. To the contrary, the court treated her conscious decision to walk as grounds
for holding the Landings Association not liable at all.
One observer views Landings Association and similar cases as indicating that “[r]eports of
the death of assumption of risk are slightly exaggerated.” Professor Simons acknowledges that
the majority of states have folded secondary assumption of risk into their comparative negligence
regimes, but he suggests that the doctrine’s legacy lives on, especially in courts’ duty analyses:
[T]he supposed legal irrelevance of “consent” to a risk of harm, celebrated by the
modern “merger” approach, is overstated. And the supposition that consensual
norms have been completely replaced by norms of reasonableness is also incorrect.
A number of courts do continue to recognize assumption of risk as a distinct
substantive doctrine (and not simply as a label for other doctrines). Moreover, even
abolitionist courts recognize numerous no-duty doctrines that implicitly rely upon
a consensual rationale of the sort that underlies many versions of assumption of risk.
Kenneth W. Simons, Reflections on Assumption of Risk, 50 U.C.L.A. L. REV. 481, 483 (2002).
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In one sense, secondary assumption of the risk in jurisdictions like Florida may function
as a kind of holdover of contributory negligence doctrine in the era of comparative fault. But
Professor Simons offers an intriguing defense of the continued use of the assumption of the risk
doctrine in the secondary sense:
[I]t is firmly established that consent to an intentional tort precludes liability, yet
this doctrine appears to rest, not on whether the consenting victim acted
“reasonably” or “unreasonably” in choosing to consent, but instead on precisely the
type of consensual rationale that many traditional courts emphasized in recognizing
assumption of a risk of the defendant’s negligence. Why should the reasonableness
of the victim’s decision be irrelevant in the intentional tort context yet (as the
modernists claim) critical in determining when a victim of negligence may recover?
Advocates of abolishing assumption of risk should find this puzzling.
Id. at 483. Is Rosenfeld’s analogy to consent in intentional torts persuasive?

2. Express Assumption of the Risk
The controversy over express assumption of the risk is of a different order. Most jurists
would see the enforcement of an express agreement to assume some risk as conceptually coherent.
But many believe it is a bad idea. The risk here is that the law of contracts will displace the law
of torts, for better (as some insist) or for worse (as others worry). Consider the next case:

Dalury v. S-K-I, Ltd., 670 A.2d 795 (Vt. 1995)
JOHNSON, J.
While skiing at Killington Ski Area, plaintiff Robert Dalury sustained serious injuries
when he collided with a metal pole that formed part of the control maze for a ski lift line. Before
the season started, Dalury had purchased a midweek season pass and signed a form releasing the
ski area from liability. The relevant portion reads:
RELEASE FROM LIABILITY AND CONDITIONS OF USE
1. I accept and understand that Alpine Skiing is a hazardous sport with many
dangers and risks and that injuries are a common and ordinary occurrence of the
sport. As a condition of being permitted to use the ski area premises, I freely accept
and voluntarily assume the risks of injury or property damage and release Killington
Ltd., its employees and agents from any and all liability for personal injury or
property damage resulting from negligence, conditions of the premises, operations
of the ski area, actions or omissions of employees or agents of the ski area or from
my participation in skiing at the area, accepting myself the full responsibility for
any and all such damage or injury of any kind which may result. . . .
Dalury and his wife filed a complaint against defendants, alleging negligent design,
construction, and replacement of the maze pole. Defendants moved for summary judgment,
arguing that the release of liability barred the negligence action. The trial court, without
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specifically addressing plaintiffs’ contention that the release was contrary to public policy, found
that the language of the release clearly absolved defendants of liability for their own negligence . .
..
We agree with defendants that the release was quite clear in its terms. Because we hold
the agreement is unenforceable, we proceed to a discussion of the public policy that supports our
holding.
I
This is a case of first impression in Vermont. While we have recognized the existence of
a public policy exception to the validity of exculpatory agreements, in most of our cases,
enforceability has turned on whether the language of the agreement was sufficiently clear to
reflect the parties’ intent.
Even well-drafted exculpatory agreements, however, may be void because they violate
public policy. According to the Restatement, an exculpatory agreement should be upheld if it is
(1) freely and fairly made, (2) between parties who are in an equal bargaining position, and (3)
there is no social interest with which it interferes. The critical issue here concerns the social
interests that are affected . . . .
The leading judicial formula for determining whether an exculpatory agreement violates
public policy was set forth by Justice Tobriner of the California Supreme Court in [Tunkl v.
Regents of University of California, 383 P.2d 441 (Cal. 1963)]. An agreement is invalid if it
exhibits some or all of the following characteristics:
[1.] It concerns a business of a type generally thought suitable for public
regulation. [2.] The party seeking exculpation is engaged in performing a service
of great importance to the public, which is often a matter of practical necessity for
some members of the public. [3.] ‘The party holds [it]self out as willing to
perform this service for any member of the public who seeks it, or at least for any
member coming within certain established standards. [4.] As a result of the
essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength
against any member of the public who seeks [the party’s] services. [5.] In
exercising a superior bargaining power the party confronts the public with a
standardized adhesion contract of exculpation, and makes no provision whereby a
purchaser may pay additional reasonable fees and obtain protection against
negligence. [6.] Finally, as a result of the transaction, the person or property of
the purchaser is placed under the control of the seller, subject to the risk of
carelessness by the seller or [the seller’s] agents.
Id. at 445-46. Applying these factors, the court concluded that a release from liability for future
negligence imposed as a condition for admission to a charitable research hospital was invalid.
Numerous courts have adopted and applied the Tunkl factors.
We recognize that no single formula will reach the relevant public policy issues in every
factual context. . . . [W]e conclude that ultimately the “determination of what constitutes the
public interest must be made considering the totality of the circumstances of any given case
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against the backdrop of current societal expectations.” [quoting Wolf v. Ford, 644 A.2d 522, 527
(Md. 1994)].
II
Defendants urge us to uphold the exculpatory agreement on the ground that ski resorts do
not provide an essential public service. They argue that they owe no duty to plaintiff to permit
him to use their private lands for skiing, and that the terms and conditions of entry ought to be left
entirely within their control. Because skiing, like other recreational sports, is not a necessity of
life, defendants contend that the sale of a lift ticket is a purely private matter, implicating no
public interest. We disagree.
Whether or not defendants provide an essential public service does not resolve the public
policy question in the recreational sports context. The defendants’ area is a facility open to the
public. They advertise and invite skiers and nonskiers of every level of skiing ability to their
premises for the price of a ticket . . . . Thousands of people ride lifts, buy services, and ski the
trails. Each ticket sale may be, for some purposes, a purely private transaction. But when a
substantial number of such sales take place as a result of the seller’s general invitation to the
public to utilize the facilities and services in question, a legitimate public interest arises. . . .
The policy rationale is to place responsibility for maintenance of the land on those who
own or control it, with the ultimate goal of keeping accidents to the minimum level possible.
Defendants, not recreational skiers, have the expertise and opportunity to foresee and control
hazards, and to guard against the negligence of their agents and employees. They alone can
properly maintain and inspect their premises, and train their employees in risk management. They
alone can insure against risks and effectively spread the cost of insurance among their thousands
of customers. Skiers, on the other hand, are not in a position to discover and correct risks of
harm, and they cannot insure against the ski area’s negligence.
If defendants were permitted to obtain broad waivers of their liability, an important
incentive for ski areas to manage risk would be removed with the public bearing the cost of the
resulting injuries. It is illogical, in these circumstances, to undermine the public policy underlying
business invitee law and allow skiers to bear risks they have no ability or right to control. . . .
Defendants argue that the public policy of the state, as expressed in the “Acceptance of
inherent risks” statute, indicates a willingness on the part of the Legislature to limit ski area
liability. Therefore, they contend that public policy favors the use of express releases such as the
one signed by plaintiff. On the contrary, defendants’ allocation of responsibility for skiers’
injuries is at odds with the statute. The statute places responsibility for the “inherent risks” of any
sport on the participant, insofar as such risks are obvious and necessary. A ski area’s own
negligence, however, is neither an inherent risk nor an obvious and necessary one in the sport of
skiing. . . .
Reversed and remanded.

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Notes

1. The Tunkl factors. Why single out the factors listed in the Tunkl case rather than others?
How sound is the argument that the Dalury court makes about a tipping point in the defendant’s
incentives to maintain a safe ski area?

2. Divergent caselaw. While the broad version of the proposition at the core of Tunkl has
gained wide acceptance, Tunkl itself has proven susceptible to a range of interpretations.
Substantial disagreement persists on when it is properly invoked and how it should be applied.
Take, for instance, the issue front and center in Dalury: the enforceability of ski waivers. While
some courts (as in Hanks v. Powder Ridge Restaurant, 885 A.2d 734 (Conn. 2005)) have adopted
the Dalury analysis wholesale, others (like the court in Platzer v. Mammoth Mountain, 128 Cal.
Rptr. 2d 885 (Cal. App. 2002)) have rejected its central contention that there is a legitimate public
policy rationale for voiding these waivers.
More generally, the question of whether to permit ex ante waivers of tortfeasors’ liability
for negligence is answered in widely divergent ways in different states and by different courts.
For instance, in Schrier v. Beltway Alarm, 553 A.2d 1316 (Md. Ct. Spec. App. 1987), a decision
later cited approvingly by that state’s highest court, a Maryland appellate court held that a waiver
signed by a store owner limiting the liability of an alarm company was not void as against public
policy even where the store owner was shot in a burglary as a result of the alleged failure of the
alarm company to contact the police. In a case nearly at the other extreme, the New Mexico
Supreme Court held in Berlangieri v. Running Elk, 76 P.3d 1098 (N.M. 2003), that a waiver the
defendant sought to apply to bar recovery for injuries the plaintiff had suffered while horseback
riding was unenforceable as against public policy.
The following chart conveys some sense of the state-by-state variability in this area:

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Likelihood to Enforce Liability Waivers
Not
Enforced
Louisiana
Montana
Virginia

Strict Standards
Alaska
Arkansas
Connecticut
Hawaii
Kentucky
Mississippi
Nevada
New Jersey
Pennsylvania
Vermont
Arizona
California
Delaware
Indiana
Maine
Montana
New Hampshire
New York
Utah
Wisconsin

Moderate
Standards
Colorado
Florida
Illinois
Minnesota
North Carolina
Oregon
South Dakota
Washington
Iowa
D.C.
Idaho
New Mexico
Oklahoma
South Carolina
Texas
West Virginia

Lenient Standards
Alabama
Kansas
Massachusetts
Nebraska
Ohio
Georgia
Maryland
Michigan
North Dakota
Tennessee

Insufficient
Information
Puerto Rico
Rhode Island

Likelihood to Enforce Parental Waivers
Very unlikely
Courts have refused
to enforce

Alaska
Arkansas
Louisiana
Montana
Tennessee
Virginia
Hawaii
Maine
New Jersey
Texas
Washington
Illinois
Michigan
Pennsylvania
Utah
West Virginia

Possible
Rulings indicate
enforcement
possibility

Arizona
Idaho
Mississippi

Excellent
There is a statue in
place* or courts have
enforced in one or
more cases

Alaska*
Colorado*
Florida
Massachusetts
Ohio
California
Connecticut
Georgia
Indiana
Wisconsin

Insufficient
Information

Alabama
Iowa
Maryland
North Carolina
New Mexico
Oklahoma
South Carolina
Wyoming
Delaware
Indiana
Minnesota
Nebraska
Nevada
Oregon
South Dakota
Kansas
Kentucky
Montana
New Hampshire
New York
Rhode Island
Vermont

Source: DOYICE J. COTTEN & MARY B. COTTEN, WAIVERS AND RELEASES OF LIABILITY (9th ed. 2016)

What the Tunkl court itself observed still apparently holds true: “No definition of the
concept of public interest can be contained within the four corners of a formula. The concept,
always the subject of great debate, has ranged over the whole course of the common law; rather
than attempt to prescribe its nature, we can only designate the situations in which it has been
applied.” 383 P.2d at 444.
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3. Bargaining power? One of the factors that the Restatement, the Tunkl court, and Justice
Johnson of Vermont all seem to think important is the superior bargaining power of the party
requiring the waiver. But does superior bargaining power explain such waivers of liability?
Professor Duncan Kennedy, long one of American law’s most outspoken critics from the left and
a leader of the Critical Legal Studies movement of the 1970s and 1980s, famously argued against
the invocation of the bargaining power rationale. Consider Kennedy’s criticism of the bargaining
power rationale.
Kennedy observes that a common criticism of consumer contracts is that “buyers as a
group lacked enough bargaining power to force sellers to agree” to the buyers’ preferred terms.
The basic theory is that groups such as tenants of consumers “lack[] the bargaining power
necessary to impose it on oligopolistic sellers.” But as Kennedy sees it, this argument cannot
explain the terms in any particular contract:
At least in the form stated, this argument is just wrong. If tenants were willing to
pay the cost to landlords of a warranty of habitability, why would landlords,
operating in a capitalist economy in which profit is supposedly the motive of
economic activity, refuse to provide it? It seems clear that in the actual housing
market, some tenants, in exchange for very high, luxury rents, obtain levels of
landlord service far in excess of those required by any nondisclaimable warranties.
If landlords are just perversely, or cruelly, or irrationally unwilling to provide these
terms even though tenants will pay for them, how can the luxury rental market exist?
I think the conclusion is inescapable that under the assumption that there are no
problems of information or other transaction costs, the beneficiaries of compulsory
duties could have those duties written into contracts, if they were willing to pay the
obligors what they cost (plus a “normal” profit). Under these circumstances, the
decision maker makes the duties compulsory or non-waivable precisely because he
believes that people value them so little they won’t buy them of their own accord.
Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law,
41 MD. L. REV. 563, 608-09 (1982).
Kennedy insists that the fact of market power alters only the price term of a contract
between a tenant and a landlord or a consumer and a seller; it does not alter the other substantive
terms, such as the allocation of personal injury risks. Why? Because, as Kennedy observes,
“even a monopolist has an interest in providing contract terms if buyers will pay him their cost,
plus as much in profit as he can make for alternate uses of his capital.” In the Dalury case, for
example, the monopolist provider of skiing services is presented with the question of whether to
also sell insurance for injuries incurred in the course of those services. If consumers prefer to
save the money that such insurance would cost—if they prefer the cash to the insurance, despite
the risks entailed—the monopolist will not go into this new line of business; it will sell lift tickets
that disclaim liability. If at least some consumers prefer tickets with insurance despite their higher
cost, then we should expect to see the skiing services provider offer such tickets, all things being
equal. But in neither case does the fact of unequal bargaining power alter the fact that the parties
have a shared interest in choosing the contract terms that maximize their joint welfare. The “only
question,” Kennedy insists, is whether the consumer or the tenant is willing to pay for terms that
are favorable to them.
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The basic point is that if both sides have good information, it makes no difference
that consumers can’t haggle in particular transactions, and it makes no difference
that the sellers’ lawyers draft the contracts. The profit motive will induce them to
provide any legal duty consumers will pay for. Consumers exercise power in the
market not through their conduct during individual transactions, but through the
mechanism of demand, backed by dollars. They can control according to their
desires what is offered for sale even if each of them is individually powerless in
every single transaction. . . .
Id. It follows for Kennedy that unequal bargaining power cannot be an explanation of particular
substantive terms in consumer contracts. There should thus be no need for courts to impose
compulsory duties in such contexts:
[U]nder our assumptions the compulsory term must be worth less to buyers than it
costs sellers (or sellers would provide it without compulsion), [yet] it is also true
that the term will almost certainly be worth something. Buyers would, in a free
market, pay more for the commodity with the duties attached than for the
commodity alone . . . .
Id.

4. Poverty. What arguments (if any) remain against enforcing the terms of the contract
struck between Dalury and S-K-I? Professor Kennedy does note at least one limit on his analysis:
[D]emand, of course, is limited by income. If buyers had a lot more income, they
might well demand all the duties the decision maker is now requiring them to
purchase. Buyers as a group may regard a transaction without these duties as a
moral horror. They may buy only with deep regret, believing that they have a right
to the commodity-plus-the-duty rather than just the commodity. They may believe
that a just society would allocate them enough purchasing power so that it was open
to them to buy the commodity-plus-the-duty without having to sacrifice some other
good they regard as a necessity. In all these senses, it is true that consumers lack
the bargaining power to make the sellers provide the duty. Consumers are too poor,
given the other things they want to do or have to do with their money, to induce
sellers to provide something that, under the free contract model, sellers don’t have
to provide unless the price is right.
Kennedy, Distributive and Paternalist Motives, supra. If Kennedy is right that poverty rather
than unequal bargaining power explains the substantive terms of consumer contracts, what is the
implication for adjudication? Should pro-consumer terms be compulsory, as the Dalury court
concluded? Or are compulsory terms counterproductive from the perspective of the poor
consumer’s welfare?

5. Arbitration. One striking feature of the world of tort waivers is that consumers are
typically not asked to agree to arbitrate tort claims. They are more typically asked to waive those
claims altogether. Why would that be? Note that some medical care providers such as Kaiser
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Permanente ask their patients to agree up front to binding arbitration in the event of a medical
malpractice claim. In some states, the enforceability of such agreements has been called into
doubt. See, e.g., Hernandez v. Crespo, 211 So.3d 19 (Fla. 2016).
6. Waivers in popular culture. Don’t miss Donald Glover’s Saturday Night Live send-up of
modern waiver practice. https://perma.cc/L36M-CT2M.

Waivers in Modern Life
Review the following waivers (some of which reflect one of the author’s own risktaking!). Which do you think are enforceable and which are not? Note that the first waiver comes
right on the heels of Dalury in Vermont.

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Note

1. Parental Waivers. Does your assessment of the considerations underlying the assumption
of the risk doctrine change when the person who signed a waiver promising to assume the risk is
not the injured party, but a parent or guardian? Should a parent’s assumption of the risk via
waiver agreement be effective when they are claiming to assume the risk for their child?
When presented with these questions, most states void the agreement as being against
public policy⎯either by applying the Tunkl factors laid out in Dalury, or by noting the special
interests of the state in protecting minors. In Cooper v. Aspen Skiing, for example, the Colorado
Supreme Court held that a waiver signed by a parent when signing her 17-year old son up for ski
racing instruction was void as against public policy. 48 P.3d 1229 (Colo. 2002). “In the tort
context especially,” the court said, “a minor should be afforded protection not only from his own
improvident decision to release his possible prospective claims . . . but also from unwise decisions
made on his behalf by parents who are routinely asked to release their child’s claims for liability.”
Id. at 1234.
A few states permit parental waivers. The Maryland Court of Appeals (that state’s highest
court), for instance, held a parent’s waiver of their child’s right to sue enforceable, noting that
parents are entrusted with a wide range of decisions touching directly on their child’s safety. BJ’s
Wholesale Club v. Rosen, 80 A.3d 345 (Md. 2013). And in 2003⎯the year after the Colorado
Supreme Court had held such waivers unenforceable in Aspen Skiing⎯the Colorado legislature
passed a law permitting parents to waive their child’s right to sue. COLO. REV. STAT. ANN. § 1222-107.

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CHAPTER 6. CAUSATION
“The word ‘cause’ is . . . an altar to an unknown God.”
—William James, The Principles of Psychology (1891)

The cases and materials in this book have so far assumed an important background
constraint on the allocation of losses in tort law. We have limited the allocations to those parties
who might be characterized in some conventional way as having been causes of the injury in
question.
But the causation requirement is famously puzzling. Why do we even have a causation
requirement? If our exclusive goal were compensation, for example, a causation requirement
might be perverse. Why not call on Jeff Bezos or Mark Zuckerberg to provide the compensation,
regardless of any causal connection to the injury in question? Moreover, causal reasoning is
notoriously complex. When we label something a cause of something else, when we reason in
terms of cause and effect, we are doing more than describing an objective state of affairs. We are
telling deeply value-laden stories about the world. To talk in terms of causation is very often to
smuggle normative premises into an inquiry ostensibly designed to help guide us toward
normative conclusions.

A. Causation: An Introduction
What do we mean when we say that someone caused injury to another? Even this simple
formulation turns out not to be so simple after closer examination. A century ago, Justices
McKenna and Holmes found themselves working through some of the intricacies of this
seemingly simple idea:

LeRoy Fibre Co. v. Chicago, M. & S. P. Railway, 232 U.S. 340 (1914)
[Plaintiff LeRoy Fibre Co. was in the business of producing tow from flax straw, a raw
material in textile manufacturing, that it stored in rows of stacks in a lot adjacent to a railroad
right-of-way. The lot’s fence ran parallel to the railroad tracks 50 feet from the center of the
tracks. The first row of flax lay 25 feet from the fence; a second row lay 35 feet from the fence.
On a day in April, 1907, high winds blew sparks from the engine of a passing train into the stacks
of flax, causing a fire and destroying the flax. When LeRoy Fibre sued, a jury returned a verdict
for the defendant railroad on the ground that plaintiff had been contributorily negligent. Plaintiff
appealed on the grounds that it was not contributorily negligent as a matter of law. The Court
certified three questions for its consideration, the first of which was whether it was “a question for
the jury whether the owner was also negligent, without other evidence than that the railroad
company preceded the owner in the establishment of its business, that the property was
inflammable in character, and that it was stored near the railroad right of way and track.”]
MCKENNA, J.
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The questions certified present two facts—(1) The negligence of the railroad was the
immediate cause of the destruction of the property. (2) The property was placed by its owner near
the right of way of the railroad, but on the owner’s own land.
It will be observed, the use of the land was of itself a proper use—it did not interfere with
nor embarrass the rightful operation of the railroad. . . . [T]he questions certified . . . are but
phases of the broader one, whether one is limited in the use of one’s property by its proximity to a
railroad; or, to limit the proposition to the case under review, whether one is subject in its use to
the careless as well as to the careful operation of the road . . . . That one’s uses of his property
may be subject to the servitude of the wrongful use by another of his property seems an anomaly.
It upsets the presumptions of law and takes from him the assumption, and the freedom which
comes from the assumption, that the other will obey the law, not violate it. It casts upon him the
duty of not only using his own property so as not to injure another, but so to use his own property
that it may not be injured by the wrongs of another. How far can this subjection be carried? Or,
confining the question to railroads, what limits shall be put upon their immunity from the result of
their wrongful operation? In the case at bar, the property destroyed is described as inflammable,
but there are degrees of that quality; and how wrongful must be the operation? In this case, large
quantities of sparks and “live cinders” were emitted from the passing engine. Houses may be said
to be inflammable, and may be, as they have been, set on fire by sparks and cinders from
defective or carelessly handled locomotives. Are they to be subject as well as stacks of flax straw,
to such lawless operation? And is the use of farms also, the cultivation of which the building of
the railroad has preceded? Or is that a use which the railroad must have anticipated and to which
it hence owes a duty, which it does not owe to other uses? And why? The question is especially
pertinent and immediately shows that the rights of one man in the use of his property cannot be
limited by the wrongs of another. The doctrine of contributory negligence is entirely out of place.
Depart from the simple requirement of the law, that every one must use his property so as not to
injure others, and you pass to refinements and confusing considerations. . . .
The legal conception of property is of rights. When you attempt to limit them by wrongs,
you venture a solecism. If you declare a right is subject to a wrong, you confound the meaning of
both. It is difficult to deal with the opposing contention. There are some principles that have
axiomatic character. The tangibility of property is in its uses, and that the uses by one owner of
his property may be limited by the wrongful use of another owner of his is a contradiction.
HOLMES, J., partially concurring:
As a general proposition people are entitled to assume that their neighbors will conform to
the law; that a negligent tort is unlawful in as full a sense as a malicious one, and therefore that
they are entitled to assume that their neighbors will not be negligent. Nevertheless . . . if a man
stacked 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
of an inquiry by the jury whether the [rail]road had used due care. I should say that although of
course he had a right to put his flax where he liked upon his own land, the liability of the railroad
for a fire was absolutely conditioned upon the stacks being at a reasonably safe distance from the
train. I take it that probably many, certainly some, rules of law based on less than universal
considerations are made absolute and universal in order to limit those over refined speculations
that we all deprecate, especially where such rules are based upon or affect the continuous physical
relations of material things. The right that is given to inflict various inconveniences upon
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neighboring lands by building or digging, is given, I presume, because of the public interest in
making improvement free, yet it generally is made absolute by the common law. It is not thought
worth while to let the right to build or maintain a barn depend upon the speculations of a jury as to
motives. . . .
Here certainly, except in a clear case, we should call in the jury. I do not suppose that any
one would call it prudent to stack flax within five feet of the engines or imprudent to do it at a
distance of half a mile, and it would not be absurd if the law ultimately should formulate an exact
measure . . . but at present I take it that . . . we should let the jury decide whether seventy feet was
too near . . . . Therefore, while the majority answer the first question, No, on the ground that the
railroad is liable upon the facts stated as matter of law, I should answer it Yes, with the proviso
that it was to be answered No, in case the jury found that the flax, although near, was not near
enough to the trains to endanger it if the engines were prudently managed, or else I should decline
to answer the question because it fails to state the distance of the stacks.
I do not think we need trouble ourselves with the thought that my view depends upon
differences of degree. The whole law does so as soon as it is civilized. Negligence is all degree,
—that of the defendant here degree of the nicest sort; and between the variations according to
distance that I suppose to exist, and the simple universality of the rules in the Twelve Tables, or
the Leges Barbarorum, there lies the culture of two thousand years.

Notes

1. Holmes and McKenna. Justice Holmes remains one of the most well-respected jurists and
scholars to have served on the Court. He is known, in particular, for his criticisms of legal
reasoning based on formal concepts such as “rights.” Holmes’s opinions, including his dissent in
LeRoy Fibre, anticipated much of the so-called “realist” jurisprudence of the twentieth century.
Justice McKenna, on the other hand, had neither the respect of his peers, nor an overarching
jurisprudential approach to the law. When William Howard Taft became chief justice seven years
after the decision in LeRoy Fibre, he found McKenna to be (in his words) “the worst and most
embarrassing member of the Court,” often unable to draft opinions without substantial guidance
from others.
Which jurist gets the better of the argument in LeRoy Fibre? What is the difference
between McKenna’s and Holmes’s conception of causation in the case? Is McKenna’s method
one that can easily be applied to other cases? Does it avoid the difficulty of “refinements and
confusing considerations” that Holmes seems to admit his own approach necessarily entails?

2. Coase on causation. In thinking about these questions, consider Ronald Coase’s view of
causation, which many commentators see as parallel to Holmes’s view from a half-century before.
The question is commonly thought of as one in which A inflicts harm on B and what
has to be decided is: how should we restrain A? But this is wrong. We are dealing
with a problem of a reciprocal nature. To avoid the harm to B would inflict harm
on A. The real question that has to be decided is: should A be allowed to harm B
or should B be allowed to harm A? The problem is to avoid the more serious harm.
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[Take, for example,] the case of a confectioner the noise and vibrations from whose
machinery disturbed a doctor in his work. To avoid harming the doctor would inflict
harm on the confectioner. The problem posed by this case was essentially whether
it was worth while, as a result of restricting the methods of production which could
be used by the confectioner, to secure more doctoring at the cost of a reduced supply
of confectionery products. Another example is afforded by the problem of straying
cattle which destroy crops on neighboring land. If it is inevitable that some cattle
will stray, an increase in the supply of meat can only be obtained at the expense of
a decrease in the supply of crops. The nature of the choice is clear: meat or crops.
What answer should be given, of course, is not clear unless we know the value of
what is obtained as well as the value of what is sacrificed to gain it. . . . In the case
of the cattle and crops, it is true that there would be no crop damage without the
cattle. It is equally true that there would be no crop damage without the crops. The
doctor’s work would not have been disturbed if the confectioner had not worked his
machinery; but the machinery would have disturbed no one if the doctor had not set
up his consulting room in that particular place. . . . If we are to discuss the problem
in terms of causation, both parties cause the damage.
R. H. Coase, The Problem of Social Cost, 3 J. L. & ECON 1, 2 (1960). Coase’s criticism of causal
reasoning as a way of allocating moral responsibility implicitly challenges Justice McKenna’s
decision in LeRoy Fibre. Coase insists that it is the height of foolishness to insist that the railroad
“caused” the injury to the flax manufacturer. If the flax manufacturer plaintiff is able to recover
damages from the railroad, or obtain an order that the railroad cease its dangerous operations, then
it would be just as true to say that the flax manufacturer “caused” injury to the railroad.
As Coase and Holmes see it, the real question is not one about causation in the sense of
who caused harm to whom. The only real question is about what our social values are, though we
may articulate our tacit judgments about those social values in the form of causal language. We
say “A hit B” because we have decided that A is properly thought of as responsible for the
collision of A’s hand with B’s nose. It would be just as true to say that B hit A, since if it weren’t
for B’s nose being where it was at the crucial moment, A’s fist would have passed harmlessly
through the air. Of course, it sounds silly to say any such thing. But that is because our causal
conventions embody the normative judgments we have already made about the situation in
question. That being the case, Coase and Holmes seem to say, the only reasonable way to think
about the question is to decide which allocation of the harm best embodies a society’s preferred
policy goals.
Much of twentieth- and twenty-first-century social policy starts from the clear-headed
vantage point that jurists like Holmes and economists like Coase afford. But is McKenna’s
alternative really so misbegotten? Note, for one thing, that McKenna offers jurists a clean and
easy way to measure causation, one pegged to crossings of real property borders. Holmes’s
alternative seems awfully fuzzy by contrast. Is this one of those instances in which, moving
forward, all we really need is a clear rule that the parties can deal with as they see fit?

3. Calabresi on causation. Judge Guido Calabresi agrees with Holmes and Coase that
causation is essentially a functional concept, one that can usually only be made sense of by
reference to the goals we bring to it: meat or crops, cakes or medicine. But Calabresi adds an
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extra consideration that may make more sense of McKenna’s formalist approach, though it
undoubtedly takes that approach in directions that McKenna probably never anticipated:
[T]he use of such concepts [as causation] has great advantages over explicit
identification and separation of the goals. Terms with an historical, common law
gloss permit us to consider goals (like spreading) that we do not want to spell out or
too obviously assign to judicial institutions. Because, like all moral terms, causal
terms have to have meanings of their own that cannot be changed as a result of one
person’s analysis, they enable us to resist political pressures that would, if a more
“goal conscious,” antiseptic language were employed, result in a mixture of goals
thought to be less desirable. Finally, and probably most importantly, they enable
the introduction of goals we have not been able to spell out or to analyze, but which
nonetheless, together with analyzed goals, form part of that set of relationships we
call “justice.”
...
I am optimistic about our ability to use concepts, like cause, to promote analyzed
goals, and, like John Stuart Mill, I am skeptical of our ability to analyze all our goals
and, in addition, to acknowledge all that we can analyze. Thus, I am inclined to
believe that the requirement of causation . . . will survive . . . rather than be replaced
by direct appeals to those clearly identified goals which, by and large, those
requirements seem to serve.
Guido Calabresi, Concerning Cause and the Law of Torts: An Essay for Harry Kalven, Jr., 43 U.
CHI. L. REV. 69, 107-108 (1975).

4. Hart and Honoré on causation. Some leading authorities on the common law of causation
have pushed back against the functionalist turn in causation. In the mid-20th century, H. L. A.
Hart and Anthony Honoré bemoaned the Legal Realists’ “transition from the exhilarating
discovery that complex words like ‘cause’ cannot be simply defined and have no ‘one true
meaning’ to the mistaken conclusion that they have no meaning worth bothering about at all, but
are used as a mere disguise for arbitrary decision or judicial policy.” H.L.A. HART & ANTHONY
HONORÉ, CAUSATION IN THE LAW 3 (1959). Hart and Honoré argue that courts are not
surreptitiously insinuating policy into their decisions, but that “the plain man’s causal notions
function as a species of basic model in the light of which the courts see the issues before them,
and to which they seek analogies . . . .” Id. at 1. Objecting to the legal realist view that “the
distinction between causes and mere conditions is wholly without objective or factual warrant,” id.
at 29, Hart and Honoré appeal to a shared understanding of causation, arguing that cultural
conventions and “common sense” draw “the line between cause and mere condition.” Id. at 31.
In addition to the appeal to common sense, Hart and Honoré stress the human element of
causation in the law. They present the example of someone who has died with high levels of
arsenic in his blood:
. . . this is up to a point an explanation of his death and so the cause of it: but we
usually press for a further and more satisfying explanation and may find that
someone deliberately put arsenic in the victim’s food. This is a fuller explanation
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in terms of human agency; and of course we speak of the poisoner’s action as the
cause of the death; though we do not withdraw the title of cause from the presence
of arsenic in the body—this is now thought of as an ancillary, the ‘mere way’ in
which the poisoner produced the effect. Once we have reached this point, however,
we have something which has a special finality at the level of common sense . . . .
Id. at 39-40 (emphasis added).
In clarifying their understanding of liability-defeating coincidence, Hart and Honoré insist
that we can usefully rely on standards of “common knowledge”:
Reference to ‘ordinary knowledge’, what is ‘commonly known’, and the ‘ordinary
person’ is vague. It will permit any tribunal a certain leeway in applying such
notions; yet the principles are determinate enough not to be a simple verbal cloak
for a court’s uncontrolled discretion or policy. They will certainly serve to
distinguish from the case of the falling tree the case (not a coincidence) where after
a fire is negligently lit the evening breeze drives the flames towards the house which
they destroy.
Id. at 154.

B. Causation-in-Fact
In making a negligence claim, it is not enough to show that there is a precaution that the
defendant could have taken. The plaintiff typically must also show that if the defendant had taken
the precaution, the harm complained of would not have occurred.

New York Central R.R. Co. v. Grimstad, 264 F. 334 (2d Cir. 1920)
WARD, J.
This is an action . . . to recover damages for the death of Angell Grimstad, captain of the
covered barge Grayton, owned by the defendant railroad company. The charge of negligence is
failure to equip the barge with proper life-preservers and other necessary and proper appliances,
for want of which the decedent, having fallen into the water, was drowned.
The barge was lying on the port side of the steamer Santa Clara, on the north side of Pier
2, Erie Basin, Brooklyn, loaded with sugar in transit from Havana to St. John, N. B. The tug
Mary M, entering the slip between Piers 1 and 2, bumped against the barge. The decedent’s wife,
feeling the shock, came out from the cabin, looked on one side of the barge, and saw nothing, and
then went across the deck to the other side, and discovered her husband in the water about 100
feet from the barge holding up his hands out of the water. He did not know how to swim. She
immediately ran back into the cabin for a small line, and when she returned with it he had
disappeared . . .

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[The jury returned a finding of negligence against the barge owner defendant for failure to
equip the barge with life buoys. But on appeal, the Second Circuit concluded that a showing of
negligence was not sufficient to establish liability:]
On . . . whether a life buoy would have saved the decedent from drowning, we think the
jury were left to pure conjecture and speculation. A jury might well conclude that a light near an
open hatch or a rail on the side of a vessel’s deck would have prevented a person’s falling into the
hatch or into the water, in the dark. But there is nothing whatever to show that the decedent was
not drowned because he did not know how to swim, nor anything to show that, if there had been a
life buoy on board, the decedent’s wife would have got it in time, that is, sooner than she got the
small line, or, if she had, that she would have thrown it so that her husband could have seized it,
or, if she did, that he would have seized it, or that, if he did, it would have prevented him from
drowning.
The court erred in denying the defendant’s motion to dismiss the complaint at the end of
the case.
Judgment reversed.

Notes

1. Loss causation. The causation requirement in tort law typically requires that the loss
complained of by the plaintiff be one that would not have happened but for the negligence of the
defendant. 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
is less than its expected benefit, why does it matter that Judge Ward is skeptical that Grimstad
would have survived? Note that the loss causation requirement even works to exonerate a
defendant in negligence-per-se cases involving violations of safety statutes. A Massachusetts
plaintiff injured while jumping out of a burning building sued his landlord for failing to provide
statutorily required fire-fighting appliances and moved to have the judge direct a verdict on his
behalf. The Massachusetts Supreme Court found that the plaintiff still needed to prove that he
would not have had to jump out the window if he had been able to access those fire-fighting
appliances. Wainwright v. Jackson, 291 Mass. 100 (1935).
Loss causation is often especially salient in failure to warn cases, where the cost of a
warning is particularly low compared to the possible harms. In Willett v. Baxter Int’l, for
example, the Fifth Circuit found a plaintiff’s decision to proceed with a medical procedure in the
face of a known four percent risk strongly suggested that an additional 0.03 percent risk “would
not have changed his decision.” 929 F.2d 1094, 1099 (5th Cir. 1991).

2. Insurance and causation. The law of insurance deals with loss causation very differently.
For example, before the passage of the Patient Protection and Affordable Care Act, health
insurance companies could and did rescind coverage for failure to disclose a pre-existing
condition that had nothing to do with the source of the current claim. In other words, even if a
policyholder’s failure to disclose did not cause the insurance company to pay out, the insurance
company was still entitled to rescind coverage. Eleanor D. Kinney, For Profit Enterprise in
Health Care: Can It Contribute to Health Reform?, 36 AM. J. L. & MED. 405 (2010). In other
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areas of insurance, such as life insurance, rescission is still generally permitted as a remedy for
even innocent misrepresentations by the policyholder. Brian Barnes, Against Insurance
Rescission, 120 YALE L.J. 328 (2010). As Judge Calabresi puts it, insurance law substitutes
“transaction causation” for “loss causation.” Guido Calabresi, Civil Recourse Theory’s
Reductionism, 88 IND. L.J. 449, 456 (2013).
So far we have proceeded as if causation is either on or off, yes or no. But what happens
when causation-in-fact can only be expressed in terms of probabilities? The next case introduces
the problem, which subsequent sections pursue further.

Stubbs v. City of Rochester, 124 N.E. 137 (N.Y. 1919)
[Plaintiff alleged that he contracted typhoid fever due to drinking contaminated water
from the defendant city’s water service. Rochester had two systems of water supply: one for
drinking, from Hemlock Lake, and another (the so-called “Holley” system water) for fire purposes
in the business district. Holley water was pumped from the Genesee river near the center of the
city. In May 1910, the negligence of the city’s employees caused Holley water to mix with
Hemlock water. In June, the city received “numerous complaints . . . from inhabitants, consumers
of the Hemlock water, residing or employed in the vicinity of Brown street bridge, in substance
that the water was roily, dirty, and had an offensive odor.” After a delayed response, health
officials notified the public in September “through the newspapers not to drink the water without
boiling it [and] thereupon notified the water department that the Hemlock water was
contaminated.” The Health Department investigated beginning in early October, “upwards of
three months after many complaints had been made to it.” The Department identified the source
of the contamination at the Brown street bridge. The plaintiff, a resident of the city of Rochester
and a machinist, was employed by a firm whose place of business was at the corner of Allen and
Platt streets, about one block from the Brown street bridge. After trial, the court entered judgment
for the defendant on the ground that the plaintiff had failed to show that the defendant’s conduct
was the cause of his injuries. Plaintiff appealed.]
HOGAN, J. The important question in this case is, Did the plaintiff produce evidence from
which inference might reasonably be drawn that the cause of his illness was due to the use of
contaminated water furnished by defendant. Counsel for respondent argues that, even assuming
that the city may be held liable to plaintiff for damages caused its negligence in furnishing
contaminated water for drinking purposes: (a) The evidence adduced by plaintiff fails to disclose
that he contracted typhoid fever by drinking contaminated water; (b) that it was incumbent upon
the plaintiff to establish that his illness was not due to any other cause to which typhoid fever may
be attributed for which defendant is not liable. The evidence does disclose several causes of
typhoid fever, which is a germ disease, the germ being known as the typhoid bacillus, which
causes may be classified as follows:
First. Drinking of polluted water. Second. Raw fruits and vegetables in certain named
localities where human excrement is used to fertilize the soil are sometimes sources of typhoid
infection. Third. The consumption of shellfish, though not a frequent cause. Fourth. The
consumption of infected milk and vegetables. Fifth. The housefly in certain localities. Sixth.
Personal contact with an infected person by one who has predilection for typhoid infection and is
not objectively sick with the disease. Seventh. Ice, if affected with typhoid bacilli. Eighth.
Fruits, vegetables, etc., washed in infected water. Ninth. The medical authorities recognize that
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there are still other causes and means unknown. This fact was developed on cross-examination of
physicians called by plaintiff.
Treating the suggestions of counsel in their order: (a) That the evidence fails to disclose
that plaintiff contracted typhoid fever by drinking contaminated water. The plaintiff, having been
nonsuited at the close of his case, is entitled to the most favorable inference deducible from the
evidence. That plaintiff, on or about September 6th, 1910, was taken ill, and very soon thereafter
typhoid fever developed, is not disputed. That he was employed in a factory located one block
distant from the Brown street bridge, in which Hemlock Lake water was the only supply of water
for potable and other purposes, and that the water drawn from faucets in that neighborhood
disclosed that the water was roily and of unusual appearance, is not questioned. And no doubt
prevails that the Holley system water was confined to the main business part of the city for use for
fire purposes and sprinkling streets, and is not furnished for domestic or drinking purposes.
The evidence of the superintendent of waterworks of the city is to the effect that Hemlock
Lake water is a pure wholesome water free from contamination of any sort at the lake, and
examinations of the same are made weekly; that the Holley water is not fit for drinking purposes,
taken as it is from the Genesee river. Further evidence was offered by plaintiff by several
witnesses, residents in the locality of Brown street bridge, who discovered the condition of the
water at various times during July, August, and September, and made complaint to the water
department of the condition of the same. Dr. Goler, a physician and health officer of the city, was
called by plaintiff, and testified that in September, when complaint was made to him by a resident
of the district, he went to the locality, visited houses in the immediate neighborhood, found that
the water drawn from the faucet of the Hemlock supply looked badly and smelled badly. He took
a sample of the water to the laboratory, and had it examined by a chemist, who found that it
contained an increase in solids, and very many times, that is, 20 to 30 times, as much chlorine or
common salt as is found in the domestic water supply—the presence of chlorine in excessive
quantities indicates contamination in that quantity, bad contamination and usually sewage
contamination. . . . [Dr. Goler then] made an investigation as to the reported cases of typhoid
fever in the city in the months of August, September, and October, for the purpose of determining
the number of cases, where the cases came from, what gave rise to it, and he stated that in his
opinion the outbreak of typhoid was due to polluted water, contaminated as he discovered
afterwards by sewage. In answer to a hypothetical question embracing generally the facts asserted
by plaintiff the witness testified that he had an opinion as to the cause of the infection of plaintiff,
and such opinion was that it was due to contaminated water.
Dr. Dodge, of the faculty of the University of Rochester, a professor of biology, also
bacteriologist of the city of Rochester, about October 1st made an analysis of samples of water . . .
[and found] evidence of [colon bacillus]. Dr. Brady, the physician who attended the plaintiff, and
Dr. Culkin both testified that in their opinion the plaintiff contracted typhoid fever from drinking
polluted water.
Plaintiff called a witness who resided on Brown street, about two minutes’ walk from the
bridge, and proved by her that she drank water from the Hemlock mains in the fall of 1910 and
was ill with typhoid fever. Thereupon counsel for defendant stipulated that 57 witnesses which
the plaintiff proposed to call will testify that they drank water from the Hemlock taps in the
vicinity of the district west of the Genesee river and north of Allen street in the summer and fall of
1910, and during said summer and fall suffered from typhoid fever, that in view of the stipulation
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such witnesses need not be called by plaintiff, and the stipulation shall have the same force and
effect as though the witnesses had been called and testified to the facts.
The plaintiff resided with his wife some three miles distant from the factory where he was
employed. The water consumed by him at his house outside the infected district was Hemlock
water. The only water in the factory was Hemlock water, and he had there an individual cup from
which he drank. He was not outside of the city during the summer of 1910. Therefore the only
water he drank was in the city of Rochester.
A table of statistics as to typhoid fever in the city of Rochester for the years 1901-1910, . .
. disclose[s] that the number of typhoid cases in the city in 1910 was 223, an excess of 50 cases of
any year of the nine years preceding. Recalling that complaints as to water commenced in the
summer of 1910, and as shown by the evidence that typhoid fever does not develop until two or
three weeks after the bacilli have been taken into the system, in connection with the fact that the
source of contamination was not discovered until October, the statistics disclose that of the 223
cases of typhoid in the city in the year 1910, 180 cases appear during the months of August,
September, October, and November as against 43 cases during the remaining eight months, 35 of
which were prior to August and 8 in the month of December, two months after the source of
contamination of the water was discovered.
The evidence on the trial discloses that at least 58 witnesses, residents of the district,
drank 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.
Counsel for respondent asserts that there was a failure of proof on the part of plaintiff, in
that he did not establish that he contracted disease by drinking contaminated water, and in support
of his argument cites a rule of law that when there are several possible causes of injury for one or
more of which a defendant is not responsible, plaintiff cannot recover without proving that the
injury was sustained wholly or in part by a cause for which defendant was responsible. He
submits that it was essential for plaintiff to eliminate all other of seven causes from which the
disease might have been contracted. . . . I do not believe the rule stated to be as inflexible as
claimed for. If two or more possible cause exist, for only one of which a defendant may be liable,
and a party injured established facts from which it can be said with reasonable certainty that the
direct cause of the injury was the one for which the defendant was liable, the party has complied
with the spirit of the rule.
The plaintiff was employed in the immediate locality where the water was contaminated.
He drank the water daily. The consumption of contaminated water is a very frequent cause of
typhoid fever. In the locality there were a large number of cases of typhoid fever, and near to 60
individuals who drank the water and had suffered from typhoid fever in that neighborhood
appeared as witnesses on behalf of plaintiff. The plaintiff gave evidence of his habits, his home
surroundings, and his method of living, and the medical testimony indicated that his illness was
caused by drinking contaminated water. Without reiteration of the facts disclosed on the trial I do
not believe that the case on the part of plaintiff was so lacking in proof as matter of law that his
complaint should be dismissed. On the contrary, the most favorable inferences deducible from the
plaintiff were such as would justify a submission of the facts to a jury as to the reasonable
inferences to be drawn therefrom, and a verdict rendered thereon for either party would rest, not in
conjecture, but upon reasonable possibilities.
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The judgment should be reversed, and a new trial granted, costs to abide the event.
CARDOZO, POUND, and ANDREW, JJ., concur.
HISCOCK, C. J., and CHASE and MCLAUGHLIN, JJ., dissent.
Judgment reversed, etc.

Notes

1. Causation in Stubbs? Public health studies from the same era found that in northern
states, typhoid fever typically peaked in August, September, October, and November in Northern
states (including New York):

Source: G. E. Harmon, Seasonal Distribution of Typhoid Fever—Southern and Northern States, 20 AM. J. PUBL.
HEALTH NATIONS 395, 398 (1930).

Given the background seasonal variation in typhoid rates, what is the likelihood that Mr.
Stubbs’ typhoid was caused by the City’s negligence? Would he be able to demonstrate by a
preponderance of the evidence that his injury was caused by the City’s negligence? Note that
even if Stubbs cannot show causation—indeed, even if no single plaintiff can show causation—it
is nearly certain that there were people in Rochester who were injured by Rochester’s negligence,
in the sense that they would be not have become ill but for that negligence. The difficulty is
knowing which of the typhoid victims are in that category.

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2. Toxic torts. Difficulties in proving causation bedevil toxic tort cases. Epidemiological
data are usually admissible to prove causation, but often that data does not rise to the level of a
preponderance of the evidence. See Shelly Brinker, Opening the Door to the Indeterminate
Plaintiff: An Analysis of the Causation Barriers Facing Environmental Toxic Tort Plaintiffs, 46
UCLA L. REV. 1289 (1999).
While state courts are open to the use of epidemiological data, they impose a variety of
standards to ensure its reliability and applicability. Some states require proof of both general
causation (that a type of toxin is capable of increasing the risk of a certain type of harm) and
specific causation (that the toxin caused the harm to this plaintiff). See, e.g., King v. Burlington
N. Santa Fe Ry. Co., 277 Neb. 203 (2009); Terry v. Caputo, 115 Ohio St. 3d 351 (2007);
Blanchard v. Goodyear Tire & Rubber Co., 2011 Vt. 85 (2011). In Iowa, this approach has led to
different specialists providing evidence for general causation (generally epidemiologists) and
specific causation (typically physicians). Ranes v. Adam Labs, Inc., 778 N.W.2d 677, 690 (Iowa
2010). Texas requires that the epidemiological studies offered to show general causation must be
studies of patients substantially similar to the plaintiff, which can be a high bar for plaintiffs.
Daniels v. Lyondell-Citgo Ref. Co., 99 S.W.3d 722 (Tex. App. Houston 1st Dist. 2003).

3. Martin v. Herzog redux. The decision in Martin v. Herzog, which we encountered above
in our section on statutes and negligence per se, offers one possible solution to the problem.
Judge Cardozo concluded his opinion in Martin with a reminder about causation and a holding
about the significance of breach for proof of loss causation:
We must be on our guard, however, against confusing the question of negligence
with that of the causal connection between the negligence and the injury. A
defendant who travels without lights is not to pay damages for his fault unless the
absence of lights is the cause of the disaster . . . . We think, however, that evidence
of a collision occurring more than an hour after sundown between a car and an
unseen buggy, proceeding without lights, is evidence from which a causal
connection may be inferred between the collision and the lack of signals. If nothing
else is shown to break the connection, we have a case, prima facie sufficient, of
negligence contributing to the result. There may indeed be times when the lights
on a highway are so many and so bright that lights on a wagon are superfluous. If
that is so, it is for the offender to go forward with the evidence, and prove the
illumination as a kind of substituted performance. The plaintiff asserts that she did
so here. She says that the scene of the accident was illumined by moonlight, by an
electric lamp, and by the lights of the approaching car. Her position is that if the
defendant did not see the buggy thus illumined, a jury might reasonably infer that
he would not have seen it anyhow. We may doubt whether there is any evidence of
illumination sufficient to sustain the jury in drawing such an inference, but the
decision of the case does not make it necessary to resolve the doubt, and so we leave
it open. It is certain that they were not required to find that lights on the wagon
were superfluous. They might reasonably have found the contrary. They ought,
therefore, to have been informed what effect they were free to give, in that event, to
the violation of the statute.

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Martin v. Herzog, 228 N.Y. 164, 170 (1920). For Cardozo, the combination of the statute
requiring headlights and the fact that it was nighttime creates a prima facie case of causation,
permitting but not requiring a jury finding of causation. Given that the statute already plays a role
in determining whether not using headlights was negligent, does it make sense for the statute to
play a role again in causation? Should it play a stronger or weaker role than creating a
presumption? Three quarters of a century after Martin v. Herzog, Judge Calabresi took up this
question in the context of FDA dosing guidelines.

Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)
CALABRESI, J.
The defendant, the United States of America, appeals from a judgment of the United
States District Court for the District of Connecticut (Warren W. Eginton, Judge). This suit under
the Federal Tort Claims Act was originally filed by Patricia Zuchowicz, who claimed to have
developed primary pulmonary hypertension, a fatal lung condition, as a result of the defendant’s
negligence in prescribing an overdose of the drug Danocrine. Following Mrs. Zuchowicz’s death
in 1991, her husband, Steven, continued the case on behalf of his wife’s estate, claiming that the
defendant was responsible for her death. After a bench trial, the district court awarded the
plaintiff $ 1,034,236.02 in damages.
There is no doubt in the case before us either as to the injury or as to the defendant’s
wrong; both are conceded. The only issue is causation.
The facts, as determined by the district court, are as follows. On February 18, 1989, Mrs.
Zuchowicz filled a prescription for the drug Danocrine [often prescribed to treat infertility
problems] at the Naval Hospital pharmacy in Groton, Connecticut. The prescription erroneously
instructed her to take 1600 milligrams of Danocrine per day, or twice the maximum recommended
dosage. The defendant has stipulated that its doctors and/or pharmacists were negligent and
violated the prevailing standard of medical care by prescribing this wrong dosage.
Mrs. Zuchowicz took the 1600 milligrams of Danocrine each day for the next month.
Thereafter, from March 24 until May 30, she took 800 milligrams per day. While taking
Danocrine she experienced abnormal weight gain, bloating, edema, hot flashes, night sweats, a
racing heart, chest pains, dizziness, headaches, acne, and fatigue. On May 30, she was examined
by an obstetrician/gynecologist in private practice who told her to stop taking the Danocrine.
During the summer, she continued to experience severe fatigue and chest tightness and pain, and
began having shortness of breath. In October 1989, she was diagnosed with primary pulmonary
hypertension (“PPH”), a rare and fatal disease in which increased pressure in an individual’s
pulmonary artery causes severe strain on the right side of the heart. At the time she was
diagnosed with the disease, the median life expectancy for PPH sufferers was 2.5 years.
Treatments included calcium channel blockers and heart and lung transplantation.
Mrs. Zuchowicz was on the waiting list for a lung transplant when she became pregnant.
Pregnant women are not eligible for transplants, and pregnancy exacerbates PPH. Mrs. Zuchowicz
gave birth to a son on November 21, 1991. She died one month later, on December 31, 1991. . . .

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In order for the causation requirement to be met, a trier of fact must be able to determine,
by a preponderance of the evidence, that the defendant’s negligence was responsible for the
injury. In this case, defendant’s negligence consisted in prescribing an overdose of Danocrine to
Mrs. Zuchowicz. For liability to exist, therefore, it is necessary that the fact finder be able to
conclude, more probably than not, that the overdose was the cause of Mrs. Zuchowicz’s illness
and ultimate death. The mere fact that the exposure to Danocrine was likely responsible for the
disease does not suffice.
The problem of linking defendant’s negligence to the harm that occurred is one that many
courts have addressed in the past. A car is speeding and an accident occurs. That the car was
involved and was a cause of the crash is readily shown. The accident, moreover, is of the sort that
rules prohibiting speeding are designed to prevent. But is this enough to support a finding of fact,
in the individual case, that speeding was, in fact, more probably than not, the cause of the
accident? The same question can be asked when a car that was driving in violation of a minimum
speed requirement on a super-highway is rear-ended. Again, it is clear that the car and its driver
were causes of the accident. And the accident is of the sort that minimum speeding rules are
designed to prevent. But can a fact finder conclude, without more, that the driver’s negligence in
driving too slowly led to the crash? To put it more precisely—the defendant’s negligence was
strongly causally linked to the accident, and the defendant was undoubtedly a but for cause of the
harm, but does this suffice to allow a fact finder to say that the defendant’s negligence was a but
for cause?
At one time, courts were reluctant to say in such circumstances that the wrong could be
deemed to be the cause. They emphasized the logical fallacy of post hoc, ergo propter hoc, and
demanded some direct evidence connecting the defendant’s wrongdoing to the harm. . . .
All that has changed, however. And, as is so frequently the case in tort law, Chief Judge
Cardozo in New York and Chief Justice Traynor in California led the way. In various opinions,
they stated that: if (a) a negligent act was deemed wrongful because that act increased the chances
that a particular type of accident would occur, and (b) a mishap of that very sort did happen, this
was enough to support a finding by the trier of fact that the negligent behavior caused the harm.
Where such a strong causal link exists, it is up to the negligent party to bring in evidence denying
but for cause and suggesting that in the actual case the wrongful conduct had not been a
substantial factor.
Thus, in a case involving a nighttime collision between vehicles, one of which did not
have the required lights, Judge Cardozo stated that lights were mandated precisely to reduce the
risk of such accidents occurring and that this fact sufficed to show causation unless the negligent
party demonstrated, for example, that in the particular instance the presence of very bright street
lights or of a full moon rendered the lack of lights on the vehicle an unlikely cause. See Martin v.
Herzog.
The case before us is a good example of the above-mentioned principles in their classic
form. The reason the FDA does not approve the prescription of new drugs at above the dosages
as to which extensive tests have been performed is because all drugs involve risks of untoward
side effects in those who take them. Moreover, it is often true that the higher the dosage the
greater is the likelihood of such negative effects. At the approved dosages, the benefits of the
particular drug have presumably been deemed worth the risks it entails. At greater than approved
dosages, not only do the risks of tragic side effects (known and unknown) increase, but there is no
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basis on the testing that has been performed for supposing that the drug’s benefits outweigh these
increased risks. It follows that when a negative side effect is demonstrated to be the result of a
drug, and the drug was wrongly prescribed in an unapproved and excessive dosage (i.e. a strong
causal link has been shown), the plaintiff who is injured has generally shown enough to permit the
finder of fact to conclude that the excessive dosage was a substantial factor in producing the harm.
In fact, plaintiff’s showing in the case before us, while relying on the above stated
principles, is stronger. For plaintiff introduced some direct evidence of causation as well. On the
basis of his long experience with drug-induced pulmonary diseases, one of plaintiff’s experts, Dr.
Matthay, testified that the timing of Mrs. Zuchowicz’s illness led him to conclude that the
overdose (and not merely Danocrine) was responsible for her catastrophic reaction.
Under the circumstances, we hold that defendant’s attack on the district court’s finding of
causation is meritless.

Notes

1. Self-proving causation? Professor Kenneth Abraham at the University of Virginia calls
Zuchowicz the most notorious example of a category of causation cases he calls “self-proving
causation cases,” by which he means cases where the fact of the negligence alone is the only
evidence of causation available. Abraham observes that “many torts scholars are skeptical of the
decision in Zuchowicz.” But in Abraham’s view, the case is best understood as an especially
salient example of a problem that is more widespread than it might otherwise seem. See Kenneth
Abraham, Self-Proving Causation, 99 VA. L. REV. 1811 (2013).
Note that there is some scientific justification for Judge Calabresi’s approach in the FDA’s
basic methodology. FDA approval of a particular dosage is based on a “dose-response curve,”
which measures that sensitivity of the patient’s reaction to a particular dosage. Is Judge
Calabresi’s ruling justified by the science, or by the uncertainty, of causation? What evidence
could a defendant offer to counter the plaintiff’s evidence of causation? Will this move over-deter
or under-deter negligence in dosing?

2. Bendectin: A case study. The story of Bendectin, a morning sickness pill, reveals some of
the pitfalls of using the tort system to manage drug safety. Bendectin was widely used in the
1960s and 1970s. However, some scientific studies showed an association between Bendectin
and various types of birth defects, including musculoskeletal deformities, brain damage, and
cancer. On the basis of these studies, hundreds of plaintiffs sued Merrell Dow, the maker of
Bendectin, and many of them won large awards. In 1983, after years of these suits, Merrell Dow
pulled Bendectin from the market, saying that the high cost of liability insurance made the drug
no longer profitable. The American College of Obstetricians and Gynecologists objected, saying
that morning sickness was severe enough in some women to pose a serious health risk and the
withdrawal of Bendectin would leave a “significant therapeutic gap.” Jane E. Brody, Shadow of
Doubt Wipes Out Bendectin, N.Y. TIMES, Jun. 19, 1983. Hospitalization rates of pregnant women
for nausea and vomiting (symptoms Bendectin treats) doubled after the drug was removed from
the market. Melanie Ornstein, Adrianne Einarson & Gideon Koren, Bendectin/Diclectin for
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Morning Sickness: A Canadian Follow-Up of an American Tragedy, 9 REPROD. TOXICOLOGY 1, 23 (1995).
Decades later, Bendectin has been vindicated. In 2013, the FDA approved Bendectin
(under the new name Declegis) for use in the American market based on decades of experience
with Bendectin in Europe (where it remained available) and on new evidence discrediting earlier
studies. American obstetricians have long believed that Bendectin is safe, and had been
prescribing a combination of other drugs that closely resembles Bendectin for years as an off-label
treatment for morning sickness. Liz Neporent, FDA Approves Morning Sickness Drug Once
Feared Unsafe, ABC NEWS, Apr. 9, 2013.
How did this happen? One review of transcripts from six Bendectin trials showed that
juries have some systematic biases in evaluating scientific evidence. Every study has
imperfections, and cross-examination excessively highlighted those imperfections, potentially
causing juries to disregard the high-quality studies cited by Merrell Dow. Juries had trouble
weighing the scientific credentials of opposing experts. Juries also appeared to have difficulty
understanding the relative importance of various types of data (epidemiological studies, animal
studies, in vitro studies, etc.) and to have excessively discounted the epidemiological studies from
Merrell Dow, which indicated that Bendectin did not increase the risk of birth defects at a
population level. “If the legal process tends to cause all experts to appear equally qualified,”
concludes one observer, “it also causes all science to appear equally worthy.” Joseph Sanders,
From Science to Evidence: The Testimony on Causation in the Bendectin Cases, 46 STAN. L. REV.
1, 47 (1993).

3. Epidemiological causation and Daubert hearings. The Bendectin trials left their mark on
the procedures for high-stakes tort cases. The Supreme Court, in a Bendectin case, laid out a new
standard under the Federal Rules of Evidence for allowing expert testimony to go to the jury:
Faced with a proffer of expert scientific testimony, then, the trial judge must
determine at the outset . . . whether the expert is proposing to testify to (1) scientific
knowledge that (2) will assist the trier of fact to understand or determine a fact in
issue. This entails a preliminary assessment of whether the reasoning or
methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue . . . .
We recognize that, in practice, a gatekeeping role for the judge, no matter how
flexible, inevitably on occasion will prevent the jury from learning of authentic
insights and innovations. That, nevertheless, is the balance that is struck by Rules
of Evidence designed not for the exhaustive search for cosmic understanding but
for the particularized resolution of legal disputes.
Daubert v. Merrell Dow Pharms, 509 U.S. 579, 597 (1993). So-called “Daubert hearings,” as
these pre-trial hearings described in Daubert have become known, have dramatically changed
how torts suits are litigated. Plaintiffs must get their experts through the Daubert hearing to the
jury in order to avoid being dismissed on summary judgment. Allan Kanner & M. Ryan Casey,
Daubert and the Disappearing Jury Trial, 69 U. PITT. L. REV. 281 (2007). The percentage of civil
trials in products liability cases that were dismissed on summary judgment jumped from 21% for
48% in the years after the Daubert decision. LLOYD DIXON & BRIAN GILL, RAND INST. FOR CIVIL
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JUSTICE, CHANGES IN THE STANDARDS FOR ADMITTING EXPERT EVIDENCE IN FEDERAL CIVIL CASES
SINCE THE DAUBERT DECISION (2001). Overall, the percentage of torts cases in federal court
resolved by trial has fallen from 16.5% in 1963 to 2.2% in 2002. While all subject areas have
seen declines in the percentage of cases resolved by trial, torts have experienced a
disproportionate drop. Torts cases constituted 55% of all federal trials in 1962; today they make
up only 23% of trials. Marc Galanter, The Vanishing Trial: An Examination of Trials and Related
Matters in Federal and State Courts, 1 J. EMPIRICAL LEGAL STUD. 459, 466 (2004).

4. Agent Orange. The U.S. military used an herbicide called Agent Orange in the Vietnam
War to eliminate the foliage that provided cover to North Vietnamese forces. From 1965 to 1970,
thousands of American soldiers and millions of Vietnamese civilians were exposed to the
herbicide. Throughout the 1970s, evidence began to accumulate that Agent Orange was highly
toxic, linked to cancer and other conditions in people exposed to the substance and birth defects in
their children. In 1979, veterans filed a lawsuit against the manufacturers of Agent Orange, and
their cases were consolidated into a single multi-district litigation in New York. Agent Orange
was a classic indeterminate plaintiff case; the herbicide may well have increased the risk of some
injuries, but it was difficult to say exactly how much risk it added and even harder to identify
which plaintiffs would not have suffered their injuries without Agent Orange. The lawsuit
dragged on for years until Judge Jack Weinstein was assigned to the case. Brilliant and daring
(and controversial), Judge Weinstein wielded all the tools he was allowed to use, and possibly
some he wasn’t, to pressure the parties into a settlement. The $180-million compensation fund
created for the plaintiffs was one of the largest and most complex mass tort settlements the
country had seen. Judge Weinstein then dismissed the claims of the veterans who had opted out
of the class on summary judgment, concluding that they had failed to establish that Agent Orange
was the cause of their injuries. The dismissal came despite multiple credentialed expert witnesses
for the plaintiffs testifying about studies contending that Agent Orange may have caused the
harms the plaintiffs suffered. Critics have contended ever since that Weinstein delved into
questions of the applicability and reliability of the studies that were properly left for a jury. For a
detailed account, see Peter Schuck’s classic treatment, Agent Orange on Trial (1987).

5. Bisphenol A. Bisphenol A (BPA), a ubiquitous industrial chemical in plastics, food
packaging, baby bottles, and other areas, cuts against the conventional dose-response wisdom.
While standard toxicology studies indicated that Bisphenol A is safe, new studies that look at
significantly lower doses of Bisphenol A show that Bisphenol A may have harmful effects in
infants. U.S. FOOD AND DRUG ADMIN., Bisphenol A: Use in Food Contact Application, Mar.
2013, available at https://perma.cc/2KBA-K3QX. Unlike almost all drugs (such as Danocrine,
the drug in Zuchowicz), Bisphenol A is actually more likely to cause harm when consumed in
small doses by infants because the hormone receptors of infants are more likely to confuse
Bisphenol A for estrogen when it is present in very low doses, but not when it is present in the
higher doses tested in the traditional toxicological studies. A confounding difficulty in measuring
the effect of Bisphenol A is that most people are exposed to low doses of Bisphenol A through
hundreds of daily interactions with packaging, plastics, or even paper receipts. Frederick S. vom
Saal & Claude Hughes, An Extensive New Literature Concerning Low-Dose Effects of Bisphenol
A Shows the Need for a New Risk Assessment, 113 ENVIRON. HEALTH PERSPECT. 926 (2005). In
2008, major manufacturers of baby bottles voluntarily removed Bisphenol A from their products,
due to public pressure, as the FDA continued to study the issue. Press Release, Conn. Attorney
Gen. Office, Attorney Gen. Announces Baby Bottle Makers Agree to Stop Using BPA; Calls for
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Legislative Ban (Mar. 5, 2009), available at https://perma.cc/GV98-DCB3. Does the existence of
toxins like Bisphenol A, which follow a different dose response curve, challenge the rationale
behind Judge Calabresi’s rule in Zuchowicz?
The actual Bisphenol A multidistrict litigation was dismissed on summary judgment on
the grounds that the plaintiffs failed to state a cognizable injury; the plaintiffs attempted to claim
damages for their purchase of BPA-containing products, not any medical injuries that resulted
from contact with BPA. In re Bisphenol-A (BPA) Polycarbonate Plastic Prods. Liab. Litig., 687
F. Supp. 2d 897 (W.D. Mo. 2009). If a plaintiff did present a claim for damages based on
development disabilities caused by BPA, would you, as a judge, attempt to find creative means
(industry liability theories, statistical causation, judicially brokered settlements) to manage to get
relief for the plaintiffs? Or would you dismiss the case, believing that other branches of
government are best suited to manage such complex problems?

C. Lost Chances and Indeterminate Plaintiffs
A variation on the problem of statistical evidence arises when the plaintiff suffers a harm
that was likely to have happened even if the defendant had not acted in such a way as to increase
the risk of that harm still further. How can any such plaintiff show by a preponderance of the
evidence that, but for the defendant’s act, the injury would not have occurred? The classic case is
medical malpractice on patients with severe illnesses:

Herskovits v. Group Health Coop., 664 P.2d 474 (Wash. 1983)
This appeal raises the issue of whether an estate can maintain an action for professional
negligence as a result of failure to timely diagnose lung cancer, where the estate can show
probable reduction in statistical chance for survival but cannot show and/or prove that with timely
diagnosis and treatment, decedent probably would have lived to normal life expectancy.
Both counsel advised that for the purpose of this appeal we are to assume that the
respondent Group Health Cooperative of Puget Sound and its personnel negligently failed to
diagnose Herskovits’ cancer on his first visit to the hospital and proximately caused a 14 percent
reduction in his chances of survival. [The trial court granted summary judgment for the
defendant]. It is undisputed that Herskovits had less than a 50 percent chance of survival at all
times herein . . . .
The complaint alleged that Herskovits came to Group Health Hospital in 1974 with
complaints of pain and coughing . . . . In mid-1974, there were chest pains and coughing, which
became persistent and chronic by fall of 1974. A December 5, 1974, entry in the medical records
confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with
cough medicine. . . . In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope
that the warm weather would help. Upon his return to the Seattle area with no improvement in his
health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion.
Within 3 weeks, Dr. Ostrow’s evaluation and direction to Group Health led to the diagnosis of
cancer. In July of 1975, Herskovits’ lung was removed, but no radiation or chemotherapy
treatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60. .
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. . Dr. Ostrow testified that if the tumor was a “stage 1” tumor in December 1974, Herskovits’
chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival
were 25 percent assuming the tumor had progressed to “stage 2”. Thus, the delay in diagnosis
may have reduced the chance of a 5-year survival by 14 percent. . . .
The ultimate question raised here is whether the relationship between the increased risk of
harm and Herskovits’ death is sufficient to hold Group Health responsible. Is a 36 percent (from
39 percent to 25 percent) reduction in the decedent’s chance for survival sufficient evidence of
causation to allow the jury to consider the possibility that the physician’s failure to timely
diagnose the illness was the proximate cause of his death? We answer in the affirmative. To
decide otherwise would be a blanket release from liability for doctors and hospitals any time there
was less than a 50 percent chance of survival, regardless of how flagrant the negligence.
Causing reduction of the opportunity to recover (loss of chance) by one’s negligence,
however, does not necessitate a total recovery against the negligent party for all damages caused
by the victim’s death. Damages should be awarded to the injured party or his family based only
on damages caused directly by premature death, such as lost earnings and additional medical
expenses, injury. . . . We reverse the trial court and reinstate the cause of action.
PEARSON, J., concurring.
We must decide whether Dr. Ostrow’s testimony established that the act complained of
(the alleged delay in diagnosis) “probably” or “more likely than not” caused Mr. Herskovits’
subsequent disability. In order to make this determination, we must first define the “subsequent
disability” suffered by Mr. Herskovits. Therein lies the crux of this case, for it is possible to
define the injury or “disability” to Mr. Herskovits in at least two different ways. First, and most
obviously, the injury to Mr. Herskovits might be viewed as his death. Alternatively, however, the
injury or disability may be seen as the reduction of Mr. Herskovits’ chance of surviving the cancer
from which he suffered.
Therefore, although the issue before us is primarily one of causation, resolution of that
issue requires us to identify the nature of the injury to the decedent. Our conception of the injury
will substantially affect our analysis. If the injury is determined to be the death of Mr. Herskovits,
then under the established principles of proximate cause plaintiff has failed to make a prima facie
case. . . .
If, on the other hand, we view the injury to be the reduction of Mr. Herskovits’ chance of
survival, our analysis might well be different. Dr. Ostrow testified that the failure to diagnose
cancer in December 1974 probably caused a substantial reduction in Mr. Herskovits’ chance of
survival. . . .
One approach, and that urged by defendant, is to deny recovery in wrongful death cases
unless the plaintiff establishes that decedent would probably have survived but for defendant’s
negligence. This approach is typified by Cooper v. Sisters of Charity of Cincinnati, Inc., 272
N.E.2d 97 (Ohio 1971). The court in that case affirmed a directed verdict for defendant where the
only evidence of causation was that decedent had a chance “maybe some place around 50%” of
survival had defendant not been negligent. . . .
My review of these cases persuades me that the preferable approach to the problem before
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us is that [advanced by] the thoughtful discussion of a recent commentator. King, Causation,
Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future
Consequences, 90 Yale L.J. 1353 (1981).
King’s basic thesis is explained in the following passage, which is particularly pertinent to
the case before us.
Causation has for the most part been treated as an all-or-nothing proposition. Either
a loss was caused by the defendant or it was injury. . . . A plaintiff ordinarily should
be required to prove by the applicable standard of proof that the defendant caused
the loss in question. What caused a loss, however, should be a separate question
from what the nature and extent of the loss are. This distinction seems to have
eluded the courts, with the result that lost chances in many respects are compensated
either as certainties or not at all.
To illustrate, consider the case in which a doctor negligently fails to diagnose a
patient’s cancerous condition until it has become inoperable. Assume further that
even with a timely diagnosis the patient would have had only a 30% chance of
recovering from the disease and surviving over the long term. There are two ways
of 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
it did not appear more likely [than] not that the patient would have survived with
proper care. Recoverable damages, if any, would depend on the extent to which it
appeared that cancer killed the patient sooner than it would have with timely
diagnosis and treatment, and on the extent to which the delay in diagnosis
aggravated the patient’s condition, such as by causing additional pain. A more
rational approach, however, would allow recovery for the loss of the chance of cure
even though the chance was not better than even. The probability of long-term
survival would be reflected in the amount of damages awarded for the loss of the
chance. While the plaintiff here could not prove by a preponderance of the evidence
that he was denied a cure by the defendant’s negligence, he could show by a
preponderance that he was deprived of a 30% chance of a cure.
90 YALE L.J. at 1363-64.
Under the all or nothing approach, typified by Cooper v. Sisters of Charity, a plaintiff who
establishes that but for the defendant’s negligence the decedent had a 51 percent chance of
survival may maintain an action for that death. The defendant will be liable for all damages
arising from the death, even though there was a 49 percent chance it would have occurred despite
his negligence. On the other hand, a plaintiff who establishes that but for the defendant’s
negligence the decedent had a 49 percent chance of survival recovers nothing.
...
These reasons persuade me that the best resolution of the issue before us is to recognize
the loss of a less than even chance as an actionable injury. Therefore, I would hold that plaintiff
has established a prima facie issue of proximate cause by producing testimony that defendant
probably caused a substantial reduction in Mr. Herskovits’ chance of survival.
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...
Finally, it is necessary to consider the amount of damages recoverable in the event that a
loss of a chance of recovery is established. Once again, King’s discussion provides a useful
illustration of the principles which should be applied.
To illustrate, consider a patient who suffers a heart attack and dies as a result.
Assume that the defendant-physician negligently misdiagnosed the patient’s
condition, but that the patient would have had only a 40% chance of survival even
with a timely diagnosis and proper care. Regardless of whether it could be said that
the defendant caused the decedent’s death, he caused the loss of a chance, and that
chance-interest should be completely redressed in its own right. Under the proposed
rule, the plaintiff’s compensation for the loss of the victim’s chance of surviving the
heart attack would be 40% of the compensable value of the victim’s life had he
survived (including what his earning capacity would otherwise have been in the
years following death). The value placed on the patient’s life would reflect such
factors as his age, health, and earning potential, including the fact that he had
suffered the heart attack and the assumption that he had survived it. The 40%
computation would be applied to that base figure.
(Footnote omitted.) 90 YALE L.J. at 1382. I would remand to the trial court for proceedings
consistent with this opinion.

Notes

1. The end of preponderance of the evidence? The majority and the concurrence disagree
deeply on how to proceed in the face of the so-called “lost chance” problem. Does the Herskovits
majority opinion give up the preponderance of the evidence standard in order to provide a remedy
for plaintiffs with low probabilities of survival?

2. Lost chance confusion. On the other hand, what does the lost chance approach of Judge
Pearson entail? For one thing, how do we measure the chance that has been lost? Note that the
majority opinion offers us at least two different approaches: an absolute reduction in the chance of
living, calculated using simple subtraction (39 – 25 = 14), and also a proportional reduction
expressing the reduction as a percentage of the total preexisting chance (39 – 25 / 39 = 36). Still
another way to express the lost chance would be as an estimate of the probability that Herskovits’s
death was caused by the defendant’s negligent nondiagnosis (14 / 75 = 19). Which of these three
approaches is the right way to express the chance that has been lost by the plaintiff? The court in
Herskovits barely grasped the difference between them, but it matters which approach we choose.

3. A probabilistic approach to causation—or recognition of a novel injury? What exactly
are courts doing when they apply the lost chance doctrine? The probabilistic view holds that the
lost chance doctrine is a kind of statistical technique for overcoming the limits on our capacity to
know the key causation question: whether the plaintiff’s death would not have happened but for
the defendant’s negligent act. When individualized causal reasoning fails, this view holds, the
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lost chance doctrine provides an actuarial alternative that preserves some of the public policy
goals of tort law. In particular, under this approach, the lost chance doctrine seems to satisfy the
deterrence goal by pushing back onto negligent defendant doctors (in the aggregate) precisely the
amount of social harm they caused in the world. A different way of saying the same thing is that
this view of lost chance achieves an ex ante expected cost of medical malpractice identical to that
which would be achieved by perfect knowledge about causation.
In 2008, the Massachusetts Supreme Judicial Court adopted a different view of what the
lost chance doctrine means. According to the Court, the lost chance doctrine is not an alteration
of 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:
“[I]njury” need not mean a patient’s death. Although there are few certainties in
medicine or in life, progress in medical science now makes it possible, at least with
regard to certain medical conditions, to estimate a patient’s probability of survival
to a reasonable degree of medical certainty. That probability of survival is part of
the patient’s condition. When a physician’s negligence diminishes or destroys a
patient’s chance of survival, the patient has suffered real injury. The patient has lost
something of great value: a chance to survive, to be cured, or otherwise to achieve
a more favorable medical outcome. Thus we recognize loss of chance not as a
theory of causation, but as a theory of injury.
Matsuyama v. Birnbaum, 452 Mass. 1, 16 (2008). Among other things, the Court added, this
conception of the lost chance doctrine is more “consistent with our law of causation, which
requires that plaintiffs establish causation by a preponderance of the evidence.” Here, “the
plaintiff must prove by a preponderance of the evidence that the physician's negligence caused the
plaintiff's injury, where the injury consists of the diminished likelihood of achieving a more
favorable medical outcome.” Id. at 17.
As for how to value the lost chance of a better outcome, the Court shed some light on this
in the part of the decision upholding the “proportional damages” approach used at trial: the jury
determined damages flowing from the death to have been $875,000, but then discounted the
damages to 37.5% of that amount, on the basis of the plaintiff’s 37.5% chance of survival at the
time of the negligent treatment (and, effectively, 0% chance of survival after the negligent
treatment). Such an approach “aims to ensure that a defendant is liable in damages only for the
monetary value of the portion of the decedent's prospects that the defendant's negligence
destroyed,” the Court explained. Id. at 26.
Many states have chosen to allow plaintiffs to recover damages for “loss of chance,” with
some following the Herskovits approach, e.g., Aasheim v. Humberger, 695 P.2d 824 (Mont.
1985), and others adopting the variation on display in Matsuyama, e.g., Perez v. Las Vegas
Medical Ctr., 805 P.2d 589 (Nev. 1991). Some states have rejected “loss of chance” entirely,
reasoning that it is basically incompatible with tort theory. Kramer v. Lewisville Memorial Hosp.,
858 S.W.2d 397, 405 (Tex. 1993) (“The true harm remains Ms. Kramer’s ultimate death. Unless
courts are going to compensate patients who “beat the odds” and make full recovery, the lost
chance cannot be proven unless and until the ultimate harm occurs.”). Still other states have
followed a middle path. In Oklahoma, for example, there is a lower standard to get past summary
judgment in loss-of-chance cases, but the plaintiff still must prove to the jury that it was more
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likely than not that the defendant’s negligence caused the harm. McKellips v. St. Francis Hosp.,
Inc., 741 P.2d 467 (Okla. 1987).
Notably, these cases all involved allegedly negligent medical treatment. Does the lostchance approach have a place outside medical malpractice?

4. The statistical revolution in tort causation. Causation cases from Stubbs to Matsuyama
and beyond have raised deep questions about the place of statistical knowledge in American law.
What role should statistics play in our judicial system? Laurence Tribe expresses hesitancy about
the reliance on statistics in trials:
It would be a terrible mistake to forget that a typical lawsuit, whether civil or
criminal, is only in part an objective search for historical truth. It is also, and no
less importantly, a ritual—a complex pattern of gestures comprising what Henry
Hart and John McNaughton once called “society’s last line of defense in the
indispensable effort to secure the peaceful settlement of social conflicts.” One
element, at least, of that ritual of conflict-settlement is the presence and functioning
of the jury—a cumbersome and imperfect institution, to be sure, but an institution
well calculated, at least potentially, to mediate between “the law” in the abstract and
the human needs of those affected by it. Guided and perhaps intimidated by the
seeming inexorability of numbers, induced by the persuasive force of formulas and
the precision of decimal points to perceive themselves as performing a largely
mechanical and automatic role, few jurors—whether in criminal cases or in civil—
could be relied upon to recall, let alone to perform, this humanizing function, to
employ their intuition and their sense of community values to shape their ultimate
conclusions.
Laurence H. Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 HARV. L.
REV. 1329, 1376 (1971). On the other hand, Daniel Shaviro argues that the use of statistics allows
society to reduce the problem of systematic errors. Daniel Shaviro, Statistical Probability
Evidence and the Appearance of Justice, 103 HARV. L. REV. 530 (1989).

D. The Problem of Multiple Tortfeasors
When multiple tortfeasors are responsible for an injury to a plaintiff, the usual rule for
apportioning liability among them is “joint and several liability.” Under joint liability, each
defendant may be held individually liable for the whole amount of the injury. Under several
liability, each defendant bears only her or his share of the damages. “Joint and several” liability,
therefore, means that the plaintiff can choose to sue any or all defendants for the full amount and
that any defendants held liable by the plaintiff may apportion the damages among themselves and
bring in any further parties who ought to bear a share of the damages. The principal effect of joint
and several liability, as compared to several liability, is to allocate to the defendants the risk that
any one of them will become insolvent on the defendants, not on the plaintiff. See RESTATEMENT
(THIRD) OF TORTS: APPORTIONMENT OF LIAB. § 17. Is that the right policy decision in torts?

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In recent years, tort reform statutes have often adopted variations on joint and several
liability. Utah abolished joint and several liability altogether, creating by statute the rule that all
losses can be apportioned, even if they would have been considered indivisible at common law.
UTAH CODE ANN. § 78B-5-818; see Egbert v. Nissan Motor Co., 228 P.3d 737 (Utah 2010).
Wisconsin took a slightly narrower approach and only abolished joint liability in cases in which
the plaintiffs were contributorily negligent. WIS. STAT. § 895.045. New Hampshire abolished
joint 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
position of defending non-parties against defendants, who would attempt to pin the blame on
absent actors. DeBenedetto v. CLD Consulting Eng’rs, Inc., 153 N.H. 793, 803 (2006). Illinois
similarly removed joint and several liability for parties less than 25% responsible but included
immune parties in the apportionment of fault. This is particularly damaging to workers pursuing
claims against parties other than their employer for workplace-related injuries, because the
employer (who is immunized from tort suits by worker’s compensation laws) is often held to be
the primary party at fault and other parties (such as product manufacturers with deep pockets) are
only required to pay a small portion of the total damages. See Unzicker v. Kraft Food Ingredients
Corp., 783 N.E.2d 1024, 1032 (Ill. 2002).
Apportionment questions, of course, presume more than one defendant who is liable for
something. Sometimes, however, multiple defendant cases can raise the question of whether
anyone may be held liable at all.

Kingston v. Chicago & N. W. R. Co., 191 Wis. 610, 613 (1926)
We therefore have this situation: The northeast fire was set by sparks emitted from
defendant’s locomotive. This fire, according to the finding of the jury, constituted a proximate
cause of the destruction of plaintiff’s property. This finding we find to be well supported by the
evidence. We have the northwest fire, of unknown origin. This fire, according to the finding of
the jury, also constituted a proximate cause of the destruction of the plaintiff’s property. This
finding we also find to be well supported by the evidence. We have a union of these two fires 940
feet north of plaintiff’s property, from which point the united fire bore down upon and destroyed
the property. We therefore have two separate, independent, and distinct agencies, each of which
constituted the proximate cause of plaintiff’s damage, and either of which, in the absence of the
other, would have accomplished such result.
It is settled in the law of negligence that any one of two or more joint tortfeasors, or one of
two or more wrongdoers whose concurring acts of negligence result in injury, are each
individually responsible for the entire damage resulting from their joint or concurrent acts of
negligence. . . .
[The court observed, however, that in some circumstances, a defendant who wrongfully
set a fire might not be responsible for tort damages]. From our present consideration of the
subject we are not disposed to criticise the doctrine which exempts from liability a wrongdoer
who sets a fire which unites with a fire originating from natural causes, such as lightning, not
attributable to any human agency, resulting in damage. It is also conceivable that a fire so set
might unite with a fire of so much greater proportions, such as a raging forest fire, as to be
enveloped or swallowed up by the greater holocaust, and its identity destroyed, so that the greater
fire could be said to be an intervening or superseding cause.
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But we have no such situation here. These fires were of comparatively equal rank. If
there was any difference in their magnitude or threatening aspect, the record indicates that the
northeast fire was the larger fire and was really regarded as the menacing agency. At any rate
there is no intimation or suggestion that the northeast fire was enveloped and swallowed up by the
northwest fire. We will err on the side of the defendant if we regard the two fires as of equal rank.
According to well settled principles of negligence, it is undoubted that if the proof
disclosed the origin of the northwest fire, even though its origin be attributed to a third person, the
railroad company, as the originator of the northeast fire, would be liable for the entire damage.
There is no reason to believe that the northwest fire originated from any other than human agency.
It was a small fire. It had traveled over a limited area. It had been in existence but for a day. For
a time it was thought to have been extinguished. It was not in the nature of a raging forest fire.
The record discloses nothing of natural phenomena which could have given rise to the fire. It is
morally certain that it was set by some human agency.
Now the question is whether the railroad company, which is found to have been
responsible for the origin of the northeast fire, escapes liability because the origin of the northwest
fire is not identified, although there is no reason to believe that it had any other than human origin.
An affirmative answer to that question would certainly make a wrongdoer a favorite of the law at
the expense of an innocent sufferer . . . . Granting that the union of that fire with another of natural
origin, or with another of much greater proportions, is available as a defense, the burden is on the
defendant to show that by reason of such union with a fire of such character the fire set by him
was not the proximate cause of the damage . . . .
The fact that the northeast fire was set by the railroad company, which fire was a
proximate cause of plaintiff’s damage, is sufficient to affirm the judgment.

Notes

1. Doctrinal puzzles. In deciding whether to hold the railroad company liable for damage to
the plaintiff’s property, why should it matter whether the northwest fire was caused by human or
natural forces? Should it matter which fire was larger, if each fire was sufficient to destroy the
property? The court accepted that it would be a viable defense for the railroad company to prove
either that the northeast fire had natural causes or that the northeast fire was larger, but simply
shifted the burden of proof to the defendant to establish those facts. What is the rationale behind
this? What if one of the two fires reached the plaintiff’s property before the other? One hour
before the other? One minute?

2. Multiple sufficient causes and the substantial factor test. The Kingston case is a classic
example of the problem of multiple sufficient causes. If each fire would have destroyed the
plaintiff’s property regardless of the other, then neither fire can be said to be a necessary or “butfor” cause of the plaintiff’s loss. But to let wrongdoers off the hook because there was more than
one of them hardly seems fair. One way courts handle the question of multiple sufficient
causation is by asking whether the defendant’s actions were a “substantial factor” in causing the
harm to the plaintiff. One of the first uses of the substantial factor test was in a classic “two fires”
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case by the Minnesota Supreme Court. The Court upheld jury instructions that laid out the
following contingency: “Assume that defendant’s engine did set the bog fire, but that some
greater fire swept over it before it reached plaintiff’s land, then and in that event defendant is not
liable, unless the bog fire was a substantial factor in causing plaintiff’s damage.” Anderson v.
Minneapolis, S. P. & S. S. M. R. Co., 179 N.W. 45, 46 (Minn. 1920). The Restatement (Second)
of Torts, published in the 1960s, explicitly addressed the question of multiple sufficient causes,
stating that if the defendant’s conduct is one of multiple sufficient causes, it is a “substantial
factor.” RESTATEMENT (SECOND) OF TORTS, § 432(2). As we will see in subsequent chapters, the
“substantial factor” language has also been applied outside of the situation of multiple sufficient
causes.

E. Alternative Liability and Indeterminate Defendants
Some multiple-defendant cases present a problem of uncertainty about the identity of the
plaintiff’s injurer.

Summers v. Tice, 33 Cal. 2d 80 (1948)
[Plaintiff sued two defendants, his hunting companions, for injuries resulting from being
struck in the face by bird shot. The plaintiff prevailed at trial and the defendants appealed.] The
plaintiff and the two defendants were hunting quail on the open range. . . . In the course of hunting
plaintiff proceeded up a hill, thus placing the hunters at the points of a triangle. The view of
defendants with reference to plaintiff was unobstructed and they knew his location. Defendant
Tice flushed a quail which rose in flight to a 10-foot elevation and flew between plaintiff and
defendants. Both defendants shot at the quail, shooting in plaintiff’s direction. At that time
defendants were 75 yards from plaintiff. One shot struck plaintiff in his eye and another in his
upper lip. . . .
The problem presented in this case is whether the judgment against both defendants may
stand. It is argued by defendants that they are not joint tort feasors, and thus jointly and severally
liable, as they were not acting in concert, and that there is not sufficient evidence to show which
defendant was guilty of the negligence which caused the injuries—the shooting by Tice or that by
Simonson.
When we consider the relative position of the parties and the results that would flow if
plaintiff was required to pin the injury on one of the defendants only, a requirement that the
burden of proof on that subject be shifted to defendants becomes manifest. They are both
wrongdoers—both negligent toward plaintiff. They brought about a situation where the
negligence of one of them injured the plaintiff, hence it should rest with them each to absolve
himself if he can. The injured party has been placed by defendants in the unfair position of
pointing to which defendant caused the harm. If one can escape the other may also and plaintiff is
remediless. Ordinarily defendants are in a far better position to offer evidence to determine which
one caused the injury.
This reasoning has recently found favor in this court. In a quite analogous situation this
court held that a patient injured while unconscious on an operating table in a hospital could hold
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all or any of the persons who had any connection with the operation even though he could not
select the particular acts by the particular person which led to his disability. (Ybarra v.
Spangard). There the court was considering whether the patient could avail himself of res ipsa
loquitur, rather than where the burden of proof lay, yet the effect of the decision is that plaintiff
has made out a case when he has produced evidence which gives rise to an inference of
negligence which was the proximate cause of the injury. It is up to defendants to explain the
cause of the injury . . . . The judgment is affirmed.

Note

1. The Summers court uses a shift in the burden of persuasion which solves the evidentiary
problem in a case between two defendants governed by a preponderance standard. But is shifting
the burden of persuasion sufficient in a case with more than two possible defendants? The
pharmaceutical disaster known as DES raised this problem.

Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. 1980)
MOSK, J.
This case involves a complex problem both timely and significant: may a plaintiff, injured
as the result of a drug administered to her mother during pregnancy, who knows the type of drug
involved but cannot identify the manufacturer of the precise product, hold liable for her injuries a
maker of a drug produced from an identical formula?
...
Between 1941 and 1971, defendants were engaged in the business of manufacturing,
promoting, and marketing diethylstilbesterol (DES), a drug which is a synthetic compound of the
female hormone estrogen. The drug was administered to plaintiff’s mother . . . for the purpose of
preventing miscarriage. . . .
In 1971, the Food and Drug Administration ordered defendants to cease marketing and
promoting DES for the purpose of preventing miscarriages, and to warn physicians and the public
that the drug should not be used by pregnant women because of the danger to their unborn
children. [In particular, DES causes adenosis (“precancerous vaginal and cervical growths which
may spread to other areas of the body”) as well as cancerous vaginal and cervical growths known
as adenocarcinoma, a “fast-spreading and deadly disease.”)
...
Plaintiff [who developed a malignant bladder tumor and who suffered from adenosis, for
which she underwent regular and painful monitoring] seeks compensatory damages of $1 million
and punitive damages of $10 million for herself. For the members of her class, she prays for
equitable relief in the form of an order that defendants warn physicians and others of the danger of
DES and the necessity of performing certain tests to determine the presence of disease caused by
the drug, and that they establish free clinics in California to perform such tests.
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[The trial court dismissed plaintiff’s complaint on the ground that plaintiff could not
identify which defendant had manufactured the drug that caused her injuries.] . . .
This case is but one of a number filed throughout the country seeking to hold drug
manufacturers liable for injuries allegedly resulting from DES prescribed to the plaintiffs’ mothers
since 1947. According to a note in the Fordham Law Review, estimates of the number of women
who took the drug during pregnancy range from 1 ½ million to 3 million. Hundreds, perhaps
thousands, of the daughters of these women suffer from adenocarcinoma, and the incidence of
vaginal adenosis among them is 30 to 90 percent. (Comment, DES and a Proposed Theory of
Enterprise Liability (1978) 46 Fordham L. Rev. 963, 964-967 (hereafter Fordham Comment).) . . .
We begin with the proposition that, as a general rule, the imposition of liability depends
upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or
by an instrumentality under the defendant’s control. The rule applies whether the injury resulted
from an accidental event . . . or from the use of a defective product. . . .
There are, however, exceptions to this rule. . . .
I
[The Court first rejected plaintiffs’ contention that the “alternative liability” theory of
Ybarra v. Spangard and Summers v. Tice applied. The Court asserted that Summers’s alternative
liability theory did not require the plaintiff to show that the defendants had better access to
information on the causation question. Nonetheless, the Court reasoned that there was “an
important difference between the situation involved in Summers and the present case”:]
There, all the parties who were or could have been responsible for the harm to the plaintiff
were joined as defendants. Here, by contrast, there are approximately 200 drug companies which
made DES, any of which might have manufactured the injury-producing drug.
Defendants maintain that, while in Summers there was a 50 percent chance that one of the
two defendants was responsible for the plaintiff’s injuries, here since any one of 200 companies
which manufactured DES might have made the product which harmed plaintiff, there is no
rational basis upon which to infer that any defendant in this action caused plaintiff’s injuries, nor
even a reasonable possibility that they were responsible.
These arguments are persuasive if we measure the chance that any one of the defendants
supplied the injury-causing drug by the number of possible tortfeasors. In such a context, the
possibility that any of the five defendants supplied the DES to plaintiff’s mother is so remote that
it would be unfair to require each defendant to exonerate itself. [T]he rule in Summers . . . , as
previously applied, cannot relieve plaintiff of the burden of proving the identity of the
manufacturer which made the drug causing her injuries.
II
The second principle upon which plaintiff relies is the so-called “concert of action”
theory. . . . The elements of this doctrine are prescribed in section 876 of the Restatement of
Torts. The section provides, “For harm resulting to a third person from the tortious conduct of
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another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant
to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty
and gives substantial assistance or encouragement to the other so to conduct himself, or (c) gives
substantial assistance to the other in accomplishing a tortious result and his own conduct,
separately considered, constitutes a breach of duty to the third person.” . . .
[The Court, however, concluded that the allegations in the complaint] do not amount to a
charge that there was a tacit understanding or a common plan among defendants to fail to conduct
adequate tests or give sufficient warnings, and that they substantially aided and encouraged one
another in these omissions. . . .
There is no allegation here that each defendant knew the other defendants’ conduct was
tortious toward plaintiff, and that they assisted and encouraged one another to inadequately test
DES and to provide inadequate warnings. Indeed, it seems dubious whether liability on the
concert of action theory can be predicated upon substantial assistance and encouragement given
by one alleged tortfeasor to another pursuant to a tacit understanding to fail to perform an act.
Thus, there was no concert of action among defendants within the meaning of that doctrine.
III
A third theory upon which plaintiff relies is the concept of industry-wide liability, or
according to the terminology of the parties, “enterprise liability.” This theory was suggested in
Hall v. E. I. Du Pont de Nemours & Co., Inc. (E.D.N.Y.1972) 345 F.Supp. 353. In that case,
plaintiffs were 13 children injured by the explosion of blasting caps in 12 separate incidents which
occurred in 10 different states between 1955 and 1959. The defendants were six blasting cap
manufacturers, comprising virtually the entire blasting cap industry in the United States, and their
trade association. . . . The gravamen of the complaint was that the practice of the industry of
omitting a warning on individual blasting caps and of failing to take other safety measures created
an unreasonable risk of harm, resulting in the plaintiffs’ injuries. The complaint did not identify a
particular manufacturer of a cap which caused a particular injury.
The [Hall] court reasoned as follows: there was evidence that defendants, acting
independently, had adhered to an industry-wide standard with regard to the safety features of
blasting caps, that they had in effect delegated some functions of safety investigation and design,
such as labelling, to their trade association, and that there was industry-wide cooperation in the
manufacture and design of blasting caps. In these circumstances, the evidence supported a
conclusion that all the defendants jointly controlled the risk. Thus, if plaintiffs could establish by
a preponderance of the evidence that the caps were manufactured by one of the defendants, the
burden of proof as to causation would shift to all the defendants. The court noted that this theory
of liability applied to industries composed of a small number of units, and that what would be fair
and reasonable with regard to an industry of five or ten producers might be manifestly
unreasonable if applied to a decentralized industry composed of countless small producers.
...
We decline to apply this theory in the present case. At least 200 manufacturers produced
DES; Hall, which involved 6 manufacturers representing the entire blasting cap industry in the
United States, cautioned against application of the doctrine espoused therein to a large number of
producers. Moreover, in Hall, the conclusion that the defendants jointly controlled the risk was
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based upon allegations that they had delegated some functions relating to safety to a trade
association. There are no such allegations here, and we have concluded above that plaintiff has
failed to allege liability on a concert of action theory.
Equally important, the drug industry is closely regulated by the Food and Drug
Administration, which actively controls the testing and manufacture of drugs and the method by
which they are marketed, including the contents of warning labels. To a considerable degree,
therefore, the standards followed by drug manufacturers are suggested or compelled by the
government. . . .
[S]ince the government plays such a pervasive role in formulating the criteria for the
testing and marketing of drugs, it would be unfair to impose upon a manufacturer liability for
injuries resulting from the use of a drug which it did not supply simply because it followed the
standards of the industry.
IV
If we were confined to the theories of Summers and Hall, we would be constrained to hold
that the judgment must be sustained. Should we require that plaintiff identify the manufacturer
which supplied the DES used by her mother or that all DES manufacturers be joined in the action,
she would effectively be precluded from any recovery. As defendants candidly admit, there is
little likelihood that all the manufacturers who made DES at the time in question are still in
business or that they are subject to the jurisdiction of the California courts. There are, however,
forceful arguments in favor of holding that plaintiff has a cause of action.
In our contemporary complex industrialized society, advances in science and technology
create fungible goods which may harm consumers and which cannot be traced to any specific
producer. The response of the courts can be either to adhere rigidly to prior doctrine, denying
recovery to those injured by such products, or to fashion remedies to meet these changing needs.
Just as Justice Traynor in his landmark concurring opinion in Escola v. Coca Cola Bottling
Company (1944), 150 P.2d 436 [we will read Escola in our materials on products liability later in
this book], recognized that in an era of mass production and complex marketing methods the
traditional standard of negligence was insufficient to govern the obligations of manufacturer to
consumer, so should we acknowledge that some adaptation of the rules of causation and liability
may be appropriate in these recurring circumstances. . . .
The most persuasive reason for finding plaintiff states a cause of action is that advanced in
Summers: as between an innocent plaintiff and negligent defendants, the latter should bear the
cost of the injury. Here, as in Summers, plaintiff is not at fault in failing to provide evidence of
causation, and although the absence of such evidence is not attributable to the defendants either,
their conduct in marketing a drug the effects of which are delayed for many years played a
significant role in creating the unavailability of proof.
From a broader policy standpoint, defendants are better able to bear the cost of injury
resulting from the manufacture of a defective product. As was said by Justice Traynor in Escola,
“(t)he cost of an injury and the loss of time or health may be an overwhelming misfortune to the
person injured, and a needless one, for the risk of injury can be insured by the manufacturer and
distributed among the public as a cost of doing business.” The manufacturer is in the best position
to discover and guard against defects in its products and to warn of harmful effects; thus, holding
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it liable for defects and failure to warn of harmful effects will provide an incentive to product
safety. . . . These considerations are particularly significant where medication is involved, for the
consumer is virtually helpless to protect himself from serious, sometimes permanent, sometimes
fatal, injuries caused by deleterious drugs.
Where, as here, all defendants produced a drug from an identical formula and the
manufacturer of the DES which caused plaintiff’s injuries cannot be identified through no fault of
plaintiff, a modification of the rule of Summers is warranted. . . .
[W]e hold it to be reasonable in the present context to measure the likelihood that any of
the defendants supplied the product which allegedly injured plaintiff by the percentage which the
DES sold by each of them for the purpose of preventing miscarriage bears to the entire production
of the drug sold by all for that purpose. Plaintiff asserts in her briefs that Eli Lilly and Company
and 5 or 6 other companies produced 90 percent of the DES marketed. If at trial this is
established to be the fact, then there is a corresponding likelihood that this comparative handful of
producers manufactured the DES which caused plaintiff’s injuries, and only a 10 percent
likelihood that the offending producer would escape liability.28
If plaintiff joins in the action the manufacturers of a substantial share of the DES which
her mother might have taken, the injustice of shifting the burden of proof to defendants to
demonstrate that they could not have made the substance which injured plaintiff is significantly
diminished. . . .
The presence in the action of a substantial share of the appropriate market also provides a
ready means to apportion damages among the defendants. Each defendant will be held liable for
the proportion of the judgment represented by its share of that market unless it demonstrates that it
could not have made the product which caused plaintiff’s injuries.
Under this approach, each manufacturer’s liability would approximate its responsibility
for the injuries caused by its own products. . . . It is probably impossible, with the passage of
time, to determine market share with mathematical exactitude. But just as a jury cannot be
expected to determine the precise relationship between fault and liability in applying the doctrine
of comparative fault or partial indemnity, the difficulty of apportioning damages among the
defendant producers in exact relation to their market share does not seriously militate against the
rule we adopt. . . .
We are not unmindful of the practical problems involved in defining the market and
determining market share, but these are largely matters of proof which properly cannot be
determined at the pleading stage of these proceedings. Defendants urge that it would be both
unfair and contrary to public policy to hold them liable for plaintiff’s injuries in the absence of

28

The Fordham Comment explains the connection between percentage of market share and liability as follows:
“(I)f X Manufacturer sold one-fifth of all the DES prescribed for pregnancy and identification could be made in
all cases, X would be the sole defendant in approximately one-fifth of all cases and liable for all the damages in
those cases. Under alternative liability, X would be joined in all cases in which identification could not be made,
but liable for only one-fifth of the total damages in these cases. X would pay the same amount either way.
Although the correlation is not, in practice, perfect (footnote omitted), it is close enough so that defendants’
objections on the ground of fairness lose their value.”

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proof that one of them supplied the drug responsible for the damage. Most of their arguments,
however, are based upon the assumption that one manufacturer would be held responsible for the
products of another or for those of all other manufacturers if plaintiff ultimately prevails. But
under the rule we adopt, each manufacturer’s liability for an injury would be approximately
equivalent to the damages caused by the DES it manufactured.30
The judgments are reversed.
BIRD, C.J., and NEWMAN and WHITE, JJ., concur.
RICHARDSON, J., dissenting.
Although the majority purports to change only the required burden of proof by shifting it
from plaintiffs to defendants, the effect of its holding is to guarantee that plaintiffs will prevail on
the causation issue because defendants are no more capable of disproving factual causation than
plaintiffs are of proving it. “Market share” liability thus represents a new high water mark in tort
law. The ramifications seem almost limitless . . . .The majority now expressly abandons the . . .
traditional requirement of some causal connection between defendants’ act and plaintiffs’ injury
in the creation of its new modified industry-wide tort. . . .
[Among other things, Justice Richardson observed that] it is readily apparent that “market
share” liability will fall unevenly and disproportionately upon those manufacturers who are
amenable to suit in California. On the assumption that no other state will adopt so radical a
departure from traditional tort principles, it may be concluded that under the majority’s reasoning
those defendants who are brought to trial in this state will bear effective joint responsibility for
100 percent of plaintiffs’ injuries despite the fact that their “substantial” aggregate market share
may be considerably less. . . .
[Suggesting that the DES case might be the “only the tip of the iceberg,” Justice
Richardson argued that the majority had crafted an illegitimately redistributive rule:]
The majority attempts to justify its new liability on the ground that defendants herein are
“better able to bear the cost of injury resulting from the manufacture of a defective product.” This
“deep pocket” theory of liability, fastening liability on defendants presumably because they are
rich, has understandable popular appeal and might be tolerable in a case disclosing substantially
stronger evidence of causation than herein appears. But as a general proposition, a defendant’s
wealth is an unreliable indicator of fault, and should play no part, at least consciously, in the legal
analysis of the problem. . . . A system priding itself on “equal justice under law” does not flower
when the liability as well as the damage aspect of a tort action is determined by a defendant’s
wealth. . . .
[Quoting from a recent dismissal of a DES case by another court, Justice Richardson
contended that] “‘[T]he social and economic benefits from mobilizing the industry’s resources in

The dissent concludes by implying the problem will disappear [if] the Legislature appropriates funds “for the
education, identification, and screening of persons exposed to DES.” While such a measure may arguably be
helpful in the abstract, it does not address the issue involved here: damages for injuries which have been or will
be suffered. Nor, as a principle, do we see any justification for shifting the financial burden for such damages
from drug manufacturers to the taxpayers of California.
30

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the war against disease and in reducing the costs of medical care are potentially enormous. The
development of new drugs in the last three decades has already resulted in great social benefits.
The potential gains from further advances remain large. To risk such gains is unwise. Our major
objective should be to encourage a continued high level of industry investment in pharmaceutical
R & D.’”]
CLARK and MANUEL, JJ., concur.

Notes

1. From Summers to Sindell? Does the holding in Sindell necessarily follow from Summers
v. Tice? What would be the rationale for treating this case differently?

2. A New York variation. Other states dealing with the same DES problem adopted different
approaches than the California Supreme Court did in Sindell. Consider New York, for example:
We choose to apportion liability so as to correspond to the over-all culpability of
each defendant, measured by the amount of risk of injury each defendant created to
the public-at-large. Use of a national market is a fair method, we believe, of
apportioning defendants’ liabilities according to their total culpability in marketing
DES for use during pregnancy. Under the circumstances, this is an equitable way
to provide plaintiffs with the relief they deserve, while also rationally distributing
the responsibility for plaintiffs’ injuries among defendants.
To be sure, a defendant cannot be held liable if it did not participate in the marketing
of DES for pregnancy use; if a DES producer satisfies its burden of proof of showing
that it was not a member of the market of DES sold for pregnancy use, disallowing
exculpation would be unfair and unjust. Nevertheless, because liability here is
based on the over-all risk produced, and not causation in a single case, there should
be no exculpation of a defendant who, although a member of the market producing
DES for pregnancy use, appears not to have caused a particular plaintiff’s injury. It
is merely a windfall for a producer to escape liability solely because it manufactured
a more identifiable pill, or sold only to certain drugstores. These fortuities in no
way diminish the culpability of a defendant for marketing the product, which is the
basis of liability here.
Finally, we hold that the liability of DES producers is several only, and should not
be inflated when all participants in the market are not before the court in a particular
case. We understand that, as a practical matter, this will prevent some plaintiffs
from recovering 100% of their damages. However, we eschewed exculpation to
prevent the fortuitous avoidance of liability, and thus, equitably, we decline to
unleash the same forces to increase a defendant’s liability beyond its fair share of
responsibility.
Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 509-11 (N.Y. 1989). Sindell attempted to
incorporate the idea that market share approximates the probability that the defendant’s product
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caused the plaintiff’s harm. Hymowitz, by contrast, explicitly severed the causal connection
between the injured plaintiff and the liable defendant. Is this a justifiable evolution of the
common law to deal with a unique type of problem? Or is this an example of courts trying to
solve a problem that they are not institutionally suited to handle?
No other forum adopted Hymowitz’s national market share liability. This created the
strange consequence that DES manufacturers whose market share in New York was higher than
their national market share benefitted relative to manufacturers whose market share in New York
was lower than their national market share, due to the different rules in each jurisdiction.
Wisconsin and Washington both chose approaches where defendants were liable based on some
probability that they caused the injury, which was measured by a combination of market share and
other facts in each trial. Defendants in those states were exculpated if they could prove that the
plaintiff did not ingest their product. Collins v. Lilly & Co., 116 Wis. 2d 166 (1984); Martin v.
Abbott Labs., 102 Wash. 2d 581 (1984). Are the conflicting effects of different rules in each state
a reason why state tort law may be ill-suited to handle this type of national problem? Or can the
ongoing dialogue between state courts we saw in Hymowitz create reasonable accommodation of
other states’ approaches?

3. Lead poisoning and market share. When is market share liability an appropriate solution?
Pennsylvania distinguished the DES cases to deny recovery on a market share theory in suits
brought by minor victims of lead poisoning suffered in homes painted over decades with paint
from unidentified paint manufacturers:
[T]he relevant time period in question is far more extensive than the relevant time
period in a DES case. In this case, [plaintiff Skipworth] cannot identify any
particular application, or applications, of lead paint which have caused Skipworth’s
health problems. Thus, they “pinpoint” a more than one hundred year period from
the date the house was built until the lead paint ceased being sold for residential
purposes as the relevant time period. In contrast, the relevant time period in a DES
case is necessarily limited to the nine months that the patient ingesting the product
was pregnant.
The difficulty . . . is that entities who could not have been the producers of the lead
paint which injured [plaintiff Skipworth] would almost assuredly be held liable.
Over the one hundred year period at issue, several of the pigment manufacturers
entered and left the lead paint market.
Skipworth v. Lead Inds. Ass’n, 690 A.2d 169, 233-34 (Pa. 1997). The court further noted that:
[L]ead paint, as opposed to DES, is not a fungible product. All DES used for
treatment of pregnant women was manufactured according to an identical formula
and presented an identical risk of harm. In contrast, it is undisputed that lead
pigments had different chemical formulations, contained different amounts of lead,
and differed in potential toxicity. . . . [I]n this case, apportioning liability based
upon a manufacturer defendant’s share of the market (even if it were possible to
obtain an accurate statistic considering the lengthy relevant time period at question)
would not serve to approximate that defendant’s responsibility for injuries caused
by its lead paint. For example, a manufacturer whose lead product had a lower
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bioavailability than average would have caused less damage than its market share
would indicate.
Id. at 233. Are either of these distinctions persuasive?

4. Commingled products. After cases like Skipworth, some observers thought that market
share liability had no future. The giant litigation over a gasoline additive in the Southern District
of New York, however, suggested otherwise. Methyl tertiary butyl ether (“MTBE”) is a gasoline
additive that has been found leaking from underground storage tanks around the United States and
that has contaminated the water supply in many communities. Plaintiffs in a litigation before
Judge Shira Scheindlin could not identify the manufacturers of the MTBE responsible for the
chemical that had ended up in the Suffolk County, Long Island water supply. But Judge Sheindlin
allowed the plaintiffs to go ahead on what she called a “commingled product theory” that closely
resembles the market share theory:
[T]he commingled product theory, while still an alternative means of proving
causation, is closer to traditional causation than to market share liability. Under this
theory, a reasonable jury could conclude, based on the evidence in the record, that
all defendants contributed to the commingled gasoline that caused contamination in
plaintiffs’ wells. Defendants may still exculpate themselves by showing that their
product could not have been part of the commingled gasoline spilled in Suffolk
County, but the burden shifts to them to do so. . . .
A reasonable jury could conclude that most defendants’ gasoline contributed to
contamination in at least some of the wells at some point. To exempt defendants
from liability, when plaintiffs have proven the other elements of their claims, simply
because plaintiffs are unable to deconstruct the molecules of the commingled
gasoline to identify the manufacturers of each gallon of spilled gasoline is unjust.
To avoid such a result, New York courts have often “modif[ied] the rules of personal
injury liability, in order ‘to achieve the ends of justice in a more modern context’
and . . . to overcome ‘the inordinately difficult problems of proof caused by
contemporary products and marketing techniques.’” . . .
The commingled product theory lies somewhere between market share and
concurrent wrongdoing. It is similar to concurrent wrongdoing—a theory that
allows multiple tortfeasors to be held jointly and severally liable when each
tortfeasor’s independent actions combine to produce the same wrong—because it
addresses a situation in which multiple defendants have contributed to an indivisible
injury. It is similar to market share in that it shifts the burden to defendants to
exculpate themselves from liability.
The theory is different from market share liability, however, in an important way.
Market share liability was developed in the context of plaintiffs’ inability to identify
which manufacturer had produced the defective product-diethylstilbestrol (“DES”)
pills. Each plaintiff in the DES cases had ingested pills that were manufactured by
only one defendant, but no one could determine which of a small number of
manufacturers made those exact pills. When holding all manufacturers of the
generic pill liable under market share, courts recognized that all but one of them did
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not cause the plaintiff’s injury.
Here, by contrast, because the gasoline that has contaminated plaintiffs’ wells was
undeniably the commingled product of numerous manufacturers, there is a good
chance that many of the defendants held liable, if not the majority, actually did cause
plaintiffs’ injury. In this sense, the commingled product theory is closer to
traditional causation than market share liability.
In re MTBE Prods. Liab. Litig., 91 F. Supp. 2d 259 (S.D.N.Y. 2008). While Judge Scheindlin
purports to distinguish between the MTBE cases and the DES cases, it seems that many of the
same practical problems in apportioning fault are still involved. These include the practical
problems identified by Skipworth as a reason not to use market share liability in the lead
poisoning cases. At trial the jury found for the plaintiffs, but did so on grounds that did not
require it to make a decision on the commingled product theory. See In re MTBE Prods. Liab.
Litig., 725 F.3d 65, 117 n. 39 (2d Cir. 2013).

The Substantial Factor Test Revisited
By the 1970s and 1980s, the substantial factor test began to appear outside two-fires type
cases such as Kingston. In 1973, the Fifth Circuit used the substantial factor language to resolve
an indeterminate defendant issue in an asbestos case. The plaintiff had clearly suffered injuries
from his exposure to asbestos, but could not prove by a preponderance of the evidence that any
particular defendant had supplied the asbestos. The Court found that because each defendant had
some role in the cumulative asbestos exposure, each was a “substantial factor” in the injury and
could be held liable. Borel v. Fibreboard Paper Prods. Corp., 493 F.2d 1076, 1094 (5th Cir.
1973). This application of the substantial factor test was adopted by most states and covered toxic
exposure cases including diethylstilbestrol (DES) and environmental damages. See, e.g., Queen
City Terminals v. General Am. Transp. Corp., 73 Ohio St. 3d 609 (1995); Sindell v. Abbott Labs.,
26 Cal. 3d 588 (Cal. 1980). For more, see John D. Rue, Returning to the Roots of the Bramble
Bush: The “But For” Test Regains Primacy in Causal Analysis in the American Law Institute’s
Proposed Restatement (Third) of Torts, 71 FORDHAM L. REV. 2679, 2695 (2003).
The substantial factor test’s role in lowering the plaintiff’s burden of proving causation
has come under significant criticism due to the inherent vagueness of the language and because of
claims that it has imposed additional liability on defendants disproportionate to their actual
contribution to the plaintiff’s injury. Joseph Sanders, Michael D. Williams & William C. Powers,
Jr., Symposium: A Tribute to Professor David Fischer: The Insubstantiality of the “Substantial
Factor” Test for Causation, 73 MO. L. REV. 399 (2008); Gerald W. Boston, Toxic Apportionment:
A Causation and Risk Contribution Model, 25 ENVTL. L.J. 549 (1995).
The Third Restatement of Torts, published in 2003, returned to but-for causation and
removed the substantial factor language, with a separate section imposing liability on defendants
where their conduct was one of multiple sufficient causes. The comments stated that the
“substantial factor” test had not “withstood the test of time, as it has proved confusing and been
misused.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. AND EMOT. HARM, § 26, cmt. J. The
comment backed away from using the substantial factor language to limit liability where the
defendant’s action was not a “substantial” enough cause. It also rejected the use of the substantial
factor language to impose liability where the defendant’s conduct was not a but-for cause, but
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simultaneously recognized the difficulty of uncertain defendant cases. However, it gives courts
the flexibility to “decide, based on the availability of evidence and on policy grounds, to modify
or shift the burden of proof for factual cause” in order to cope with these challenging cases. Id.
The Third Restatement’s approach has had a mixed reception. Federal courts have
applied it in interpreting causation in federal statutes. See, e.g., June v. Union Carbide Corp., 577
F.3d 1234, 1239 (10th Cir. 2009) (interpreting causation in Price-Anderson Act). Several states
have cited it generally for the proposition that but-for causality is the default standard of causality.
See, e.g., Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). However, many states still
use the “substantial factor” analysis in toxic tort cases, without even commenting on the Third
Restatement’s rejection of that language. See, e.g., Betz v. Pneumo Abex LLC, 615 Pa. 504, 524
(2012); Dixon v. Ford Motor Co., 433 Md. 137, 150 (2013).
Judge Calabresi has criticized the Third Restatement approach as being potentially “too
certain.” He asks whether the market share liability doctrine or other creative solutions to recent
problems in tort doctrine would have evolved under the strict but-for test. See Rue, Returning to
the Roots of the Bramble Bush, supra, at 2732. Is the flexibility provided by the inherent
vagueness of the substantial factor test a tool of judicial economy, by giving judges flexibility to
structure new doctrine? Or is it a confusing phrase that leads the law to solve problems best left
to other branches of government?

F. Causation Beyond Torts
Causation is not an issue in torts alone, of course. Courts and legislatures have drawn
heavily on torts principles in developing causation standards in a wide range of fields.

1. The Criminal Law
The paradigmatic example of multiple sufficient causes is captured eloquently by Justice
Antonin Scalia in Burrage v. United States, 134 S. Ct. 881, 890 (2014):
[C]ourts have not always required strict but-for causality, even where criminal
liability is at issue. The most common (though still rare) instance of this occurs
when multiple sufficient causes independently, but concurrently, produce a
result. . . . To illustrate, if “A stabs B, inflicting a fatal wound; while at the same
moment X, acting independently, shoots B in the head . . . also inflicting [a fatal]
wound; and B dies from the combined effects of the two wounds,” A will generally
be liable for homicide even though his conduct was not a but-for cause of B’s death
(since B would have died from X’s actions in any event).
However, the Court does not always deviate from the but-for approach in multiple sufficient
causation cases. Justice Scalia’s opinion in Burrage proceeded to apply the but-for causation test
to a sentencing statute that provided for a higher penalty for drug distribution crimes where death
“results from” the crime. The Court found that the phrase “results from” in the statute required
that the drug offense be a necessary cause of the death and that a defendant convicted of drug

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distribution crimes could not be subjected to the heightened penalty where there were multiple
sufficient causes of the death of the purchaser.
The Court’s Burrage decision seems to recognize the substantial factor approach for
liability purposes but not for sentencing purposes. Does this make sense? More generally, why
construe Congress’s use of the phrase “results from” as applying only to deaths that would not
have happened but-for the relevant crime, rather than as applying to deaths that fall within one of
the causation doctrines that we find in the ordinary law of torts? Justice Scalia cited the “rule of
lenity,” which favors interpreting ambiguous statutes in favor of a criminal defendant.

2. Employment Discrimination
One way courts can mitigate the problem of multiple sufficient causes is to shift the
burden of proof. In Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), the Court held that once a
plaintiff is able to show that discrimination was a motivating factor, the burden shifts to the
defendant to show that the discrimination was not a but-for cause of the employment decision.
Two years later, Congress amended the Civil Rights Act of 1991 such that an employee has to
prove only that discrimination was a “motivating factor” in the discharge decision, a standard that
allows plaintiffs to prevail even if the discriminatory conduct is neither necessary nor sufficient to
the employment decision (Congress limited damages for plaintiffs who could not prove
discrimination was a but-for cause to declaratory judgment, attorney’s fees, and some types of
injunctive relief). Recently, the Court declined to extend either the logic of Price Waterhouse or
of the Civil Rights Act of 1991 to age discrimination claims, ruling that age discrimination
claimants must show that age discrimination was a necessary cause of the adverse employment
decision. Gross v. FBL Fin. Servs., 557 U.S. 161, 167 (2009). Most recently, the Court also
insisted on but-for causation in retaliation claims, which arise when an employee alleges that an
employer has retaliated against an employee due to the filing of a race or gender discrimination
claim. Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013).
What is it about race and gender employment discrimination claims that justifies deviation
from the but-for causation standard? Is it the difficulty of determining the reasons behind a
decision, the evidentiary advantage an employer has over an employee, the public policy
importance of discouraging discrimination, or something else? Do any of these characteristics
change for age discrimination or retaliation claims?

3. Environmental Law
In United States v. NCR Corp, 688 F.3d 833 (7th Cir. 2012), the Environmental Protection
Agency (EPA) required NCR Corporation, one of several polluters, to undertake cleanup efforts.
NCR did so for some time and then stopped, alleging that it had already completed its fair
apportionment of the cleanup effort. The Seventh Circuit held that because each tortfeasor’s acts
were sufficient causes, and because apportionment of blame was therefore impossible, the EPA
had the discretion to command NCR to undertake up to all of the cleanup efforts. In parallel cases
where NCR attempted to recover from the other polluting companies, it failed because other
companies successfully pleaded that NCR was exclusively aware of the significant risks of the
toxic product.
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However, where apportionment is possible, courts may use creative means to arrive at a
numerical division of fault. In Burlington Northern & Santa Fe Ry. v. United States, 556 U.S.
599 (2009), a distributor of a toxic pesticide and a railroad transporting that pesticide were both
found liable for spills in a particular site. The district court apportioned the liability of the railroad
by multiplying together the percentage of land owned by the railroad (19%), the percentage of
time period that the railroad was operating on the site (45%), the percentage of the chemicals
released by the railroad that led to the cleanup effort (66%), and an allowance for calculation
errors (50%), arriving at 9% liability for the railroad. The Ninth Circuit overturned the district
court, finding that because there was no evidence that the size of the land owned or the duration of
pollution were a reliable measure of the harm caused by the parties, the district court did not have
a “reasonable basis” for apportionment. The Supreme Court overturned the Ninth Circuit to hold
that the district court did have a “reasonable basis” for apportionment because its 50% “allowance
for calculation errors” was sufficient to compensate for any underlying errors in the methodology.
From a deterrence perspective, how does agency discretion in spreading cleanup costs
affect the incentives of polluters and the EPA? Is judicial intervention to apportion costs a
reasonable alternative to joint and several liability?

4. Securities Litigation
Securities fraud cases include a requirement of “reliance,” a showing that the fraudulent
statement was the necessary cause of the investor’s purchase of the security. In Basic Inc. v.
Levinson, 485 U.S. 224 (1988), the Court created a rebuttable presumption that any investor relies
on a material fraudulent statement, because investors all buy and sell at a market price which
reflects publicly available information, including the fraudulent statement. Notably, most
securities litigation takes place in class actions. Under Basic’s causation presumption, the
plaintiffs can simply show that the fraudulent statement materially impacted the market price,
which all members in the class were affected by, rather than having to show that each individual
in the class relied on the fraudulent statement. This is a way of making the focus of the case rest
on issues that are common to the class (whether the market price was influenced by the fraudulent
statement) rather than issues specific to each individual within the class. See Amgen Inc. v. Conn.
Ret. Plans & Trust Funds, 133 S. Ct. 1184 (2013).
Why create a presumption of causation in securities fraud cases?
In the different substantive areas discussed above, courts and Congress used different
conceptions of causation. Were there unique features of each substantive area that shaped the
approach to dealing with the general problem of causation?

5. Psychological Conventions around Causation
Our perceptions of causation are shaped by some systematic and surprising quirks of
psychology. For example, people tend to attribute causation to wishes, even when there is no
possible mechanism for causal interaction. One study showed that subjects asked to visualize a
basketball player successfully make a shot before he took it felt that they had caused the player to
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make his shot—even though they had no interaction with the player at any time. Even spectators
watching the person visualize the successful shot agreed that the visualization had caused the
successful shot. This works with harm as well; people believe that if they poke a doll symbolic of
a victim with a needle while wishing ill on the victim, and that victim subsequently reported a
headache, they are the cause of the headache. Emily Pronin, Sylvia Rodriguez, Daniel M. Wegner
& Kimberly McCarthy, Everyday Magical Powers: The Role of Apparent Mental Causation in the
Overestimation of Personal Influence, 91 J. PERSONALITY & SOC. PSYCHOL. 218 (2006). In the
torts context, this means that jurors’ perceptions of the defendant’s wishes for the plaintiff may
influence their perception of whether the defendant caused harm to the plaintiff. People are also
more likely to attribute cause to people they are more focused on. For example, when viewing a
filmed conversation between two people, viewers are more likely to find a particular party caused
the outcome of the conversation if the camera was focused on that party’s face. G. Daniel
Lassiter et al., Illusory Causation: Why It Occurs, 13 PSYCHOL. SCI. 299 (2002). This may mean
that a jury will be more likely to find causation from parties that the jury sees more. Do these
psychological biases make you feel differently about the ability of the torts system to determine
questions of causation? Do you think judges or juries are more likely to commit these kinds of
errors?

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CHAPTER 7. PROXIMATE (“LEGAL”) CAUSE
A. Introduction
In order to recover damages in a negligence suit, the plaintiff must show not only factual
causation, but also something more: what lawyers call “proximate cause” or “legal cause.” The
doctrine of proximate cause stands for the idea that the plaintiff should not be able to recover if
the plaintiff has not shown an appropriate relationship between the negligent act and the harm
complained of, even if the defendant’s negligence has⎯in fact⎯caused the plaintiff’s injury.
Some injuries, courts say, are too remote from the negligence in question to be properly charged
to the defendant’s conduct. Other injuries are not unduly remote, and so are properly attached to
the defendant’s conduct. As you read the following cases, ask yourself how courts distinguish
remote from proximate harms. Is the doctrine of proximate cause different from the foreseeability
dimension that we studied in the negligence analysis in Chapter 4? Given that these are all cases
in which the defendant’s conduct was necessary in producing the plaintiff’s injury, is it
appropriate to call this doctrine a type of “causation” at all? Many jurists have answered no to
both questions. There is no denying that the doctrine of proximate causation has played a
prominent role in torts cases since nearly the beginning of modern tort law. But a lurking
question remains: Why do we have it?
The next case is an old classic. Its outcome no longer reflects current law. Keep that in
mind! But the basic factual set-up offers a crisp illustration of the basic conundrum dealt with by
the doctrine of proximate cause: how far down a chain of cascading harms does a tortfeasor’s
liability extend?

Ryan v. New York Central R.R., 35 N.Y. 210, 215 (1866)
HUNT, J.
On the 15th day of July, 1854, in the city of Syracuse, the defendant, by the careless
management, or through the insufficient condition, of one of its engines, set fire to its woodshed,
and a large quantity of wood therein. The plaintiff’s house, situated at a distance of one hundred
and thirty feet from the shed, soon took fire from the heat and sparks, and was entirely consumed,
notwithstanding diligent efforts were made to save it.
A number of other houses were also burned by the spreading of the fire. The plaintiff
brings this action to recover from the railroad company the value of his building thus destroyed.
The judge at the Circuit nonsuited the plaintiff, and the General Term of the fifth district affirmed
the judgment.
The question may be thus stated: A house in a populous city takes fire, through the
negligence of the owner or his servant; the flames extend to and destroy an adjacent building: Is
the owner of the first building liable to the second owner for the damage sustained by such
burning?

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It is a general principle that every person is liable for the consequences of his own acts.
He is thus liable in damages for the proximate results of his own acts, but not for remote damages.
It is not easy at all times to determine what are proximate and what are remote damages. . . . So if
an engineer upon a steamboat or locomotive, in passing the house of A., so carelessly manages its
machinery that the coals and sparks from its fires fall upon and consume the house of A., the
railroad company or the steamboat proprietors are liable to pay the value of the property thus
destroyed. Thus far the law is settled and the principle is apparent. If, however, the fire
communicates from the house of A. to that of B., and that is destroyed, is the negligent party
liable for his loss? And if it spreads thence to the house of C., and thence to the house of D., and
thence consecutively through the other houses, until it reaches and consumes the house of Z., is
the party liable to pay the damages sustained by these twenty-four sufferers? The counsel for the
plaintiff does not distinctly claim this, and I think it would not be seriously insisted that the
sufferers could recover in such case. Where, then, is the principle upon which A. recovers and Z.
fails? . . .
I . . . place my opinion upon the ground that, in the one case, to wit, the destruction of the
building upon which the sparks were thrown by the negligent act of the party sought to be
charged, the result was to have been anticipated the moment the fire was communicated to the
building; that its destruction was the ordinary and natural result of its being fired. In the second,
third or twenty-fourth case, as supposed, the destruction of the building was not a natural and
expected result of the first firing. That a building upon which sparks and cinders fall should be
destroyed or seriously injured must be expected, but that the fire should spread and other
buildings be consumed, is not a necessary or an usual result. That it is possible, and that it is not
unfrequent, cannot be denied. The result, however, depends, not upon any necessity of a further
communication of the fire, but upon a concurrence of accidental circumstances, such as the degree
of the heat, the state of the atmosphere, the condition and materials of the adjoining structures and
the direction of the wind. These are accidental and varying circumstances. The party has no
control over them, and is not responsible for their effects.
My opinion, therefore, is, that this action cannot be sustained, for the reason that the
damages incurred are not the immediate but the remote result of the negligence of the defendants.
The immediate result was the destruction of their own wood and sheds; beyond that, it was
remote. . . .
To sustain such a claim as the present, and to follow the same to its legitimate
consequences, would subject to a liability against which no prudence could guard, and to meet
which no private fortune would be adequate. Nearly all fires are caused by negligence, in its
extended sense. In a country where wood, coal, gas and oils are universally used, where men are
crowded into cities and villages, where servants are employed, and where children find their home
in all houses, it is impossible that the most vigilant prudence should guard against the occurrence
of accidental or negligent fires. A man may insure his own house or his own furniture, but he
cannot insure his neighbor’s building or furniture, for the reason that he has no interest in them.
To hold that the owner must not only meet his own loss by fire, but that he must guarantee the
security of his neighbors on both sides, and to an unlimited extent, would be to create a liability
which would be the destruction of all civilized society. No community could long exist, under the
operation of such a principle. In a commercial country, each man, to some extent, runs the hazard
of his neighbor’s conduct, and each, by insurance against such hazards, is enabled to obtain a
reasonable security against loss. To neglect such precaution, and to call upon his neighbor, on
whose premises a fire originated, to indemnify him instead, would be to award a punishment quite
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beyond the offense committed. It is to be considered, also, that if the negligent party is liable to
the owner of a remote building thus consumed, he would also be liable to the insurance companies
who should pay losses to such remote owners. The principle of subrogation would entitle the
companies to the benefit of every claim held by the party to whom a loss should be paid. . . .
The remoteness of the damage, in my judgment, forms the true rule on which the question
should be decided, and which prohibits a recovery by the plaintiff in this case.
Judgment should be affirmed.

Notes

1. Rationales for Ryan. Few tort jurists today think that liability ought to be cut off as
sharply as the Ryan court believed. But virtually all observers agree that at some point, where
some point is represented by the letter N, there ought to be a distinction between the first house
and the “Nth” house. But where do we draw the line between proximate and remote damages?
Judge Hunt’s opinion in Ryan offers up a whole laundry list of possible ways to articulate the key
distinction. He talks about ordinariness, nature, expectations, accident, and immediacy. Which of
these rationales, if any, explains the location of the line as the Ryan court sees it?

2. An insurance explanation? One explanation articulated in the Ryan decision for cutting
off liability is that even if none of these doctrinal formulations hold, the plaintiff could have
insured his property against fire. The defendant, by contrast, could not take out a policy on the
plaintiff’s property because in 1866 liability insurance was unavailable on the theory that it was
against public policy. For a long time, liability insurance had been thought to create dangerous
incentives for careless conduct. Some say it still does! Yet not long after Ryan was decided, the
law in most states began to permit liability insurance. Today, it is pervasive.
Today, the law permits people and firms to purchase liability insurance protecting the
policy-holder’s interest in insuring against tort damages judgments. Sometimes, as in automobile
insurance regulations, the law now requires liability insurance. If you have owned a car, you have
almost certainly bought a liability insurance policy yourself. Some of you will have bought
liability insurance as part of an apartment renter’s insurance policy, or perhaps a homeowners’
policy.
If liability insurance had been widespread in 1866, would Ryan have come out the other
way?
Note that today, Ryan is almost certainly not a good statement of the law: Courts today
virtually always draw the line between proximate injuries and remote ones more broadly than
Judge Hunt did. Although never explicitly overruled, Ryan was soon distinguished into oblivion.
In 1872, the New York Court of Appeals held that there was proximate cause where a railroad
negligently started a fire that spread from its own property to the property of others. Webb v.
Rome, W. & O. R. Co., 49 N.Y. 420, 428 (1872) (“We are not to be controlled by the authority
[Ryan] more than we are by that of the long line of cases which preceded it . . .”). Later
interpretations of these two contrary cases in subsequent railroad fire cases have landed firmly on
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the side of Webb, not Ryan. E.g., Frace v. New York, L. E. & W. R. Co., 143 N.Y. 182, 189 (1894)
(“The Ryan case should not be extended beyond the precise facts which appear therein. Even if
correctly applied in that case, the principle ought not to be applied to other facts. See Webb v.
Railroad Co. . . .”).
One further puzzle to consider in conjunction with Ryan is this: If plaintiffs have property
insurance against fire damages, and if defendants have liability insurance against tort damages,
who ought to pay for damages that could be covered by both? Should tort law be involved at all
once there is first-party property insurance? Tort liability in such cases essentially becomes a
battle between or among insurers over which insurer will register the loss. At the extreme, in a
fully insured world, we could imagine tort law becoming a field exclusively occupied by insurers
duking it out over whose bottom line takes a hit when losses from fire spread through a town like
Syracuse. We will take up this insurance question at greater length in Chapter 10 when we look at
the law of damages in torts. For now, suffice it to say that the relevant doctrines here are: (a) the
so-called “collateral source rule,” which holds that the damages owed by a tortfeasor to a plaintiff
are not affected by compensation received by that plaintiff from a third (or “collateral”) source,
and (b) the doctrine of subrogation, which allows an insurer to step into the shoes of its insured
and prosecute a tort claim against a defendant who breached a duty to the insurer’s insured. Does
it make sense to allow tort suits under these conditions? What if it means that tort law’s
administrative expenses are spent on battles among insurers?
3. PG&E and the New Fire Cases. In November 2018, the deadliest wildfire in California’s
history, the “Camp Fire,” killed eighty-six people and destroyed approximately fourteen thousand
buildings. Lawsuits currently proceeding against utility company Pacific Gas and Electric
(PG&E) identify PG&E power lines as the origin of the fire. PG&E, facing the possibility of
billions of dollars in liability, filed for bankruptcy in January 2019. See Ariel Cohen, Part I:
PG&E Gets Burned for California Wildfires, Forbes (Feb. 7, 2019). If California operated under
the Ryan rule, the issue of proximate causation would prevent such extended liability. California
courts, however, have expressly declined to follow the decision in Ryan, leaving it to the jury to
draw the line for proximate causation on a case-by-case basis. See Butcher v. Vaca Val. R. Co., 8
P. 174, 175 (Cal. 1885) (quoting Henry v. S. Pac. R. Co., 50 Cal. 176, 183 (1875))
(“[C]onsidering the long dry season of California and the prevalence of certain winds in our
valleys, . . . it may be left to a jury to determine whether the spreading of a fire from one field to
another is not the natural, direct, or proximate consequence of the original firing.”).
Note that it is possible PG&E will be held liable for the wildfire even if it was not
negligent due to California’s “inverse condemnation” theory. Under the inverse condemnation
theory, a privately-owned public utility company may be held strictly liable for wildfire injuries
caused by its power lines, essentially on the grounds that such injuries are a kind of taking by an
official body for which just compensation is required. See, e.g., Barham v. S. Cal. Edison Co., 88
Cal. Rptr. 2d 424 (Ct. App. 1999). This is true regardless of whether the injury was foreseeable,
so long as it constitutes an “actual physical injury to real property proximately caused by [a
public] improvement as deliberately designed and constructed.” Id. at 429 (quoting Albers v. Los
Angeles Cty., 398 P.2d 129 (Cal. 1965) (en banc)). Note that the court in this sentence seems to
suggesting that there could be unforeseeable injuries that are nonetheless proximately caused.
Inverse condemnation principles might not be needed for PG&E to be held liable in this
case. It seems likely that PG&E could have foreseen a devastating fire caused by its power lines
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given its role in five out of ten of California’s most destructive fires since 2015. Commentators
have suggested moreover that PG&E may have had a lax attitude toward fire safety in comparison
with other public utility companies such as San Diego Gas & Electric. See Ivan Penn et al., How
PG&E Ignored Fire Risks in Favor of Profits, N.Y. TIMES, Mar. 18, 2019. Non-compliance with
statutes regulating the amount of space between vegetation and powerlines could also provide
evidence of negligence. See, e.g., CAL. PUB. RES. CODE § 4292 (requiring the removal of tree
limbs within a ten-foot radius of a utility pole); Id. § 4293 (requiring a different radius of
clearance depending on the voltage running through the power lines).
Meanwhile, PG&E’s liability is expected to increase the price of electricity for consumers
and hamper the long-term climate change agenda of California by reducing PG&E investments in
cleaner energy. See Sammy Roth, PG&E Files for Bankruptcy: Here’s Why that Could Mean
Bigger Electricity Bills, L.A. TIMES, Jan. 29, 2019. Bankruptcy proceedings may also reduce the
recovery of plaintiffs as they compete with other creditors for PG&E’s assets.
Needless to say, the law has come a long way since Ryan cut off liability at the first house.
Nonetheless, 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
this general point.

Berry v. Sugar Notch Borough, 43 A. 240 (Pa. 1899)
The plaintiff was a motorman in the employ of the Wilkesbarre & Wyoming Valley
Traction Company, on its line running from Wilkesbarre to the borough of Sugar Notch. The
ordinance by virtue of which the company was permitted to lay its track and operate its cars in the
borough of Sugar Notch contained a provision that the speed of the cars while on the streets of the
borough should not exceed eight miles an hour. On the line of the road, and within the borough
limits, there was a large chestnut tree, as to the condition of which there was some dispute at the
trial. . . . On the day of the accident the plaintiff was running his car on the borough street in a
violent windstorm, and as he passed under the tree it was blown down, crushing the roof of the
car, and causing the plaintiff’s injury. There is some conflict of testimony as to the speed at
which the car was running, but it seems to be fairly well established that it was considerably in
excess of the rate permitted by the borough ordinance. We do not think that the fact that the
plaintiff was running his car at a higher rate of speed than eight miles an hour affects his right to
recover. It may be that in doing so he violated the ordinance by virtue of which the company was
permitted to operate its cars in the streets of the borough, but he certainly was not, for that reason,
without rights upon the streets. Nor can it be said that the speed was the cause of the accident, or
contributed to it. It might have been otherwise if the tree had fallen before the car reached it, for
in that case a high rate of speed might have rendered it impossible for the plaintiff to avoid a
collision which he either foresaw or should have foreseen. . . . The testimony, however, shows
that the tree fell upon the car as it passed beneath. With this phase of the case in view, it was
urged on behalf of the appellant that the speed was the immediate cause of the plaintiff’s injury,
inasmuch as it was the particular speed at which he was running which brought the car to the
place of the accident at the moment when the tree blew down. This argument, while we cannot
deny its ingenuity, strikes us, to say the least, as being somewhat sophistical. That his speed
brought him to the place of the accident at the moment of the accident was the merest chance, and
a thing which no foresight could have predicted. . . .
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The judgment is affirmed.

Note

1. What principle does Berry v. Borough of Sugar Notch stand for? Guido Calabresi calls it
the principle of “causal link”: negligent conduct is only linked to the harm at issue in the relevant
way, Calabresi argues, if it increases the risk of that harm. Tort actions, in other words, do not lie
in cases of pure coincidence.

B. Unexpected Harm
Benn v. Thomas, 512 N.W.2d 537 (Iowa 1994)
On February 15, 1989, on an icy road in Missouri, a semi-tractor and trailer rear-ended a
van in which Loras J. Benn was a passenger. In the accident, Loras suffered a bruised chest and a
fractured ankle. Six days later he died of a heart attack. . . .
At trial, the estate’s medical expert, Dr. James E. Davia, testified that Loras had a history
of coronary disease and insulin-dependent diabetes. Loras had a heart attack in 1985 and was at
risk of having another. Dr. Davia testified that he viewed “the accident that [Loras] was in and
the attendant problems that it cause[d] in the body as the straw that broke the camel’s back” and
the cause of Loras’s death. Other medical evidence indicated the accident did not cause his death.
Based on Dr. Davia’s testimony, the estate requested an instruction to the jury based on
the “eggshell plaintiff” rule, which requires the defendant to take his plaintiff as he finds him,
even if that means that the defendant must compensate the plaintiff for harm an ordinary person
would not have suffered. . . . The district court denied this request.
The jury returned a verdict for the estate in the amount of $17,000 for Loras’s injuries but
nothing for his death. In the special verdict, the jury determined the defendant’s negligence in
connection with the accident did not proximately cause Loras’s death. . . .
The estate claims that the court erred in failing to include, in addition to its proximate
cause instruction to the jury, a requested instruction on the eggshell plaintiff rule. Such an
instruction would advise the jury that it could find that the accident aggravated Loras’s heart
condition and caused his fatal heart attack. . . .
A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury
may be liable in damages for the full disability. . . . This rule deems the injury, and not the
dormant condition, the proximate cause of the plaintiff’s harm. . . . This precept is often referred
to as the “eggshell plaintiff” rule, which has its roots in cases such as Dulieu v. White & Sons,
[1901] 2 K.B. 669, 679, where the court observed:
If a man is negligently run over or otherwise negligently injured in his body, it is no
answer to the sufferer’s claim for damages that he would have suffered less injury,
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or no injury at all, if he had not had an unusually thin skull or an unusually weak
heart.
...
The eggshell plaintiff rule rejects the limit of foreseeability that courts ordinarily require
in the determination of proximate cause. PROSSER & KEETON § 43, at 291 (“The defendant is held
liable for unusual results of personal injuries which are regarded as unforeseeable. . . .”). Once
the plaintiff establishes that the defendant caused some injury to the plaintiff, the rule imposes
liability for the full extent of those injuries, not merely those that were foreseeable to the
defendant. RESTATEMENT (SECOND) OF TORTS § 461 (1965) (“The negligent actor is subject to
liability for harm to another although a physical condition of the other . . . makes the injury
greater than that which the actor as a reasonable man should have foreseen as a probable result of
his conduct.”).
[The court reversed the judgment of the trial court and remanded the case for a new trial.]

Notes

1. Eggshell skulls. Why not treat Mr. Benn like the plaintiff in Ryan? There are strong
arguments for doing so. Among other things, note that the so-called “eggshell plaintiff” rule,
which holds that the defendant takes the plaintiff as she finds him, means that unforeseeably
valuable limbs or lives will produce unexpectedly large damages. Driving negligently in such a
way as to break tennis champion Venus Williams’s right arm, or to injure one of virtuoso cellist
Yo Yo Ma’s hands, for example, will produce far greater damages than, say, running into law
professor John Witt’s shoulder. But the rule of Benn v. Thomas holds the defendant liable for the
damages to the plaintiff the defendant happens to find⎯even if there was no notice of the special
risks in question. Should people with special vulnerabilities be required to insure themselves
against losses⎯or perhaps to take special precautions against those losses? Should it matter if the
unusual vulnerability is the result of an unusually valuable asset (Williams’s arm, Ma’s hand, etc.)
as opposed to an unusual liability like an eggshell skull?
Arguments in favor of the eggshell plaintiff rule do exist. Consider what would happen if
the law put the burden of unexpected harm on plaintiffs like Mr. Benn, rather than on defendants
like Thomas. What would the measure of damages be? Note that the risk of unexpectedly high
damages in eggshell skull plaintiff cases is matched by opportunities for unexpectedly low
damages when defendants turn out to be unforeseeably robust or when their damages turn out, for
whatever reason, to be unusually low.

2. Whence the vulnerability? Does it make a difference whether Mr. Benn had an underlying
heart condition because of a congenital defect, because of poor health habits of his own, or
because of prior conduct by a third party? What about prior negligent conduct by a third party?

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3. The bounds of eggshell liability. How far in time does the eggshell skull plaintiff rule
extend? In Hannebaum v. Direnzo & Bomier, a woman slipped and fell in the defendant’s
building. Four years later, she was diagnosed with multiple sclerosis and sued the defendant
claiming that her fall was a precipitating factor of the M.S. The court held that the defendants
were entitled to argue to the jury that the plaintiff would have acquired multiple sclerosis even in
the absence of the fall, but that the plaintiff was also entitled to argue to the jury that that the fall
precipitated the onset of the disease. Hannebaum v. Direnzo & Bomier, 162 Wis. 2d 488, 493 (Ct.
App. 1991). Is there a time lag so large that such cases should not go to the jury? Is it four years,
fourteen years, or forty years?

4. Eggshell property? Should the eggshell rule apply to property damage as well as personal
injury cases? On the one hand, the logic of the personal injury cases plausibly translates to cases
of property damage. Just as defendants get the benefit of unforeseeably sturdy properties, we
might conclude that they ought to be required to pay full damages for unforeseeably delicate
properties. On the other hand, the eggshell rule sometimes shifts costs away from lowest cost
avoiders. This is true for personal injury cases, too, but in general prospective plaintiffs may be
better able to cure underlying vulnerabilities in their property than in their bodies. Moreover,
property liability is unbounded in a way that liability for personal injury is not. Damages for
destruction of, say, the tower at One World Trade Center because of some structural vulnerability
would produce damages in the billions. (It cost $4 billion to build.)
Whatever the merits of the question, the eggshell plaintiff rule has been held to apply not
only to bodies but also to property. The Third Restatement provides that “When harm to property
is of a greater magnitude or different type than might be expected because of a characteristic of
the property, the harm is within the scope of the actor’s liability.” RESTATEMENT (THIRD) OF
TORTS: LIAB. FOR PHYS. AND EMOT. HARM, § 31 cmt. d (2010). One case illustrating this principle
involved a defendant who drove his car into the plaintiff’s motel and, in so doing, dented an air
conditioning unit in such a way as to cause a gas leak and ultimately an explosion. The court held
the defendant liable for all damages resulting from the building’s having exploded and invoked
the eggshell plaintiff rule in its explanation. Colonial Inn Motor Lodge, Inc. v. Gay, 680 N.E.2d
407, 416 (Ill. App. Ct. 1997) (“[T]he evidence suggests that a building rather than a person may
have had an ‘eggshell skull.’”). The Supreme Court of New South Wales in Australia similarly
applies the eggshell rule to property, holding “there is no justification” for distinguishing between
personal injury and property damage and any such distinction would generate “immense practical
difficulty.” McColl v Dionisatos, [2002] NSWSC 276.
Applying the eggshell plaintiff rule to property opens up the prospect of radically
unforeseeable damages. Note that this problem will often be ameliorated by findings of
comparative or contributory negligence. Any skyscraper that collapses because of a negligently
dented air conditioner is likely to have been negligently maintained or constructed. At least one
commentator suggests that the thin skull rule does not apply to damage to property in part because
it tends to conflict with the doctrine of foreseeability. See P. J. Rowe, Demise of the Thin Skull
Rule, 40 MODERN L. REV. 377, 381-82 (1977). The substantial weight of the authority is to the
contrary, but one wonders. We’ll return to this question below in our discussion of the opinions
in The Wagon Mound Cases.
Is the next case simply an eggshell property case?
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In re Polemis, 3. K.B. 560 (1921)
[Plaintiffs, the owners of a ship, chartered a ship to defendants, the charterers, by contract.
The contract stated that the charterers would not be liable for damages caused by “[an] act of God,
the King’s enemies, [or] loss or damage from fire on board in hulk of craft, or on shore . . . .”
Under the control of the charterers, the ship docked in Casablanca and was unloaded by local
stevedores. The ship was carrying large quantities of petrol and benzene in the lower hold. As
stevedores were unloading the ship, one stevedore accidentally dropped a plank into the hold.
The plank struck the hold and created a spark, which in turn ignited the petrol and benzene, and
set the ship ablaze. Plaintiffs sued the defendants for the value of the vessel. After arbitration,
where the plaintiffs prevailed, a lower court upheld the arbitration award. Defendants appealed.]
BANKES, L.J.
In the present case the arbitrators have found as a fact that the falling of the plank was due
to the negligence of the defendants’ servants. The fire appears to me to have been directly caused
by the falling of the plank. Under these circumstances I consider that it is immaterial that the
causing of the spark by the falling of the plank could not have been reasonably anticipated. The
appellants’ junior counsel sought to draw a distinction between the anticipation of the extent of
damage resulting from a negligent act, and the anticipation of the type of damage resulting from
such an act. He admitted that it could not lie in the mouth of a person whose negligent act had
caused damage to say that he could not reasonably have foreseen the extent of the damage, but he
contended that the negligent person was entitled to rely upon the fact that he could not reasonably
have anticipated the type of damage which resulted from his negligent act. I do not think that the
distinction can be admitted. Given the breach of duty which constitutes the negligence, and given
the damage as a direct result of that negligence, the anticipations of the person whose negligent
act has produced the damage appear to me to be irrelevant. I consider that the damages claimed
are not too remote.
The other point relied upon by the appellants was that the damage having been caused by
fire they were protected by clause 21 of the charterparty [governing loss by fire]. To this it was
replied that the clause had no application in the case of a fire caused by the negligence of the
charterers’ servants. I see no reason why a different rule of construction of this exception
contained in the charterparty should be adopted in the case of the charterer than would
undoubtedly be adopted in the case of the shipowner. In the case of the latter clear words would
be required excluding negligence. No such words are found in this clause. Neither shipowner nor
charterer can, in my opinion, under this clause claim to be protected against the consequences of
his own negligence.
For these reasons I think that the appeal fails, and must be dismissed with costs.
WARRINGTON, L.J.
[I]t is contended that “a person guilty of negligence is not responsible in respect of
mischief which could by no possibility have been foreseen and which no reasonable person would
have anticipated.” . . .
The result may be summarised as follows: The presence or absence of reasonable
anticipation of damage determines the legal quality of the act as negligent or innocent. If it be
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thus determined to be negligent, then the question whether particular damages are recoverable
depends only on the answer to the question whether they are the direct consequence of the act. . . .
[B]ut when it has been once determined that there is evidence of negligence, the person guilty of it
is equally liable for its consequences, whether he could have foreseen them or not.” . . . In the
present case it is clear that the act causing the plank to fall was in law a negligent act, because
some damage to the ship might reasonably be anticipated. If this is so then the appellants are
liable for the actual loss, that being on the findings of the arbitrators the direct result of the falling
board. . . . On the whole in my opinion the appeal fails and must be dismissed with costs.
SCRUTTON, L.J.
. . . I cannot think it useful to say the damage must be the natural and probable result.
This suggests that there are results which are natural but not probable, and other results which are
probable but not natural. I am not sure what either adjective means in this connection; if they
mean the same thing, two need not be used; if they mean different things, the difference between
them should be defined. . . . In this case, however, the problem is simpler. To determine whether
an act is negligent, it is relevant to determine whether any reasonable person would foresee that
the act would cause damage; if he would not, the act is not negligent. But if the act would or
might probably cause damage, the fact that the damage it in fact causes is not the exact kind of
damage one would expect is immaterial, so long as the damage is in fact directly traceable to the
negligent act, and not due to the operation of independent causes having no connection with the
negligent act, except that they could not avoid its results. . . . In the present case it was negligent
in discharging cargo to knock down the planks of the temporary staging, for they might easily
cause some damage either to workmen, or cargo, or the ship. The fact that they did directly
produce an unexpected result, a spark in an atmosphere of petrol vapour which caused a fire, does
not relieve the person who was negligent from the damage which his negligent act directly caused.
For these reasons the experienced arbitrators and the judge appealed from came, in my opinion, to
a correct decision, and the appeal must be dismissed with costs.

Notes

1. Directness? All three judges agree that the foreseeability of harm affects only the
assessment of negligence, not whether the defendant is liable for the full extent of damages—at
least of damages that are “direct” consequences.
Does this “directness” language actually clarify the standard? We can add directness to
the list of formulations offered in the Ryan case. Does it help clarify matters in Scott v. Shepherd
a hundred and fifty years earlier?

2. Unexpected types? What about the suggestion of appellant’s junior counsel? The
argument, as recounted and then rejected in the opinion, was that when the damages are of a
different type than might reasonably have been expected, such damages are remote. Is this a
sound distinction?

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The Wagon Mound Cases
The Polemis rule soon ran aground off the coast of Australia in the Wagon Mound Cases.
These were two independent lawsuits arising out of the same incident in a port near Sydney,
Australia. The incident began when a ship, the Wagon Mound, took on furnace oil as cargo in
Mort Bay. One of the hatches to the Wagon Mound’s tank was left open as the tank was filling
with furnace oil, causing oil to spill out of the ship and float on the surface of Mort Bay. After
taking on the furnace oil, the Wagon Mound left the bay. At the same time in another part of the
bay, two other ships, the Corrimal and the Audrey D., were being refitted by Mort’s Dock and
Engineering Company. The refitting involved significant welding by the Mort’s Dock engineers.
Upon seeing the spill, the works manager of Mort’s Dock, Mr. Parkin, telephoned an agent of the
Wagon Mound, Mr. Durack. Mr. Durack assured Mr. Parkin that normal work could safely
continue. Two and a half days later, the welding work ignited the oil, causing a large fire. The
fire damaged the Mort Dock and both ships being refitted. In Wagon Mound (No. 1), Mort’s
Dock sued the Wagon Mound for damage to the dock. In Wagon Mound (No. 2), the owners of
the Corrimal and the Audrey D. sued the Wagon Mound for damage to their ships.

Wagon Mound (No. 1)
Overseas Tankship (U.K.) Ltd. v. Morts Dock & Eng. Co., [1961] A.C. 454
[Plaintiff brings suit for damage to the dock caused by a fire from the ignition of oil
negligently discharged by Defendant’s ship, the Wagon Mound. Plaintiff prevailed at trial, and
Defendants appealed.]
[The lower court judge] made the all important finding, which must be set out in his own
words. “The raison d’être of furnace oil is, of course, that it shall burn, but I find the defendant
did not know and could not reasonably be expected to have known that it was capable of being set
afire when spread on water.” . . .
The learned Judge held that apart from damage by fire the respondents had suffered some
damage from the spillage of oil in that it had got upon their slipways and congealed upon them
and interfered with their use of the slips. He said “The evidence of this damage is slight and no
claim for compensation is made in respect of it. Nevertheless it does establish some damage
which may be insignificant in comparison with the magnitude of the damage by fire, but which
nevertheless is damage which beyond question was a direct result of the escape of the oil.” It is
upon this footing that their Lordships will consider the question whether the appellants are liable
for the fire damage.
. . . It is inevitable that first consideration should be given to the case of In re Polemis . . .
. For it was avowedly in deference to that decision and to decisions of the Court of Appeal that
followed it that [lower court] was constrained to decide the present case in favour of the
respondents. . . .
There can be no doubt that the decision of the Court of Appeal in Polemis plainly asserts
that, if the defendant is guilty of negligence, he is responsible for all the consequences whether
reasonably foreseeable or not. The generality of the proposition is perhaps qualified by the fact
that each of the Lords Justices refers to the outbreak of fire as the direct result of the negligent act.
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There is thus introduced the conception that the negligent actor is not responsible for
consequences which are not “direct” whatever that may mean. . . .
[A review of the subsequent history of the Polemis rule shows that the] authority of
Polemis has been severely shaken though lip-service has from time to time been paid to it. In
their Lordships’ opinion it should no longer be regarded as good law. . . . For it does not seem
consonant with current ideas of justice or morality that for an act of negligence, however slight or
venial, which results in some trivial foreseeable damage the actor should be liable for all
consequences however unforeseeable and however grave, so long as they can be said to be
“direct.” It is a principle of civil liability, subject only to qualifications which have no present
relevance, that a man must be considered to be responsible for the probable consequences of his
act. To demand more of him is too harsh a rule, to demand less is to ignore that civilised order
requires the observance of a minimum standard of behaviour. . . .
After the event even a fool is wise. But it is not the hindsight of a fool; it is the foresight
of the reasonable man which alone can determine responsibility. The Polemis rule by substituting
“direct” for “reasonably foreseeable” consequence leads to a conclusion equally illogical and
unjust. . . .
[I]f it would be wrong that a man should be held liable for damage unpredictable by a
reasonable man because it was “direct” or “natural,” equally it would be wrong that he should
escape liability, however “indirect” the damage, if he foresaw or could reasonably foresee the
intervening events which led to its being done. Thus foreseeability becomes the effective test. In
reasserting this principle their Lordships conceive that they do not depart from, but follow and
develop, the law of negligence . . . .
Their Lordships will humbly advise Her Majesty that this appeal should be allowed and
the respondents’ action so far as it related to damage caused by the negligence of the appellants be
dismissed with costs . . .

Wagon Mound (No. 2)
Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co., [1966] 1 A.C. 617
[Plaintiff, owner of vessels undergoing repair in the Mort Bay, brings suit against
Defendant, owner of the Wagon Mound, for damage caused to vessels in the same fire at issue in
Wagon Mound No. 1. The lower court found that Defendant was not liable under negligence
claims, but was liable under nuisance claims. Defendants appealed.]
In The Wagon Mound (No. 1) the finding on which the Board proceeded was that of the
trial judge: “the defendant did not know and could not reasonably be expected to have known that
[the oil] was capable of being set afire when spread on water.” In the present case the evidence
led was substantially different from the evidence led in The Wagon Mound (No. 1) and the
findings of Walsh J. are significantly different. That is not due to there having been any failure by
the plaintiffs in The Wagon Mound (No. 1) in preparing and presenting their case. The plaintiffs
there were no doubt embarrassed by a difficulty which does not affect the present plaintiffs. The
outbreak of the fire was consequent on the act of the manager of the plaintiffs in The Wagon
Mound (No. 1) in resuming oxy-acetylene welding and cutting while the wharf was surrounded by
this oil. So if the plaintiffs in the former case had set out to prove that it was foreseeable by the
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engineers of the Wagon Mound that this oil could be set alight, they might have had difficulty in
parrying the reply that this must also have been foreseeable by their manager. Then there would
have been contributory negligence and at that time contributory negligence was a complete
defence in New South Wales. . . .
[H]ere the findings show that some risk of fire would have been present to the mind of a
reasonable man in the shoes of the ship’s chief engineer. . . .
[A] properly qualified and alert chief engineer would have realised there was a real risk
here . . . . If a real risk is one which would occur to the mind of a reasonable man in the position
of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion
is to be what that reasonable man would have done in the circumstances, then surely he would not
neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and
required no expense.
In the present case the evidence shows that the discharge of so much oil onto the water
must have taken a considerable time, and a vigilant ship’s engineer would have noticed the
discharge at an early stage. The findings show that he ought to have known that it is possible to
ignite this kind of oil on water, and that the ship’s engineer probably ought to have known that
this had in fact happened before. . . .
Accordingly, their Lordships will humbly advise Her Majesty that the appeal and the
cross-appeal should be allowed and that the judgment for the respondents in the sums of £80,000
and £1,000 should be affirmed.

Notes
1. Foreseeability? The Wagon Mound Cases adds “foreseeability” as an alternative
doctrinal formula in our now quickly growing catalog of doctrinal formulations for the proximate
cause inquiry. Does foreseeability compare favorably with the directness test of Polemis? Does it
clarify the doctrine? The fact that the lower courts in the Wagon Mound Cases disagree on the
reasonable foreseeability of the fire is not promising.
One problem is that the foreseeability standard does not specify anything about the level
of generality at which the foreseeability inquiry is to be pitched. If the question is pitched
abstractly as whether harm to the vessel in the Polemis case, for example, is a reasonably
foreseeable result of the dropping of the board into the hull, the answer is obviously yes. But if
the question is more particular—if instead we ask whether the destruction by fire of the vessel is a
reasonably foreseeable result of dropping the board into the hull—the answer may be no. The
entire foreseeability inquiry turns on the level of generality of the analysis.
Stunningly, there is very little law on the question of the appropriate level of generality. It
is commonly said that the particularities of the harm in question need not be reasonably
foreseeable; nor does the law require that the particular manner in which it came about be
reasonably foreseeable. See, e.g., Kirlin v. Halerson, 758 N.W.2d 436, 451 (S.D. 2008) (“[T]he
exact harm need not be foreseeable. Rather, the harm need only be within the class of reasonably
foreseeable hazards that the duty exists to prevent.”). Thus, in California “it is settled that what is
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required to be foreseeable is the general character of the event or harm—e.g., being struck by a
car while standing in a phone booth—not its precise nature or manner of occurrence.” Bigbee v.
Pacific Tel. & Telegraph Co., 665 P.2d 947, 952 (Cal. 1983). But courts dismissing tort claims
for lack of foreseeability often seem to characterize the inquiry in much more particularized
fashion. Thus, for example, in Mussivand v. David, 544 N.E.2d 265, 272 (Ohio 1989), the Ohio
Supreme Court explained that foreseeability in that case turned on whether it was reasonably
foreseeable to the defendant paramour not that his venereal disease might cause harm to another,
nor even that his lover might pass on the defendant’s undisclosed venereal disease to a third party,
but that she might pass on the disease to her spouse in particular. In California, the state Supreme
Court has suggested that even though foreseeability need only be general, foreseeability in the
proximate causation inquiry nonetheless requires a “focused, fact-specific inquiry.” Ballard v.
Uribe, 715 P.2d 624, 628 n.6 (Cal., 1986). In Laabs v. S. Cal. Edison Co., 97 Cal. Rptr. 3d 241,
251 (Ct. App. 2009), the California Court of Appeal conceded that the foreseeability inquiry
ought to take place at some sort of a general level, but concluded nonetheless that the question
before it was whether it was reasonably foreseeable to the defendant when it erected its roadside
telephone pole that vehicles might leave “a roadway where vehicle speeds commonly reach 62
miles per hour or more and strik[e] a fixed concrete light pole placed 18 inches away from the
curb.”
On the oscillation in levels of generality in the caselaw, see generally Jonathan Cardi, The
Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm, 91 B.U. L. REV. 1873, 1885-86
(2011).

2. Functional considerations. One of the puzzles of the two Wagon Mound cases is to figure
out why the trial courts came to different conclusions about the foreseeability of fire from the
furnace oil on the water.
Former dean of the University of Chicago Law School and torts scholar Saul Levmore
attempts to resolve the tension between the two Wagon Mound cases by looking at pragmatic
reasons to treat the cases differently:
[T]he first Wagon Mound case concerns a plaintiff that is contributorily negligent
[at a time before courts in Australia recognized comparative negligence]⎯but also
a defendant that is posed to escape the scene with no liability at all. In such a
situation, the moral might be, clever courts will nevertheless allow contributory
negligence to apply so long as they see other cases on the horizon with which to
deter the first wrongdoer. Mort’s Dock fails to recover because it was likely
careless, and the Wagon Mound is made to pay in No. 2 in order to prevent it from
going completely free. But the important thing is to see that the Wagon Mound
cases involve multiple parties, multiple losses, and very likely, an informed and
sophisticated court that was able to make the entire story⎯spread out over multiple
cases including one that might be filed later on⎯come out right. Taken one at a
time, the cases seem inconsistent, but viewed as a whole and in the context of the
overall goals of the tort system, the results are quite elegant.
Saul Levmore, The Wagon Mound Cases: Foreseeability, Causation, and Mrs. Palsgraf, in TORTS
STORIES, 129, 146-47 (Robert L. Rabin & Stephen D. Sugarman eds., 2003).
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Levmore’s explanation is striking for its disavowal of the significance of doctrine, at least
in the proximate causation area. What matters, Levmore suggests, is not the verbal formulation
adopted (direct, foreseeable, etc.) but the purposes and functions of tort liability in the particular
context at issue. If the formal doctrine is not helpful in resolving cases, then do judges have any
alternative but to rely on functional or practical considerations in making decisions? What should
those functional considerations be? Note that if Levmore is correct, this is an example of a
situation where judges made their decisions based on considerations not openly discussed in their
opinion. Writing when he was a professor, Judge Calabresi suggested in the last chapter that this
was commonplace and not necessarily a bad thing. Was he right?

3. Unexpected types of harm? Some cases involve harm to the plaintiff that was in some
way different than the harm that might have been expected to be caused by the defendant’s
negligence. In Doughty v. Turner Manufacturing Co., an employee was injured when an asbestos
cement cover inadvertently slid into a cauldron of boiling sodium cyanide. The cement cover
sunk into the cauldron, submerged, and then exploded out the cauldron due to an unexpected
chemical reaction, shooting shards of asbestos cement across the room and injuring the plaintiff.
The trial judge ruled for the plaintiff on the grounds that it was negligent for the employer to let
the cement cover fall into the cauldron because it might have splashed the employee and that the
employer was liable for all the consequences of his negligent act (including the unexpected
explosion). The appellate court reversed, holding that splashes are in “quite a different category”
than the unforeseeable explosion. Doughty v. Turner Manufacturing Co., [1964] 1 Q.B. 518.
The courts reached a different conclusion in Hughes v. Lord Advocate. In that case,
workers repairing underground wires left an open manhole unattended. They covered the
manhole with a tent and left lighted lamps around the tent as a warning. A boy entered the tent
and knocked one of the lamps into the hole. The lamp exploded, causing serious burns. The
defendant argued that it should only be held liable for the damage that might have been expected
from the negligent act—burning from the lamps, not an unforeseeable explosion. The court
disagreed, holding that “the distinction drawn between burning and explosion is too fine to
warrant acceptance.” Hughes v. Lord Advocate, [1963] A.C. 837. Should the “type” of harm
matter?
Other cases deal with unexpected harms where the surprise comes not from a new
chemical reaction but rather from an unexpected vulnerability of the plaintiff. In Smith v. Brain
Leech & Co., the plaintiff was injured in a workplace accident when a fleck of molten metal hit
him on the lip. The injury ultimately became cancerous, likely because the plaintiff had worked
in the gas industry for many years and was thus prone to cancer (by the court’s reasoning). The
defendant argued that it should be liable only for the burn, and not the cancer, because it was not
the true cause of the cancer. The court held otherwise:
The test is not whether these employers could reasonably have foreseen that a burn
would cause cancer and that he would die. The question is whether these employers
could reasonably foresee the type of injury he suffered, namely, the burn. What, in
the particular case, is the amount of damage which he suffers as a result of that burn,
depends upon the characteristics and constitution of the victim. . . . Accordingly, I
find that the [full damages of the plaintiff’s death] are damages for which the
defendants are liable.
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Smith v. Brain Leech & Co., [1962] Q.B. 405.
Judge Henry Friendly reached a slightly different conclusion when faced with a similar
vulnerable plaintiff case. In Steinhauser v. Hertz Corp., the plaintiff was injured in a car accident.
Shortly after the accident, she became schizophrenic. At trial, the expert testimony indicated that
while the plaintiff had pre-psychotic tendencies before the accident, the accident was the
triggering event that pushed her into full-blown schizophrenia. Judge Friendly held that while the
plaintiffs were allowed to recover based on a triggering event theory of causation, that argument
would in fact affect the damages they could receive. He wrote, “if a defendant ‘succeeds in
establishing that the plaintiff’s pre-existing condition was bound to worsen an appropriate
discount should be made for the damages that would have been suffered even in the absence of
the defendant’s negligence.’” Steinhauser v. Hertz Corp., 421 F.2d 1169, 1173–74 (2d Cir. 1970).
If we agree that eggshell skull plaintiffs should be able to recover, what is the appropriate
measure of damages? Should courts attempt to calculate the probability that some other event
might have triggered the plaintiff’s underlying vulnerability? Over what time horizon should the
court run this calculation?

4. Eggshell Property Revisited. Does the decision in Wagon Mound I cut against the
applicability of the eggshell plaintiff rule to property damages? At least in cases with two
different “types” of property damage? One commentator thought the decision in Wagon Mound I
might prompt a narrower eggshell plaintiff rule:
Whether the special sensitivity rule must be discarded since The Wagon Mound, or
whether it survives that decision, will have to be judicially determined. If it survives,
what are its limits? Is it a rule relating only to special sensitivity of the person, or does it
extend to special sensitivity of property? . . .
It seems obvious that . . . the thin skull rule must either be denied or carefully restricted.
The most obvious way of restricting it would be to confine it to injury to the person . . . .
Glanville Williams, The Risk Principle,77 L. Q. REV. 179, 194-95 (1961). Note that the
Steinhauser decision suggests that there may be limits on the eggshell plaintiff rule in personal
injury cases, too, at least where the injuries in question are sufficiently unusual.
5. The “harm within the risk” test. Imagine that an exterminator leaves a container of rat
poison unlabeled near a stove. Imagine further that it was wrongful or negligent to have done so
because the poison might find its way into food. Then, when the stove is lit, the container of rat
poison explodes. Is the defendant liable for the burns suffered by the chef? See Larrimore v.
American National Ins. Co., 89 P.2d 340 (Okla. 1939). The conventional answer is no: the
negligence in question inhered in the risk of poisoning, not the risk of exploding.
One way to explain this is to say that the harm of which the plaintiff complains must be
within the risk the defendant’s wrongful conduct produced. Indeed, for a century leading jurists
have offered this “harm within the risk” principle as a way to explain the limits of liability. See
Joseph Bingham, Some Suggestions Concerning “Legal Cause” at Common Law (Pt. 1), 9
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COLUM. L. REV. 16 (1909). Given the awkwardness of alternative tests such as directness and
foreseeability, many have hoped that harm-within-the-risk might offer a substitute test for
proximate causation. The Third Restatement asks “whether there is an intuitive relationship
between the act(s) alleged and the damages at issue (that is, whether the conduct was wrongful
because that type of damage might result).” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS.
AND EMOT. HARM, § 29 (2010).
Not everyone is persuaded that the harm within the risk approach is a useful alternative to
other proximate causation tests. For example, does the harm within the risk test solve the problem
of the choice of specificity with which to define the relevant harm and risk? Imagine that
someone attempts to eat the rat poison, but chokes on it and dies of asphyxiation rather than
poisoning. Should we characterize the risk of leaving the unlabeled poison broadly, by calling it a
risk of physical injury or death? Or should we define the risk narrowly, by treating it as a risk of
poisoning? Likewise, we can characterize the harm to the plaintiff broadly as “physical injury” or
narrowly as “choking”?
Another difficulty with the harm within the risk test might be that it has difficulty
explaining some of the cases. Is the eggshell skull plaintiff rule from Benn v. Thomas
reconcilable with the harm within the risk principle? How about the Polemis case? For criticism
of the harm within the risk principle, see Heidi M. Hurd & Michael S. Moore, Negligence in the
Air, 3 THEORETICAL INQ. L. 33 (2002).

C. Unexpected Manner
Injuries sometimes happen in the darndest ways, and when they do, proximate causation
questions often arise. A recurring problem arises when intervening actors contribute to,
aggravate, or are otherwise involved in the harm about which the plaintiff complains. Consider
the following classic example:

Brower v. New York Cent. & H.R.R. Co., 103 A. 166, 168 (N.J. 1918)
This is a case of a grade crossing collision. . . . The complaint avers that the horse was
killed, and the wagon and harness and the cider and barrels with which the wagon was loaded
were destroyed. What happened was that as a result of the collision, aside from the death of the
horse and the destruction of the wagon, the contents of the wagon, consisting of empty barrels and
a keg of cider, were scattered, and probably stolen by people at the scene of the accident. The
driver, who was alone in charge for the plaintiff, was so stunned that one of the railroad detectives
found him immediately after the collision in a fit. There were two railroad detectives on the
freight train to protect the property it was carrying against thieves, but they did nothing to protect
the plaintiff’s property. The controversy on the question of damages is as to the right of the
plaintiff to recover the value of the barrels, cider, and blanket. . . . It is . . . argued that the
defendant’s negligence was not in any event the proximate cause of the loss of this property, since
the act of the thieves intervened. The rule of law exempting the one guilty of the original
negligence from damage due to an intervening cause is well settled. The difficulty lies in the
application. . . .

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The negligence which caused the collision resulted immediately in such a condition of the
driver of the wagon that he was no longer able to protect his employer’s property; the natural and
probable result of his enforced abandonment of it in the street of a large city was its
disappearance; and the wrongdoer cannot escape making reparation for the loss caused by
depriving the plaintiff of the protection which the presence of the driver in his right senses would
have afforded. . . .
A railroad company which found it necessary or desirable to have its freight train guarded
by two detectives against thieves is surely chargeable with knowledge that portable property left
without a guard was likely to be made off with. Again, strictly speaking, the act of the thieves did
not intervene between defendant’s negligence and the plaintiff’s loss; the two causes were to all
practical intent simultaneous and concurrent; it is rather a case of a joint tort than an intervening
cause. . . .
The judgment is affirmed, with costs.
GARRISON, J., dissenting.
The collision afforded an opportunity for theft of which a thief took advantage, but I
cannot agree that the collision was therefore the proximate cause of loss of the stolen articles.
Proximate cause imports unbroken continuity between cause and effect, which, both in law and in
logic, is broken by the active intervention of an independent criminal actor. This established rule
of law is defeated if proximate cause is confounded with mere opportunity for crime. A
maladjusted switch may be the proximate cause of the death of a passenger who was killed by the
derailment of the train or by the fire or collision that ensued, but it is not the proximate cause of
the death of a passenger who was murdered by a bandit who boarded the train because of the
opportunity afforded by its derailment. This clear distinction is not met by saying that criminal
intervention should be foreseen, for this implies that crime is to be presumed, and the law is
directly otherwise. . . .

Notes

1. A rationale? What is the court’s rationale for extending the damages to the loss of the
cider? Does it matter that the driver was stunned?

2. Bealism to the rescue? One attempt to refine or clarify the doctrine of proximate
causation has been to adopt formal distinctions between remote and non-remote damages. In
Pittsburg Reduction Co. v. Horton, 113 S.W. 647 (Ark. 1908), the defendant left a dynamite cap
on its unenclosed premises that one school boy, Charlie Copple (age 10), picked up and traded to
another school boy, the plaintiff, Jack Horton (age 13). While Horton was cleaning it, the cap
exploded, maiming his hand so badly that doctors had to amputate the plaintiff’s hand. The court
found that there was an insufficient connection between the defendant and the plaintiff because
Charlie Copple’s mother knew that the caps were for some kind of explosive, even if she didn’t
know they contained combustible material, and nevertheless still allowed her son to carry the caps
to school. The court reasoned that Copple’s mother’s conduct
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broke the causal connection between the original negligent act of appellant and the
subsequent injury of the plaintiff. It established a new agency, and the possession
of Charlie Copple of the caps or shells was thereafter referable to the permission of
his parents and not to the original taking. Charlie Copple’s parents having permitted
him to retain possession of the caps, his further acts in regard to them must be
attributable to their permission, and were wholly independent of the original
negligence of appellants.
Id. at 649. Some scholars at the time, notably Joseph Henry Beale, embraced the formalism of
discrete causal connections and agencies that could be newly established or cleanly broken by the
parties’ actions. Beale even introduced the quasi-Newtonian language of active force and coming
to rest to explain proximate cause:
If the defendant’s active force has come to rest, but in a dangerous position, creating
a new or increasing an existing risk of loss, and the foreseen danger comes to pass,
operating harmfully on the condition created by defendant and causing the risked
loss, we say that the injury thereby created is a proximate consequence of the
defendant’s act . . . .
On the other hand, where defendant’s active force has come to rest in a position of
apparent safety, the court will follow it no longer; if some new force later combines
with this condition to create harm, the result is remote from the defendant’s act.
Beale, The Proximate Consequences of An Act, 33 HARV. L. REV. 633, 650, 651, 656 (1920).
Objecting that Beale’s approach was a retreat into meaningless abstractions, the legal
realist scholar and later judge Jerome Frank wasted no time in attacking what he pejoratively
termed “Bealism.” The “Bealist,” Frank objected,
dematerializes the fact he purports to describe; the vagueness of his vocabulary aids
him to avoid recognizing contradictions and absurdities which his assertions
involve. Contentless words supply “a stable verbal support for inexact, nebulous
and fluctuating conceptions.” Such dematerialized but sonorous terms as
Uniformity, Continuity, Universality, when applied to law by the legal Absolutist,
have the same capacity for emotional satisfaction that terms like Oneness, Eternity,
or The True, have when applied by the metaphysician to the Absolute.
JEROME FRANK, LAW AND THE MODERN MIND 67 (1930). In Scott v. Shepherd, which we read in
Chapter 3, Blackstone sought to resolve the distinction between proximate and remote damages
with the concepts of directness and indirectness. Does Blackstone’s effort give you confidence
that courts might be able to resolve questions of proximate causation with metaphysical concepts
like the ones Beale offers?

3. All things considered judgments. The dissenter in Brower forcefully protests against
extending the causal chain when an intervening criminal act occurs. The majority, however,
insists that there is no general rule for proximate cause and intervening criminal acts. Instead, in
the majority’s approach, what the field of proximate causation consists of is highly contextual, all352

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things-considered judgments about the particular damages in question. Consider the next case,
which takes up an intervening act of gross negligence:

McLaughlin v. Mine Safety Appliances Co., 181 N.E.2d 430 (N.Y. 1962)
FOSTER, J.
Frances Ann McLaughlin, an infant six years of age, was visiting her uncle and aunt in
West Deering, New Hampshire, during the Summer of 1952. While bathing in Whittemore Lake,
she almost drowned and was carried from the lake in an unconscious condition. The local
lifeguard administered first aid, and the Bennington Volunteer Fire Department was summoned.
A fire department truck arrived shortly thereafter, and two men removed a resuscitator and some
blankets from the truck. The resuscitator was placed over the infant’s mouth, and she was
wrapped in blankets by a woman who identified herself as a nurse.
More heat was needed to revive the child, so the firemen returned to the truck and
obtained some boxes containing ‘heat blocks’. The blocks were removed from their containers by
the firemen who activated them and turned them over to the nurse. The nurse proceeded to apply
several of them directly to the child’s body under the blankets. Subsequently, the child began to
heave about and moan. At this point, the infant was taken, still wrapped in the blankets, to a
doctor’s car and placed on the back seat. The heat blocks had fallen out from under the blankets.
After a short stay at the doctor’s office, the infant was taken home, and that evening blisters were
observed about her body. It was soon ascertained that she was suffering from third degree burns,
and she was taken to the Peterborough Hospital where she underwent extensive treatment.
The ‘M-S-A Redi-Heat Blocks’, which were applied to the infant’s body and caused the
burns, were manufactured by Catalyst Research Corporation for defendant and packaged in
defendant’s cardboard container at defendant’s plant and were sold and distributed by defendant
to industrial houses, government agencies and departments for use in emergency. . . . The block
was covered in its entirety by a red woolen insulating material called ‘flocking’ which appeared
and felt like a ‘blanket’ or ‘flannel’ covering or just ordinary “wool.” Tests made upon the device
indicated that the block attained a high surface temperature of 204 degrees Fahrenheit within two
minutes after triggering. . . .
Affixed to each block on top of the ‘flocking’ was an oval-like label containing the trade
name of the block, and the name and design of the defendant. The blocks and two cartridges were
sold in cardboard containers. . . . On the opposite face of the container, three small diagrams were
printed, demonstrating how to activate the blocks, and alongside the diagrams in small print were
the ‘Instructions for use’ [included]: . . . ‘Wrap in insulating medium, such as pouch, towel,
blanket or folded cloth.’
The particular heat blocks involved were sold by defendant for use by the Bennington Fire
Department in 1947 or 1948. At the time of the sale, defendant’s representative demonstrated the
proper mode of use in the Town Hall. Several firemen were present. The representative warned
everyone that the heat block was to be covered with a towel or some other material to keep the
block from coming into contact with the skin.
Among the firemen who were present at the scene of the accident herein was Paul Traxler.
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He testified that he had been present when defendant’s representative demonstrated the blocks;
that he recalled being told not to use the blocks without further insulating them; that, furthermore,
instructional classes had been held as to proper use of the blocks prior to the accident; that he was
fully aware that the blocks were to be wrapped in a towel or blanket before they were used; and
that he had told the ‘nurse’ at the scene to wrap up the blocks before using. Nevertheless, the
blocks were applied directly to the infant’s person under the blankets, while the fireman, Traxler,
who had activated the blocks, stood next to her and watched. The infant’s aunt could recall no
warning given by the firemen to the nurse as to the danger in applying the unwrapped blocks to
the infant’s body.
This action was commenced by the infant and her father for loss of services against the
defendant, the exclusive distributor of the heat blocks, upon the theory that it had failed
adequately to warn the public of the danger involved in the use of the blocks and to properly
‘instruct’ ultimate users as to the ‘proper application of the said blocks’.
After a jury trial in Supreme Court, Nassau County, a verdict was returned in favor of the
infant plaintiff, and in favor of her father. . . .
But the true problem presented in this case is one of proximate causation, and not one
concerning the general duty to warn or negligence of the distributor. . . . [A]fter the jury retired,
they returned and asked this question: ‘Your Honor, if we, the jury, find that the M. S. A.
Company was negligent in not making any warning of danger on the heat block itself, but has
given proper instructions in its use up to the point of an intervening circumstance (the nurse who
was not properly instructed), is the M. S. A. Company liable?’
The trial court answered as follows:
Ladies and gentlemen of the jury, if you find from the evidence that the defendant,
as a reasonably prudent person under all of the circumstances should have expected
use of the block by some person other than those to whom instruction as to its use
had been given, either by the wording on the container or otherwise, and that under
those circumstances a reasonably prudent person would have placed warning words
on the heat block itself, . . . then the defendant would be liable.
Counsel for the defendant excepted to that statement. The jury then returned its verdict for the
plaintiffs.
From the jury’s question, it is obvious that they were concerned with the effect of the
fireman’s knowledge that the blocks should have been wrapped, and his apparent failure to so
advise the nurse who applied the blocks in his presence. The court in answering the jury’s
question instructed, in essence, that the defendant could still be liable, even though the fireman
had knowledge of the need for further insulation, if it was reasonably foreseeable that the blocks,
absent the containers, would find their way from the firemen to unwarned third persons. . . .
In the case before us, the jury obviously believed that the fireman, Traxler, had actual
knowledge of the need for further insulation, and the jury was preoccupied with the effect of his
failure to warn the nurse as she applied the blocks to the plaintiff’s person. The jury also could
have believed that Traxler removed the blocks from the containers, thereby depriving the nurse of
any opportunity she might have had to read the instructions printed on the containers, and that
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Traxler actually activated the blocks, turned them over, uninsulated, to the nurse for her use, and
stood idly by as they were placed directly on the plaintiff’s wet skin.
Under the circumstances, we think the court should have charged that if the fireman did so
conduct himself, without warning the nurse, his negligence was so gross as to supersede the
negligence of the defendant and to insulate it from liability. . . .
It short, whether or not the distributor furnished ample warning on his product to third
persons in general was not important here, if the jury believed that Traxler had actual notice of the
danger by virtue of his presence at demonstration classes or otherwise, and that he deprived the
nurse of her opportunity to read the instructions prior to applying the blocks. While the
distributor might have been liable if the blocks had found their way into the hands of the nurse in
a more innocent fashion, the distributor could not be expected to foresee that its demonstrations to
the firemen would callously be disregarded by a member of the department. . . .
The judgment should be reversed and a new trial granted, with costs to abide the event.
VAN VOORHIS, J., dissenting [DYE, J., concurring in the dissent].
The recovery by plaintiff should not, as it seems to us, be reversed on account of lack of
foreseeability or a break in the chain of causation due to any intervening act of negligence on the
part of a volunteer fireman. These heat blocks were dangerous instrumentalities unless wrapped
in “insulating” media, “such as pouch, towel, blanket or folded cloth” as the instructions on the
container directed. What happened here was that the container, with the instructions on it, was
thrown away, and the nurse who applied the heat block was unaware of this safety requirement.
In our minds the circumstance that the fireman who knew of the danger failed to warn the nurse,
even if negligent, did not affect the fact, as the jury found it, that this was a risk which the
manufacturer of the heat block ought to have anticipated in the exercise of reasonable care, nor
intercept the chain of causation. . . .

Note

1. What—if anything—makes the behavior of Traxler, the bystanding firefighter, so
different from the bystanders in Brower? Do you think the court is right in assuming that the jury,
in asking a question to the trial judge, was actually concerned with Traxler’s behavior?
How much of McLaughlin survived the next case?

Nallan v. Helmsley-Spear, Inc., 407 N.E.2d 451 (N.Y. 1980)
At about 7:15 P.M. on the evening of September 30, 1969, plaintiff William Nallan was
shot in the back by an unknown assailant as he leaned over to sign a guest register that had been
placed on a desk located in the lobby of a midtown Manhattan office building owned and operated
by defendants. It is assumed by all parties that the assailant, who has never been caught, was a
would-be assassin whose purpose was to retaliate against Nallan for his efforts to uncover certain
corrupt practices in the labor union in which Nallan was an active member. Nallan ultimately
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recovered from his wounds, and, some time thereafter, he and his wife commenced the instant
negligence action against the building owner and manager, seeking recompense for his personal
injuries and her loss of services. On this appeal from an order of the Appellate Division, which
affirmed a judgment in favor of defendants, the sole question presented is whether the facts
adduced at the trial were sufficient to establish a prima facie case of negligence against the two
defendants. . . .
[Plaintiffs] contended that, by employing an attendant to keep an eye on the building
lobby, defendant Helmsley-Spear had, in effect, assumed an obligation to provide at least minimal
protection from criminal intruders for visitors who entered the building after business hours. The
lobby attendant’s absence from his assigned post, according to plaintiffs, represented a lack of due
care in the performance of this assumed obligation. Hence, plaintiffs argued, Helmsley-Spear was
liable for plaintiff Nallan’s injuries to the extent that the injuries were a foreseeable and proximate
consequence of its negligence. . . .
[W]e turn our attention to the question whether there was evidence on the record from
which the jury could have concluded that defendants’ omission was the legal or proximate cause
of plaintiff Nallan’s injury. In this regard, it was plaintiffs’ burden to show that defendants’
conduct was a substantial causative factor in the sequence of events that led to Nallan’s injury. Of
course, the fact that the “instrumentality” which produced the injury was the criminal conduct of a
third person would not preclude a finding of “proximate cause” if the intervening agency was
itself a foreseeable hazard.
Here, there was expert testimony in the record that the mere presence of an official
attendant, even if unarmed, would have had the effect of deterring criminal activity in the
building’s lobby. This was so, according to plaintiffs’ expert, whether the crime in question was
one of random violence or was a deliberate, planned “assassination” attempt such as apparently
occurred in this case. The clear implication of the expert testimony was that a would-be assailant
of any type would be hesitant to act if he knew he was being watched by a representative of the
building’s security staff. Contrary to the reasoning of the majority at the Appellate Division, it
would seem to us that the deterrent effect described by plaintiffs’ expert witness would exist
whether the lobby guard was a “trained observer” or, as here, was an ordinary attendant with no
special expertise in the area of building security, since that fact would make no difference from
the potential assailant’s point of view. Thus, the jury in this case might well have inferred from
the available evidence that the absence of an attendant in the lobby at the moment plaintiff Nallan
arrived was a “proximate” cause of Nallan’s injury. Accordingly, it cannot be said that plaintiffs
failed to introduce evidence sufficient to make out a prima facie case. For all of the foregoing
reasons, the order of the Appellate Division should be reversed. . . .

Notes

1. Nallan versus McLaughlin. Does it make sense that the criminal conduct in Nallan
doesn’t cut off liability, but the grossly negligent conduct in McLaughlin does? Or does Nallan
overrule McLaughlin?

2. The Restatement approach. Both the Second and Third Restatements address the question
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of intervening actors, but in slightly different ways. The Second Restatement uses the language of
“superseding causes” that cut off liability, but specifically excludes criminal or negligent acts
from being a superseding cause if those acts were a foreseeable consequence of the defendant’s
negligence or if the likelihood of those acts was the reason why the defendant’s conduct was
negligent. RESTATEMENT (SECOND) OF TORTS, §§ 448, 449. The Third Restatement abandons the
“superseding” language from the Second Restatement, but it arrives at much the same
conclusions. The Third Restatement holds that defendants will be liable, despite intervening
actors, for all damages that “result from the risks that made the [defendant’s] conduct tortious.”
RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYS. AND EMOT. HARM, § 34 (2010). The Third
Restatement explicitly states that this extends to harm that befalls rescuers. Id., § 32.
The Restatement (Second) of Torts offers this principle to try to make sense of the cases:
The happening of the very event the likelihood of which makes the actor’s
conduct negligent and so subjects the actor to liability cannot relieve him from
liability. The duty to refrain from the act committed or to do the act omitted is
imposed to protect the other from this very danger. To deny recovery because
the other’s exposure to the very risk from which it was the purpose of the duty
to protect him resulted in harm to him, would be to deprive the other of all
protection and to make the duty a nullity.
RESTATEMENT (SECOND) OF TORTS § 449 cmt. b. The Restatement approach evokes the harmwithin-the-risk principle. Is it susceptible to the same difficulties?

3. Proximate Cause in Iraq. In recent litigation arising in the Fifth Circuit, drivers working
as independent contractors for Halliburton/KBR in Iraq sought to recover damages for injuries
they received in the so-called “Good Friday Massacre,” a 2004 attack on a convoy in which
several drivers were killed and others injured. Halliburton/KBR responded by citing the
intervening actions of the Army, which chose the convoy’s route, and of the Iraqi insurgents, who
fired on the convoy. The Fifth Circuit rejected the Halliburton argument and allowed the suit to
proceed:
KBR [the defendant] argues that no determination as to causation can be made
without examining whether the Army fulfilled its contractual duty to provide force
protection for the KBR convoys. Assuming that Plaintiffs could establish all other
elements of their claims, they must still demonstrate that the acts or omissions of
KBR—as opposed to those of the Army or Iraqi insurgents—proximately caused
their injuries. KBR has made clear that, were a trial to be held, its defense would
involve the alleged inadequacy of the Army’s intelligence gathering, route selection
and defensive response to the attacks that actually occurred. In other words, KBR
would make the case that Plaintiffs’ injuries were not caused by KBR’s actions or
inactions, but by the insurgents’ attack and the Army’s failure to provide adequate
protection of the convoy.
The Plaintiffs counter KBR’s argument by pointing to a familiar theory of tort law
that permits recovery even though another actor or cause intervenes to be the direct
cause of injury. . . . According to the Restatement, “[i]f the likelihood that a third
person may act in a particular manner is the hazard or one of the hazards which
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makes the actor negligent, such an act whether innocent, negligent, intentionally
tortious, or criminal does not prevent the actor from being liable for harm caused
thereby.” . . . Texas courts have applied this theory of liability in previous cases. .
..
Lane v. Halliburton, 529 F.3d 548 (5th Cir. 2008).
The Lane litigation was one of several suits arising out of the same accident. After the
plaintiffs survived Halliburton / KBR’s motion to dismiss at the Fifth Circuit in 2008, the
defendants filed a separate motion for summary judgment. The defendants successfully argued
that the plaintiffs’ claim was precluded by the Defense Base Act, a federal law that includes a
workers’ compensation program applicable to civilian employees of American contractors
working on or around overseas military bases. Fisher v. Halliburton, 667 F.3d 602 (5th Cir.
2012). The Lane plaintiffs had already settled before the 2012 decision of the Fifth Circuit, but
the Fisher plaintiffs had refused to settle and found themselves out of luck.
Another example of proximate causation at work in Iraq arises out of the Foreign Claims
Act, 10 U.S.C. § 2734, which authorizes the United States military to offer compensation to
overseas civilian victims of injury suffered because of U.S. military operations so long as the
injury in question did not arise out of combat. In an effort to preserve good will and win hearts
and minds, U.S. judge advocates at the Bagram Air Force Base in Kabul compensated a number
of civilian Afghan victims after a firefight in Kabul itself between coalition forces and the
Taliban. How did the judge advocates circumvent the statutory prohibition on compensating
victims injured in combat? They went further back the causal chain to a “skidding, out-of-control,
no-brakes descent” of a U.S. armored truck down the mountain road into Kabul that had preceded
the firefight.
The difficulty here (as any torts lawyer worth her boots will observe) is that the
decision to make the Kabul claims into motor vehicle claims stretches the chain of
causation dangerously close to its breaking point. Tort principles generally require
that the injuries complained of be the proximate or reasonably foreseeable outcome
of the negligent act in question. In the Kabul case, this required the claims
commissioners to conclude that the shooting deaths of the Afghan claimants in
Kabul were the reasonably foreseeable result of something like negligent brake
maintenance at the Bagram Air Force base.
John Fabian Witt, Form and Substance in the Law of Counterinsurgency Damages, 41 LOYOLA
L.A. L. REV. 1455, 1479 (2008).

A Proximate Cause Case Study: Subsequent Negligent Medical Care
For 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
sufficient frequency that the law crystalizes its contextual standards (“foreseeability” or
“directness,” for example) into hard-edged rules. The eggshell skull plaintiff rule is one such
doctrine. The effort of the New York Court of Appeals in McLaughlin to establish a hard rule
against liability in instances of intervening gross negligence might be another failed attempt at
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such a rule. A further example arises out of the phenomenon of negligent medical care that
exacerbates the initial harm caused by a tortfeasor.
In Stoleson v. United States, Judge Posner reviewed the claim of Helen Stoleson—the
woman with the “dynamite heart” as Time Magazine described her in 1971. Stoleson developed a
heart condition caused by exposure to nitroglycerine in the munitions plant at which she worked.
After bringing a tort claim against the federal government for negligently failing to protect
employees at the plant from overexposure to nitroglycerine, Stoleson was awarded $53,000 in
compensatory damages for her heart condition. However, the federal district judge rejected her
claim for damages arising out of the hypochondriacal symptoms that ensued. Although Judge
Posner upheld the district judge, he noted that Stoleson would have had a good claim if she could
have shown the hypochondriacal symptoms to have been caused by “the treatment—even the
negligent treatment—of the injury” by a third party such as a treating physician:
If a pedestrian who has been run down by a car is taken to a hospital and because of
the hospital’s negligence incurs greater medical expenses or suffers more pain and
suffering than he would have if the hospital had not been negligent, he can collect
his incremental as well as his original damages from the person who ran him down,
since they would have been avoided if that person had used due care. So here, if the
government had been careful Mrs. Stoleson would have had no occasion to consult
Dr. Lange and might therefore not have become a hypochondriac.
Stoleson v. United States, 708 F.2d 1217, 1221 (7th Cir. 1983).
The principle described by Posner in Stoleson is well-established in the common law of
torts, and it has been widely applied not just to downstream injuries arising out of negligent
medical treatment, but also to downstream injuries arising out of negligent transportation.
Consider Pridham v. Cash & Carry Building Center, a wrongful death case. In Pridham,
the decedent was shopping at a retail building supplies store when paneling fell on him, knocking
him down and covering his body. As the court described, it, “When the panels were removed,
[decedent] lay flat on his back on the floor, his head in a pool of blood.” Decedent “was placed
on an orthopedic stretcher which was in turn placed upon the ambulance cot and carried into the
vehicle.” En route to the hospital, however, the driver suffered a heart attack, causing the
ambulance “to swerve from the road and strike a tree. The cot was pushed forward through the
glass partition separating the driver compartment from the rear of the ambulance.” The decedent
died later that same day.
The trial court in Pridham charged the jury that “if the defendant is liable to the plaintiffdecedent in this case, he is also liable for any additional bodily harm resulting from normal efforts
of third persons in rendering aid . . . which the other’s injury reasonably requires irrespective of
whether such acts are done in a proper or in a negligent manner. . . . [I]f you . . . find the injuries
suffered in the ambulance crash were as a result of a normal effort of third persons in rendering
aid which the decedent Pridham required, then the defendant would be liable to the plaintiff for
those [injuries].” The New Hampshire Supreme Court upheld the instruction:
The instruction given by the trial court is based on the principle that if a tortfeasor’s
negligence causes harm to another which requires the victim to receive medical,
surgical or hospital services and additional bodily harm results from a normal effort
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of persons rendering such services, whether done in a proper or negligent manner,
the original tortfeasor’s negligence is a legal cause of the injuries received because
of the injury party’s involuntary submission to such services. . . . It is to be noted
that the rule enunciated applies even if the services rendered were not negligent. . .
. If the services are rendered negligently, the rule based on questions of policy makes
the negligence of the original tortfeasor a proximate cause of the subsequent injuries
suffered by the victim. . . . In such a case there is no need to charge the jury about
the different types of causes which may come into play. . . . Medical services
necessitated by the negligence of a tortfeasor are in most cases administered in a
hospital. The conveyance of Pridham by ambulance to a hospital was a necessary
step in securing medical services required by the accident at Cash & Carry.
Therefore the rule holding the original tortfeasor liable for additional harm from
medical care rendered because of the original injury should be extended to, and
include, injuries sustained while being transported to a hospital where medical
services can be obtained.
359 A.2d 193, 197-98 (N.H. 1976).
Pridham was cited and followed recently in Anaya v. Superior Court, in which a wrongful
death claim against the City of Los Angeles was upheld against a motion to dismiss for
remoteness grounds. The decedent was injured in an automobile accident involving a city
garbage truck and then killed when the helicopter transporting her to the hospital crashed. 93 Cal.
Rptr. 2d 228 (Cal. App. 2000).
What about other kinds of injury aggravations? In Wagner v. Mittendorf, 134 N.E. 539
(N.Y. 1922), plaintiff broke his leg because of defendant’s negligence. After the plaster cast was
removed, plaintiff’s physicians encouraged him to walk to strengthen his leg muscles. Plaintiff’s
crutches slipped and he fell, rebreaking the leg at the same point at which it had first been broken
by defendant’s negligence. The New York Court of Appeals upheld the award to the plaintiff of
the incremental damages arising out of the second break.
Torts commentators have often wondered whether Wagner allows for a stopping point.
“What if the plaintiff must use crutches permanently and is killed ten years later in a fire because
of his inability to run away?” Does the defendant become an insurer for all foreseeable
downstream injuries that would not have happened but for the defendant’s negligent act? See
MARK FRANKLIN & ROBERT RABIN, TORT LAW AND ALTERNATIVES 404 (7th ed. 2001).

Rule of Thumb for No Proximate Cause?
In Ohio, the common law embraces a “no proximate cause” rule for police officers
involved in police chases that injure third parties. The rule states that “when a law enforcement
officer pursues a fleeing violator and the violator injures a third party as a result of the chase, the
officer’s pursuit is not the proximate cause of those injuries,” unless the officer acts in an
“extreme or outrageous” manner. Whitfield v. Dayton, 167 Ohio App.3d 172 (2d Dist. 2006).
The “no proximate cause” rule allows Ohio courts to supplant a fact-intensive proximate
cause inquiry with a general rule of thumb that police are not liable for these kinds of injuries.
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The Ohio police chase rule is the inverse of the rule in many states for subsequent negligent
medical care.
Should courts use the doctrine of proximate cause to grant immunity to police officers in
chase cases, or ought they use some other doctrine? Does it matter what doctrinal hook courts use
to deliver these kinds of outcomes?

D. Unexpected Person
Just as accidents can happen in the darndest of ways, they can happen to the darndest of
people as well.

Palsgraf v. Long Island R. Co., 248 N.Y. 339 (N.Y. 1928)
CARDOZO J:
Plaintiff was standing on a platform of defendant’s railroad after buying a ticket to go to
Rockaway Beach. A train stopped at the station, bound for another place. Two men ran forward
to catch it. One of the men reached the platform of the car without mishap, though the train was
already moving. The other man, carrying a package, jumped aboard the car, but seemed unsteady
as if about to fall. A guard on the car, who had held the door open, reached forward to help him
in, and another guard on the platform pushed him from behind. In this act, the package was
dislodged, and fell upon the rails. It was a package of small size, about fifteen inches long, and
was covered by a newspaper. In fact it contained fireworks, but there was nothing in its
appearance to give notice of its contents. The fireworks when they fell exploded. The shock of
the explosion threw down some scales at the other end of the platform, many feet away. The
scales struck the plaintiff, causing injuries for which she sues.
The conduct of the defendant’s guard, if a wrong in its relation to the holder of the
package, was not a wrong in its relation to the plaintiff, standing far away. Relatively to her it
was not negligence at all. Nothing in the situation gave notice that the falling package had in it
the potency of peril to persons thus removed. Negligence is not actionable unless it involves the
invasion of a legally protected interest, the violation of a right. “Proof of negligence in the air, so
to speak, will not do.” FREDERICK POLLOCK, THE LAW OF TORTS 455 (11th ed. 1920) . . . . The
plaintiff as she stood upon the platform of the station might claim to be protected against
intentional invasion of her bodily security. Such invasion is not charged. She might claim to be
protected against unintentional invasion by conduct involving in the thought of reasonable men an
unreasonable hazard that such invasion would ensue. These, from the point of view of the law,
were the bounds of her immunity, with perhaps some rare exceptions, survivals for the most part
of ancient forms of liability, where conduct is held to be at the peril of the actor. If no hazard was
apparent to the eye of ordinary vigilance, an act innocent and harmless, at least to outward
seeming, with reference to her, did not take to itself the quality of a tort because it happened to be
a wrong, though apparently not one involving the risk of bodily insecurity, with reference to some
one else. “In every instance, before negligence can be predicated of a given act, back of the act
must be sought and found a duty to the individual complaining, the observance of which would

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have averted or avoided the injury” . . . . The plaintiff sues in her own right for a wrong personal
to her, and not as the vicarious beneficiary of a breach of duty to another.
A different conclusion will involve us, and swiftly too, in a maze of contradictions. A
guard stumbles over a package which has been left upon a platform. It seems to be a bundle of
newspapers. It turns out to be a can of dynamite. To the eye of ordinary vigilance, the bundle is
abandoned waste, which may be kicked or trod on with impunity. Is a passenger at the other end
of the platform protected by the law against the unsuspected hazard concealed beneath the waste?
If not, is the result to be any different, so far as the distant passenger is concerned, when the guard
stumbles over a valise which a truckman or a porter has left upon the walk? The passenger far
away, if the victim of a wrong at all, has a cause of action, not derivative, but original and
primary. His claim to be protected against invasion of his bodily security is neither greater nor
less because the act resulting in the invasion is a wrong to another far removed. In this case, the
rights that are said to have been violated, the interests said to have been invaded, are not even of
the same order. The man was not injured in his person nor even put in danger. The purpose of
the act, as well as its effect, was to make his person safe. If there was a wrong to him at all, which
may very well be doubted, it was a wrong to a property interest only, the safety of his package.
Out of this wrong to property, which threatened injury to nothing else, there has passed, we are
told, to the plaintiff by derivation or succession a right of action for the invasion of an interest of
another order, the right to bodily security. The diversity of interests emphasizes the futility of the
effort to build the plaintiff’s right upon the basis of a wrong to some one else. . . . [T]he orbit of
the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty. One who
jostles one’s neighbor in a crowd does not invade the rights of others standing at the outer fringe
when the unintended contact casts a bomb upon the ground. The wrongdoer as to them is the man
who carries the bomb, not the one who explodes it without suspicion of the danger. Life will have
to be made over, and human nature transformed, before prevision so extravagant can be accepted
as the norm of conduct, the customary standard to which behavior must conform.
The argument for the plaintiff is built upon the shifting meanings of such words as
“wrong” and “wrongful,” and shares their instability. What the plaintiff must show is “a wrong”
to herself, i.e., a violation of her own right, and not merely a wrong to some one else, nor conduct
“wrongful” because unsocial, but not “a wrong” to any one. We are told that one who drives at
reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a
wrongful one irrespective of the consequences. Negligent the act is, and wrongful in the sense
that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of
vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a
race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the
duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of
apprehension. This does not mean, of course, that one who launches a destructive force is always
relieved of liability if the force, though known to be destructive, pursues an unexpected path. . . .
It was not necessary that the defendant should have had notice of the particular method in which
an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye. .
. . Some acts, such as shooting, are so imminently dangerous to any one who may come within
reach of the missile, however unexpectedly, as to impose a duty of prevision not far from that of
an insurer. Even today, and much oftener in earlier stages of the law, one acts sometimes at one’s
peril. Under this head, it may be, fall certain cases of what is known as transferred intent, an act
willfully dangerous to A resulting by misadventure in injury to B. These cases aside, wrong is
defined in terms of the natural or probable, at least when unintentional. The range of reasonable
apprehension is at times a question for the court, and at times, if varying inferences are possible, a
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question for the jury. Here, by concession, there was nothing in the situation to suggest to the
most cautious mind that the parcel wrapped in newspaper would spread wreckage through the
station. If the guard had thrown it down knowingly and willfully, he would not have threatened
the plaintiff’s safety, so far as appearances could warn him. His conduct would not have
involved, even then, an unreasonable probability of invasion of her bodily security. Liability can
be no greater where the act is inadvertent.
Negligence, like risk, is thus a term of relation. Negligence in the abstract, apart from
things related, is surely not a tort, if indeed it is understandable at all. Negligence is not a tort
unless it results in the commission of a wrong, and the commission of a wrong imports the
violation of a right, in this case, we are told, the right to be protected against interference with
one’s bodily security. But bodily security is protected, not against all forms of interference or
aggression, but only against some. One who seeks redress at law does not make out a cause of
action by showing without more that there has been damage to his person. If the harm was not
willful, he must show that the act as to him had possibilities of danger so many and apparent as to
entitle him to be protected against the doing of it though the harm was unintended. Affront to
personality is still the keynote of the wrong. . . . The victim does not sue derivatively, or by right
of subrogation, to vindicate an interest invaded in the person of another. Thus to view his cause
of action is to ignore the fundamental difference between tort and crime. He sues for breach of a
duty owing to himself.
The law of causation, remote or proximate, is thus foreign to the case before us. The
question of liability is always anterior to the question of the measure of the consequences that go
with liability. If there is no tort to be redressed, there is no occasion to consider what damage
might be recovered if there were a finding of a tort. We may assume, without deciding, that
negligence, not at large or in the abstract, but in relation to the plaintiff, would entail liability for
any and all consequences, however novel or extraordinary. There is room for argument that a
distinction is to be drawn according to the diversity of interests invaded by the act, as where
conduct negligent in that it threatens an insignificant invasion of an interest in property results in
an unforseeable invasion of an interest of another order, as, e. g., one of bodily security. Perhaps
other distinctions may be necessary. We do not go into the question now. The consequences to
be followed must first be rooted in a wrong.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and
the complaint dismissed, with costs in all courts.
ANDREWS, J., dissenting.
. . . Upon these facts may [the plaintiff] recover the damages she has suffered in an action
brought against the master? The result we shall reach depends upon our theory as to the nature of
negligence. Is it a relative concept—the breach of some duty owing to a particular person or to
particular persons? Or where there is an act which unreasonably threatens the safety of others, is
the doer liable for all its proximate consequences, even where they result in injury to one who
would generally be thought to be outside the radius of danger? This is not a mere dispute as to
words. We might not believe that to the average mind the dropping of the bundle would seem to
involve the probability of harm to the plaintiff standing many feet away whatever might be the
case as to the owner or to one so near as to be likely to be struck by its fall. If, however, we adopt
the second hypothesis we have to inquire only as to the relation between cause and effect. We
deal in terms of proximate cause, not of negligence. . . .
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But we are told that “there is no negligence unless there is in the particular case a legal
duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely
to others.” This, I think too narrow a conception. Where there is the unreasonable act, and some
right that may be affected there is negligence whether damage does or does not result. That is
immaterial. Should we drive down Broadway at a reckless speed, we are negligent whether we
strike an approaching car or miss it by an inch. The act itself is wrongful. It is a wrong not only
to those who happen to be within the radius of danger but to all who might have been there—a
wrong to the public at large. Such is the language of the street. Such is the language of the courts
when speaking of contributory negligence. . . . As was said by Mr. Justice Holmes many years
ago, “the measure of the defendant’s duty in determining whether a wrong has been committed is
one thing, the measure of liability when a wrong has been committed is another.” Due care is a
duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B or
C alone.
It may well be that there is no such thing as negligence in the abstract. “Proof of
negligence in the air, so to speak, will not do.” In an empty world negligence would not exist. It
does involve a relationship between man and his fellows. But not merely a relationship between
man and those whom he might reasonably expect his act would injure. Rather, a relationship
between him and those whom he does in fact injure. If his act has a tendency to harm some one, it
harms him a mile away as surely as it does those on the scene. We now permit children to recover
for the negligent killing of the father. It was never prevented on the theory that no duty was
owing to them. A husband may be compensated for the loss of his wife’s services. To say that
the wrongdoer was negligent as to the husband as well as to the wife is merely an attempt to fit
facts to theory. An insurance company paying a fire loss recovers its payment of the negligent
incendiary. We speak of subrogation—of suing in the right of the insured. Behind the cloud of
words is the fact they hide, that the act, wrongful as to the insured, has also injured the company.
Even if it be true that the fault of father, wife or insured will prevent recovery, it is because we
consider the original negligence not the proximate cause of the injury.
In the well-known Polemis Case, Scrutton, L. J., said that the dropping of a plank was
negligent for it might injure “workman or cargo or ship.” Because of either possibility the owner
of the vessel was to be made good for his loss. The act being wrongful the doer was liable for its
proximate results. Criticized and explained as this statement may have been, I think it states the
law as it should be and as it is.
The proposition is this. Every one owes to the world at large the duty of refraining from
those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he
wronged to whom harm might reasonably be expected to result, but he also who is in fact injured,
even if he be outside what would generally be thought the danger zone. There needs be duty due
the one complaining but this is not a duty to a particular individual because as to him harm might
be expected. Harm to some one being the natural result of the act, not only that one alone, but all
those in fact injured may complain. We have never, I think, held otherwise.
If this be so, we do not have a plaintiff suing by “derivation or succession.” Her action is
original and primary. Her claim is for a breach of duty to herself—not that she is subrogated to
any right of action of the owner of the parcel or of a passenger standing at the scene of the
explosion.
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The right to recover damages rests on additional considerations. The plaintiff’s rights
must be injured, and this injury must be caused by the negligence. We build a dam, but are
negligent as to its foundations. Breaking, it injures property down stream. We are not liable if all
this happened because of some reason other than the insecure foundation. But when injuries do
result from our unlawful act we are liable for the consequences. It does not matter that they are
unusual, unexpected, unforeseen and unforseeable. But there is one limitation. The damages
must be so connected with the negligence that the latter may be said to be the proximate cause of
the former. . . .
What we do mean by the word “proximate” is, that because of convenience, of public
policy, of a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a
certain point. This is not logic. It is practical politics. Take our rule as to fires. Sparks from my
burning haystack set on fire my house and my neighbor’s. I may recover from a negligent
railroad. He may not. Yet the wrongful act as directly harmed the one as the other. We may
regret that the line was drawn just where it was, but drawn somewhere it had to be. We said the
act of the railroad was not the proximate cause of our neighbor’s fire. Cause it surely was. The
words we used were simply indicative of our notions of public policy. Other courts think
differently. . . .
It is all a question of expediency. There are no fixed rules to govern our judgment. There
are simply matters of which we may take account. . . . This is rather rhetoric than law. There is in
truth little to guide us other than common sense.
There are some hints that may help us. The proximate cause, involved as it may be with
many other causes, must be, at the least, something without which the event would not happen.
The court must ask itself whether there was a natural and continuous sequence between cause and
effect. Was the one a substantial factor in producing the other? Was there a direct connection
between them, without too many intervening causes? Is the effect of cause on result not too
attenuated? Is the cause likely, in the usual judgment of mankind, to produce the result? Or by
the exercise of prudent foresight could the result be foreseen? Is the result too remote from the
cause, and here we consider remoteness in time and space. Clearly we must so consider, for the
greater the distance either in time or space, the more surely do other causes intervene to affect the
result. When a lantern is overturned the firing of a shed is a fairly direct consequence. Many
things contribute to the spread of the conflagration—the force of the wind, the direction and width
of streets, the character of intervening structures, other factors. We draw an uncertain and
wavering line, but draw it we must as best we can.
Once again, it is all a question of fair judgment, always keeping in mind the fact that we
endeavor to make a rule in each case that will be practical and in keeping with the general
understanding of mankind. . . .
Mrs. Palsgraf was standing some distance away. How far cannot be told from the
record—apparently twenty-five or thirty feet. Perhaps less. Except for the explosion, she would
not have been injured. We are told by the appellant in his brief “it cannot be denied that the
explosion was the direct cause of the plaintiff’s injuries.” So it was a substantial factor in
producing the result—there was here a natural and continuous sequence—direct connection. The
only intervening cause was that instead of blowing her to the ground the concussion smashed the
weighing machine which in turn fell upon her. There was no remoteness in time, little in space.
And surely, given such an explosion as here it needed no great foresight to predict that the natural
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result would be to injure one on the platform at no greater distance from its scene than was the
plaintiff. Just how no one might be able to predict. Whether by flying fragments, by broken
glass, by wreckage of machines or structures no one could say. But injury in some form was most
probable.
Under these circumstances I cannot say as a matter of law that the plaintiff’s injuries were
not the proximate result of the negligence. That is all we have before us. The court refused to so
charge. No request was made to submit the matter to the jury as a question of fact, even would
that have been proper upon the record before us.
The judgment appealed from should be affirmed, with costs.

Notes

1. Cardozo versus Andrews. Are Judges Cardozo and Andrews debating how to define
proximate cause or whether this is a case about proximate cause? What is it, precisely, that
divides them?

2. Where’s the negligence? Was the guard’s act in pushing the passenger negligent in the
first place if he could not have possibly known that the package contained explosives, as both
Justices Cardozo and Andrews concede? Would Cardozo vote differently if the package had been
labeled “WARNING: CONTAINS EXPLOSIVES”?

3. Cardozo’s inconsistency? Judge Cardozo, the author of the majority opinion in Palsgraf,
reached a different conclusion when asked whether a defendant is liable for harm that befalls the
rescuer of someone the defendant injured. What, if anything, distinguishes Palsgraf from the next
case?

Wagner v. International R. Co., 232 N.Y. 176, 178-182 (N.Y. 1921)
CARDOZO, J.
The defendant operates an electric railway between Buffalo and Niagara Falls. There is a
point on its line where an overhead crossing carries its tracks above those of the New York
Central and the Erie. A gradual incline upwards over a trestle [a supporting structure for a bridge]
raises the tracks to a height of twenty-five feet. A turn is then made to the left at an angle of from
sixty-four to eighty-four degrees. After making this turn, the line passes over a bridge, which is
about one hundred and fifty-eight feet long from one abutment to the other. Then comes a turn to
the right at about the same angle down the same kind of an incline to grade. Above the trestles,
the tracks are laid on ties, unguarded at the ends. There is thus an overhang of the cars, which is
accentuated at curves. On the bridge, a narrow footpath runs between the tracks, and beyond the
line of overhang there are tie rods and a protecting rail.

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Plaintiff and his cousin Herbert boarded a car at a station near the bottom of one of the
trestles. Other passengers, entering at the same time, filled the platform, and blocked admission
to the aisle. The platform was provided with doors, but the conductor did not close them.
Moving at from six to eight miles an hour, the car, without slackening, turned the curve. There
was a violent lurch, and Herbert Wagner was thrown out, near the point where the trestle changes
to a bridge. The cry was raised, “Man overboard.” The car went on across the bridge, and
stopped near the foot of the incline. Night and darkness had come on. Plaintiff walked along the
trestle, a distance of four hundred and forty-five feet, until he arrived at the bridge, where he
thought to find his cousin’s body. He says that he was asked to go there by the conductor. He
says, too, that the conductor followed with a lantern. Both these statements the conductor denies.
Several other persons, instead of ascending the trestle, went beneath it, and discovered under the
bridge the body they were seeking. As they stood there, the plaintiff’s body struck the ground
beside them. Reaching the bridge, he had found upon a beam his cousin’s hat, but nothing else.
About him, there was darkness. He missed his footing, and fell.
The trial judge held that negligence toward Herbert Wagner would not charge the
defendant with liability for injuries suffered by the plaintiff unless two other facts were found:
First, that the plaintiff had been invited by the conductor to go upon the bridge; and second, that
the conductor had followed with a light. Thus limited, the jury found in favor of the defendant.
Whether the limitation may be upheld, is the question to be answered.
Danger invites rescue. The cry of distress is the summons to relief. The law does not
ignore these reactions of the mind in tracing conduct to its consequences. It recognizes them as
normal. It places their effects within the range of the natural and probable. The wrong that
imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer. . . . The risk of
rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The
wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.
The defendant says that we must stop, in following the chain of causes, when action
ceases to be “instinctive.” By this, is meant, it seems, that rescue is at the peril of the rescuer,
unless spontaneous and immediate. If there has been time to deliberate, if impulse has given way
to judgment, one cause, it is said, has spent its force, and another has intervened. In this case, the
plaintiff walked more than four hundred feet in going to Herbert’s aid. He had time to reflect and
weigh; impulse had been followed by choice; and choice, in the defendant’s view, intercepts and
breaks the sequence. We find no warrant for thus shortening the chain of jural causes. We may
assume, though we are not required to decide, that peril and rescue must be in substance one
transaction; that the sight of the one must have aroused the impulse to the other; in short, that
there must be unbroken continuity between the commission of the wrong and the effort to avert its
consequences. If all this be assumed, the defendant is not aided. Continuity in such
circumstances is not broken by the exercise of volition. So sweeping an exception, if recognized,
would leave little of the rule. “The human mind,” as we have said, “acts with celerity which it is
sometimes impossible to measure.” The law does not discriminate between the rescuer oblivious
of peril and the one who counts the cost. It is enough that the act, whether impulsive or
deliberate, is the child of the occasion.
The defendant finds another obstacle, however, in the futility of the plaintiff’s sacrifice.
He should have gone, it is said, below the trestle with the others; he should have known, in view
of the overhang of the cars, that the body would not be found above; his conduct was not
responsive to the call of the emergency; it was a wanton exposure to a danger that was useless.
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We think the quality of his acts in the situation that confronted him was to be determined by the
jury. Certainly he believed that good would come of his search upon the bridge. . . . Indeed, his
judgment was confirmed by the finding of the hat. . . . “Errors of judgment,” however, would not
count against him, if they resulted “from the excitement and confusion of the moment”. The
reason that was exacted of him was not the reason of the morrow. It was reason fitted and
proportioned to the time and the event.
Whether Herbert Wagner’s fall was due to the defendant’s negligence, and whether
plaintiff in going to the rescue, as he did, was foolhardy or reasonable in the light of the
emergency confronting him, were questions for the jury.
The judgment of the Appellate Division and that of the Trial Term should be reversed, and
a new trial granted, with costs to abide the event.

Notes

1. Rules versus standards. In this opinion, Cardozo asserts that a defendant should always
foresee harm to a rescuer, because “danger invites rescue.” Cardozo’s rescue rule is thus
something like the rule for subsequent negligent medical care: it is a rule of thumb that cuts
through the case-by-case contextual inquiries into considerations such as foreseeability. Of
course, there may be some situations where rescue is more or less likely, depending on whether
the person can call for help, whether there are other people around to respond, etc. Why would
Cardozo impose a categorical rule that rescue is foreseeable? Why not allow juries to decide the
foreseeability of rescue on a case-by-case basis?

2. Reconciling Palsgraf and Wagner? In Palsgraf, Cardozo was concerned that the tortious
act, pushing by the guard, was not a wrong with respect to Mrs. Palsgraf. Yet in Wagner, he
maintains that any tortious act is a wrong with respect to a rescuer. What explains the different
treatment of two people who were in fact injured by the tortious act?

E. Completely Unexpected?
Late in the winter of 1959, each of the strands of proximate causation came together in a
spectacular, and thankfully not catastrophic, accident on the Buffalo River in upstate New York.

Petition of Kinsman Transit Co. (Kinsman Transit I), 338 F.2d 708 (2d Cir. 1964)
FRIENDLY, J.
We have here six [interlocutory] appeals . . . . The litigation, in the District Court for the
Western District of New York, arose out of a series of misadventures on a navigable portion of the
Buffalo River during the night of January 21, 1959. . . . We shall summarize the facts as found by
[Judge Burke, the District Court Judge]:
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The Buffalo River flows through Buffalo from east to west, with many turns and bends,
until it empties into Lake Erie. Its navigable western portion is lined with docks, grain elevators,
and industrial installations; during the winter, lake vessels tie up there pending resumption of
navigation on the Great Lakes, without power and with only a shipkeeper aboard. About a mile
from the mouth, the City of Buffalo maintains a lift bridge at Michigan Avenue. Thaws and rain
frequently cause freshets to develop in the upper part of the river and its tributary, Cazenovia
Creek; currents then range up to fifteen miles an hour and propel broken ice down the river, which
sometimes overflows its banks.
On January 21, 1959, rain and thaw followed a period of freezing weather. The United
States Weather Bureau issued appropriate warnings which were published and broadcast. Around
6 P.M. an ice jam that had formed in Cazenovia Creek disintegrated. Another ice jam formed just
west of the junction of the creek and the river; it broke loose around 9 P.M.
The MacGilvray Shiras, owned by The Kinsman Transit Company, was moored at the
dock of the Concrete Elevator, operated by Continental Grain Company, on the south side of the
river about three miles upstream of the Michigan Avenue Bridge. She was loaded with grain
owned by Continental. [The Shiras was negligently positioned such that ice floats accumulated
against it, eventually causing the boat to separate from the dock and drift downstream. The
shipkeeper negligently misfired the anchor, causing a jam and preventing the anchors from
stopping the downstream movement of the ship.] . . .
Careening stern first down the S-shaped river, the Shiras, at about 11 P.M., struck the bow
of the Michael K. Tewksbury, owned by Midland Steamship Line, Inc. . . . The collision caused
the Tewksbury’s mooring lines to part; she too drifted stern first down the river, followed by the
Shiras. The collision caused damage to the Steamer Drucken-miller which was moored opposite
the Tewksbury.
[A]t about 10:43 P.M., Goetz, the superintendent of the Concrete Elevator, telephoned
Kruptavich, another employee of Continental, that the Shiras was adrift; Kruptavich called the
Coast Guard, which called the city fire station on the river, which in turn warned the crew
[employed by the City of Buffalo] on the Michigan Avenue Bridge, this last call being made
about 10:48 P.M. Not quite twenty minutes later the watchman at the elevator where the
Tewksbury had been moored phoned the bridge crew to raise the bridge. Although not more than
two minutes and ten seconds were needed to elevate the bridge to full height after traffic was
stopped, assuming that the motor started promptly, the bridge was just being raised when, at 11:17
P.M., the Tewksbury crashed into its center. The bridge crew consisted of an operator and two
tenders; a change of shift was scheduled for 11 P.M.
The inference is rather strong, despite contrary testimony, that the operator on the earlier
shift had not yet returned from a tavern when the telephone call from the fire station was received;
that the operator on the second shift did not arrive until shortly before the call from the elevator
where the Tewksbury had been moored; and that in consequence the bridge was not raised until
too late.
The first crash was followed by a second, when the south tower of the bridge fell. The
Tewksbury grounded and stopped in the wreckage with her forward end resting against the stern
of the Steamer Farr, which was moored on the south side of the river just above the bridge. The
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Shiras ended her journey with her stern against the Tewksbury and her bow against the north side
of the river. So wedged, the two vessels substantially dammed the flow, causing water and ice to
back up and flood installations on the banks with consequent damage as far as the Concrete
Elevator, nearly three miles upstream. Two of the bridge crew suffered injuries. Later the north
tower of the bridge collapsed, damaging adjacent property. . . .
[After finding that the intermediate ships in the accident did not act negligently, that the
city was not negligent in maintaining the river, and that the owners of the Shiras could not be held
liable beyond the value of the vessel itself under an old admiralty law doctrine limiting vessel
owner liability in the absence of personal negligence by the owner, Judge Friendly concluded (i)
that the City of Buffalo was at fault as a matter of negligence per se under a federal statute
requiring that drawbridges be staffed at all times; and (ii) that the last clear chance doctrine did
not make the City the exclusive party bearing the liability. He then turned to the case’s difficult
proximate cause issue: “(iii) the effect of the allegedly unexpectable character of the events
leading to much of the damage—and here of the Palsgraf case.”]
The very statement of the case suggests the need for considering Palsgraf v. Long Island
R., 162 N.E. 99 (N.Y. 1928), and the closely related problem of liability for unforeseeable
consequences.
Certainly there is no general principle that a railroad owes no duty to persons on station
platforms not in immediate proximity to the tracks, as would have been quickly demonstrated if
Mrs. Palsgraf had been injured by the fall of improperly loaded objects from a passing train. . . .
Neither is there any principle that railroad guards who jostle a package-carrying passenger owe a
duty only to him; if the package had contained bottles, the Long Island would surely have been
liable for injury caused to close bystanders by flying glass or spurting liquid. The reason why the
Long Island was thought to owe no duty to Mrs. Palsgraf was the lack of any notice that the
package contained a substance demanding the exercise of any care toward anyone so far away;
Mrs. Palsgraf was not considered to be within the area of apparent hazard created by whatever
lack of care the guard had displayed to the anonymous carrier of the unknown fireworks. The key
sentences in Chief Judge Cardozo’s opinion are these:
Here, by concession, there was nothing in the situation to suggest to the most
cautious mind that the parcel wrapped in newspaper would spread wreckage through
the station. If the guard had thrown it down knowingly and willfully, he would not
have threatened the plaintiff’s safety, so far as appearances could warn him.
Liability can be no greater where the act is inadvertent.
162 N.E. at 101.
We see little similarity between the Palsgraf case and the situation before us. The point of
Palsgraf was that the appearance of the newspaper-wrapped package gave no notice that its
dislodgement could do any harm save to itself and those nearby, and this by impact, perhaps with
consequent breakage, and not by explosion. In contrast, a ship insecurely moored in a fast
flowing river is a known danger not only to herself but to the owners of all other ships and
structures down-river, and to persons upon them. No one would dream of saying that a shipowner
who “knowingly and willfully” failed to secure his ship at a pier on such a river “would not have
threatened” persons and owners of property downstream in some manner. The shipowner and the
wharfinger in this case having thus owed a duty of care to all within the reach of the ship’s known
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destructive power, the impossibility of advance identification of the particular person who would
be hurt is without legal consequence. . . . Similarly the foreseeable consequences of the City’s
failure to raise the bridge were not limited to the Shiras and the Tewksbury. Collision plainly
created a danger that the bridge towers might fall onto adjoining property, and the crash of two
uncontrolled 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
would flood property upstream. As to the City also, it is useful to consider, by way of contrast,
Chief Judge Cardozo’s statement that the Long Island would not have been liable to Mrs. Palsgraf
had the guard wilfully thrown the package down. If the City had deliberately kept the bridge
closed in the face of the onrushing vessels, taking the risk that they might not come so far, no one
would give house-room to a claim that it “owed no duty” to those who later suffered from the
flooding. Unlike Mrs. Palsgraf, they were within the area of hazard.
Since all the claimants here met the Palsgraf requirement of being persons to whom the
actors owed a “duty of care,” we are not obliged to reconsider whether that case furnishes as
useful a standard for determining the boundaries of liability in admiralty for negligent conduct . . .
. But this does not dispose of the alternative argument that the manner in which several of the
claimants were harmed, particularly by flood damage, was unforeseeable and that recovery for
this may not be had—whether the argument is put in the forthright form that unforeseeable
damages are not recoverable or is concealed under a formula of lack of “proximate cause.”
So far as concerns the City, the argument lacks factual support. Although the obvious
risks from not raising the bridge were damage to itself and to the vessels, the danger of a fall of
the bridge and of flooding would not have been unforeseeable under the circumstances to anyone
who gave them thought. And the same can be said as to the failure of Kinsman’s shipkeeper to
ready the anchors after the danger had become apparent. The exhibits indicate that the width of
the channel between the Concrete Elevator and the bridge is at most points less than two hundred
fifty feet. If the Shiras caught up on a dock or vessel moored along the shore, the current might
well swing her bow across the channel so as to block the ice floes, as indeed could easily have
occurred at the Standard Elevator dock where the stern of the Shiras struck the Tewksbury’s bow.
At this point the channel . . . was further narrowed by the presence of the Druckenmiller moored
on the opposite bank. Had the Tewksbury’s mooring held, it is thus by no means unlikely that
these three ships would have dammed the river. Nor was it unforeseeable that the drawbridge
would not be raised since, apart from any other reason, there was no assurance of timely warning.
What may have been less foreseeable was that the Shiras would get that far down the twisting
river, but this is somewhat negated both by the known speed of the current when freshets
developed . . . .
Continental’s position on the facts is stronger. It was indeed foreseeable that the improper
construction and lack of inspection of the [mooring] might cause a ship to break loose and damage
persons and property on or near the river—that was what made Continental’s conduct negligent.
With the aid of hindsight one can also say that a prudent man, carefully pondering the problem,
would have realized that the danger of this would be greatest under such water conditions as
developed during the night of January 21, 1959, and that if a vessel should break loose under
those circumstances, events might transpire as they did. But such post hoc step by step analysis
would render ‘foreseeable’ almost anything that has in fact occurred; if the argument relied upon
has legal validity, it ought not be circumvented by characterizing as foreseeable what almost no
one would in fact have foreseen at the time.
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The effect of unforeseeability of damage upon liability for negligence has recently been
considered by the Judicial Committee of the Privy Council, Overseas Tankship (U.K.) Ltd. v.
Morts Dock & Engineering Co. (The Wagon Mound), (1961) 1 All E.R. 404. The Committee
there disapproved the proposition, thought to be supported by In Re Polemis and Furness, Withy
& Co. Ltd., (1921) 3 K.B. 560 (C.A.), “that unforeseeability is irrelevant if damage is ‘direct.’”
We have no difficulty with the result of The Wagon Mound, in view of the finding, 1 All E.R. at
407, that the appellant had no reason to believe that the floating furnace oil would burn, see also
the extended discussion in Miller S.S. Co. v. Overseas Tankship (U.K.) Ltd., The Wagon Mound
No. 2, (1963) 1 Lloyd’s Law List Rep. 402 (Sup. Ct. N.S.W.). On that view the decision simply
applies the principle which excludes liability where the injury sprang from a hazard different from
that which was improperly risked, see fn. 9. Although some language in the judgment goes
beyond this, we would find it difficult to understand why one who had failed to use the care
required to protect others in the light of expectable forces should be exonerated when the very
risks that rendered his conduct negligent produced other and more serious consequences to such
persons than were fairly foreseeable when he fell short of what the law demanded. Foreseeability
of danger is necessary to render conduct negligent; where as here the damage was caused by just
those forces whose existence required the exercise of greater care than was taken—the current, the
ice, and the physical mass of the Shiras, the incurring of consequences other and greater than
foreseen does not make the conduct less culpable or provide a reasoned basis for insulation. The
oft encountered argument that failure to limit liability to foreseeable consequences may subject
the defendant to a loss wholly out of proportion to his fault seems scarcely consistent with the
universally accepted rule that the defendant takes the plaintiff as he finds him and will be
responsible for the full extent of the injury even though a latent susceptibility of the plaintiff
renders this far more serious than could reasonably have been anticipated.
The weight of authority in this country rejects the limitation of damages to consequences
foreseeable at the time of the negligent conduct when the consequences are ‘direct,’ and the
damage, although other and greater than expectable, is of the same general sort that was risked. . .
. Other American courts, purporting to apply a test of foreseeability to damages, extend that
concept to such unforeseen lengths as to raise serious doubt whether the concept is meaningful;
indeed, we wonder whether the British courts are not finding it necessary to limit the language of
The Wagon Mound as we have indicated.
We see no reason why an actor engaging in conduct which entails a large risk of small
damage and a small risk of other and greater damage, of the same general sort, from the same
forces, and to the same class of persons, should be relieved of responsibility for the latter simply
because the chance of its occurrence, if viewed alone, may not have been large enough to require
the exercise of care. By hypothesis, the risk of the lesser harm was sufficient to render his
disregard of it actionable; the existence of a less likely additional risk that the very forces against
whose action he was required to guard would produce other and greater damage than could have
been reasonably anticipated should inculpate him further rather than limit his liability. This does
not mean that the careless actor will always be held for all damages for which the forces that he
risked were a cause in fact. Somewhere a point will be reached when courts will agree that the
link has become too tenuous—that what is claimed to be consequence is only fortuity. Thus, if
the destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor, with
consequent loss of a patient’s life, few judges would impose liability on any of the parties here,
although the agreement in result might not be paralleled by similar unanimity in reasoning;
perhaps in the long run one returns to Judge Andrews’ statement in Palsgraf, 162 N.E. at 104
(dissenting opinion). “It is all a question of expediency, . . . of fair judgment, always keeping in
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mind the fact that we endeavor to make a rule in each case that will be practical and in keeping
with the general understanding of mankind.” It would be pleasant if greater certainty were
possible, see PROSSER, TORTS 262, but the many efforts that have been made at defining the locus
of the “[u]ncertain and wavering line,” 162 N.E. 99, are not very promising; what courts do in
such cases makes better sense than what they, or others, say. Where the line will be drawn will
vary from age to age; as society has come to rely increasingly on insurance and other methods of
loss-sharing, the point may lie further off than a century ago. Here it is surely more equitable that
the losses from the operators’ negligent failure to raise the Michigan Avenue Bridge should be
ratably borne by Buffalo’s taxpayers than left with the innocent victims of the flooding; yet the
mind is also repelled by a solution that would impose liability solely on the City and exonerate the
persons whose negligent acts of commission and omission were the precipitating force of the
collision with the bridge and its sequelae. We go only so far as to hold that where, as here, the
damages resulted from the same physical forces whose existence required the exercise of greater
care than was displayed and were of the same general sort that was expectable, unforeseeability of
the exact developments and of the extent of the loss will not limit liability. Other fact situations
can be dealt with when they arise.
MOORE, J., concurring and dissenting.
I do not hesitate to concur with Judge Friendly’s well-reasoned and well-expressed
opinion as to limitation of Kinsman’s liability, the extent of the liability of the City of Buffalo,
Continental and Kinsman for the damages suffered by the City, the Shiras, the Tewksbury, the
Druckenmiller and the Farr and the division of damages.
I cannot agree, however, merely because “society has come to rely increasingly on
insurance and other methods of loss-sharing” that the courts should, or have the power to, create a
vast judicial insurance company which will adequately compensate all who have suffered
damages. Equally disturbing is the suggestion that “Here it is surely more equitable that the
losses from the operators’ negligent failure to raise the Michigan Avenue Bridge should be ratably
borne by Buffalo’s taxpayers than left with the innocent victims of the flooding.” . . .
My dissent is limited to that portion of the opinion which approves the awarding of
damages suffered as a result of the flooding of various properties upstream. I am not satisfied
with reliance on hindsight or on the assumption that since flooding occurred, therefore, it must
have been foreseeable. In fact, the majority hold that the danger “of flooding would not have
been unforeseeable under the circumstances to anyone who gave them thought.” But believing
that “anyone” might be too broad, they resort to that most famous of all legal mythological
characters, the reasonably “prudent man.” Even he, however, “carefully pondering the problem,”
is not to be relied upon because they permit him to become prudent “With the aid of hindsight.”
The majority, in effect, would remove from the law of negligence the concept of
foreseeability because, as they say, “The weight of authority in this country rejects the limitation
of damages to consequences foreseeable at the time of the negligent conduct when the
consequences are ‘direct.’” Yet lingering thoughts of recognized legal principles create for them
lingering doubts because they say: “This does not mean that the careless actor will always be held
for all damages for which the forces that he risked were a cause in fact. Somewhere a point will
be reached when courts will agree that the link has become too tenuous—that what is claimed to
be consequence is only fortuity.” The very example given, namely, the patient who dies because
the doctor is delayed by the destruction of the bridge, certainly presents a direct consequence as a
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factual matter yet the majority opinion states that “few judges would impose liability on any of the
parties here,” under these circumstances.

Notes

1. The Palsgraf requirement. In his opinion in Kinsman Transit (I), Judge Henry Friendly
ruled that “all the claimants here met the Palsgraf requirement of being persons to whom the
actors owed a duty.” 338 F.2d at 722. In making this determination, the court placed
considerable weight on the fact that all the claimants were riparian property owners located
downstream of the Shiras’s mooring. An insecurely moored ship, Judge Friendly reasoned, posed
“a known danger not only to herself but to the owners of all other ships and structures downriver.” The court observed in a footnote that “The facts here do not oblige us to decide whether
the [parties liable for negligently mooring the Shiras] could successfully invoke Palsgraf against
claims of owners of shore-side property upstream from the [site at which the Shiras had been
moored].” What result if an upstream owner brought claims against Kinsman Transit and the City
of Buffalo?

2. Deep pockets? Judge Moore’s dissent specifically criticizes Friendly’s opinion for
placing losses, however unforeseeable, on the party with the best ability to absorb losses—the
City. What are his reasons for advocating not taking into account the ability of the parties to bear
losses? Do you think there’s an easy line to draw between the potential plaintiffs who are
upstream property owners and the potential plaintiff who suffered due to the delayed doctor?

3. Kinsman Transit and the future of baseball. The ship that touched off the events leading
to the Kinsman Transit case was the MacGilvray Shiras. The Shiras was owned by the Kinsman
Transit Company, which in turn was owned by Henry Steinbrenner. Its vice president and
treasurer was George Steinbrenner, Henry’s son. What Judge Friendly could not have guessed
was that his decision in the Kinsman Transit case would powerfully shape the modern history of
the greatest game and the greatest team known to mankind. Some years after the incident in
question, George purchased the New York Yankees.
The Buffalo River accident took place in January 1959. On December 8, 1958, George
Steinbrenner visited Buffalo to work out the plans for the mooring of the Shiras. Steinbrenner left
Buffalo four days later and went on vacation to Florida. He did not return to Buffalo until after
the accident.
In the litigation leading up to Kinsman Transit, a central question (mostly omitted above)
was whether the Kinsman Transit Company could make use of a safe haven in the law of
admiralty that limits the liability of a ship owner to the value of the ship unless the owner had
knowledge of, or was in privity with, the act giving rise to the ship’s liability. Judge Friendly
determined that neither Henry nor George knew of the negligent mooring of the Shiras.
Moreover, Judge Friendly ruled that
there is every indication that nothing different would have been done if George
Steinbrenner had been on the scene during the final mooring as he had entrusted
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the operation to one admittedly more competent to oversee it than he was.
Kinsman Transit I, 338 F.2d at 715.
Judge Friendly’s conclusion was therefore that the liability of the Kinsman Transit
Company was limited to the value of the Shiras. (This is very likely why the court did not need to
resolve the question of Kinsman Transit’s liability to upstream riparian property owners.) One
result was that the taxpayers of the City of Buffalo bore the lion’s share of the damages from the
flooding.
A far more important result was that George Steinbrenner went on to purchase and
transform the then-moribund New York Yankees with money he had been able to keep by virtue
of the fact that he was less competent than his employees. Steinbrenner’s sons own the Yankees
to this day.

4. Kinsman Transit II. In Kinsman Transit II, decided a little more than three years after
Kinsman Transit I, the Second Circuit upheld the dismissal of claims brought by plaintiff Cargill,
which owned grain being stored in a ship downstream of the drawbridge, and Cargo Carriers,
which was contractually obligated to unload corn from a ship moored upstream of the drawbridge.
After the accident, which blocked Cargill’s grain from getting to the grain elevators located
upstream of the drawbridge, Cargill was forced to purchase replacement grain to meet contractual
obligations it had to deliver grain. Cargo Carriers, in turn, was required to rent expensive
equipment to complete the job of unloading the corn because an ice jam caused by the flooding
had formed between the dock and the ship from which Cargo Carriers was unloading the corn.
The tug boats and icebreakers that would ordinarily have cleared the ice jam were located
downstream of the drawbridge and unable to get past the drawbridge after the accident.
Judge Irving Kauffman wrote the opinion for the Second Circuit, affirming the dismissal
of Cargill’s and Cargo Carriers’ claims:
When the instant case was last here, we held—although without discussion of the
Cargill and Cargo Carriers claims—that it was a foreseeable consequence of the
negligence of the City of Buffalo and Kinsman Transit Company that the river
would be dammed. . . . It would seem to follow from this that it was foreseeable that
transportation on the river would be disrupted and that some would incur expenses
because of the need to find alternative routes of transportation or substitutes for
goods delayed by the disaster.5 It may be that the specific manner was not
foreseeable in which the damages to Cargill and Cargo Carriers would be incurred
but such strict foreseeability—which in practice would rarely exist except in

5

In a claim not before us on this appeal, Judge Burke denied recovery to the Buffalo Transit Company for its
expenses in rerouting its buses until a new bridge became available . . . . He found that the defendants did not
know that the transit company had a right to use the bridge. It would certainly not stretch the concept of
foreseeability as it is developed in the cases to hold that it is “reasonably foreseeable” that buses use major river
bridges. . . .

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hindsight—has not been required.6
We need not decide which, if any, defendants owed Cargill a duty of care with
respect to its unrelated claims based on the Gillies’ [the Gillies was the ship in which
Cargill’s grain was located] immobility, since even if Palsgraf is satisfied,
compensation may be precluded where—as here—the relationship between the
negligence and the injury becomes too tenuous. . . . We recognize that frequently
identical questions are involved whether we speak in terms of “duty” or some other
standard for determining where recovery should be denied. [citing Prosser at 283]
On the previous appeal we stated aptly: “somewhere a point will be reached when
courts will agree that the link has become too tenuous—that what is claimed to be
consequence is only fortuity.” . . . We believe that this point has been reached with
the Cargill and Cargo Carriers claims. Neither the Gillies nor the [boat on which
the Cargo Carrier corn was stored] suffered any direct or immediate damage for
which recovery is sought. The instant claims occurred only because the downed
bridge made it impossible to move traffic along the river.7 Under all the
circumstances of this case, we hold that the connection between the defendants’
negligence and the claimants’ damages is too tenuous and remote to permit
recovery. “The law does not spread its protection so far.” [quoting Justice Holmes
in Robins Dry Dock.]8
In the final analysis, the circumlocution whether posed in terms of “foreseeability,”
“duty,” “proximate cause,” “remoteness,” etc. seems unavoidable. As we have
previously noted,[] we return to Judge Andrews’ frequently quoted statement in
Palsgraf: “It is all a question of expediency . . . of fair judgment, always keeping in
mind the fact that we endeavor to make a rule in each case that will be practical and
in keeping with the general understanding of mankind.”
Kinsman Transit II, 388 F.2d at 824–25.

5. An insurance rationale? In deliberating over the Kinsman Transit case, Judge Friendly
We previously held that “all the claimants here met the Palsgraf . . . requirement of being persons to whom the
actor owed a ‘duty of care.’” . . .
7
The claim of Cargo Carriers is the more troublesome of the two because [the boat on which the corn was
stored] was struck by either the Shiras or the [second boat] and where there is physical damage to a vessel the
owner can recover for the loss of its use until repairs are completed. . . . But apparently Cargo Carriers has not
sought recovery for physical damage to the Farr. And, as we understand the facts, the Farr could have been
unloaded without additional expense were it not for the fact that the tugs which ordinarily are used to break up
ice jams were caught below the Michigan Avenue Bridge.
8
Although to reason by example is often merely to restate the problem, the following illustration may be an aid
in explaining our result. To anyone familiar with N.Y. traffic there can be no doubt that a foreseeable result of an
accident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver
who negligently caused such an accident would certainly be held accountable to those physically injured in the
crash. But we doubt that damages would be recoverable against the negligent driver in favor of truckers or
contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to
‘clock in’ an hour late. And yet it was surely foreseeable that among the many who would be delayed would be
truckers and wage earners.
6

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recommended to his colleagues that insurance should play a role in the case’s resolution. “If there
were any way in which the doctrine could be manipulated so as to correspond with probable
insurance that would be fine,” he wrote, “and in our case one may guess there to be more
likelihood that the property owners were insured against flood damages than that Continental’s
liability insurance would be equal to the strain.” DAVID M. DORSEN, HENRY FRIENDLY: GREATEST
JUDGE OF HIS ERA 309 (2012). Did Judge Friendly’s decision succeed in placing losses with the
better insured parties?

F. Proximate Cause Beyond Torts
1. Proximate Cause and Criminal Law
Proximate causation is an issue that courts wrestle with in contexts outside of torts. For
example, the “exclusionary rule” in criminal law generally holds that evidence obtained in
violation of the Fourth Amendment is inadmissible. For example, in Hudson v. Michigan, 547
U.S. 586 (2006), a criminal defendant was convicted based on a search of his house that revealed
large quantities of guns and firearms. However, the police violated the “knock and announce”
rule for executing the search warrant. The Supreme Court ruled that evidence obtained in
violation of that rule was still admissible because the Fourth Amendment violation was not
sufficiently related to the evidence obtained in the search to have the “taint” of illegality. Justice
Scalia, writing for the Court, explained that “but-for causality is only a necessary, not sufficient,
condition for suppression . . . [because it] can be too attenuated to justify exclusion.” He dictated
a balancing test to determine whether the exclusion’s “deterrence benefits outweigh its substantial
social costs” of potentially letting guilty defendants avoid conviction to limit excessive exclusion.
There are similar proximate cause devices in statutory regimes, including limiting damages in
RICO (Racketeer Influenced and Corrupt Organizations Act) cases, Holmes v. Sec. Investor Prot.
Corp., 503 U.S. 258 (1992), and antitrust cases, Associated General Contractors v. Cal. State
Council of Carpenters, 459 U.S. 519 (1983). For a broader discussion of proximate cause in other
contexts, see Sandra Sperino, Statutory Proximate Cause, 88 NOTRE DAME L. REV. 1199 (2013).

2. Proximate Cause and Consequential Damages
The famous contracts case, Hadley v. Baxendale, is commonly cited for the proposition
that a breaching party in a contract is only liable for those damages that arise naturally from the
breach, or which might “reasonably be supposed to have been in the contemplation of both
parties, at the time they made the contract, as the probable result of the breach of it.” These
formulations (“arising naturally,” “reasonably . . . in the contemplation,” and “probable result”)
sound quite similar to cases on proximate cause that used language like ordinary and natural,
direct consequences, foreseeability, etc. The conventional wisdom, however, is that the concept
of proximate cause in torts is much more expansive than consequential damages in contract.
There is, for example, widespread agreement that damages are recoverable in tort under an
eggshell skull theory that would not be recoverable under Hadley v. Baxendale. See Banks
McDowell, Foreseeability in Contract and Tort: The Problems of Responsibility and Remoteness,
26 CASE W. RES. L. REV. 286 (1985).

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Does it make sense to have different foreseeability standards for different causes of
action—sometimes causes of action (as in products liability cases) that may appear in the same
complaint? Why should contracts have a stricter foreseeability standard than torts?

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CHAPTER 8. THE DUTY PROBLEM
We have now walked through the basic steps of the tort cause of action in most
unintentional torts case. It turns out, however, that there is still one more hurdle for the
enterprising plaintiff’s lawyer and her client. For even when a defendant has acted negligently,
and even when that negligent action was a necessary antecedent and a legal cause of the plaintiff’s
injury, and even when the plaintiff has not acted negligently or assumed the risk herself,
sometimes she still cannot recover. The principal reason for this doctrinally is the doctrine of
duty. For in tort, the obligation of reasonable care is not a general duty owed to all the world. It
is a domain-specific duty, owed to many third parties under many circumstances, to be sure, but
not to all people at all times.
The question of whether legal duty is properly an independent component of the inquiry in
a torts case has been hotly contested for nearly a century now. Critics argue that to conclude that
there was or was not a legal duty in a particular case is inevitably question begging and circular.
Critics point out further that the kinds of factors that courts consider in determining whether a
legal duty exists are precisely the kinds of factors the judge and jury are to consider at other stages
of the inquiry. Defenders, by contrast, argue that the duty stage of the analysis is critical for
understanding the relational character of tort law’s corrective justice project.
One thing that the defenders’ argument has going for it is that historically, there have
been an extraordinary array of areas in our social life to which the common law of torts attaches a
special limited tort duty of care—or simply no duty of care at all. Having built up the negligence
action in the past five chapters, the common law (at least in its traditional structure) sometimes
seemed to dismantle the negligence action in virtually every significant domain of social life.
In this chapter, we run through the principal social situations in which the law of torts
recognizes no duty of reasonable care. Areas of limited or no duty abound. Historically, they
have virtually covered the field of tort law, so much so (as the torts scholar Robert Rabin has
observed) that the negligence cause of action barely existed until the middle of the nineteenth
century. See Robert L. Rabin, The Historical Development of the Fault Principle: A
Reinterpretation, 15 GA. L. REV. 925 (1981).
The second half of the twentieth century witnessed the gradual erosion of these domains
of limited or no duty of care and the concomitant expansion of the negligence action. The first
example of a limited duty rule we take up below, however, is the classic rule holding that there is
generally no duty to rescue. This rule is still running strong today. The nonexistence of such a
duty to rescue, many say, is a powerful piece of evidence for the centrality of duty in our basic
ideas about tort law.

A. Is There a Duty to Rescue?
It is well settled—and yet enduringly controversial—that the common law of torts
imposes no general duty to rescue. The person who encounters an unconscious stranger face
down in a puddle on the sidewalk has no tort duty to turn the stranger’s head, even if the person
knows the stranger to be in imminent danger of death by drowning, and even if the person knows
that the costs to herself of rescuing the stranger would be minimal.
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Why should tort law adopt such a morally startling proposition? We have no doubt that
the person who declines to assist in such a situation has behaved in a shocking and morally
deplorable fashion. But despite the moral obligation to assist in such a case, the law declines to
attach a legal obligation.

1. Cases
Farwell v. Keaton, 240 N.W.2d 217 (Mich. 1976)
LEVIN, J.
On the evening of August 26, 1966, Siegrist and Farwell drove to a trailer rental lot to
return an automobile which Siegrist had borrowed from a friend who worked there. While
waiting for the friend to finish work, Siegrist and Farwell consumed some beer.
Two girls walked by the entrance to the lot. Siegrist and Farwell attempted to engage
them in conversation; they left Farwell’s car and followed the girls to a drive-in restaurant down
the street.
The girls complained to their friends in the restaurant that they were being followed. Six
boys chased Siegrist and Farwell back to the lot. Siegrist escaped unharmed, but Farwell was
severely beaten. Siegrist found Farwell underneath his automobile in the lot. Ice was applied to
Farwell’s head. Siegrist then drove Farwell around for approximately two hours, stopping at a
number of drive-in restaurants. Farwell went to sleep in the back seat of his car. Around
midnight Siegrist drove the car to the home of Farwell’s grandparents, parked it in the driveway,
unsuccessfully attempted to rouse Farwell, and left. Farwell’s grandparents discovered him in the
car the next morning and took him to the hospital. He died three days later of an epidural
hematoma.
At trial, plaintiff [the father of the decedent] contended that had Siegrist taken Farwell to
the hospital, or had he notified someone of Farwell’s condition and whereabouts, Farwell would
not have died. A neurosurgeon testified that if a person in Farwell’s condition is taken to a doctor
before, or within half an hour after, consciousness is lost, there is an 85 to 88 per cent chance of
survival. Plaintiff testified that Siegrist told him that he knew Farwell was badly injured and that
he should have done something.
The jury returned a verdict for plaintiff and awarded $15,000 in damages. The Court of
Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and
that he neither knew nor should have known of the need for medical treatment.
....
“A duty, in negligence cases, may be defined as an obligation, to which the law will give
recognition and effect, to conform to a particular standard of conduct toward another.” Prosser,
Torts (4th ed.), § 53, p 324. . . .

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Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell
because he had no duty to do so.
Courts have been slow to recognize a duty to render aid to a person in peril. Where such a
duty has been found, it has been predicated upon the existence of a special relationship between
the parties; in such a case, if defendant knew or should have known of the other person’s peril,
he is required to render reasonable care under all the circumstances. . . .
Farwell and Siegrist were companions on a social venture. Implicit in such a common
undertaking is the understanding that one will render assistance to the other when he is in peril if
he can do so without endangering himself. Siegrist knew or should have known when he left
Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find
him before morning. Under these circumstances, to say that Siegrist had no duty to obtain
medical assistance or at least to notify someone of Farwell’s condition and whereabouts would be
“shocking to humanitarian considerations” and fly in the face of “the commonly accepted code of
social conduct.” Hutchinson v. Dickie, 162 F.2d 103, 106 (6th Cir. 1947) [(finding that a host had
an affirmative duty to try to rescue a guest who had fallen off the host’s yacht)]. “[C]ourts will
find a duty where, in general, reasonable men would recognize it and agree that it
exists.” Prosser, supra, § 53, at 327.
Farwell and Siegrist were companions engaged in a common undertaking; there was a
special relationship between the parties. Because Siegrist knew or should have known of the peril
Farwell was in and could render assistance without endangering himself he had an affirmative
duty to come to Farwell’s aid.
The Court of Appeals is reversed and the verdict of the jury reinstated.

Harper v. Herman, 499 N.W.2d 472 (Minn. 1993)
This case arises upon a reversal by the court of appeals of summary judgment in favor of
the defendant. The court of appeals held that defendant, the owner and operator of a private boat
on Lake Minnetonka, had a duty to warn plaintiff, a guest on the boat, that water surrounding the
boat was too shallow for diving. We reverse and reinstate judgment in favor of defendant.
The facts are undisputed for the purpose of this appeal. On Sunday, August 9, 1986,
Jeffrey Harper (“Harper”) was one of four guests on Theodor Herman’s (“Herman”) 26-foot boat,
sailing on Lake Minnetonka. Harper was invited on the boat outing by Cindy Alberg Palmer,
another guest on Herman’s boat. Herman and Harper did not know each other prior to this boat
outing. At the time Herman was 64 years old, and Harper was 20 years old. Herman was an
experienced boat owner having spent hundreds of hours operating boats on Lake Minnetonka
similar to the one involved in this action. As owner of the boat, Herman considered himself to be
in charge of the boat and his passengers. Harper had some experience swimming in lakes and
rivers, but had no formal training in diving.
After a few hours of boating, the group decided to go swimming and, at Herman’s
suggestion, went to Big Island, a popular recreation spot. Herman was familiar with Big Island,
and he was aware that the water remains shallow for a good distance away from its shore. Harper
had been to Big Island on one previous occasion. Herman positioned the boat somewhere
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between 100 to 200 yards from the island with the bow facing away from the island in an area
shallow enough for his guests to use the boat ladder to enter the water, but still deep enough so
they could swim. The bottom of the lake was not visible from the boat. After positioning the boat
Herman proceeded to set the anchor and lower the boat’s ladder which was at its stern.
While Herman was lowering the ladder, Harper asked him if he was “going in.” When
Herman responded yes, Harper, without warning, stepped onto the side of the middle of the boat
and dove into approximately two or three feet of water. As a result of the dive, Harper struck the
bottom of the lake, severed his spinal cord, and was rendered a C6 quadriplegic.
Harper then brought suit, alleging that Herman owed him a duty of care to warn him that
the water was too shallow for diving. On October 23, 1991, the trial court granted Herman’s
motion for summary judgment, ruling that the law does not impose such a duty. In reversing the
trial court, the court of appeals concluded that Herman voluntarily assumed a duty to exercise
reasonable care when he allowed Harper onto his boat, and that the duty of care included warning
Harper not to dive because he knew that the water was “dangerously shallow.” . . .
The sole issue on appeal is whether a boat owner who is a social host owes a duty of care
to warn a guest on the boat that the water is too shallow for diving.
Harper alleges that Herman owed him a duty to warn of the shallowness of the water
because he was an inexperienced swimmer and diver, whereas Herman was a veteran boater.
Under those circumstances, Harper argues, Herman should have realized that Harper needed his
protection.
We have previously stated that an affirmative duty to act only arises when a special
relationship exists between the parties. “The fact that an actor realizes or should realize that
action on his part is necessary for another’s aid or protection does not of itself impose upon him a
duty to take such action . . . unless a special relationship exists . . . between the actor and the other
which gives the other the right to protection.” . . .
Harper argues that a special relationship requiring Herman to act for his protection was
created when Herman, as a social host, allowed an inexperienced diver on his boat. Generally, a
special relationship giving rise to a duty to warn is only found on the part of common carriers,
innkeepers, possessors of land who hold it open to the public, and persons who have custody of
another person under circumstances in which that other person is deprived of normal opportunities
of self-protection. Restatement (Second) of Torts § 314A (1965). Under this rule, a special
relationship could be found to exist between the parties only if Herman had custody of Harper
under circumstances in which Harper was deprived of normal opportunities to protect himself.2

2

Prosser describes a circumstance in which one party would be liable in negligence because another party was
deprived of normal opportunities for self-protection as occurring when
the plaintiff is typically in some respect particularly vulnerable and dependent upon the
defendant who, correspondingly, holds considerable power over the plaintiff’s welfare. . .
. [S]uch relations have often involved some existing or potential economic advantage to
the defendant. Fairness in such cases thus may require the defendant to use his power to
help the plaintiff, based upon the plaintiff’s expectation of protection, which itself may be

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These elements are not present here.
The record before this court does not establish that Harper was either particularly
vulnerable or that he lacked the ability to protect himself. Further, the record does not establish
that Herman held considerable power over Harper’s welfare, or that Herman was receiving a
financial gain by hosting Harper on his boat. Finally, there is nothing in the record which would
suggest that Harper expected any protection from Herman; indeed, no such allegation has been
made.
The court of appeals found that Herman owed Harper a duty to warn him of the
shallowness of the water because Herman knew that it was “dangerously shallow.” We have
previously stated that “[a]ctual knowledge of a dangerous condition tends to impose a special duty
to do something about that condition.” . . . . However, superior knowledge of a dangerous
condition by itself, in the absence of a duty to provide protection, is insufficient to establish
liability in negligence. Thus, Herman’s knowledge that the water was “dangerously shallow”
without more does not create liability. . . . In this case, Harper was not deprived of opportunities
to protect himself, and Herman was not expected to provide protection.
“There are many dangers, such as those of fire and water, . . . which under ordinary
conditions may reasonably be expected to be fully understood and appreciated by any child . . . .”
Restatement (Second) of Torts § 339 cmt. j (1965). If a child is expected to understand the
inherent dangers of water, so should a 20-year-old adult. Harper had no reasonable expectation to
look to Herman for protection, and we hold that Herman had no duty to warn Harper that the
water was shallow.
Reversed and judgment in favor of defendant reinstated.

Notes

1. A stark no duty rule. It is worthwhile recalling precisely what the Harper v. Herman court
means when it holds that Herman had no special relationship with Harper and thus was not
obligated to warn Harper. Even if Herman knew that Harper was about to dive into dangerously
shallow water, even if Harper announced his intention, and even if Herman foresaw with perfect
foresight the devastating effects Harper’s dive would have and knew that he could save Harper
with a simple word at virtually no cost to himself, the court’s analysis would remain the same. No
legal obligation to assist means no liability, no matter how clear the costlessness of the rescue and
the costs of the likely injury.

2. Can Farwell and Harper be reconciled? The Farwell court treats the defendant’s
knowledge of the plaintiff’s risky position as grounds for recognizing a special relationship. The
Harper court, by contrast, seems to suggest that the fact of the defendant’s knowledge is not a

based upon the defendant’s expectation of financial gain.
W. Page Keeton et al., Prosser and Keeton on the Laws of Torts § 56, at 374 (5th ed. 1984).

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reason to recognize a duty to render assistance, but rather merely a reason to think that the
defendant may have breached such a duty when a special relationship establishing such a duty can
be said to exist for independent reasons. What is at stake in these two different approaches, as is
so often the case in the duty inquiry, is the allocation of decisionmaking authority between judge
and jury. If the existence of a duty turns on factual questions such as the defendant’s knowledge
of the risks, then the jury will have considerable influence on the duty determination. But if the
duty determination, as in Harper, is made independent of the particular facts in a particular case,
then courts will be able to make those judgments on their own. Each approach creates its own
dilemmas. The fact-intensive approach of Farwell begs the question of why the very same factors
that help decide the existence of a duty—a defendant’s knowledge of the risks, the costs of
precautions, etc.—then reappear at the breach stage of the analysis to help decide whether the
defendant breached the duty. By contrast, the Harper court approach leaves one wondering what
the relevant considerations would be for recognizing a special relationship between the parties; is
the special relationship category exhausted by the short list of historical special relations?

3. Acts and omissions. The no-duty rule posits that there is no general duty to act, merely a
duty in acting to behave reasonably in the actions one does undertake. Omissions, as opposed to
actions, do not give rise to legal responsibility.
But why are either of these cases properly characterized as cases in which the defendant
omitted to act rather than as cases in which the defendant was engaged in a course of conduct.
Why, in other words, are they treated as omission cases rather than action cases?
There is little doubt that a driver who fails, either negligently or intentionally, to apply the
brake when he sees a pedestrian cross dangerously in front of him has driven in a wrongful
manner. Of course we could characterize the driver as having omitted to act—as having omitted
to apply the brake. But we don’t. Note that one important feature of this hypothetical is that the
driver is causally connected to the risk in which the pedestrian finds himself. Yet the same is true
in both Farwell and Harper. Why don’t we see the drinking buddy as having engaged in a
negligent course of action in setting out on an adventure in the dangerous parking lots of the
American suburban wilderness? Didn’t Farwell engage in a course of conduct much like the
driver who omits to brake? Herman could be said to have engaged in a kind of negligent boating.
Professors Kenneth Abraham and Leslie Kendrick contend that “most of the so-called affirmative
duty cases actually are conventional negligence cases of a particular sort: those in which the
defendant is not exclusively responsible for creating the danger to the plaintiff.” Kenneth S.
Abraham & Leslie Kendrick, There’s No Such Thing as Affirmative Duty, 104 IOWA L. REV. 1649
(2019).
One view is that there are no bedrock principles on which the act / omission distinction
rests, but that there are merely social conventions and intuitions about when a person can be said
to be in some way responsible for another’s loss. The difficulty, of course, is that to say this is not
very helpful, since the aim of tort law is precisely to identify who should bear a given loss,
especially in cases where the social conventions become controversial.

4. The utilitarian critique. What principle explains the rule of no duty to rescue? A century
ago, legal scholar James Barr Ames suggested that the general no-duty rule was a kind of failure
of imagination that prevented adoption of a more targeted and nuanced rule that would more
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closely produce utilitarian outcomes:
The law does not compel active benevolence between man and man. It is left to
one’s conscience whether he shall be the good Samaritan or not. But ought the law
to remain in this condition? Of course any statutory duty to be benevolent would
have to be exceptional. The practical difficulty in such legislation would be in
drawing the line. But that difficulty has continually to be faced in the law. We
should all be better satisfied if the man who refuses to throw a rope to a drowning
man or to save a helpless child on the railroad track could be punished and be made
to compensate the widow of the man drowned and the wounded child. . . . These
illustrations suggest a possible working rule. One who fails to interfere to save
another from impending death or great bodily harm, when he might do so with little
or no inconvenience to himself, and the death of great bodily harm follows as a
consequence of his inaction, shall . . . make compensation to the party injured or to
his widow and children in case of death.
James Barr Ames, The Law and Morals, 22 HARV. L. REV. 97. 109-10, 112-13 (1908).
More recently, those with a utilitarian streak have tried to find welfare-based reasons to
explain the general rule. They aim further to characterize the traditional hard-and-fast rule as
slowly giving way to a legal framework that recognizes a duty to rescue, at least in some domains.
Judge Posner depicted the situation thus:
Various rationales have been offered for the seemingly hardhearted common law
rule: people should not count on nonprofessionals for rescue; the circle of
potentially liable nonrescuers would be difficult to draw (suppose a person is
drowning and no one on the crowded beach makes an effort to save him—should
all be liable?); altruism makes the problem a small one and liability might actually
reduce the number of altruistic rescues by depriving people of credit for altruism
(how would they prove they hadn’t acted under threat of legal liability?); people
would be deterred by threat of liability from putting themselves in a position where
they might be called upon to attempt a rescue, especially since a failed rescue might
under settled common law principles give rise to liability, on the theory that a
clumsy rescue attempt may have interfered with a competent rescue by someone
else. . . .
Whatever the validity of these explanations for the common law rule, they have
been held to be overborne in three types of case. The three types are typically said
to involve a “special relationship” between rescuer and victim. . . .
The first type of case is where the rescuer had either assumed, explicitly or
implicitly, a contractual duty to rescue the victim. . . .
In the second type of case, the victim was in the rescuer’s custody and thus without
access to alternative rescuers. . . . These cases are readily assimilated to cases of the
first type . . . .
The third class consists of cases in which the victim’s peril had been caused by the
putative rescuer himself—even if he had caused it nonnegligently. . . .
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In short . . . when the rescuer either has assumed explicitly or implicitly a duty of
rescue, or has caused the injury, the reasons behind the common law rule fall away
and the rule is bent.
Stockberger v. United States, 332 F.3d 479 (7th Cir. 2003) (Posner, J.).

5. A rights-based answer. The more common observation has been to insist that the rule of
no duty to rescue reveals something deeply anti-utilitarian underlying the law of torts. Professor
Richard Epstein made the argument especially energetically four decades ago, insisting that the
rule against a duty to rescue was fundamental to human freedom:
Under Ames’ good Samaritan rule, a defendant in cases of affirmative acts would
be required to take only those steps that can be done “with little or no inconvenience.”
But if the distinction between causing harm and not preventing harm is to be
disregarded, why should the difference in standards between the two cases survive
the reform of the law? The only explanation is that the two situations are regarded
at bottom as raising totally different issues, even for those who insist upon the
immateriality of this distinction. Even those who argue, as Ames does, that the law
is utilitarian must in the end find some special place for the claims of egoism which
are an inseparable byproduct of the belief that individual autonomy—individual
liberty—a good in itself not explainable in terms of its purported social worth. . . .
Richard A. Epstein, A Theory of Strict Liability, 2 J. LEGAL STUD. 151, 197–200 (1973).
Epstein goes on to ask whether a middle class resident of a western market
economy might be legally obligated under Ames’s rule to say yes when asked to provide
$10 to a private charity to save the life of a starving child. What about the second time?
The third? Epstein attacks the idea of a duty to rescue on the grounds that “it becomes
impossible to tell where liberty ends and obligation begins; where contract ends, and tort
begins.” Moreover, and perhaps more interestingly, Epstein observes that compulsory
assistance threatens the very existence of the domain of charity.
Judge Posner responds that a duty to rescue, properly understood, would vindicate the
contractual liberty that Epstein seeks to achieve, not defeat it:
Suppose that if all of the members of society could somehow be assembled they
would agree unanimously that, as a reasonable measure of mutual protection,
anyone who can warn or rescue someone in distress at negligible cost to himself (in
time, danger, or whatever) should be required to do so. These mutual promises of
assistance would create a contract that Epstein would presumably enforce since he
considers the right to make binding contracts a fundamental one. However, there
are technical obstacles—in this case insurmountable ones—to the formation of an
actual contract among so many people. Transaction costs are prohibitive. If, moved
by these circumstances, a court were to impose tort liability on a bystander who
failed to assist a person in distress, such liability would be a means of carrying out
the original desires of the parties just as if it were an express contract that was being
enforced.
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Richard A. Posner, Epstein’s Tort Theory: A Critique, 8 J. LEGAL STUD. 457, 460-61 (1979).
Others have argued that taking a potential rescuer’s previous contributions into account would
supply the principled stopping point that Epstein worries does not exist. See T. M. SCANLON,
WHAT WE OWE EACH Other 224 (1998).

6. Moral heuristics? Still another view—one rooted deep in the nineteenth-century
intellectual history of utilitarianism—is that the rule against a duty to rescue is the kind of moral
mistake that “common sense morality” (in philosopher Henry Sidgwick’s phrase from his The
Methods of Ethics 425 (1907)) or the “morality of the multitude” (in John Stuart Mill’s cutting
formulation from his Utilitarianism (1879)) makes when it encounters unusual situations in which
the conventional moral norms fail to advance the general happiness. Cass Sunstein has recently
advanced this argument in an updated form:
It is worth considering the possibility that the act-omission distinction operates as a
heuristic . . . . From the moral point of view, harmful acts are generally worse than
harmful omissions, in terms of both the state of mind of the wrongdoer and the likely
consequences of the wrong. A murderer is typically more malicious than a
bystander who refuses to come to the aid of someone who is drowning; the murderer
wants his victim to die, whereas the bystander need have no such desire. In addition,
a murderer typically guarantees death, whereas a bystander may do no such thing.
(I put to one side some complexities about causation.) But in terms of either the
wrongdoer’s state of mind or the consequences, harmful acts are not always worse
than harmful omissions. The moral puzzles arise when life, or a clever interlocutor,
comes up with a case in which there is no morally relevant distinction between acts
and omissions, but when moral intuitions . . . strongly suggest that there must be
such a difference. . . .
In such cases, we might hypothesize that moral intuitions reflect an
overgeneralization of principles that usually make sense—but that fail to make
sense in the particular case . . . .
Cass Sunstein, Moral Heuristics, 28 BEHAV. & BRAIN SCI. 531 (2005).
If Mill, Sidgwick, and Sunstein are correct—if the confusion around the no-duty rule is
the result of what Sidgwick called the “Unconscious Utilitarianism” of everyday moral
distinctions such as act and omission—what should the law do? On the one hand, Mill urged us
to see such situations as ones of moral confusion to be corrected by an explicit utilitarian calculus
such as the one contained in Ames’s proposal. On the other hand, common sense morality’s value
as a proxy or heuristic for complex utilitarian calculations might be undermined if the law
dropped the pretense of common sense morality in hard cases. The use of everyday morality as a
proxy for utilitarianism might, as Sidgwick observed, require the rule makers to mislead the
public about the real basis of the moral rules. HENRY SIDGWICK, THE METHODS OF ETHICS 447
(7th ed. 1981).

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7. Unconscious utilitarianism or unconscious altruism? Sunstein suggests that many moral
judgments are the product of automatic, prereflective intuitions. But will conscious reflection
produce happier results in the low-cost easy rescue cases?
Reflection may not lead people to act in the ways we might like. Psychologists David
Rand and Ziv Epstein surveyed dozens of anecdotal reports from people who undertook heroic
rescues of strangers, such as saving an elderly woman from drowning in her car. They found that
these altruistic individuals overwhelmingly reported their decision-making processes as
dominated by instinct, not a deliberative weighing of pros and cons. David G. Rand & Ziv G.
Epstein, Risking Your Life Without a Second Thought: Intuitive Decision-Making and Extreme
Altruism, 9 PLOS ONE, 1 (2014).
Rand and numerous other researchers find that players in economic games tend to make
more selfish choices the more time they are given to deliberate. Pressuring players to decide
quickly, by putting them under time constraints or cognitive load, leads them to behave more
cooperatively. It is as if deliberation promotes selfishness and intuition favors altruism. David G.
Rand, Cooperation, Fast and Slow: Meta-Analytic Evidence for a Theory of Social Heuristics and
Self-Interested Deliberation, 27 PSYCHOL. SCI. 1192 (2016). Rand concludes that each of us is
prone, for evolutionary reasons, to be an unthinking altruist and a calculating homo economicus.

8. Conceptual thickets and the limited duty rules. One way to avoid the conceptual thickets
of the utilitarian approach would be to insist (as Epstein insisted) that the rule of no duty to rescue
is not utilitarianism in disguise at all. The rule of no duty to rescue seems much more plausibly
defended as a recognition of the moral impoverishment of the utilitarian view. The rule embodies
the nuanced relational character of moral obligation and tort liability in liberal societies. We don’t
have generalized duties to all comers. We have only more particular duties, including sometimes
particular duties to aid particular people from particular risks. The tort law rule on the duty to
rescue, in this view, simply embodies the basic structure of morality.
In this sense, the duty to rescue is a perfect introduction to the limited-duty and no-duty
rules that follow in the rest of this chapter. Ever since beginning to study the negligence cause of
action, we have assumed a duty of reasonable care. But in many different domains of social life
there is no such duty; at the very least, the duty that inheres in such domains is different from the
generic duty of reasonable care. Some influential torts jurists, as we shall see, believe that the
domain-specific character of tort law is a mistake that ought to be suppressed in favor of a generic
reasonableness test. Relevant relational considerations, they say, need not be ignored, since they
can be and are brought out in the analysis of the reasonableness of the parties’ actions. Others
equally prominent in the field object and insist that the domain specificity and relational character
of our moral and legal obligations do and ought to appear in the formal doctrine of duties of care.

2. Liability for Good Samaritans?
No matter what the basis for the limits on the common law duty to rescue, some states
have altered the common law rule by statute and created limited duties to rescue along the lines of
the proposal advanced by Ames a century ago. The statutes often address a further question that

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arises when someone has chosen to act as a Good Samaritan and provided help to someone in
need. What happens when the rescue goes awry?

Swenson v. Waseca Mutual Insurance Co., 653 N.W.2d 794 (Minn. 2002)
ANDERSON, J.
On January 19, 1998, Kelly Swenson, 13 years old, injured her leg when the snowmobile
she was driving struck a drainage culvert in the north ditch. . . . Swenson apparently dislocated her
knee during the accident. With Swenson at the time of the accident were her sister and three
friends.
Lillian Tiegs, a passing motorist, in response to waving from Swenson’s companions,
stopped her vehicle on the shoulder of Highway 19 and asked if any assistance was necessary.
Tiegs first attempted to summon help by calling 911, but she was unable to raise a signal on her
cell phone. Tiegs then agreed to drive Swenson to the hospital in New Prague. The rest of
Swenson’s group decided to drive their snowmobiles to the home of Tiegs, less than a quarter of a
mile away from the scene of the accident. The plan was to leave the snowmobiles at the Tiegs
residence and then ride in the Tiegs’ van to the hospital.
After Swenson was placed in the van, Tiegs attempted to make a U-turn from the
westbound side of the highway to the eastbound lane. Before Tiegs had completed the U-turn, a
tractor-trailer exceeding the posted speed limit and traveling in the eastbound lane struck the
passenger side of the Tiegs’ van. Kelly Swenson died as a result of injuries she sustained in this
accident.
The Swenson family brought a wrongful-death action against both the tractor-trailer driver
and Tiegs. The Swensons settled with the driver of the tractor-trailer and then brought an under
insured-motorist claim against Waseca Mutual, the insurer for Tiegs. Waseca Mutual moved for
summary judgment, alleging that under Minnesota’s Good Samaritan law, Tiegs was immune
from liability. . . . The district court . . . concluded that Tiegs . . . was entitled to immunity. . . .
Minnesota’s Good Samaritan law has two main components. The statute imposes a duty
to help on anyone present “at the scene of an emergency” who “knows another person is exposed
to or has suffered grave physical harm,” provided that the person can lend assistance without
danger or peril to themselves. . . . The second component of the statute, in dispute here, provides
immunity to any person who: without compensation or the expectation of compensation, renders
emergency care, advice, or assistance at the scene of an emergency or during transit to a
location where professional medical care can be rendered, . . . unless the person acts in a willful
and wanton or reckless manner in providing the care, advice, or assistance. (Emphasis added).
Appellant contends that the Good Samaritan law’s “during transit” provision does not
apply to the mere act of driving an injured party from the scene of an accident to a hospital.
Instead appellant argues that the “during transit” provision only protects those who provide some
sort of emergency care while the person is being transported to a health-care facility. . . .
In light of the fact that professional emergency medical technicians are already under a
duty to provide competent care, appellant’s interpretation would only protect those laypersons
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providing emergency care in a vehicle and in transit to a health-care facility while a third person
drives the vehicle. Such a narrow interpretation of the law offers little protection. Nor does it
offer much encouragement to a layperson to help others in peril. . . .
To hold, as appellant urges, that transportation is not a protected activity and not eligible
for immunity under the provisions of the Good Samaritan law would have the perverse effect of
discouraging an entire class of responses to emergency circumstances. Absent a clear legislative
direction that transportation is not a covered activity under the immunity statute, we are not
willing to adopt appellant’s argument. We hold that transportation of an injured person by nonemergency personnel is a protected activity under the immunity provisions of the Good Samaritan
law. . . .
[W]e affirm the district court’s grant of summary judgment.

B. Landowners and Occupiers
The traditional common law rule held that the owners and occupiers of land owed no
obligation of reasonable care to trespassers upon that land, and further that they owed only a
limited duty toward social guests to warn such guests of known latent hazards.

United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922)
HOLMES, J.
This is a suit brought by the respondents against the petitioner to recover for the death of
two children, sons of the respondents. The facts that for the purposes of decision we shall assume
to have been proved are these. The petitioner owned a tract of about twenty acres in the outskirts
of the town of Iola, Kansas. Formerly it had there a plant for the making of sulphuric acid and
zinc spelter. In 1910 it tore the buildings down but left a basement and cellar, in which in July,
1916, water was accumulated, clear in appearance but in fact dangerously poisoned by sulphuric
acid and zinc sulphate that had come in one way or another from the petitioner’s works, as the
petitioner knew. The respondents had been travelling and encamped at some distance from this
place. A travelled way passed within 120 or 100 feet of it. On July 27, 1916, the children, who
were eight and eleven years old, came upon the petitioner’s land, went into the water, were
poisoned and died. . . . At the trial the Judge instructed the jury that if the water looked clear but
in fact was poisonous and thus the children were allured to it the petitioner was liable. The
respondents got a verdict and judgment, which was affirmed by the Circuit Court of Appeals.
. . . If the children had been adults they would have had no case. They would have been
trespassers and the owner of the land would have owed no duty to remove even hidden danger; it
would have been entitled to assume that they would obey the law and not trespass. . . . On the
other hand the duty of one who invites another upon his land not to lead him into a trap is well
settled, and while it is very plain that temptation is not invitation, it may be held that knowingly to
establish and expose, unfenced, to children of an age when they follow a bait as mechanically as a
fish, something that is certain to attract them, has the legal effect of an invitation to them although
not to an adult. But the principle if accepted must be very cautiously applied.
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In Railroad Co. v. Stout, the well-known case of a boy injured on a turntable, it appeared
that children had played there before to the knowledge of employees of the railroad, and in view
of that fact and the situation of the turntable near a road without visible separation, it seems to
have been assumed . . . that the railroad owed a duty to the boy. Perhaps this was as strong a case
as would be likely to occur of maintaining a known temptation, where temptation takes the place
of invitation. A license was implied . . . .
In the case at bar it is at least doubtful whether the water could be seen from any place
where the children lawfully were and there is no evidence that it was what led them to enter the
land. But that is necessary to start the supposed duty. There can be no general duty on the part of
a land-owner to keep his land safe for children, or even free from hidden dangers, if he has not
directly or by implication invited or licensed them to come there. . . .
[T]he petitioner is [not] liable for poisoned water not bordering a road, not shown to have
been the inducement that led the children to trespass . . . and not shown to have been the indirect
inducement because known to the children to be frequented by others. It is suggested that the
roads across the place were invitations. A road is not an invitation to leave it elsewhere than at its
end.
Judgment reversed.

Notes

1. The common law rules. At common law, the standard of care owed a visitor depended on
whether the visitor was an “invitee,” a “licensee,” or a “trespasser.”
An invitee is someone whom the landowner has invited onto his property in the
expectation that he will benefit from the invitee’s presence. A business guest, for example, is an
invitee. See, e.g., Corley v. Evans, 835 So. 2d 30 (2003) (a person who was shot at a crawfish boil
that charged admission is an invitee); Mann v. Safeway Stores, Inc., 95 Idaho 732 (1974) (a
supermarket patron is an invitee); and Triangle Motors of Dallas v. Richmond et al., 152 Tex. 354
(1953) (a plumber who was injured while trying to repair the landowner’s drain is an invitee). But
not all invitees are business guests. See Thomas v. St. Mary’s Roman Catholic Church, 283
N.W.2d 254 (1979) (a member of a visiting basketball team playing in the school’s gym is an
invitee). Traditionally, landowners owed invitees a duty of reasonable care.
A licensee is someone who the landowner has allowed—but not necessarily invited—onto
his property. The key difference between licensees and invitees is that the former do not bestow
any tangible benefits on the landowner. So, for example, the West Virginia Supreme Court has
held that a person who is injured taking a shortcut across a property with the owner’s permission
is a licensee. Hamilton v. Brown, 157 W.Va. 910 (1974). In most states, social guests are
considered licensees. See Cobb v. Clark, 265 N.C. 194 (1965) (a social guest who fell down the
landowners’ stairs is a licensee). This is true regardless of whether the social guest and the
landowner are family members. Wolfson v. Chelist, 284 S.W.2d 447 (Mo. 1955) (holding that a
social guest who was injured on her sister’s property is a licensee). Traditionally, landowners had
two basic duties to licensees: to warn them of hidden dangers (but typically only those hidden
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dangers of which the landowners were aware) and to refrain from willfully, wantonly, or
recklessly injuring them.
A trespasser is someone who enters or remains on a property without the landowner’s
permission. See Buch v. Amory MFG. Co., 69 N.H. 257 (1898) (a child who entered a factory
without the owner’s permission and then got his hand caught in a machine is a trespasser).
Traditionally, landowners’ only duty to trespassers was to refrain from willfully, wantonly, or
recklessly harming them.

2. The expansion of the invitee class. Over the past century and a half, courts have expanded
the definition of “invitee” to include people who once would have been considered licensees. The
invitee class has been expanded to include children injured in stores where their parents are
shopping (Hecht Co. v. Jacobsen, 180 F.2d 13 (D.C. Cir. 1950)), swimmers who drown in pools
that are open to the public (Rovegno v. San Jose Knights of Columbus Hall Assn., 108 Cal. App.
591 (1930)), and even alumni on campus for their college reunions (Guilford v. Yale Univ., 128
Conn. 449 (1942)).
Public employees have been some of the biggest beneficiaries of this trend. Public
employees fit awkwardly into the traditional tripartite scheme: Many have jobs that require them
to legally enter private property for reasons that benefit the public but directly benefit neither
themselves nor the landowners. This has created problems for courts attempting to apply the
traditional rule—especially as the reach of the regulatory state has expanded into new areas. For
the most part, courts have resolved these classification questions in favor of public employees,
extending invitee status to census takers (Glassbrook v. Manhi Realty Corp., 108 N.Y.S.2d 652
(1951)), letter carriers (Sutton v. Penn, 238 Ill. App. 182 (1925)), municipal garbage collectors
(Toomey v. Sanborn, 146 Mass. 28 (1888)), revenue inspectors (Anderson & Nelson Distilleries
Co. v. Hair, 103 Ky. 196 (1898)), meat inspectors (Swift & Co. v. Schuster, 192 F.2d 615 (10th
Cir. 1951)), building inspectors (Fred Howland, Inc. v. Morris, 143 Fla. 189 (1940)), health
inspectors (Jennings v. Industrial Paper Stock Co., 248 S.W.2d 43 (Mo. Ct. App. 1952)), and so
on. Police officers and firefighters, however, continue to be classified as licensees in most
jurisdictions where the traditional rule is still applied. See, e.g., Furstein v. Hill, 218 Conn. 610
(1991).
The traditional common law rule often led to outcomes that seemed shocking, at least to
many, if not to the hardened sensibilities of Justice Holmes. This was especially so where the
circumstances seemed to indicate that the defendant’s negligence was especially apparent. In
such cases, cutting off the negligence inquiry by imposing the common law’s limited duty for the
occupiers and owners of land seemed particularly galling. Consider the next case.

Banker v. McLaughlin, 146 Tex. 434 (1948)
TAYLOR, J.
James McLaughlin brought this suit against H. F. Banker to recover damages for the death
of his minor son (five years and ten months old). The trial court awarded judgment in plaintiff’s
favor on the jury’s verdict for $15,200. The Court of Civil Appeals, under the view that the award
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was excessive, caused a remittitur to be filed which reduced the judgment to $6,000. The case is
here on Mr. Banker’s application for the writ.
The child met his death on June 19, 1945, by drowning in a large hole, or pit, of water on
Forest Park Subdivision, a homesite addition which Mr. Banker, the owner, at that time and since,
was in the process of developing and marketing . . . .
Plaintiff brought the suit, alleging the ownership of the subdivision by Mr. Banker, the
digging of the hole by the owner which, as plaintiff alleged, made the spot (when the hole filed
with water) especially attractive to children, and dangerous; and that it attracted to it the child,
James McLaughlin, Jr. He alleged the owner’s negligence in creating on his premises (without
warning devices or protective measures of any character) such dangerous condition where he
knew or should have known that children played.
The owner answered by general denial, and further by special answer that the child was
neither a licensee nor an invitee but was a trespasser, and that the drowning was an accident
occasioned by no fault of his. . . .
At the time the child was drowned about 50 families (40 of which had small children)
were living in Forest Park Subdivision; and numerous children were living in contiguous group
settlements. . . . The pool is located on the east side of Lot 10 of Block 7.
Mr. McLaughlin’s home (about 200 yards distant) is west of the pit on the back of Lots 15
and 16, Block 1, a small two-room house, the second purchased after Mr. Banker began marketing
the homesites. The general surroundings about the pool from the standpoint of the record are
described by the following bits of testimony of witnesses who saw them: As indicated by the
name (Forest Park) the addition was a wooded area. One could “get to it (the pool) without any
trouble”; about the pit “there was quite a bit of . . . vegetation, and quite a bit of grass”; that there
was a truck “road or trail” out there; people went “back in there to have picnics”; it was “open”
there, “all except some small bushes and grass”; about “the scene of this pit” there were “small
bushes, where the trucks ran over them and beat them down”; there were “no trees” right at the
hole or “around it”; in the “spring and summer” there would be “wild flowers and things like that
growing there.” Defendant himself testified that the pool was accessible to those located where
plaintiff was “if they wanted to wade through grass and weeds and brush.”
The waterhole itself is designated on the plat. The bank “down to the water . . . was
straight off, then it had a sharp incline to the bottom”; the bank “was pretty slanting, and
whenever I stepped off in there I slid on to the bottom; it (the water) came up to my chin”; the
water was “well over the head of a child five or six years old”; when I (one of the searchers for
the child) “got there it (the pool) was full of water”; were no outlets to it, however; “the banks
were a straight off drop.”
The utility of the pool to the owner was negligible after he ceased excavating there for dirt
for street grading purposes. . . . Mr. Banker’s own testimony indicates also that the expense
necessary to be incurred, if any, to eliminate the danger would have been small, if not trivial.
The excavation was from 5 to 8 feet deep “at the very shallowest place.” It appears that
soon after its use as a dirt supply had been discontinued it filled up with water so that its depth
would not be ascertained by children unless (contrary to the nature of children) they are of such
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mature years and experience that they would measure the depth (as the average adult who could
not swim would do) before entering the water.
The jury found not only that the pit, or pool, was attractive to children, but that it was
dangerous, and did attract to it the McLaughlin child. It was found in answer to one special issue
that the pit was unusually attractive and in answer to a separate issue that it was dangerous to
children. That it was dangerous to children is not open to question under the record. . . .
The following features of the facts and circumstances of the case are determinative of the
correctness of the action of the Court of Civil Appeals in affirming the trial court’s judgment: (a)
the place where the condition was maintained was one upon which the possessor knew or should
have known that small children would likely frequent the place and play about it; (b) the condition
was one of which the possessor knew, or should have known involved an unreasonable risk of
death or serious bodily harm to such children; (c) the child, because of its tender years, did not
realize the risk involved in going into the pool; and (d) the utility, if any, to Mr. Banker of
eliminating the danger was slight as compared to the probability of injury resulting therefrom. . . .
We overrule all of the points of error presented in the application of petitioner and affirm
the judgment of the Court of Civil Appeals which affirms that of the trial court. It is so ordered.

Note

1. Attractive nuisances. As originally formulated, the traditional rule sharply limited the
ability of injured non-invitees to recover from the occupiers and owners of land. Over time courts
carved out exceptions to the traditional rule’s rigid formula. Perhaps the biggest exception is the
one the courts have created for child trespassers. Under the so-called “attractive nuisance”
doctrine, a landowner can be held liable for injuries to a child trespasser if those injuries were
caused by an “attractive” artificial hazard on the landowner’s property. The theory is that when a
landowner maintains a hazard on his premises that he knows some children will find alluring, he
impliedly invites those children to trespass. The child trespassers, then, become the equivalent of
invitees, and so the landowner owes them a duty of reasonable care.
Many jurisdictions have adopted the definition of attractive nuisance laid out in Section
339 of the Restatement (Second) of Torts (1965). To satisfy the Restatement’s definition of an
attractive nuisance, the following five conditions must be met: (1) the hazard must be located in
an area where the landowner knows or should know that children are likely to trespass; (2) the
landowner must know (or have reason to know) that the hazard poses a serious risk of death or
bodily harm to such children; (3) the child trespassers must not appreciate the danger posed by the
hazard; (4) the risk that the hazard poses to child trespassers must outweigh the hazard’s utility to
the landowner and the burden of eliminating the hazard; and (5) the landowner must fail to
exercise reasonable care to eliminate or mitigate the hazard. In addition, the hazard must be an
artificial condition; a natural condition such as a stream typically cannot be an attractive nuisance.
See, e.g., Fitch v. Selwyn Village, 234 N.C. 632 (1951) (holding that a stream is not an attractive
nuisance).
Courts have found a wide array of hazards to be attractive nuisances. Some of the earliest
attractive nuisance cases involved unsecured railroad turntables. In Barrett v. Southern Pacific
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Railroad, 91 Cal. 296 (1891), for example, the California Supreme Court held that a railroad was
liable for the injuries that an eight-year-old boy sustained playing on one of its turntables, which
the railroad had left unguarded and accessible to the public. In Afton Electric Co. v. Harris, 49
Wyo. 367 (1936), the Wyoming Supreme Court held that an easily climbable light pole with
uninsulated electric wires at the top constituted an attractive nuisance. In Kopczynski v. Barger,
887 N.E.2d 928 (2008), the Indiana Supreme Court held that a trampoline may constitute an
attractive nuisance.
Over time, however, some courts came to think that managing the exceptions to the
common law rule for entrants onto land was more cumbersome than it was worth.

Rowland v. Christian, 443 P.2d 561 (Cal. 1968)
PETERS, J.
Plaintiff appeals from a summary judgment for defendant Nancy Christian in this personal
injury action. . . .
[In November, 1963, plaintiff Rowland was injured while using the bathroom fixtures in
Nancy Christian’s apartment. Rowland was a social guest in the apartment when the porcelain
handle of one of the water faucets broke in his hand, severing tendons and nerves of his right
hand. The parties agreed that Christian knew of the dangerous condition of the faucet and that she
had requested her landlord to fix it several weeks earlier. Rowland’s depositions offered evidence
that he did not know of the condition of the faucet and that it was concealed; Christian testified in
an affidavit that Rowland knew of the defect in the faucet and that the defect was obvious from
ordinary inspection. Plaintiff sought recovery of his medical and hospital expenses, loss of
wages, damage to his clothing, and $100,000 general damages.]
Section 1714 of the Civil Code provides: “Every one is responsible, not only for the result
of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill
in the management of his property or person, except so far as the latter has, willfully or by want of
ordinary care, brought the injury upon himself.” . . .
...
A departure from this fundamental principle involves the balancing of a number of
considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's
conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of
preventing future harm, the extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk involved.
One of the areas where this court and other courts have departed from the fundamental
concept that a man is liable for injuries caused by his carelessness is with regard to the liability of
a possessor of land for injuries to persons who have entered upon that land. It has been suggested
that the special rules regarding liability of the possessor of land are due to historical
considerations stemming from the high place which land has traditionally held in English and
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American thought, the dominance and prestige of the landowning class in England during the
formative period of the rules governing the possessor’s liability, and the heritage of feudalism.
The departure from the fundamental rule of liability for negligence has been accomplished
by classifying the plaintiff either as a trespasser, licensee, or invitee and then adopting special
rules as to the duty owed by the possessor to each of the classifications. Generally speaking a
trespasser is a person who enters or remains upon land of another without a privilege to do so; a
licensee is a person like a social guest who is not an invitee and who is privileged to enter or
remain upon land by virtue of the possessor’s consent, and an invitee is a business visitor who is
invited or permitted to enter or remain on the land for a purpose directly or indirectly connected
with business dealings between them.
Although the invitor owes the invitee a duty to exercise ordinary care to avoid injuring
him, the general rule is that a trespasser and licensee or social guest are obliged to take the
premises as they find them insofar as any alleged defective condition thereon may exist, and that
the possessor of the land owes them only the duty of refraining from wanton or willful injury.
The ordinary justification for the general rule severely restricting the occupier’s liability to social
guests is based on the theory that the guest should not expect special precautions to be made on
his account and that if the host does not inspect and maintain his property the guest should not
expect this to be done on his account.
An increasing regard for human safety has led to a retreat from this position, and an
exception to the general rule limiting liability has been made . . . for the protection of the licensee
has been imposed . . . in cases involving dangers known to the occupier. . . .
Another exception to the general rule limiting liability has been recognized for cases
where the occupier is aware of the dangerous condition, the condition amounts to a concealed
trap, and the guest is unaware of the trap. . . .
The cases dealing with the active negligence and the trap exceptions are indicative of the
subtleties and confusion which have resulted from application of the common law principles
governing the liability of the possessor of land. Similar confusion and complexity exist as to the
definitions of trespasser, licensee, and invitee.
In refusing to adopt the rules relating to the liability of a possessor of land for the law of
admiralty, the United States Supreme Court stated:
The distinctions which the common law draws between licensee and invitee were
inherited from a culture deeply rooted to the land, a culture which traced many of
its standards to a heritage of feudalism. In an effort to do justice in an industrialized
urban society, with its complex economic and individual relationships, modern
common-law courts have found it necessary to formulate increasingly subtle verbal
refinements, to create subclassifications among traditional common-law categories,
and to delineate fine gradations in the standards of care which the landowner owes
to each.
Yet even within a single jurisdiction, the classifications and
subclassifications bred by the common law have produced confusion and conflict.
As new distinctions have been spawned, older ones have become obscured.
Through this semantic morass the common law has moved, unevenly and with
hesitation, towards “imposing on owners and occupiers a single duty of reasonable
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care in all circumstances.”
Kermarec v. Compagnie Generale, 358 U.S. 625, 630–31 [(1959) (Stewart, J.)].
The courts of this state have also recognized the failings of the common law rules relating
to the liability of the owner and occupier of land. In refusing to apply the law of invitees,
licensees, and trespassers to determine the liability of an independent contractor hired by the
occupier, we pointed out that application of those rules was difficult and often arbitrary. In
refusing to apply the common law rules to a known trespasser on an automobile, the common law
rules were characterized as “unrealistic, arbitrary, and inelastic,” and it was pointed out that
exceedingly fine distinctions had been developed resulting in confusion and that many recent
cases have in fact applied the general doctrine of negligence embodied in section 1714 of the Civil
Code rather than the rigid common law categories test. . . .
Whatever may have been the historical justifications for the common law distinctions, it is
clear that those distinctions are not justified in the light of our modern society and that the
complexity and confusion which has arisen is not due to difficulty in applying the original
common law rules—they are all too easy to apply in their original formulation—but is due to the
attempts to apply just rules in our modern society within the ancient terminology.
Without attempting to labor all of the rules relating to the possessor’s liability, it is
apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability
predicated upon those classifications, and the exceptions to those immunities, often do not reflect
the major factors which should determine whether immunity should be conferred upon the
possessor of land. Some of those factors, including the closeness of the connection between the
injury and the defendant’s conduct, the moral blame attached to the defendant’s conduct, the
policy of preventing future harm, and the prevalence and availability of insurance, bear little, if
any, relationship to the classifications of trespasser, licensee and invitee and the existing rules
conferring immunity.
Although in general there may be a relationship between the remaining factors and the
classifications of trespasser, licensee, and invitee, there are many cases in which no such
relationship may exist. Thus, although the foreseeability of harm to an invitee would ordinarily
seem greater than the foreseeability of harm to a trespasser, in a particular case the opposite may
be true. The same may be said of the issue of certainty of injury. The burden to the defendant
and consequences to the community of imposing a duty to exercise care with resulting liability for
breach may often be greater with respect to trespassers than with respect to invitees, but it by no
means follows that this is true in every case. In many situations, the burden will be the same, i.e.,
the conduct necessary upon the defendant’s part to meet the burden of exercising due care as to
invitees will also meet his burden with respect to licensees and trespassers. The last of the major
factors, the cost of insurance, will, of course, vary depending upon the rules of liability adopted,
but there is no persuasive evidence that applying ordinary principles of negligence law to the land
occupier’s liability will materially reduce the prevalence of insurance due to increased cost or
even substantially increase the cost.
...
A man’s life or limb does not become less worthy of protection by the law nor a loss less
worthy of compensation under the law because he has come upon the land of another without
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permission or with permission but without a business purpose. Reasonable people do not
ordinarily vary their conduct depending upon such matters, and to focus upon the status of the
injured party as a trespasser, licensee, or invitee in order to determine the question whether the
landowner has a duty of care, is contrary to our modern social mores and humanitarian values.
The common law rules obscure rather than illuminate the proper considerations which should
govern determination of the question of duty.
. . . The proper test to be applied to the liability of the possessor of land in accordance
with section 1714 of the Civil Code is whether in the management of his property he has acted as
a reasonable man in view of the probability of injury to others, and, although the plaintiff’s status
as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have
some bearing on the question of liability, the status is not determinative.
Once the ancient concepts as to the liability of the occupier of land are stripped away, the
status of the plaintiff relegated to its proper place in determining such liability, and ordinary
principles of negligence applied, the result in the instant case presents no substantial difficulties.
[W]e must assume defendant Miss Christian was aware that the faucet handle was defective and
dangerous, that the defect was not obvious, and that plaintiff was about to come in contact with
the defective condition, and under the undisputed facts she neither remedied the condition nor
warned plaintiff of it. Where the occupier of land is aware of a concealed condition involving in
the absence of precautions an unreasonable risk of harm to those coming in contact with it and is
aware that a person on the premises is about to come in contact with it, the trier of fact can
reasonably conclude that a failure to warn or to repair the condition constitutes negligence.
Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his
account, he should reasonably be entitled to rely upon a warning of the dangerous condition so
that he, like the host, will be in a position to take special precautions when he comes in contact
with it. . . .
The judgment is reversed.

Notes

1. The state of premises liability law. The decision in Rowland v. Christian ushered in a new
era in premises liability law. By 1977, nine years after Rowland was decided, seven states had
followed California’s lead, abolishing the traditional status-based distinctions, while another five
had abolished the invitee-licensee distinction but retained the distinction between trespassers and
non-trespassers.
In more recent decades, though, the Rowland standard has met with significant opposition,
slowing its advance. In 1971, the Colorado Supreme Court adopted the Rowland standard in Mile
High Fence Co. v. Radovich, 489 P.2d 308 (Colo. 1971), but the state legislature reinstated the
traditional status-based distinctions in 1990. In 1975, the Rhode Island Supreme Court adopted
the Rowland standard in Mariorenzi v. DiPonte, Inc., 333 A.2d 127 (R.I. 1975), but the court
partially overturned Mariorenzi 19 years later, holding that although landowners owe both
licensees and invitees a duty of reasonable care, they have a limited duty to trespassers
(see Tantimonico v. Allendale Mut. Ins. Co., 637 A.2d 1056, 1057 (R.I. 1994)). Even California,
the birthplace of the Rowland standard, has backtracked: a 1985 state statute shields landowners
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from liability for an entrant’s injuries if the entrant committed one of 25 specified felonies while
on the landowner’s property. Today, only eight states (including California) hold landowners to
the Rowland standard—the same number as in 1977. In 17 states and the District of Columbia,
landowners owe invitees and licensees—but not trespassers—a duty of reasonable care. In the
other 25 states, some version of the traditional tripartite rule remains in place.

2. Rowland’s practical implications. What are the real-world implications of adopting a
Rowland-like standard? How much of an effect does abolishing status distinctions have on the
outcomes of cases? In Rowland, the California Supreme Court sided with the plaintiff, a social
guest whose hand was injured by the landowner’s broken faucet, on the grounds that a fact-finder
could reasonably conclude that the landowner had negligently failed to warn the plaintiff of the
danger. But the court could have reached the same conclusion by applying the traditional rule; in
most states the traditional rule imposed a duty of reasonable care to warn licensees of precisely
these kinds of hidden dangers.
More generally, outcomes in cases decided under the Rowland standard may generally
track those that would have been reached under the older common law rules. Consider for
example trespassers injured engaged in dangerous activity. Such trespassers typically lose
whether we apply the old-fashioned rule of no duty, see Cates v. Beauregard Elec. Co-op., Inc.,
328 So. 2d 367 (La. 1976) (holding that trespassing plaintiff who cut defendant’s electrical wire
could not recover for injuries resulting from electrocution), or whether we apply Rowland’s
general foreseeability and reasonableness standard, see Tantimonico v. Allendale Mut. Ins. Co.,
637 A.2d 1056 (R.I. 1994) (holding that trespassing plaintiffs who were injured in a motorcycle
crash on defendant’s property could not recover for injuries).

3. The open-and-obvious rule. Despite Rowland’s opening of landowners and occupiers’
liability, many states hold that landowners are not liable for injuries caused by open and obvious
dangers, absent extenuating circumstances. When a danger is sufficiently obvious, the thinking
goes, it is unnecessary for a landowner to warn occupiers of its existence.
In some jurisdictions, the open-and-obvious doctrine operates as a factor in determining
the plaintiff’s comparative negligence. See Ward v. K Mart Corp., 136 Ill. 2d 132, 147 (1990).
Where an open and obvious risk is unreasonably dangerous, a plaintiff will be deemed
comparatively negligent to have run the risk. See Lugo v. Ameritech Corp., 464 Mich. 512, 516
(2001). Another approach is to treat the openness and obviousness of a danger as a factor in
determining the reasonableness of a landowner’s behavior. See Foster v. Costco Wholesale
Corp., 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
calculations. See, e.g., Parker v. Highland Park, Inc., 565 S.W.2d 512 (Tex. 1978).
In New York, however, which has abolished the traditional status categories, a more
robust version of the Open-and-Obvious Rule still exists. The general rule in New York is that “a
landowner has no duty to warn of an open and obvious danger,” with a possible exception for
cases where a landowner has reason to anticipate the harm to the occupier. Tagle v. Jakob, 97
N.Y.2d 165, 169 (2001).

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4. Condominiums, co-ops, and housing developments. What about housing collectives in
which tort duties among the members could be displaced by contract? In at least some
condominium developments, the practice is to use homeowners’ insurance as a substitute for tort
causes of action. Consider the following model condominium document:
1.c. Each Unit Owner and Executive Board hereby waives and releases any and all
claims which he or it may have against any other Unit Owner, the Association, the
Executive Board and members thereof, the Declarant and their respective
employees and agents, for damage to the Common Elements, the Units, or to any
personal property located in the Units or Common Elements, caused by fire or other
casualty or any act or omission of any such party to the extent that such damage is
covered by fire or other form of hazard insurance.
RONALD B. GLAZER, PENNSYLVANIA CONDOMINIUM LAW AND PRACTICE art. 15 (3d ed. 1995).

C. Negligent Infliction of Emotional Distress
Recall that in Chapter 1 we encountered the tort of assault, which is a centuries-old cause
of action for intentional infliction of emotional harm, namely fear of an unlawful contact. We
also encountered the newer tort of intentional infliction of emotional distress, which allows
recovery even in the absence of apprehension of contact. What happens when emotional harm
arises accidentally?

Mitchell v. Rochester Railway, 45 N.E. 354 (N.Y. 1896)
MARTIN, J.
The facts in this case are few and may be briefly stated. On the first day of April, 1891,
the plaintiff was standing upon a crosswalk on Main street in the city of Rochester, awaiting an
opportunity to board one of the defendant’s cars which had stopped upon the street at that place.
While standing there, and just as she was about to step upon the car, a horse car of the defendant
came down the street. As the team attached to the car drew near, it turned to the right and came
so close to the plaintiff that she stood between the horses’ heads when they were stopped.
She testified that from fright and excitement caused by the approach and proximity of the
team she became unconscious, and also that the result was a miscarriage and consequent illness.
Medical testimony was given to the effect that the mental shock which she then received was
sufficient to produce that result.
Assuming that the evidence tended to show that the defendant’s servant was negligent in
the management of the car and horses, and that the plaintiff was free from contributory
negligence, the single question presented is whether the plaintiff is entitled to recover for the
defendant’s negligence which occasioned her fright and alarm, and resulted in the injuries already
mentioned. While the authorities are not harmonious upon this question, we think the most
reliable and better considered cases, as well as public policy, fully justify us in holding that the
plaintiff cannot recover for injuries occasioned by fright, as there was no immediate personal
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injury. . . . The learned counsel for the respondent in his brief very properly stated that, “The
consensus of opinion would seem to be that no recovery can be had for mere fright. . . .”
. . . Assuming that fright cannot form the basis of an action, it is obvious that no recovery
can be had for injuries resulting therefrom. That the result may be nervous disease, blindness,
insanity, or even a miscarriage, in no way changes the principle. These results merely show the
degree of fright or the extent of the damages. The right of action must still depend upon the
question whether a recovery may be had for fright. If it can, then an action may be maintained,
however slight the injury. If not, then there can be no recovery, no matter how grave or serious
the consequences. . . .
If the right of recovery in this class of cases should be once established, it would naturally
result in a flood of litigation in cases where the injury complained of may be easily feigned
without detection, and where the damages must rest upon mere conjecture or speculation. The
difficulty which often exists in cases of alleged physical injury, in determining whether they exist,
and if so, whether they were caused by the negligent act of the defendant, would not only be
greatly increased, but a wide field would be opened for fictitious or speculative claims. . . .
Moreover, it cannot be properly said that the plaintiff’s miscarriage was the proximate
result of the defendant’s negligence. Proximate damages are such as are the ordinary and natural
results of the negligence charged, and those that are usual and may, therefore, be expected. It is
quite obvious that the plaintiff’s injuries do not fall within the rule as to proximate damages. The
injuries to the plaintiff were plainly the result of an accidental or unusual combination of
circumstances, which could not have been reasonably anticipated, and over which the defendant
had no control, and, hence, her damages were too remote to justify a recovery in this action.
These considerations lead to the conclusion that no recovery can be had for injuries
sustained by fright occasioned by the negligence of another, where there is no immediate personal
injury.
The orders of the General and Special Terms should be reversed, and the order of the Trial
Term granting a nonsuit affirmed, with costs.

Notes

1. Injuries and impacts. One mystery of the Mitchell decision is why the court insists on a
requirement of immediate physical injury. Mitchell suffered a physical injury in the form of the
miscarriage. At the very least, her body was caused to strike the ground when she fell. Nor is
there any indication of inordinate time between the negligence of the defendant and the
miscarriage, and there was certainly no time lag between the defendant’s negligence and
Mitchell’s fall. In subsequent years, the basic holding of Mitchell came to be explained as having
not so much to do with the absence of an immediate physical injury as with the absence of a
physical impact between some instrumentality in the negligent defendant’s control and the
plaintiff.

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Why did the Mitchell court hold that there was no common law cause of action for
negligent infliction of emotional distress, absent some physical impact? Recall that the tort of
assault does not require a showing of physical impact.

2. A gender bias? Plaintiffs in early negligent infliction of emotional distress cases were
often women. Did the common law’s exclusion of stand-alone emotional distress damages
indicate a bias against women? According to Professors Martha Chamallas and Linda Kerber, it
did. The early doctrine of emotional distress, they argue, “marginaliz[ed] . . . the harm suffered
by women.” In particular, Professors Chamallas and Kerber note that
[t]he law of torts values physical security and property more highly than emotional
security. . . . This apparently gender-neutral hierarchy of values has privileged men,
as the traditional owners and managers of property, and has burdened women, to
whom the emotional work of maintaining human relationships has commonly been
assigned. The law has often failed to compensate women for recurring harms—
serious though they may be in the lives of women—for which there is no precise
masculine analogue. This phenomenon is evident in the history of tort law’s
treatment of fright-based physical injuries, a type of claim historically brought more
often by female plaintiffs. . . . These claims were classified in the law as emotional
harms and a number of special doctrinal obstacles were created to contain recovery
in such cases. . . . The inequity of the doctrines comprising the law of fright not
surprisingly reflected and reinforced inequities present in the larger social and
cultural settings.
Martha Chamallas & Linda K. Kerber, Women, Mothers, and the Law of Fright: A History, 88
MICH. L. REV. 814, 814, 864 (1990). Some scholars object that the difficulty of discerning
causation in such cases is a better explanation for the doctrine. See Gary T. Schwartz, Feminist
Approaches to Tort Law, 2 THEORETICAL INQUIRIES L. 175, 203 (2001).

3. Narrower tests. Is there a narrower way to accomplish the goals articulated by the
Mitchell court? Another case involving a woman plaintiff raised that question some seventy years
after Mitchell.

Falzone v. Busch, 214 A.2d 12 (N.J. 1965)
PROCTOR, J.
Charles Falzone, was standing in a field adjacent to the roadway when he was struck and
injured by defendant’s negligently driven automobile. The second count alleges that the plaintiff,
Mabel Falzone, wife of Charles, was seated in his lawfully parked automobile close to the place
where her husband was struck and that the defendant’s negligently driven automobile “veered
across the highway and headed in the direction of this plaintiff,” coming “so close to plaintiff as to
put her in fear for her safety.” As a direct result she became ill and required medical attention.
There is no allegation that her fear arose from apprehension of harm to her husband.
The Law Division granted the defendant’s motion for summary judgment on the second . .
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Witt & Tani, TCPI 8. Duty Problem

. count . . . , holding that it was constrained to follow the existing New Jersey rule that where there
is no physical impact upon the plaintiff, there can be no recovery for the bodily injury or sickness
resulting from negligently induced fright. . . .
[S]ince a decision of our former Supreme Court in 1900, Ward v. West Jersey & Seashore
R.R. Co., it has been considered settled that a physical impact upon the plaintiff is necessary to
sustain a negligence action.
In Ward, the complaint alleged that the plaintiff, while driving on a highway, was
permitted without warning from defendant railroad to drive upon a public crossing of its tracks in
the face of an approaching train; that the defendant, by improperly lowering the gates before the
plaintiff was off the tracks, subjected him to “great danger of being run down and killed by said
train” and caused him to be “shocked, paralyzed, and otherwise injured.” . . . Three reasons for
denying recovery were set forth in the opinion. The first was that physical injury was not the
natural and proximate result of the negligent act. . . .
Second, the court concluded that since this was the first action of its kind in New Jersey,
the consensus of the bar must have been that no liability exists in the absence of impact. . . . The
third reason was “public policy” which the court explained by quoting with approval from
Mitchell v. Rochester Ry. Co. . . .
We think that the reasons assigned in Ward for denying liability are no longer tenable, and
it is questionable if they ever were. . . .
[T]hree rules of law inconsistent with the Ward doctrine have developed. It has been held
that where a person is injured attempting to avoid a hazard negligently created by another, he may
recover for the physical consequences of fright even though the immediate injury suffered was
slight and was not a link in the causal chain. Thus, in Buchanan v. West Jersey R.R. Co., [1890] .
. . a woman standing in a railroad station threw herself to the platform to avoid being struck by a
protruding timber on a passing train. . . . The court allowed recovery even though her fright, and
not the injury, if any, sustained in the fall, caused her physical suffering. Our courts have also
been willing to allow recovery for physical injury traceable directly to fright when there is any
impact, however inconsequential or slight. The application of this rule was illustrated in Porter v.
Delaware, Lackawanna & W.R.R. Co. [1906], where a woman became ill as the result of her
shock at seeing a railroad bridge fall near the place where she was standing. She testified that
something fell on her neck and that dust entered her eyes. In allowing recovery for the physical
consequences of her fright, the court said either the small injury to her neck or the dust in her eyes
was a sufficient “impact” to distinguish the case from Ward. And third, recovery has been
permitted where physical suffering resulted from a willfully caused emotional disturbance.
The second reason given in Ward for denying recovery was that the absence of suits of
this nature in New Jersey demonstrated the concurrence of the bar with the rule of no liability. . . .
[A] sufficient answer is that the common law would have atrophied hundreds of years ago if it had
continued to deny relief in cases of first impression.
Public policy was the final reason given in Ward for denying liability. The court was of
the opinion that proof or disproof of fear-induced physical suffering would be so difficult that
recovery would often be based on mere conjecture and speculation, and that the door would be
opened to extensive litigation in a class of cases where injury is easily feigned. . . . However, the
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problem of tracing a causal connection from negligence to injury is not peculiar to cases without
impact and occurs in all types of personal injury litigation. . . . [D]ifficulty of proof should not
bar the plaintiff from the opportunity of attempting to convince the trier of fact of the truth of her
claim.
As to the possibility of actions based on fictitious injuries, a court should not deny
recovery for a type of wrong which may result in serious harm because some people may institute
fraudulent actions. Our trial courts retain sufficient control, through the rules of evidence and the
requirements as to the sufficiency of evidence, to safeguard against the danger that juries will find
facts without legally adequate proof. Moreover, the allowance of recovery in cases where there
has been an impact, however slight, negates the effectiveness of the no impact rule as a method of
preventing fraudulent claims. As stated by Dean McNiece in his comprehensive article dealing
with tort liability for psychic injuries, “it is quite as simple to feign emotional disturbance plus
slight impact and get in ‘under the wire’ of one of the exceptions as it is to feign emotional
disturbance sans impact.” (McNiece, “Pyschic Injury and Liability in New York,” 24 St. John’s
L. Rev. 1, 31 (1949)). . . .
Our conclusion is that Ward should no longer be followed in New Jersey. We are not
dealing with property law, contract law or other fields where stability and predictability may be
crucial. We are dealing with torts where there can be little, if any, justifiable reliance and where
the rule of stare decisis is admittedly limited. We hold, therefore, that where negligence causes
fright from a reasonable fear of immediate personal injury, which fright is adequately
demonstrated to have resulted in substantial bodily injury or sickness, the injured person may
recover if such bodily injury or sickness would be regarded as proper elements of damage had
they occurred as a consequence of direct physical injury rather than fright. Of course, where
fright does not cause substantial bodily injury or sickness, it is to be regarded as too lacking in
seriousness and too speculative to warrant the imposition of liability.
We recognize that where there is no impact a defendant may be unaware of the alleged
incident and thus not forewarned to preserve evidence upon which he might base his defense.
However, this consideration should not be sufficient to bar a meritorious claim. . . .

Notes

1. The common law process. The process by which the Mitchell/Ward rule gave way to the
Falzone alternative is a classic pattern in common law development. After a rule is set at time 1,
exceptions and caveats limit and undermine at time 2 until eventually at time 3 it has lost much of
its persuasiveness and usefulness. Indeed, after the exceptions have accumulated, courts may no
longer be able to identify any kind of useful project advanced by the original rule.

2. Falzone’s adoption. Currently, twelve states and the District of Columbia have adopted
Falzone’s zone of danger test in adjudicating negligent infliction of emotional distress claims:
Alabama, Walmart Stores, Inc. v. Bowers, 752 So. 2d 1201 (Ala. 1999); Colorado, Towns v.
Anderson, 579 P.2d 1163 (Colo. 1978) (en banc); Delaware, Robb v. Pa. R.R., 210 A.2d 709 (Del.
1965); District of Columbia, Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d 821
(D.C. 2004); Illinois, Rickey v. Chi. Transit Auth., 457 N.E.2d 1 (Ill. 1983); Maryland, Resavage
404

Witt & Tani, TCPI 8. Duty Problem

v. Davies, 86 A2d 879 (Md. 1952); Minnesota, Engler v. Ill. Farmers Ins. Co., 706 N.W.2d 764
(Minn. 2005); Missouri, Asaro v. Cardinal Glennon Mem’l Hosp., 799 S.W.2d 595 (Mo. 1990)
(en banc); New York, Bovsun v. Sanperi, 461 N.E.2d 843 (N.Y. 1984); North Dakota, Whetham v.
Bismarck Hosp., 197 N.W.2d 678 (N.D. 1972); South Dakota, Nielson v. AT&T Corp., 597
N.W.2d 434 (S.D. 1999); Utah, Boucher v. Dixie Med. Ctr., 850 P.2d 1179 (Utah 1992); and
Vermont, Brueckner v. Norwich Univ., 730 A.2d 1086 (Vt. 1999).

3. Beyond the zone of danger? The rule in Falzone may have been an improvement over
Mitchell. But it still left unaddressed a class of cases in which the plaintiff was not in the zone of
danger but nonetheless has demonstrable emotional injuries caused by the defendant’s tortious
conduct. Should such plaintiffs lose even where it seems indisputable that they suffered injuries
that were caused by the negligence of the defendant? This is the question that the California
Supreme Court took up in 1968:

Dillon v. Legg, 441 P.2d 912 (Cal. 1968)
TOBRINER, J.
That the courts should allow recovery to a mother who suffers emotional trauma and
physical injury from witnessing the infliction of death or injury to her child for which the
tortfeasor is liable in negligence would appear to be a compelling proposition. . . .
Nevertheless, past American decisions have barred the mother’s recovery. Refusing the
mother the right to take her case to the jury, these courts ground their position on an alleged
absence of a required “duty” of due care of the tortfeasor to the mother. Duty, in turn, they state,
must express public policy; the imposition of duty here would work disaster because it would
invite fraudulent claims and it would involve the courts in the hopeless task of defining the extent
of the tortfeasor’s liability. In substance, they say, definition of liability being impossible, denial
of liability is the only realistic alternative.
We have concluded that neither of the feared dangers excuses the frustration of the natural
justice upon which the mother’s claim rests. . . .
In the instant case plaintiff’s first cause of action alleged that on or about September 27,
1964, defendant drove his automobile in a southerly direction on Bluegrass Road near its
intersection with Clover Lane in the County of Sacramento, and at that time plaintiff’s infant
daughter, Erin Lee Dillon, lawfully crossed Bluegrass Road. The complaint further alleged that
defendant’s negligent operation of his vehicle caused it to “collide with the deceased Erin Lee
Dillon resulting in injuries to decedent which proximately resulted in her death.” . . .
[Plaintiff brought three causes of action: one for the death of her daughter Erin; a second
on behalf of another daughter, Cheryl, for the “great emotional disturbance and shock and injury”
to her nervous system caused by her “close proximity to” and personal witnessing of the collision;
and a third on her own behalf for “great emotional disturbance and shock and injury to her
nervous system” arising because she “was in close proximity to the . . . collision and personally
witnessed said collision.” Defendant moved for judgment on the pleadings as to the second two
counts, contending that “No cause of action is stated in that allegation that plaintiff sustained
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emotional distress, fright or shock induced by apprehension of negligently caused danger or injury
or the witnessing of negligently caused injury to a third person. . . . Even where a child, sister or
spouse is the object of the plaintiff’s apprehension no cause of action is stated . . . unless the
complaint alleges that the plaintiff suffered emotional distress, fright or shock as a result of fear
for his own safety. . . .” The trial court sustained defendant’s motion as to the mother because she
was not within the zone of danger and denied that motion as to the second daughter, Cheryl,
because of the possibility that she was within such zone of danger or feared for her own safety.]
[T]he complaint here presents the claim of the emotionally traumatized mother, who
admittedly was not within the zone of danger, as contrasted with that of the sister, who may have
been within it. The case thus illustrates the fallacy of the rule that would deny recovery in the one
situation and grant it in the other. In the first place, we can hardly justify relief to the sister for
trauma which she suffered upon apprehension of the child’s death and yet deny it to the mother
merely because of a happenstance that the sister was some few yards closer to the accident. The
instant case exposes the hopeless artificiality of the zone-of-danger rule. . . . We have . . . held that
impact is not necessary for recovery. The zone-of-danger concept must, then, inevitably collapse
because the only reason for the requirement of presence in that zone lies in the fact that one within
it will fear the danger of impact. . . .
Normally the simple facts of plaintiff’s complaint would establish a cause of action: the
complaint alleges that defendant drove his car (1) negligently, as a (2) proximate result of which
plaintiff suffered (3) physical injury. Proof of these facts to a jury leads to recovery in damages;
indeed, such a showing represents a classic example of the type of accident with which the law of
negligence has been designed to deal.
The assertion that liability must nevertheless be denied because defendant bears no “duty”
to plaintiff “begs the essential question—whether the plaintiff’s interests are entitled to legal
protection against the defendant’s conduct. . . . It [duty] is a shorthand statement of a conclusion,
rather than an aid to analysis in itself. . . . ‘[D]uty’ is not sacrosanct in itself, but only an
expression of the sum total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection.” (Prosser, Law of Torts, supra, at pp. 332-333.)
The history of the concept of duty in itself discloses that it is not an old and deep-rooted
doctrine but a legal device of the latter half of the nineteenth century designed to curtail the feared
propensities of juries toward liberal awards. “It must not be forgotten that ‘duty’ got into our law
for the very purpose of combatting what was then feared to be a dangerous delusion (perhaps
especially prevalent among juries imbued with popular notions of fairness untempered by
paramount judicial policy), viz., that the law might countenance legal redress for all foreseeable
harm.” (Fleming, An Introduction to the Law of Torts (1967) p. 47.)
...
1. This court in the past has rejected the argument that we must deny recovery upon a legitimate
claim because other fraudulent ones may be urged.
. . . The rationale apparently assumes that juries, confronted by irreconcilable expert
medical testimony, will be unable to distinguish the deceitful from the bona fide. . . .

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In the first instance, the argument proceeds from a doubtful factual assumption. Whatever
the possibilities of fraudulent claims of physical injury by disinterested spectators of an accident,
a question not in issue in this case, we certainly cannot doubt that a mother who sees her child
killed will suffer physical injury from shock. . . .
In the second instance, and more fundamentally, the possibility that fraudulent assertions
may prompt recovery in isolated cases does not justify a wholesale rejection of the entire class of
claims in which that potentiality arises. . . .
Indubitably juries and trial courts, constantly called upon to distinguish the frivolous from
the substantial and the fraudulent from the meritorious, reach some erroneous results. But such
fallibility . . . offers no reason for substituting for the case-by-case resolution of causes an
artificial and indefensible barrier. Courts not only compromise their basic responsibility to decide
the merits of each case individually but destroy the public’s confidence in them by using the broad
broom of “administrative convenience” to sweep away a class of claims a number of which are
admittedly meritorious. . . . [W]e cannot let the difficulties of adjudication frustrate the principle
that there be a remedy for every substantial wrong.
2. The alleged inability to fix definitions for recovery on the different facts of future cases does
not justify the denial of recovery on the specific facts of the instant case; in any event, proper
guidelines can indicate the extent of liability for such future cases.
In order to limit the otherwise potentially infinite liability which would follow every
negligent act, the law of torts holds defendant amenable only for injuries to others which to
defendant at the time were reasonably foreseeable.
In the absence of “overriding policy considerations . . . foreseeability of risk [is] of . . .
primary importance in establishing the element of duty. . . .” As a classic opinion states: ”The risk
reasonably to be perceived defines the duty to be obeyed. . . .” (Palsgraf v. Long Island R.R. Co.
(1928) . . . [162 N.E. 99].) Defendant owes a duty, in the sense of a potential liability for
damages, only with respect to those risks or hazards whose likelihood made the conduct
unreasonably dangerous, and hence negligent, in the first instance. (See Keeton, Legal Cause in
the Law of Torts (1963) 18-20 . . . ).
We cannot now predetermine defendant’s obligation in every situation by a fixed
category; no immutable rule can establish the extent of that obligation for every circumstance of
the future. We can, however, define guidelines which will aid in the resolution of such an issue as
the instant one.
We note, first, that we deal here with a case in which plaintiff suffered a shock which
resulted in physical injury and we confine our ruling to that case. In determining, in such a case,
whether defendant should reasonably foresee the injury to plaintiff, or, in other terminology,
whether defendant owes plaintiff a duty of due care, the courts will take into account such factors
as the following: (1) Whether plaintiff was located near the scene of the accident as contrasted
with one who was a distance away from it. (2) Whether the shock resulted from a direct
emotional impact upon plaintiff from the sensory and contemporaneous observance of the
accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether
plaintiff and the victim were closely related, as contrasted with an absence of any relationship or
the presence of only a distant relationship.
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The evaluation of these factors will indicate the degree of the defendant’s
foreseeability: obviously defendant is more likely to foresee that a mother who observes an
accident affecting her child will suffer harm than to foretell that a stranger witness will do so.
Similarly, the degree of foreseeability of the third person’s injury is far greater in the case of his
contemporaneous observance of the accident than that in which he subsequently learns of it. The
defendant is more likely to foresee that shock to the nearby, witnessing mother will cause physical
harm than to anticipate that someone distant from the accident will suffer more than a temporary
emotional reaction. All these elements, of course, shade into each other; the fixing of obligation,
intimately tied into the facts, depends upon each case.
In light of these factors the court will determine whether the accident and harm was
reasonably foreseeable. Such reasonable foreseeability . . . contemplates that courts, on a case-tocase basis, analyzing all the circumstances, will decide what the ordinary man under such
circumstances should reasonably have foreseen. . . .
[T]he history of the cases does not show the development of a logical rule but rather a
series of changes and abandonments. Upon the argument in each situation that the courts draw a
Maginot Line to withstand an onslaught of false claims, the cases have assumed a variety of
postures. At first they insisted that there be no recovery for emotional trauma at all. . . . They then
abandoned the requirement for physical impact but insisted that the victim fear for her own
safety . . . , holding that a mother could recover for fear for her children’s safety if she
simultaneously entertained a personal fear for herself. . . . The final anomaly would be the instant
case in which the sister, who observed the accident, would be granted recovery because she was in
the “zone of danger,” but the mother, not far distant, would be barred from recovery.
The successive abandonment of these positions exposes the weakness of artificial
abstractions which bar recovery contrary to the general rules. As the commentators have
suggested, the problem should be solved by the application of the principles of tort, not by the
creation of exceptions to them. Legal history shows that artificial islands of exceptions, created
from the fear that the legal process will not work, usually do not withstand the waves of reality
and, in time, descend into oblivion. . . .
The judgment is reversed.

Notes

1. The triumph of foreseeability. Consider the relationship between Dillon and the Rowland
case, which we read in the materials on landowners and occupiers’ liability. Each aims to replace
a long-standing common law rule with a generalized foreseeability approach.

2. Landmarks in the featureless generality of foreseeability. The Dillon court did try to add
some handholds in the otherwise featureless generality of the reasonableness standard. Justice
Tobriner mentioned proximity in space, closeness in time, and nearness of relationship as three
guiding principles for courts trying to determine which plaintiffs may bring causes of action for
negligent infliction of emotional distress.
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For forty-five years, California courts have struggled to apply the Dillon factors of time,
space, and relationship. The goal of Dillon was to eliminate the arbitrary distinctions between
cases where recovery is permitted and cases where it is not. But some observers argue that the
Dillon factors have reintroduced the very arbitrary distinctions the court aimed to banish from the
law. Consider that a father who witnesses his child’s stillbirth as a result of negligent medical
care may recover, see Austin v. Regents of Univ. of Cal., 89 Cal. App. 3d 354 (1979), but that a
father who receives real-time knowledge that his newborn baby has been delivered stillborn but
does not witness the delivery cannot recover, see Justus v. Atchinson, 565 P.2d 122 (Cal. 1977).
Nor can a mother who watches her daughter die as a result of a negligent misdiagnosis she did not
observe, see Jansen v. Children’s Hosp. Med. Ctr., 31 Cal. App. 3d 22 (1973). A mother who
arrives at the scene seconds after her son is injured in an explosion can recover, see Archibald v.
Braverman, 275 Cal. App. 2d 253 (1969), but parents who arrive at the scene of a car accident
“seconds after” their daughters were killed cannot, see Parsons v. Superior Court, 81 Cal. App. 3d
506 (1978). Nor can a mother who arrives at the scene of a car accident five minutes after her
infant daughter dies, see Arauz v. Gerhardt, 68 Cal. App. 3d 937 (1977). Is there any good reason
to doubt the emotional trauma experienced by any of these emotional distress plaintiffs?
Twenty years after Dillon was decided, the California Supreme Court announced that the
Dillon factors ought to be viewed as rules so as to achieve predictability and consistency in future
negligent infliction of emotional distress cases. See Thing v. La Chusa, 771 P.2d 814, 827 (Cal.
1989) (en banc). Is rule-based consistency reconcilable with the elimination of arbitrary
distinctions between cases at the margin? Or does consistency and predictability necessarily
reintroduce the kind of distinctions that the Dillon court described as arbitrary? Do Dillon and La
Chusa simply rebuild another Maginot Line? For the first generation of post-Dillon cases, see
George W. VanDeWeghe, Jr., California Continues to Struggle with Bystander Claims for
Negligent Infliction of Emotional Distress: Thing v. La Chusa, 24 LOY. L. REV. 89, 93-96 (1990).

3. Dillon’s reception. Currently, thirty-one states have adopted Dillon’s bystander proximity
test in adjudicating negligent infliction of emotional distress claims: Alaska, Tommy’s Elbow
Room, Inc. v. Kavorkian, 727 P.2d 1038 (Alaska 1986); Arizona, Keck v. Jackson, 593 P.2d 668
(Ariz. 1979) (en banc); California, Thing v. La Chusa, 771 P.2d 814, 827 (Cal. 1989) (en banc);
Connecticut, Carrol v. Allstate Ins. Co., 815 A.2d 119 (Conn. 2003); Florida, Champion v. Gray,
478 So. 2d 17 (Fla. 1985); Hawaii, Rodrigues v. State, 472 P.2d 509 (Haw. 1970); Indiana,
Groves v. Taylor, 729 N.E.2d 569 (Ind. 2000); Iowa, Barnill v. Davis, 300 N.W.2d 104 (Iowa
1981); Kentucky, Osborne v. Keeney, 399 S.W.3d 1 (Ky. 2012); Louisiana, Maney v. Evans, 780
So. 2d 1136 (La. Ct. App. 2001); Maine, Michaud v. Great N. Nekoosa Corp., 715 A.2d 955 (Me.
1998); Massachusetts, Migliori v. Airborne Freight Corp., 690 N.E.2d 413 (Mass. 1998);
Michigan, Hesse v. Ashland Oil, Inc., 642 N.W.2d 330 (Mich. 2002); Mississippi, Entex, Inc. v.
McGuire, 414 So. 2d 437 (Miss. 1982); Montana, Versland v. Caron Transp., 671 P.2d 583
(Mont. 1983); Nebraska, Vosburg v. Cenex-Land O’Lakes Agronomy Co., 513 N.W.2d 870 (Neb.
1994); Nevada, State v. Eaton, 710 P.2d 1370 (Nev. 1985); New Hampshire, Graves v. Estabrook,
818 A.2d 1255 (N.H. 2003); New Jersey, Portee v. Jaffee, 417 A.2d 521 (N.J. 1980); New
Mexico, Folz v. State, 797 P.2d 246 (N.M. 1990); North Carolina, Johnson v. Ruark Obstetrics &
Gynecology Assocs., P.A., 395 S.E.2d 85 (N.C. 1990); Ohio, Paugh v. Hanks, 451 N.E.2d 759
(Ohio 1983); Pennsylvania, Sinn v. Burd, 404 A.2d 672 (Pa. 1979); Rhode Island, Marchetti v.
Parsons, 638 A.2d 1047 (R.I. 1994); South Carolina, Kinard v. Augusta Sash & Door Co., 336
S.E.2d 465 (S.C. 1985); Tennessee, Ramsey v. Beavers, 931 S.W.2d 527 (Tenn. 1996); Texas,
Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993); Washington, Gain v. Carroll Mill Co., 787 P.2d 553
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(Wash. 1990) (en banc); West Virginia, Jones v. Sanger, 512 S.E.2d 590 (W. Va. 1998);
Wisconsin, Rabideau v. City of Racine, 627 N.W.2d 795 (Wis. 2001); and Wyoming, Gates v.
Richardson, 719 P.2d 193 (Wyo. 1986).

4. Gender bias, redux. Interestingly, the disparate impact on women of the traditional
common law rule—if it really existed—may have dissipated, or at least transformed itself. One
study in Australia concluded that women are more likely than men to recover for emotional
distress claims. The study also found that women bring substantially more emotional distress
claims than men. See Prue Vines, Mehera San Roque & Emily Rumble, Is Nervous Shock Still a
Feminist Issue? The Duty of Care and Psychiatric Injury in Australia, 18 TORT L. REV. 9, 16
(2010). Are such findings cause for celebration or critique?

5. Crystals and mud in tort law. The Dillon court’s reference to the cyclical character of the
effort to build new lines of defense in emotional distress cases has a parallel in the law of
property, where the distinguished scholar Carol Rose describes cycles of what she calls “crystals”
and “mud” in the law. Property is, if anything, populated more heavily by hard-and-fast rules
than torts is. Yet even in property, Rose detects a persistent oscillation from crystalline rules to
muddy standards and back again. A crystal such as the rule in Mitchell gets messy with an
intermediate position in Falzone and then gives way completely to the muddy standard of the
reasonable foreseeability standard in Dillon, only to see the pendulum swing back again. Same
with the old common law rule for landowners and occupiers, which allows exceptions in attractive
nuisance and other especially sympathetic cases and then gives way entirely in Rowland—only to
be revived, once again, in recent years.
What are the virtues and characteristic vices associated with these two legal styles? Why
the ceaseless swings between them? As Rose observes, the persistent cycling between crystals
and mud suggests that the quest to figure out once and for all which legal style is better may be a
futile one:
[T]he history of property law tells us that we seem to be stuck with both. Even
when we choose one . . . , the choice seems to dissolve, and instead of really
choosing, we seem to oscillate between them. Because this pattern recurs so often
in so many areas, it is difficult to believe that it is due to abnormal foolishness or
turpitude, or that it can be permanently overcome by a more thoughtful or more
virtuous choice . . . .
Carol M. Rose, Crystals and Mud in Property Law, 40 STAN. L. REV. 577 (1988). Rules and
standards—crystals and mud—are legal technologies that each have powerfully appealing virtues
and gravely troubling flaws.
If Rose is right, then it would have been shocking if Dillon turned out to be the final word
on the problem of emotional distress. And sure enough, it was not. In 1997, the distinctive crisis
of thousands upon thousands of claims by injured workers and others against asbestos
manufacturers led the United States Supreme Court to revisit the basic problem of negligently
inflicted emotional injuries:

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Metro-North Commuter Railroad Co. v. Buckley, 521 U.S. 424 (1997)
BREYER, J.
The basic question in this case is whether a railroad worker negligently exposed to a
carcinogen (here, asbestos) but without symptoms of any disease can recover under the Federal
Employers’ Liability Act (FELA or Act) for negligently inflicted emotional distress. We
conclude that the worker before us here cannot recover unless, and until, he manifests symptoms
of a disease. . . .
I
Respondent, Michael Buckley, works as a pipefitter for Metro-North, a railroad. For three
years (1985-1988) his job exposed him to asbestos for about one hour per working day. During
that time Buckley would remove insulation from pipes, often covering himself with insulation
dust that contained asbestos. Since 1987, when he attended an “asbestos awareness” class,
Buckley has feared that he would develop cancer—and with some cause, for his two expert
witnesses testified that, even after taking account of his now-discarded 15-year habit of smoking
up to a pack of cigarettes per day, the exposure created an added risk of death due to cancer, or to
other asbestos- related diseases, of either 1% to 5% (in the view of one of plaintiff’s experts), or
1% to 3% (in the view of another). Since 1989, Buckley has received periodic medical checkups
for cancer and asbestosis. So far, those check-ups have not revealed any evidence of cancer or
any other asbestos- related disease.
Buckley sued Metro-North under the FELA, a statute that permits a railroad worker to
recover for an “injury . . . resulting . . . from” his employer’s “negligence.” . . . His employer
conceded negligence, but it did not concede that Buckley had actually suffered emotional distress,
and it argued that the FELA did not permit a worker like Buckley, who had suffered no physical
harm, to recover for [such] injuries. After hearing Buckley’s case, the District Court dismissed
the action. The court found that Buckley did not “offer sufficient evidence to allow a jury to find
that he suffered a real emotional injury.” And, in any event, Buckley suffered no “physical
impact”; hence any emotional injury fell outside the limited set of circumstances in which,
according to this Court, the FELA permits recovery. . . . [S]ee Consolidated Rail Corporation v.
Gottshall [U.S. 1994]. . . .
Buckley appealed, and the Second Circuit reversed. . . . Buckley’s evidence, it said,
showed that his contact with the insulation dust (containing asbestos) was “massive, lengthy, and
tangible,” and that the contact “would cause fear in a reasonable person.” Under these
circumstances, the court held, the contact was what this Court in Gottshall had called a “physical
impact”—a “physical impact” that, when present, permits a FELA plaintiff to recover for
accompanying emotional distress. . . .
II
The critical question before us in respect to Buckley’s “emotional distress” claim is
whether the physical contact with insulation dust that accompanied his emotional distress amounts
to a “physical impact” as this Court used that term in Gottshall. In Gottshall, an emotional
distress case, the Court interpreted the word “injury” in FELA § 1, a provision that makes
“[e]very common carrier by railroad . . . liable in damages to any person suffering injury while . . .
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employed” by the carrier if the “injury” results from carrier “negligence.” In doing so, it initially
set forth several general legal principles applicable here. Gottshall described FELA’s purposes as
basically “humanitarian.” It pointed out that the Act expressly abolishes or modifies a host of
common-law doctrines that previously had limited recovery. It added that this Court has
interpreted the Act’s language “liberally” in light of its humanitarian purposes. But, at the same
time, the Court noted that liability under the Act rests upon “negligence” and that the Act does not
make the railroad “‘the insurer’” for all employee injuries. The Court stated that “common-law
principles,” where not rejected in the text of the statute, “are entitled to great weight” in
interpreting the Act, and that those principles “play a significant role” in determining whether, or
when, an employee can recover damages for “negligent infliction of emotional distress.”
The Court also set forth several more specific legal propositions. It recognized that the
common law of torts does not permit recovery for negligently inflicted emotional distress unless
the distress falls within certain specific categories that amount to recovery-permitting exceptions.
The law, for example, does permit recovery for emotional distress where that distress
accompanies a physical injury . . . , and it often permits recovery for distress suffered by a close
relative who witnesses the physical injury of a negligence victim, e.g., Dillon v. Legg, [Cal. 1968]
. . . . The Court then held that FELA § 1, mirroring the law of many States, sometimes permitted
recovery “for damages for negligent infliction of emotional distress,” and, in particular, it does so
where a plaintiff seeking such damages satisfies the common law’s “zone of danger” test. It
defined that test by stating that the law permits “recovery for emotional injury” by
those plaintiffs who sustain a physical impact as a result of a defendant’s negligent
conduct, or who are placed in immediate risk of physical harm by that conduct.
The case before us, as we have said, focuses on the italicized words “physical impact.”
The Second Circuit interpreted those words as including a simple physical contact with a
substance that might cause a disease at a future time, so long as the contact was of a kind that
would “cause fear in a reasonable person.” In our view, however, the “physical impact” to which
Gottshall referred does not include a simple physical contact with a substance that might cause a
disease at a substantially later time—where that substance, or related circumstance, threatens no
harm other than that disease-related risk. . . .
[C]ommon-law precedent does not favor the plaintiff. Common-law courts do permit a
plaintiff who suffers from a disease to recover for related negligently caused emotional distress,
and some courts permit a plaintiff who exhibits a physical symptom of exposure to recover . . . .
But with only a few exceptions, common-law courts have denied recovery to those who, like
Buckley, are disease and symptom free. . . .
[T]he general policy reasons to which Gottshall referred—in its explanation of why
common-law courts have restricted recovery for emotional harm to cases falling within rather
narrowly defined categories—militate against an expansive definition of “physical impact” here.
Those reasons include: (a) special “difficult[y] for judges and juries” in separating valid,
important claims from those that are invalid or “trivial”; (b) a threat of “unlimited and
unpredictable liability”; and (c) the “potential for a flood” of comparatively unimportant, or
“trivial,” claims.
To separate meritorious and important claims from invalid or trivial claims does not seem
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easier here than in other cases in which a plaintiff might seek recovery for typical negligently
caused emotional distress. . . .
More important, the physical contact at issue here—a simple (though extensive) contact
with a carcinogenic substance—does not seem to offer much help in separating valid from invalid
emotional distress claims. That is because contacts, even extensive contacts, with serious
carcinogens are common. See, e.g., Nicholson, Perkel, & Selikoff, Occupational Exposure to
Asbestos: Population at Risk and Projected Mortality—1980-2030, 3 Am. J. Indust. Med. 259
(1982) (estimating that 21 million Americans have been exposed to work-related asbestos); . . . .
They may occur without causing serious emotional distress, but sometimes they do cause distress,
and reasonably so, for cancer is both an unusually threatening and unusually frightening disease.
The relevant problem, however, remains one of evaluating a claimed emotional reaction to an
increased risk of dying. An external circumstance—exposure—makes some emotional distress
more likely. But how can one determine from the external circumstance of exposure whether, or
when, a claimed strong emotional reaction to an increased mortality risk (say, from 23% to 28%)
is reasonable and genuine, rather than overstated—particularly when the relevant statistics
themselves are controversial and uncertain (as is usually the case), and particularly since neither
those exposed nor judges or juries are experts in statistics? The evaluation problem seems a
serious one.
The large number of those exposed and the uncertainties that may surround recovery also
suggest what Gottshall called the problem of “unlimited and unpredictable liability.” Does such
liability mean, for example, that the costs associated with a rule of liability would become so great
that, given the nature of the harm, it would seem unreasonable to require the public to pay the
higher prices that may result? [citing Priest, 96 YALE L.J. 1521 (1987)]. The same characteristics
further suggest what Gottshall called the problem of a “flood” of cases that, if not “trivial,” are
comparatively less important. In a world of limited resources, would a rule permitting immediate
large- scale recoveries for widespread emotional distress caused by fear of future disease diminish
the likelihood of recovery by those who later suffer from the disease? Cf. J. WEINSTEIN,
INDIVIDUAL JUSTICE IN MASS. TORT LITIGATION 10-11, 141 (1995); Schuck, The Worst Should Go
First: Deferral Registries in Asbestos Litigation, 15 HARV. J.L. & PUB. POL’Y 541 (1992).
We do not raise these questions to answer them (for we do not have the answers), but
rather to show that general policy concerns of a kind that have led common-law courts to deny
recovery for certain classes of negligently caused harms are present in this case as well. . . .
For the reasons stated, we reverse the determination of the Second Circuit, and we
remand the case for further proceedings consistent with this opinion.
It is so ordered.
[Justice Ginsburg, joined by Justice Stevens, separately concurred in this part of the
Court’s judgment. In Ginsburg’s view, “Buckley’s extensive contact with asbestos particles in
Grand Central’s tunnels . . . constituted ‘physical impact’ as that term was used in Gottshall.”
Nonetheless, Ginsburg found that Buckley had failed to “present objective evidence of severe
emotional distress” and concluded therefore that his emotional distress claim failed.]

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Notes

1. Resistance to Dillon. The Supreme Court’s Buckley decision is not alone in its skepticism
for the Dillon approach. It may even stand for a broader resistance to Dillon’s heavy reliance on
an open-ended and case-by-case reasonableness analysis. Nearly fifty years after Dillon, seven
states still do not recognize claims for the negligent infliction of emotional distress absent
physical impact, retaining the old rule of Mitchell v. Rochester Railway. For cases retaining the
common law rule, see Arkansas, Mechs. Lumber Co. v. Smith, 752 S.W.2d 763 (Ark. 1988);
Georgia, Lee v. State Farm Mut. Ins. Co., 533 S.E.2d 82 (Ga. 2000); Idaho, Evans v. Twin Falls
Cnty., 796 P.2d 87 (Idaho 1990); Kansas, Hopkins v. State, 702 P.2d 311 (Kan. 1985); Oklahoma,
Kraszewski v. Baptist Med. Ctr. of Okla., Inc., 916 P.2d 241 (Okla. 1996); Oregon, Hammond v.
Cent. Lane Commc’ns Ctr., 816 P.2d 593 (Or. 1991) (en banc); and Virginia, Hughes v. Moore,
197 S.E.2d 214 (Va. 1973).
Justice Breyer’s opinion in Buckley does not, however, merely restate the generalized
fears of a glut of litigation cited by the state courts in cases like Mitchell and Ward. Instead,
Justice Breyer’s decision rests largely on a very specific policy consideration: the risk that paying
emotional distress damages for fear of cancer now might deplete funds available later for the
victims of deadly asbestos-related diseases like mesothelioma.

2. Buckley and medical monitoring damages. Buckley also advanced a separate claim for
damages arising out of increased medical monitoring costs. In a separate part of Justice Breyer’s
opinion for the Court, not excerpted above, he assumed that an “exposed plaintiff can recover
related reasonable medical monitoring costs if and when he develops symptoms.” But to the
extent that the Second Circuit had recognized a distinct “tort law cause of action [under the
FELA] permitting . . . the recovery of medical cost damages in the form of a lump sum” absent
such symptoms, the Supreme Court drew back. Justice Breyer noted that “tens of millions of
individuals may have suffered exposure to substances that might justify some form of substanceexposure-related medical monitoring.” In Breyer’s view, this fact threatened “both a ‘flood’ of
less important cases (potentially absorbing resources better left available to those more seriously
harmed . . .) and the systemic harms that can accompany ‘unlimited and unpredictable liability’
(for example, vast testing liability adversely affecting the allocation of scarce medical resources).”
Breyer noted, for example, that while “Buckley here sought damages worth $950 annually for 36
years, “the average settlement for plaintiffs injured by asbestos” between 1988 and 1993 “was
about $12,500.” (Nonmalignant plaintiffs received settlements averaging still less: $8,810.)
Breyer also observed that “a traditional, full-blown ordinary tort liability rule would
ignore the presence of existing alternative sources of payment” such as health insurance or
statutorily-mandated monitoring for asbestos injuries, “thereby leaving a court uncertain about
how much of the potentially large recoveries would pay for otherwise unavailable medical testing
and how much would accrue to plaintiffs for whom employers or other sources . . . might provide
monitoring in any event.”
Accordingly, the Court rejected Buckley’s medical monitoring claim. In doing so,
however, the Court declined to “express any view here about the extent to which the FELA might,
or might not, accommodate medical cost recovery rules more finely tailored” than the lump-sum
full-recovery rule advocated by the plaintiff and adopted by the Second Circuit.
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Justices Ginsburg and Stevens dissented from the majority’s decision to order the
dismissal of Buckley’s medical monitoring claim:
The Court of Appeals held that a medical monitoring claim is solidly grounded, and
this Court does not hold otherwise. Hypothesizing that Buckley demands lumpsum damages and nothing else, the Court ruminates on the appropriate remedy
without answering the anterior question: Does the plaintiff have a claim for relief?
Buckley has shown that Metro-North negligently exposed him to “extremely high
levels of asbestos,” and that this exposure warrants “medical monitoring in order to
detect and treat [asbestos-related] diseases as they may arise.” . . . Buckley’s expert
medical witness estimated the annual costs of proper monitoring at $950. We do
not know from the Court’s opinion what more a plaintiff must show to qualify for
relief.
521 U.S. at 448 (Ginsburg, J., concurring and dissenting).

3. Norfolk & Western v. Ayres: The limits of Buckley. What about plaintiffs with mental
anguish alongside physical symptoms caused by asbestos exposure? Did Buckley’s rationale
extend to their emotional distress claims as well? The Supreme Court took up this question six
years after Buckley in Norfolk & Western Railway v. Ayers, 538 U.S. 135 (2003).
In Norfolk & Western, the Court clarified that “mental anguish damages resulting from the
fear of developing cancer may be recovered under the FELA by a railroad worker” when they are
“associated with, or ‘parasitic’ on, a physical injury.”
Distinguishing Metro-North v. Buckley, the Court contended that the “universe of
potential claimants” with asbestosis symptoms in fear of cancer claims would be “only a fraction”
of those exposed to asbestos, citing studies indicating that “of persons exposed to asbestos after
1959, only 2 percent had asbestosis when first examined.” Norfolk & Western, 538 U.S. at 157.
Finally, the Court acknowledged concerns it had articulated in the late 1990s in class
action asbestos cases: “The ‘elephantine mass of asbestos cases’ lodged in state and federal
courts, we again recognize, ‘defies customary judicial administration and calls for national
legislation.’ Ortiz v. Fibreboard Corp., 527 U.S. 815, 821 (1999).” But Justice Ginsburg insisted
that courts must nonetheless “resist pleas of the kind Norfolk has made, essentially to reconfigure
established liability rules because they do not serve to abate today’s asbestos litigation crisis.”
Norfolk & Western, 538 U.S. at 166.
Justice Kennedy, joined by Chief Justice Rehnquist and Justices O’Connor and Breyer
dissented from the majority’s holding on the fear of cancer claims at issue on the grounds that
neither the Court’s prior FELA interpretations nor common law principles compelled or justified
the majority view. Moreover, Justice Kennedy contended that “the realities of asbestos
litigation,” id. at 167, warranted holding that asbestos plaintiffs suffering from asbestosis should
not be able to recover for fear of future cancer. In particular, Justice Kennedy expressed concern
that those asbestos plaintiffs who eventually contract diseases such as mesothelioma, for example,
would be less likely to be able to recover damages “for the simple reason that, by the time [they
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were] entitled to sue for the cancer, the funds available for compensation in all likelihood will
have disappeared, depleted by verdicts awarding damages for unrealized fear, verdicts the
majority is so willing to embrace.” Id. at 168.
Justice Breyer added a separate dissenting opinion, emphasizing that “the Second
Restatement neither gives a definition of the kind of ‘emotional disturbance’ for which recovery is
available nor otherwise states that recovery is available for any kind of emotional disturbance
whatsoever.” Id. at 182.
The underlying history underscores the openness of the legal question and the
consequent uncertainty as to the answer. When Congress enacted the Federal
Employers’ Liability Act (FELA) in 1908, the kinds of injury that it primarily had
in mind were those resulting directly from physical accidents, such as railway
collisions and entanglement with machinery.
“Given the legal uncertainty,” Justice Breyer wrote, “this Court, acting like any court interpreting
the common law . . . should determine the proper rule of law through reference to the underlying
factors that have helped to shape related ‘emotional distress’ rules. Those factors argue for the
kind of liability limitation that Justice Kennedy has described.” Id. at 182-84.

4. Whither negligent infliction of emotional distress? What is the current state of play in the
oscillation of crystals and mud in the law of negligently inflicted emotional distress? Where do
Dillon, Buckley, and Ayers leave the law in this area?

D. To Whom Does a Defendant Owe a Duty?
1. The Duty Debate (Part 1)
Now that we have seen a few examples of the duty analysis in action, it is worth stepping
back and taking a brief look at the theoretical debates that scholars have carried on about the
subject. We will return to these debates at the end of this section, but for now consider a classic
statement from one of the leading twentieth-century critics of the duty inquiry followed by a more
recent defense of the duty idea from two leading torts scholars from closer to our own time:

William L. Prosser, Handbook of the Law of Torts § 31, at 180, 185 (1941)
The statement that there is or is not a duty [of care] begs the essential question—
whether the plaintiff’s interests are entitled to legal protection against the
defendant’s conduct. . . . It is a shorthand statement of a conclusion, rather than an
aid to analysis in itself. . . . ‘[D]uty’ is not sacrosanct in itself, but only an expression
of the sum total of those considerations of policy which lead the law to say that the
particular plaintiff is entitled to protection. . . . The real problem, and the one to
which attention should be directed, would seem to be one of social policy: whether
the defendants in such cases should bear the heavy negligence losses of a complex
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civilization, rather than the individual plaintiff.

John Goldberg & Benjamin Zipursky, The Moral of MacPherson 146 U. PA. L. REV. 1733,
1810-11 (1998)
[Prosser] insists that conceptual categories must be incoherent unless they are tied
to specific utilitarian goals, such as deterrence, compensation or administrative ease.
Prosser was not able to recognize the possibility of a principle that links the
justification for imposing a duty to compensate a plaintiff with the question of
whether the defendant had actually breached a duty to the plaintiff. This principle
treats liability-imposition as having a normative structure and significance apart
from its instrumental value.
What is the nub of the disagreement between Prosser, on the one hand, and Goldberg and
Zipursky, on the other?
When mid-twentieth-century torts jurist William Prosser—the long-time dean at the
University of California at Berkeley—argued that the duty stage of the tort analysis was
redundant, his critique represented the culmination of legal realists’ functional analysis of tort law
in the early twentieth century. The same generation of lawyers that critiqued such traditional
doctrinal notions as causation and fault made “duty” a principal target of their functionalist
project. A half-century later, their view continues to be influential. The Third Restatement, for
example, recommends that typical torts cases ought not involve a separate duty analysis at all;
duty or modified duty determinations, the Third Restatement urges, should be limited to
“exceptional cases, when an articulated countervailing principle or policy warrants denying or
limiting liability in a particular class of cases.” RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT.
HARM § 7(b), cmt. a (2010).
Nonetheless, the duty concept remains a separate analytic stage in virtually every
American jurisdiction. And of late, distinguished jurists like Harvard’s Goldberg and Fordham’s
Zipursky (authors of the excerpt above) have defended the duty analysis and countered Prosser’s
long-standing realist argument against it. Defenders of the duty principle insist that the idea of
particular relational duties is central to the normative structure of tort law. Rejecting the realists’
instrumental or functional ideas of duty, scholars like Goldberg and Zipursky argue that duty
embodies the essential bilateral structure of tort law’s duties: duties that do not run to the whole
world, but that run (as Cardozo’s Palsgraf opinion suggested) to particular people and perhaps
even exclusively for certain wrongfully imposed risks. Functional theories of tort law, on this
view, do not capture what tort law does—namely, require the repair of losses because they are
wrongful with respect to certain people. The duty element of the analysis (according to its
defenders, anyway) focuses the torts inquiry on the defendant’s wrongfulness and on the
significance of that wrongfulness for the plaintiff’s injuries and for whether defendant has an
obligation to repair those injuries. See generally Benjamin C. Zipursky, Civil Recourse, Not
Corrective Justice, 91 GEO. L. REV. 695, 699-709 (2003).
Keep the debate in mind as you read the cases. Ask yourself the question: Who has the
better of the argument over duty in American tort law?

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2. Cases and Materials
Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985)
KAYE, J.
On July 13, 1977, a failure of defendant Consolidated Edison’s power system left most of
New York City in darkness. In this action for damages allegedly resulting from the power failure,
we are asked to determine whether Con Edison owed a duty of care to a tenant who suffered
personal injuries in a common area of an apartment building, where his landlord—but not he—
had a contractual relationship with the utility. We conclude that in the case of a blackout of a
metropolis of several million residents and visitors, each in some manner necessarily affected by a
25-hour power failure, liability for injuries in a building’s common areas should, as a matter of
public policy, be limited by the contractual relationship. . . .
Plaintiff, Julius Strauss, then 77 years old, resided in an apartment building in Queens.
Con Edison provided electricity to his apartment pursuant to agreement with him, and to the
common areas of the building under a separate agreement with his landlord, defendant Belle
Realty Company. As water to the apartment was supplied by electric pump, plaintiff had no
running water for the duration of the blackout. Consequently, on the second day of the power
failure, he set out for the basement to obtain water, but fell on the darkened, defective basement
stairs, sustaining injuries. In this action against Belle Realty and Con Edison, plaintiff alleged
negligence against the landlord, in failing to maintain the stairs or warn of their dangerous
condition, and negligence against the utility in the performance of its duty to provide electricity.
Plaintiff moved for partial summary judgment against Con Edison (1) to estop it from
contesting the charge of gross negligence in connection with the blackout, and (2) to establish that
Con Edison owed a duty of care to plaintiff. He argued that Con Edison was prohibited from
denying it was grossly negligent by virtue of the affirmed jury verdict in Food Pageant v.
Consolidated Edison [a prior case arising out of the same blackout], and that it owed plaintiff a
duty even though he was “not a customer of Consolidated Edison in a place where the accident
occurred.” Con Edison cross-moved for summary judgment dismissing the complaint,
maintaining it had no duty to a noncustomer.
The court granted the motion insofar as it sought collateral estoppel regarding gross
negligence, and denied Con Edison’s cross motion to dismiss the complaint, finding a question of
fact as to whether it owed plaintiff a duty of care. The Appellate Division reversed and dismissed
the complaint against Con Edison. Citing Moch Co. v. Rensselaer Water Co., the plurality
concluded that “Con Ed did not owe a duty to plaintiff in any compensable legal sense.” Justice
Gibbons dissented, finding extension of the duty tolerable here because “[t]he tenants of the
building in question constitute a defined, limited and known group of people.” On public policy
grounds, we now affirm the Appellate Division order dismissing the complaint against Con
Edison.
A defendant may be held liable for negligence only when it breaches a duty owed to the
plaintiff. The essential question here is whether Con Edison owed a duty to plaintiff, whose
injuries from a fall on a darkened staircase may have conceivably been foreseeable, but with
whom there was no contractual relationship for lighting in the building’s common areas.
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Duty in negligence cases is defined neither by foreseeability of injury . . . nor by privity of
contract. As this court has long recognized, an obligation rooted in contract may engender a duty
owed to those not in privity, for “[t]here is nothing anomalous in a rule which imposes upon A,
who has contracted with B, a duty to C and D and others according as he knows or does not know
that the subject-matter of the contract is intended for their use” (MacPherson v. Buick Motor Co.).
In Fish v. Waverly Elec. Light & Power Co., for example, an electric company which had
contracted with the plaintiff’s employer to install ceiling lights had a duty to the plaintiff to
exercise reasonable care. And in Glanzer v. Shepard, a public weigher, hired by a seller of beans
to certify the weight of a particular shipment, was found liable in negligence to the buyer.
But while the absence of privity does not foreclose recognition of a duty, it is still the
responsibility of courts, in fixing the orbit of duty, “to limit the legal consequences of wrongs to a
controllable degree” . . . and to protect against crushing exposure to liability . . . . “In fixing the
bounds of that duty, not only logic and science, but policy play an important role.” . . . The courts’
definition of an orbit of duty based on public policy may at times result in the exclusion of some
who might otherwise have recovered for losses or injuries if traditional tort principles had been
applied.
Considerations of privity are not entirely irrelevant in implementing policy. Indeed, in
determining the liability of utilities for consequential damages for failure to provide service—a
liability which could obviously be “enormous,” and has been described as “sui generis,” rather
than strictly governed by tort or contract law principles (see, Prosser and Keeton, Torts § 92, at
663 [5th ed] )—courts have declined to extend the duty of care to noncustomers. For example, in
Moch, supra, a water works company contracted with the City of Rensselaer to satisfy its water
requirements. Plaintiff’s warehouse burned and plaintiff brought an action against the water
company in part based on its alleged negligence in failing to supply sufficient water pressure to
the city’s hydrants. The court denied recovery, concluding that the proposed enlargement of the
zone of duty would unduly extend liability. . . .
In the view of the Appellate Division dissenter, Moch does not control because the injuries
here were foreseeable and plaintiff was a member of a specific, limited, circumscribed class with
a close relationship with Con Edison. The situation was thought to be akin to White v. Guarente,
where an accounting firm was retained by a limited partnership to perform an audit and prepare its
tax returns. As the court noted there, the parties to the agreement contemplated that individual
limited partners would rely on the tax returns and audit. Refusing to dismiss a negligence action
brought by a limited partner against the accounting firm, the court said, “the services of the
accountant were not extended to a faceless or unresolved class of persons, but rather to a known
group possessed of vested rights, marked by a definable limit and made up of certain
components.” . . .
Central to these decisions was an ability to extend the defendant’s duty to cover
specifically foreseeable parties but at the same time to contain liability to manageable levels. . . .
Here, insofar as revealed by the record, the arrangement between Con Edison and Belle Realty
was no different from those existing between Con Edison and the millions of other customers it
serves. . . . When plaintiff’s relationship with Con Edison is viewed from this perspective, it is no
answer to say that a duty is owed because, as a tenant in an apartment building, plaintiff belongs
to a narrowly defined class.

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Additionally, we deal here with a system-wide power failure occasioned by what has
already been determined to be the utility’s gross negligence. If liability could be found here, then
in logic and fairness the same result must follow in many similar situations. For example, a
tenant’s guests and invitees, as well as persons making deliveries or repairing equipment in the
building, are equally persons who must use the common areas, and for whom they are maintained.
Customers of a store and occupants of an office building stand in much the same position with
respect to Con Edison as tenants of an apartment building. . . . [P]ermitting recovery to those in
plaintiff’s circumstances would, in our view, violate the court’s responsibility to define an orbit of
duty that places controllable limits on liability. . . .
In sum, Con Edison is not answerable to the tenant of an apartment building injured in a
common area as a result of Con Edison’s negligent failure to provide electric service as required
by its agreement with the building owner. Accordingly, the order of the Appellate Division
should be affirmed, with costs.
MEYER, J., dissenting.
My disagreement with the majority results not from its consideration of public policy as a
factor in determining the scope of Con Ed’s duty, but from the fact that in reaching its public
policy conclusion it has considered only one side of the equation . . . .
As Professors Prosser and Keeton have emphasized, “The statement that there is or is not
a duty begs the essential question—whether the plaintiff’s interests are entitled to legal protection
against the defendant’s conduct . . . .”
...
The majority’s blind acceptance of the notion that Consolidated Edison will be crushed if
held liable to the present plaintiff and others like him ignores the possibility that through
application to the Public Service Commission Con Ed can seek such reduction of the return on
stockholders’ equity . . . , or increase in its rates, or both, as may be necessary to pay the
judgments obtained against it. It ignores as well the burden imposed upon the persons physically
injured by Con Ed’s gross negligence or, as to those forced to seek welfare assistance because
their savings have been wiped out by the injury, the State. Doing so in the name of public policy
seems particularly perverse, for what it says, in essence, is the more persons injured through a
tortfeasor’s gross negligence, the less the responsibility for injuries incurred.
WACHTLER, C.J., and SIMONS, ALEXANDER and TITONE, JJ., concur with KAYE, J.
MEYER, J., dissents and votes to reverse in a separate opinion in which JASEN, J., concurs.

Notes

1. Liability for public utilities. Unlike the New York Court of Appeals in Moch and Strauss,
other courts have refused to immunize utility companies from liability incurred by third parties.
After the New York Court of Appeals decided Moch, the Pennsylvania Supreme Court held that a
defendant-utility company could be liable for negligence even though the plaintiff had no
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contractual relationship with the defendant. See Doyle v. South Pittsburgh Water Co., 199 A.2d
875, 878 (Pa. 1964). After the New York Court of Appeals decided Strauss, the New Jersey
Supreme Court refused to immunize a defendant-utility company from liability arising outside of
a contractual relationship. See Weinberg v. Dinger, 524 A.2d 366, 378 (N.J. 1987).
The Restatement (Third) of Torts criticizes Moch. In particular, the Restatement notes:
[t]he difficulty with [Moch] is that the provision of utilities creates an expectation
of and reliance on continued service. When the utility ceases to supply service, the
omission is much like ceasing to provide warning signals at a railroad crossing. . . .
[R]eliance on the utility’s continuing to provide its services is a cause of harm.
RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM § 42 cmt. i (2012). Nevertheless, the
New York Court of Appeals continues to apply Strauss and Moch, even in cases that do not
involve utility companies. See, e.g., Espinal v. Melville Snow Contrs., 773 N.E.2d 485, 489 (N.Y.
2002) (holding that defendant snow removal company owed the injured party no duty of care
because the defendant contracted with the injured party’s employer, not the injured party himself).

2. Scholarly reaction to Strauss. Certain scholars have criticized the Strauss court’s
reasoning. For example, Professors Goldberg and Zipursky have stated that the plaintiff’s case for
a duty was particularly strong in Strauss because “the very point in providing electricity to
building owners is to provide for the needs and safety of their tenants.” John C.P. Goldberg &
Benjamin C. Zipursky, The Restatement (Third) and the Place of Duty in Negligence Law, 54
VAND. L. REV. 657, 719 (2001). The Strauss court, however, was concerned about the monetary
burden “imposed on New York’s major electrical supplier” if the defendant-utility company was
negligent. Id. Thus, the court disguised a policy rationale by issuing a “no duty decision.” Id.
Other scholars have stated that New York courts “act like a legislature when deciding duty in
[cases like Strauss].” Anthony J. Sebok, What’s Law Got to Do with It? Designing Compensation
Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 501, 516 (2001). Does a court
have a non-legislative option in such cases?
Professor Daniel Farber has praised the Strauss court: “Strauss created a triage rule,
identifying a subclass of victims (those in privity of contract with the utility) whose claims
seemed particularly deserving to the court. . . . [This rule] at least establish[es] the possibility of
cutting potentially unmanageable cases down to size.” Daniel A. Farber, Tort Law in the Era of
Climate Change, Katrina, and 9/11: Exploring Liability for Extraordinary Risks, 43 VAL. U. L.
REV. 1075, 1128 (2009).

3. Policy arguments? What other policy arguments would support the Strauss and Moch
courts’ holdings? One court has considered consumer welfare as a reason to immunize utility
companies from liability. According to the court’s analysis, liability would increase utility
companies’ costs, which would be passed on to consumers in the form of higher utility rates. In
contrast to insurance premiums, which vary according to the risk of loss, higher rates would be
uniform for all consumers. The class of insurance company customers would form an ersatz
insurance pool—but one in which the low-risk consumers would subsidize high-risk consumers.
See Reimann v. Monmouth Consol. Water Co., 87 A.2d 325, 327 (N.J. 1952), overruled by
Weinberg v. Dinger, 524 A.2d 366, 378 (N.J. 1987). Why won’t the costs be borne, as the
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dissenter in Strauss objected, by the utility company’s shareholders in the form of lower returns to
capital or by the company’s employees in the form of lower wages? Determining the incidence of
tort liability in settings characterized by networks of contracts turns out to be exceedingly
complicated and to turn on the relative elasticities of supply and demand in the networks of
markets (capital, labor, consumer) in which the relevant firms are involved. Sometimes the best
one can say is that the incidence of a new tort liability is an empirical question. See, e.g., Price
Fishback & Shawn Kantor, Prelude to the Welfare State: The Origins of Workers’ Compensation
(2000) (employing sophisticated econometric techniques to conclude that the enactment of
workers’ compensation statutes created costs that were borne in part by employers and in part by
employees in the form of lower wages).

4. Subrogation claims. Ought insurance companies be able to sue utility companies to
recover losses sustained by the homeowners and tenants they insure? Some courts do not allow
these subrogation claims on the theory that such a liability scheme would doubly harm consumers:
if liability is imposed, the theory goes, consumers would not only pay homeowners’ or renters’
insurance to cover future risks but would also pay higher water rates to utility companies.
Franklin Mut. Ins. Co. v. Jersey Cent. Power & Light Co., 902 A.2d 885, 887 (N.J. 2006);
William Bufford & Co. v. Glasgow Water Co., 2 S.W.2d 1027, 1029 (Ky. 1928). An insurer may,
however, bring subrogation claims against utility companies that negligently cause property
damage as opposed to service disruptions. See E & M Liquors, Inc. v. Public. Serv. Elec. & Gas
Co., 909 A.2d 1141, 1143 (N.J. App. Div. 2006).

5. What about one party’s obligations to exercise reasonable care in controlling another?
The next materials take up this problem.

Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970)
WILKEY, J.
The appellee apartment corporation states that there is “only one issue presented for
review . . . whether a duty should be placed on a landlord to take steps to protect tenants from
foreseeable criminal acts committed by third parties”. The District Court as a matter of law held
that there is no such duty. We find that there is, and that in the circumstances here the applicable
standard of care was breached. . . .
I
The appellant, Sarah B. Kline, sustained serious injuries when she was criminally
assaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway
of an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant
Kline moved in October 1959, is a large apartment building with approximately 585 individual
apartment units. It has a main entrance on Massachusetts Avenue, with side entrances on both
15th and 16th Streets. At the time the appellant first signed a lease a doorman was on duty at the
main entrance twenty-four hours a day, and at least one employee at all times manned a desk in
the lobby from which all persons using the elevators could be observed. The 15th Street door
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Witt & Tani, TCPI 8. Duty Problem

adjoined the entrance to a parking garage used by both the tenants and the public. Two garage
attendants were stationed at this dual entranceway; the duties of each being arranged so that one
of them always was in position to observe those entering either the apartment building or the
garage. The 16th Street entrance was unattended during the day but was locked after 9:00 P.M.
By mid-1966, however, the main entrance had no doorman, the desk in the lobby was left
unattended much of the time, the 15th Street entrance was generally unguarded due to a decrease
in garage personnel, and the 16th Street entrance was often left unlocked all night. The entrances
were allowed to be thus unguarded in the face of an increasing number of assaults, larcenies, and
robberies being perpetrated against the tenants in and from the common hallways of the apartment
building. These facts were undisputed, and were supported by a detailed chronological listing of
offenses admitted into evidence. The landlord had notice of these crimes and had in fact been
urged by appellant Kline herself prior to the events leading to the instant appeal to take steps to
secure the building.
Shortly after 10:00 P.M. on November 17, 1966, Miss Kline was assaulted and robbed just
outside her apartment on the first floor above the street level of this 585 unit apartment building.
This occurred only two months after Leona Sullivan, another female tenant, had been similarly
attacked in the same commonway.
II
At the outset we note that of the crimes of violence, robbery, and assault which had been
occurring with mounting frequency on the premises at 1500 Massachusetts Avenue, the assaults
on Miss Kline and Miss Sullivan took place in the hallways of the building, which were under the
exclusive control of the appellee landlord. Even in those crimes of robbery or assault committed
in individual apartments, the intruders of necessity had to gain entrance through the common
entry and passageways. These premises fronted on three heavily traveled streets, and had multiple
entrances. The risk to be guarded against therefore was the risk of unauthorized entrance into the
apartment house by intruders bent upon some crime of violence or theft.
While the apartment lessees themselves could take some steps to guard against this risk by
installing extra heavy locks and other security devices on the doors and windows of their
respective apartments, yet this risk in the greater part could only be guarded against by the
landlord. No individual tenant had it within his power to take measures to guard the garage
entranceways, to provide scrutiny at the main entrance of the building, to patrol the common
hallways and elevators, to set up any kind of a security alarm system in the building, to provide
additional locking devices on the main doors, to provide a system of announcement for authorized
visitors only, to close the garage doors at appropriate hours, and to see that the entrance was
manned at all times.
The risk of criminal assault and robbery on a tenant in the common hallways of the
building was thus entirely predictable; that same risk had been occurring with increasing
frequency over a period of several months immediately prior to the incident giving rise to this
case; it was a risk whose prevention or minimization was almost entirely within the power of the
landlord; and the risk materialized in the assault and robbery of appellant on November 17, 1966.
III
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. . . As a general rule, a private person does not have a duty to protect another from a
criminal attack by a third person. We recognize that this rule has sometimes in the past been
applied in landlord-tenant law, even by this court. Among the reasons for the application of this
rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the
landlord-tenant relationship; the notion that the act of a third person in committing an intentional
tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes
difficult problem of determining foreseeability of criminal acts; the vagueness of the standard
which the landlord must meet; the economic consequences of the imposition of the duty; and
conflict with the public policy allocating the duty of protecting citizens from criminal acts to the
government rather than the private sector.
But the rationale of this very broad general rule falters when it is applied to the conditions
of modern day urban apartment living, particularly in the circumstances of this case. The
rationale of the general rule exonerating a third party from any duty to protect another from a
criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling
houses. The landlord is no insurer of his tenants’ safety, but he certainly is no bystander. And
where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that
these crimes occurred in the portion of the premises exclusively within his control, has every
reason to expect like crimes to happen again, and has the exclusive power to take preventive
action, it does not seem unfair to place upon the landlord a duty to take those steps which are
within his power to minimize the predictable risk to his tenants.
...
Other relationships in which similar duties have been imposed include landowner-invitee,
businessman-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
parties to provide for his own protection has been limited in some way by his submission to the
control of the other, a duty should be imposed upon the one possessing control (and thus the
power to act) to take reasonable precautions to protect the other one from assaults by third parties
which, at least, could reasonably have been anticipated. However, there is no liability normally
imposed upon the one having the power to act if the violence is sudden and unexpected provided
that the source of the violence is not an employee of the one in control.
...
Upon consideration of all pertinent factors, we find that there is a duty of protection owed
by the landlord to the tenant in an urban multiple unit apartment dwelling.
...
IV
[I]n the last analysis the standard of care is the same—reasonable care in all the
circumstances. The specific measures to achieve this standard vary with the individual
circumstances. It may be impossible to describe in detail for all situations of landlord-tenant
relationships, and evidence of custom amongst landlords of the same class of building may play a
significant role in determining if the standard has been met.

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In the case at bar, appellant’s repeated efforts to introduce evidence as to the standard of
protection commonly provided in apartment buildings of the same character and class as 1500
Massachusetts Avenue at the time of the assault upon Miss Kline were invariably frustrated by the
objections of opposing counsel and the impatience of the trial judge. . . . The record as to custom
is thus unsatisfactory, but its deficiencies are directly chargeable to defendant’s counsel and the
trial judge, not appellant.
We therefore hold in this case that the applicable standard of care in providing protection
for the tenant is that standard which this landlord himself was employing in October 1959 when
the appellant became a resident on the premises at 1500 Massachusetts Avenue. The tenant was
led to expect that she could rely upon this degree of protection. While we do not say that the
precise measures for security which were then in vogue should have been kept up (e.g., the
number 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
relative degree of security should have been maintained.
The appellant tenant was entitled to performance by the landlord measured by this
standard of protection whether the landlord’s obligation be viewed as grounded in contract or in
tort. As we have pointed out, this standard of protection was implied as an obligation of the lease
contract from the beginning. Likewise, on a tort basis, this standard of protection may be taken as
that commonly provided in apartments of this character and type in this community, and this is a
reasonable standard of care on which to judge the conduct of the landlord here.
V
Given this duty of protection, and the standard of care as defined, it is clear that the
appellee landlord breached its duty toward the appellant tenant here. . . .
Having said this, it would be well to state what is not said by this decision. We do not
hold that the landlord is by any means an insurer of the safety of his tenants. His duty is to take
those measures of protection which are within his power and capacity to take, and which can
reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. The
landlord is not expected to provide protection commonly owed by a municipal police department;
but as illustrated in this case, he is obligated to protect those parts of his premises which are not
usually subject to periodic patrol and inspection by the municipal police. We do not say that
every multiple unit apartment house in the District of Columbia should have those same measures
of protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do we say that 1500
Massachusetts Avenue should have precisely those same measures in effect at the present time.
Alternative and more up-to-date methods may be equally or even more effective.
...
The landlord is entirely justified in passing on the cost of increased protective measures to
his tenants, but the rationale of compelling the landlord to do it in the first place is that he is the
only one who is in a position to take the necessary protective measures for overall protection of
the premises, which he owns in whole and rents in part to individual tenants.
Reversed and remanded to the District Court for the determination of damages.

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Notes

1. Kline’s durability. D.C. courts have continued to apply Kline. See, e.g., Novak v. Capital
Mgmt. & Dev. Corp., 452 F.3d 902 (D.C. Cir. 2006). Other federal courts of appeal and most
state supreme courts have also applied Kline in similar contexts. See, e.g., Banks v. Hyatt Corp.,
722 F.2d 214 (5th Cir. 1984); Frances T. v. Village Green Owners Ass’n, 723 P.2d 573 (Cal.
1986). One state supreme court, however, has limited Kline’s holding to situations in which the
landlord either agrees to provide security or creates a physical defect that foreseeably increases
the risk of criminal attack. See Ward v. Inishmann Assocs., 931 A.2d 1235 (N.H. 2007).

2. High-rent protections for slum prices? Does the Kline court decision give the plaintiff
1959 protections for 1966 prices? What if the rental market would no longer support the kinds of
staffing that the building had in 1959? One way to think of Kline is as a case requiring that
landlords make highly salient at the time of lease renewals certain reductions in the quality of the
services offered to tenants. Had the landlord brought staffing reductions to the plaintiff-tenant’s
attention each year at the time her lease was renewed, would the case come out differently? What
if the landlord also disclosed crime statistics for the building so that the plaintiff-tenant had
possessed full information about the risks at hand? Even if competitor buildings were offering
better staffing and higher security, such disclosures might offer powerful arguments against
liability. Indeed, the arguments against landlord liability might be stronger if competitor
buildings offered better security services, since that would make it clear that the tenant could have
pursued a higher security living option in the market if she had so desired. Of course, some
tenants might not have been able to afford the higher security apartments. But if a tenant prefers
low security and concomitantly low rent payments, shouldn’t a landlord be able to offer this
combination? The alternative is simple paternalism: it would deny low-income tenants a low-cost
option in the marketplace.
Note that none of these arguments necessarily go to the question of whether the landlord
in Kline had a duty of reasonable care. They are probably best thought of as considerations in
determining whether the defendant’s conduct breached its duty of care to the plaintiff.

3. Duties versus liabilities. A recent variation on Kline arose in Illinois, where Detroy
Marshall, III, was eating in a Winnebago County Burger King when a car crashed through the
restaurant’s wall and killed him. In the wrongful death suit against Burger King that followed, the
court observed that the defendants’ arguments about the great costs that would be imposed on
them by a finding of a duty to protect against such third party drivers was deeply flawed:
Defendants argue that businesses will incur an immense financial burden if required
to protect their invitees from out-of-control automobiles and that the protective
measures businesses take will make buildings everywhere less aesthetically
pleasing. These arguments are based on mistaken assumptions about the nature of
a duty of care. Recognizing that the duty of reasonable care that businesses owe to
their invitees applies to cases where invitees are injured by out-of-control
automobiles is not the same as concluding the duty has been breached because a
business failed to take a certain level of precaution. Nor is it the same as concluding
that the breach was the proximate cause of an invitee’s injuries. In short, merely
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Witt & Tani, TCPI 8. Duty Problem

concluding that the duty applies does not constitute an automatic, broad-based
declaration of negligence liability.
Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006).
The Marshall court concluded that the duty of reasonable care owed by the restaurant to
the plaintiff included an obligation to take reasonable precautions against the risk of injury to
customers by automobiles driven against the restaurant’s exterior walls.
Other jurisdictions have been reluctant to adopt the Marshall court’s reasoning. The
Indiana Court of Appeals has held that business owners owe a duty to business invitees in
vehicular collision cases, see Schoop’s Rest. v. Hardy, 863 N.E.2d 451 (Ind. Ct. App. 2007), but
has not officially overruled a previous case that held the opposite, see Fawley v. Martin’s
Supermarkets, Inc., 618 N.E.2d 10 (Ind. Ct. App. 1993). Some jurisdictions have declined to
recognize such a duty. See, e.g., Albert v. Hsu, 602 So. 2d 895 (Ala. 1992); Glick v. Prince
Italian Foods, Inc., 514 N.E.2d 100 (Mass. App. Ct. 1987); Howe v. Stubbs, 570 A.2d 1203 (Me.
1990); Carpenter v. Stop-N-Go Markets of Ga., Inc., 512 So. 2d 708 (Miss. 1987); Watkins v.
Davis, 308 S.W.2d 906 (Tex. Civ. App. 1957).

Ennabe v. Manosa, 319 P.3d 201 (Cal. 2014)
WERDEGAR, J.
. . . On the evening of April 27, 2007, defendant Jessica Manosa (Manosa) hosted a party
at a vacant rental residence owned by her parents, defendants Carlos and Mary Manosa, without
their consent. The party was publicized by word of mouth, telephone, and text messaging,
resulting in an attendance of between 40 and 60 people. The vast majority of attendees were, like
Manosa, under 21 years of age.
For her party, Manosa personally provided $60 for the purchase of rum, tequila, and beer.
She also provided cups and cranberry juice, but nothing else. Two of Manosa’s friends, Mario
Aparicio and Marcello Aquino, also provided money toward the initial purchase of alcohol, and
Aquino purchased the alcoholic beverages for the party with this money. The beer was placed in
a refrigerator in the kitchen, and the tequila and “jungle juice” (a mixture of rum and fruit juice)
were placed outside on a table at the side of the house. Manosa did not have a license to sell
alcoholic beverages.
Guests began to arrive at the party around 9:00 p.m., entering through a side gate in the
yard. Aquino heard Manosa ask Todd Brown to “stand by the side gate to kind of control the
people that came in and if he didn’t know them, then charge them some money to get into the
party.” Brown thereafter served as a “bouncer,” standing at the gate and charging uninvited
guests an admission fee of $ 3 to $ 5 per person. Once inside, partygoers enjoyed music played
by a disc jockey Manosa had hired and could help themselves to the beer, tequila, and jungle
juice.
Thomas Garcia, who had not been invited and was unknown to Manosa, testified that a
“big, tall, husky, Caucasian dude” was charging an entrance fee to get into the party. Garcia paid
$20 so that he and three or four of his friends could enter. The person who took Garcia’s money,
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Witt & Tani, TCPI 8. Duty Problem

presumably Brown, told him alcoholic beverages were available if he wanted them. Mike
Bossley, another uninvited guest, declared he was charged $ 5 to enter the party. Brown
eventually collected between $ 50 and $ 60 in entrance fees, and this money was used to buy
additional alcohol sometime during the party. The record is unclear whether any attendees brought
their own alcoholic beverages or whether Manosa provided the only alcohol consumed on the
premises.
Sometime before midnight, decedent Andrew Ennabe arrived at the party; he was
Manosa’s friend and an invited guest. Thomas Garcia and his friends arrived about 30 minutes
later and were charged admission. Ennabe and Garcia, both under 21 years of age, were visibly
intoxicated on arrival. Garcia in particular exhibited slurred speech and impaired faculties. By
his own reckoning, he had consumed at least four shots of whiskey before arriving. Although
Garcia later denied drinking anything at Manosa’s party, other guests reported seeing him
drinking there.
Once inside the gate, Garcia became rowdy, aggressive, and obnoxious. He made obscene
and vaguely threatening comments to female guests, and either he or a friend dropped his pants.
While Manosa claimed she was neither aware of Garcia’s presence nor that he was causing
problems with other guests, Garcia was eventually asked to leave for his inappropriate behavior.
Ennabe and some other guests escorted Garcia and his friends off the premises and ultimately to
their car. One of Garcia’s friends spit on Ennabe, prompting Ennabe to chase him into the street.
Garcia, who by this time was driving away, ran over Ennabe, severely injuring him. Ennabe later
died from his injuries.
Plaintiffs Faiez and Christina Ennabe, on behalf of themselves and the estate of their son,
filed a wrongful death action against defendant Manosa and her parents. . . . Defendants moved
for summary judgment or adjudication, claiming plaintiffs could not show defendants were liable
under section 25602.1, which permits liability for certain persons who serve alcohol to obviously
intoxicated minors, and that they were entitled to civil immunity. . . . The trial court granted
defendants’ motion for summary judgment on all causes of action . . . . The Court of Appeal
affirmed.
We granted plaintiffs’ petition for review.
...
For the better part of the 20th century, California case law held that a person who
furnished alcoholic beverages to another person was not liable for any damages resulting from the
latter’s intoxication. . . . The Legislature . . . declin[ed] to enact a contrary statutory scheme that
would permit civil liability . . . although it enacted legislation making the selling or furnishing of
an alcoholic beverage to an obviously intoxicated person a misdemeanor in 1953. . . . This court
first departed from the general common law rule of nonliability in 1971 when, noting the trend in
a majority of other states, we ruled that a vendor could be liable for selling alcoholic beverages to
an obviously intoxicated person who thereafter inflicted injury on third persons.
Five years later . . . , this court broadened the scope of potential liability.
Finally, in 1978, this court extended [liability] to noncommercial social hosts, reasoning
that a private person who serves alcohol in a noncommercial setting to an obviously intoxicated
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Witt & Tani, TCPI 8. Duty Problem

guest with the knowledge that person intends to drive a vehicle while in an intoxicated state fails
to act with reasonable care. . . .
The Legislature responded . . . by expressly abrogating their holdings and largely
reinstating the previous common law rule that the consumption of alcohol, not the service
of alcohol, is the proximate cause of any resulting injury. . . . : “No social host who furnishes
alcoholic beverages to any person shall be held legally accountable for damages suffered by such
person, or for injury to the person or property of, or death of, any third person, resulting from the
consumption of such beverages.”
. . . [The Legislature also enacted civil immunity]: “No person who sells, furnishes, gives,
or causes to be sold, furnished, or given away, any alcoholic beverage [to any habitual or common
drunkard or to any obviously intoxicated person] . . . shall be civilly liable to any injured person
or the estate of such person for injuries inflicted on that person as a result of intoxication by the
consumer of such alcoholic beverage.” . . . This “sweeping civil immunity” . . . was intended “to
supersede evolving common law negligence principles which would otherwise permit a finding of
liability under the[se] circumstances”
The third prong of the legislative response to this court’s recognition of potential liability
in alcohol cases authorized a “single statutory exception to the broad immunity created by the
1978 amendments.” . . . Newly enacted section 25602.1 . . . concerned underage drinkers and
authorized a cause of action against licensees . . . who sell, furnish, or give away alcoholic
beverages to obviously intoxicated minors who later injure themselves or others. . . .
Section 25602.1’s exception to immunity now embraces those required to be licensed and
those who sell alcohol on military bases. In addition, the Legislature excepted from the rule of
civil immunity “any other person” who sells alcohol to an obviously intoxicated minor.
In sum, if a plaintiff can establish the defendant provided alcohol to an obviously
intoxicated minor, and that such action was the proximate cause of the plaintiff’s injuries or
death, section 25602.1—the applicable statute in this case—permits liability in two
circumstances: (1) the defendant was either licensed to sell alcohol, required to be licensed, or
federally authorized to sell alcoholic beverages in certain places, and the defendant sold,
furnished, or gave the minor alcohol or caused alcohol to be sold, furnished, or given to the minor;
or (2) the defendant was “any other person” (i.e., neither licensed nor required to be licensed), and
he or she sold alcohol to the minor or caused it to be sold. Whereas licensees (and those required
to be licensed) may be liable if they merely furnish or give an alcoholic beverage away, a
nonlicensee may be liable only if a sale occurs; that is, a nonlicensee, such as a social host, who
merely furnishes or gives drinks away—even to an obviously intoxicated minor—retains his or
her statutory immunity. . . .
[D]efendant urges us to embrace the Court of Appeal’s reasoning, which found no sale
because “there [was] no transfer of title to an alcoholic beverage at the time the entrance fee [was]
paid,” and that “it is difficult, if not impossible, to determine which individual or individuals held
title to the alcoholic beverages consumed by Garcia.” But the [statutory] definition of a sale . . . is
broad enough to encompass indirect sales; the statute requires simply a transfer of title, not
necessarily a transfer of possession of a particular drink. . . .

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[I]t [is not] difficult to discern when title to a drink passed to Garcia. Although his
payment of the admission fee did not entitle him to, say, take possession of all the alcohol at the
party, nor did he at that time necessarily take title to any particular drink, when Garcia did pour
himself a drink and begin to consume it, title to that drink clearly passed to him. We conclude the
plain meaning of a “sale,” . . . includes Garcia’s payment of the entrance fee for Manosa’s party,
irrespective of the fact possession of a particular drink did not occur immediately upon
payment. . . .
Because [Manosa] sold Garcia alcoholic beverages at her party, [the statute] permits “a
cause of action [to] be brought [against her] by or on behalf of any person who has suffered injury
or death.”
...
Noting that alcohol is “furnished at an infinite variety of social settings hosted by
nonlicensees—from gallery openings, bar mitzvahs, weddings, political fundraisers and charity
events—where admission is not ‘free’ and financial contributions from attendees are expected or
required,” defendant argues by a reductio ad absurdum that this court would wreak havoc on the
“social fabric of modern life.” . . . The assertion is exaggerated. One does not normally charge
guests an entrance fee to attend bar mitzvahs, weddings, or gallery openings, and the provision of
alcoholic beverages to guests invited to such events typically is governed by social host immunity.
(Even if a host at such an event charged his or her guests for alcohol, such payment would simply
raise questions of licensure, and civil liability could attach only if the host sold alcohol to an
obviously intoxicated minor.) In any event, in contrast to how Manosa conducted herself at her
party, ordinary social hosts do not use bouncers, allow uninvited strangers into their homes, or
extract an entrance fee or cover charge from their guests. Nor does maintaining the social fabric
of our society depend on protecting from civil liability those persons who would sell alcoholic
beverages to minors who are already visibly intoxicated.
...
The decision of the Court of Appeal is reversed and the case remanded for further
proceedings consistent with our opinion.

Note

1. Social hosts and liquor sales. Historically, an injured third party could not sue a social
host or liquor vendor for providing alcohol to a tortfeasor. Courts refused to impose liability in
these situations for three reasons. First, courts held that the consumption, not the sale or
provision, of alcohol caused the injury. Second, courts regarded the intoxicated tortfeasor’s act as
an intervening, superseding cause. Third, courts believed that intoxicated individuals were largely
responsible for their own actions. LaDonna Hatton, Note, Common Law Negligence Theory of
Social Host Liability for Serving Alcohol to Obviously Intoxicated Guests, 26 B.C. L. REV. 1249,
1249-50 (1985).
Courts gradually began to impose liability on liquor vendors under a negligence theory.
See, e.g., Lopez v. Maez, 651 P.2d 1269 (N.M. 1982). In the mid-1980s, courts also began to
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Witt & Tani, TCPI 8. Duty Problem

impose liability on social hosts under a negligence theory. See, e.g., Kelly v. Gwinnell, 476 A.2d
1219 (N.J. 1984).
Currently, thirteen states and the District of Columbia decline to impose liability on social
hosts under a negligence theory. See Cartwright v. Hyatt Corp., 460 F. Supp. 80 (D.D.C. 1978);
Mulvihill v. Union Oil Co. of Cal., 859 P.2d 1310 (Alaska 1993); Shea v. Matassa, 918 A.2d 1090
(Del. 2007); Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987); Johnston v. KFC Nat. Mgmt. Co.,
788 P.2d 159 (Haw. 1990); Charles v. Seigfried, 651 N.E.2d 154 (Ill. 1995); Thies v. Cooper, 753
P.2d 1280 (Kan. 1988); Harriman v. Smith, 697 S.W.2d 219 (Mo. Ct. App. 1985); Pelzek v. Am.
Legion, 463 N.W.2d 321 (Neb. 1990); McGee v. Alexander, 37 P.3d 800 (Okla. 2001); Ferreira v.
Stack, 652 A.2d 965 (R.I. 1995); Garren v. Cummings & McCrady, Inc., 345 S.E.2d 508 (S.C. Ct.
App. 1986); Reeder v. Daniel, 61 S.W.3d 359 (Tex. 2001); Cox v. Malcolm, 808 P.2d 758 (Wash.
Ct. App. 1991).
Four state statutes immunize social hosts from liability. See, e.g., ARK. CODE ANN. § 16126-106 (2014); KY. REV. STAT. ANN. § 413.241 (West 2014); S.D. CODIFIED LAWS § 35-11-2
(2013); TENN. CODE ANN. § 57-10-101 (2014). Four states impose liability on social hosts only
when they serve alcohol to minors. See, e.g., IOWA CODE ANN. § 123.92 (2014); MINN. STAT. §
340A.90 (2014); MONT. CODE. ANN. § 16-6-305(4) (2013); NEV. REV. STAT. § 41.1305 (2013).
Why should serving alcohol to social guests receive immunization from review for
reasonableness when other ordinary social activities are governed uncontroversially by a
reasonableness test? Is there a justification for providing special protections to the defendants in
such cases, given that their liability only arises when their behavior is found to have been
unreasonable under the circumstances?

Tarasoff v. Regents of the University of California, 551 P.2d 334 (Cal. 1976)
TOBRINER, J.
On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff. Plaintiffs, Tatiana’s
parents, allege that two months earlier Poddar confided his intention to kill Tatiana to Dr.
Lawrence Moore, a psychologist employed by the Cowell Memorial Hospital at the
University of California at Berkeley. They allege that on Moore’s request, the campus police
briefly detained Poddar, but released him when he appeared rational. They further claim that Dr.
Harvey Powelson, Moore’s superior, then directed that no further action be taken to detain
Poddar. No one warned plaintiffs of Tatiana’s peril.
Concluding that these facts set forth causes of action against neither therapists and
policemen involved, nor against the Regents of the University of California as their employer, the
superior court sustained defendants’ demurrers to plaintiffs’ second amended complaints without
leave to amend. This appeal ensued.
Plaintiffs’ complaints predicate liability on . . . defendants’ failure to warn plaintiffs of the
impending danger. . . . Defendants, in turn, assert that they owed no duty of reasonable care to
Tatiana. . . .

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The most important . . . consideration . . . in establishing duty is foreseeability. As a
general principle, a ‘defendant owes a duty of care to all persons who are foreseeably endangered
by his conduct, with respect to all risks which make the conduct unreasonably dangerous.’ . . . .
Although . . . under the common law, as a general rule, one person owed no duty to
control the conduct of another nor to warn those endangered by such conduct, the courts have
carved out an exception to this rule in cases in which the defendant stands in some special
relationship to either the person whose conduct needs to be controlled or in a relationship to the
foreseeable victim of that conduct. Applying this exception to the present case, we note that a
relationship of defendant therapists to either Tatiana or Poddar will suffice to establish a duty of
care; as explained in section 315 of the Restatement Second of Torts, a duty of care may arise
from either ‘(a) a special relation . . . between the actor and the third person which imposes a duty
upon the actor to control the third person’s conduct, or (b) a special relation . . . between the actor
and the other which gives to the other a right of protection.’
Although plaintiffs’ pleadings assert no special relation between Tatiana and defendant
therapists, they establish as between Poddar and defendant therapists the special relation that
arises between a patient and his doctor or psychotherapist. Such a relationship may support
affirmative duties for the benefit of third persons. Thus, for example, a hospital must exercise
reasonable care to control the behavior of a patient which may endanger other persons. A doctor
must also warn a patient if the patient’s condition or medication renders certain conduct, such as
driving a car, dangerous to others. . . .
Defendants contend, however, that imposition of a duty to exercise reasonable care to
protect third persons is unworkable because therapists cannot accurately predict whether or not a
patient will resort to violence. . . .
We recognize the difficulty that a therapist encounters in attempting to forecast whether a
patient presents a serious danger of violence. Obviously we do not require that the therapist, in
making that determination, render a perfect performance; the therapist need only exercise ’that
reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of
(that professional specialty) under similar circumstances.’ . . .
In the instant case, however, the pleadings do not raise any question as to failure of
defendant therapists to predict that Poddar presented a serious danger of violence. On the
contrary, the present complaints allege that defendant therapists did in fact predict that Poddar
would kill, but were negligent in failing to warn. . . .
Weighing the uncertain and conjectural character of the alleged damage done the patient
by such a warning against the peril to the victim’s life, we conclude that professional inaccuracy
in predicting violence cannot negate the therapist’s duty to protect the threatened victim.
The risk that unnecessary warnings may be given is a reasonable price to pay for the lives
of possible victims that may be saved. We would hesitate to hold that the therapist who is aware
that his patient expects to attempt to assassinate the President of the United States would not be
obligated to warn the authorities because the therapist cannot predict with accuracy that his patient
will commit the crime. . . .

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Witt & Tani, TCPI 8. Duty Problem

The revelation of a communication under the above circumstances is not a breach of trust
or a violation of professional ethics; as stated in the Principles of Medical Ethics of the American
Medical Association (1957), section 9: “A physician may not reveal the confidence entrusted to
him in the course of medical attendance . . . [u]nless he is required to do so by law or unless it
becomes necessary in order to protect the welfare of the individual or of the community.” We
conclude 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
danger to others. The protective privilege ends where the public peril begins.
...
The judgment of the superior court in favor of defendants . . . is reversed, and the cause
remanded for further proceedings consistent with the views expressed herein.

Notes

1. The Restatement’s catalog of special relationships. The Tarasoff opinion rests heavily on
section 315 of the Second Restatement and its view of the significance of a “special relationship”
between the defendant and the third party. Since the Tarasoff decision, the Third Restatement has
offered a nonexhaustive catalog of special relationships, including the relationship of a parent and
a dependent child; a custodian and those in custody; employers and employees; and (as in
Tarasoff) mental health care professionals and their patients. See RESTATEMENT (THIRD) OF
TORTS: LIAB. FOR PHYS. & EMOT. HARM § 41 (2012). What makes these relationships special?
Are there others that belong on this list?

2. Common law limits on the Tarasoff rule. Some courts, including the California Supreme
Court, have limited Tarasoff’s holding to apply only when the psychotherapist knows that an
“identifiable victim” is in danger. See, e.g., Thompson v. County of Alameda, 614 P.2d 728 (Cal.
1980); Fraser v. United States, 674 A.2d 811 (Conn. 1996). Other courts have held that
psychotherapists owe no duty to victims at all. See, e.g., State v. Cowles, 151 P.3d 353 (Alaska
2006); Santa Cruz v. Nw. Dade Cmty. Health Ctr., Inc., 590 So. 2d 444 (Fla. Dist. Ct. App. 1991);
Boulanger v. Pol, 900 P.2d 823 (Kan. 1995); Furr v. Spring Grove State Hosp., 454 A.2d 414
(Md. Ct. Spec. App. 1983); Kehler v. Eudaly, 933 S.W.2d 321 (Tex. App. 1996); Nasser v.
Parker, 455 S.E.2d 502 (Va. 1995).

3. Negligent failure to diagnose. Tarasoff involved a therapist who had predicted violence
toward a specific individual and allegedly failed to fulfill the duty triggered by that prediction. In
jurisdictions that have chosen to recognize the duty of care outlined in Tarasoff, should therapists
also be subject to liability for failing to predict violence? In California, the answer initially
appeared to be “yes.” In Hedlund v. Superior Court, a case involving an alleged missed diagnosis
and the patient’s subsequent violent assault on the plaintiffs, the California Supreme Court noted
that “[a] negligent failure to diagnose dangerousness in a Tarasoff action is as much a basis for
liability as is a negligent failure to warn a known victim once such diagnosis has been made.”
669 P.2d 41, 45 (Cal. 1983). In response to Hedlund, the California State Assembly disallowed
civil lawsuits stemming from a psychotherapist’s failure to predict violence. CAL. CIV. CODE §
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Witt & Tani, TCPI 8. Duty Problem

43.92 (West 2013). In other jurisdictions, however, Hedlund-type actions still appear to be
available. Consider Perreira v. State, 768 P.2d 1198 (Colo. 1989) (en banc), which stemmed
from the shooting death of a police officer by an outpatient of a state mental health center. Prior
to the shooting, the defendant doctor had been “of the opinion that [the patient] did not pose any
risk of violence to others upon his release.” The court held that the doctor “had a legal duty to
exercise due care in determining whether [the patient] had a propensity for violence and, if
released from his involuntary commitment, would thereby present an unreasonable risk of serious
bodily harm to others, including a police officer in the position of [the plaintiffs’ decedent].” Id.
at 1205, 1220; see also Bardoni v. Kim, 390 N.W.2d 218, 222 (Mich. Ct. App. 1986) (emphasis
added) (recognizing that a psychiatrist owes a duty of reasonable care to a third party if the
psychiatrist (1) “knew or, according to the standards of his profession, should have known that his
patient posed a serious threat of danger to others” and (2) “knew or should have known that his
patient was dangerous specifically to the injured third party”). Published opinions suggest that
negligent diagnosis cases are rare, as compared to cases where a therapist predicted violence and
then allegedly failed to take reasonable steps. Why might that be?

4. The content of the Tarasoff duty. Where a therapist owes a duty of care to a third party,
what conduct satisfies that duty? What conduct falls short? The case law is at times frustratingly
vague. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 193 (D. Neb. 1980)
(recognizing that a therapist has a duty to “initiate whatever precautions are reasonably necessary
to protect potential victims of his patient”). The authors of the Third Restatement identify some
actions that may comprise part of this duty, including “providing appropriate treatment, warning
others of the risks posed by the patient, seeking the patient’s agreement to a voluntary
commitment, [or] making efforts to commit the patient involuntarily.” RESTATEMENT (THIRD) OF
PHYSICAL AND EMOTIONAL HARMS § 41 cmt. g. Various courts have, at different times, found all
these actions salient. See, e.g., Hamman v. Cty. of Maricopa, 775 P.2d 1122, 1223, 1128–29
(Ariz. 1989) (en banc) (considering that the psychiatrist did not review previous medical records,
provide instructions to follow if the patient’s condition worsened, or warn likely victims of the
danger); Petersen v. State, 671 P.2d 230, 237 (Wash. 1983) (en banc) (noting the psychologist’s
failure to petition the court for the patient’s temporary civil commitment); Kuligoski v.
Brattleboro Retreat, 156 A.3d 436, 450–53 (Vt. 2016) (discussing whether therapists properly
trained a patient’s caretakers before discharge). Still, when courts discuss a therapist’s duty of
care to a third party, they seem chiefly concerned with the question of to whom the duty is owed,
not what conduct satisfies that duty. Why might that be?

5. Legislative responses. State legislatures have responded to Tarasoff in different ways.
Certain states provide that mental health professionals have an affirmative duty to take
precautions against violent patients. See, e.g., IDAHO CODE ANN. § 6-1902 (2013); MICH. COMP.
LAWS § 330.1946 (2014). Some states do not establish an affirmative duty, but have enacted
legislation permitting mental health professionals to disclose patients’ threats. See, e.g., FLA.
STAT. § 456.059 (2013); MISS. CODE ANN. § 41-21-97 (2013). Other states have immunized
mental health professionals from liability. See, e.g., DEL. CODE ANN. tit. 16, § 5402 (2014). A
majority of states that impose an affirmative duty limit the duty to instances when the patient
threatens a reasonably identifiable third party. See, e.g., CAL. CIV. CODE § 43.92 (West 2013);
N.J. STAT. § 2A:62A-16 (2014); TENN. CODE ANN. § 24-1-207 (2013). Other states limit mental
health professionals’ duty to instances when the patient threatens a specified victim. See, e.g.,
COLO. REV. STAT. § 13-21-117 (2013). See generally Mary I. Wood, Comment, Protective
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Witt & Tani, TCPI 8. Duty Problem

Privilege Versus Public Peril: How Illinois Has Failed to Balance Patient Confidentiality with the
Mental Health Professional’s Duty to Protect the Public, 29 N. ILL. U. L. REV. 571, 584-85
(2009).

6. Nguyen v. Massachusetts Inst. of Tech., 96 N.E.3d 128 (Mass. 2018). Nguyen brought a
wrongful death action against MIT after his son, a graduate student, committed suicide. Before
the court could address Nguyen’s negligence claims, it had to determine whether MIT had a duty
to prevent student suicides:
In analyzing whether a duty to prevent suicide falls within the scope of the complex
relationship that universities have with their students, we consider a number of
factors used to delineate duties in tort law. Irwin v. Ware, 392 Mass. 745, 756
(1984). “Foremost among these is whether a defendant reasonably could foresee
that he [or she] would be expected to take affirmative action to protect the plaintiff
and could anticipate harm to the plaintiff from the failure to do so.” Irwin, supra.
A related factor is “reasonable reliance by the plaintiff [on the defendant], impeding
other persons who might seek to render aid.” Id. Other factors that have been
considered relevant to special relationships and the creation of a duty in the
university context are the “degree of certainty of harm to the plaintiff; burden upon
the defendant to take reasonable steps to prevent the injury; some kind of mutual
dependence of plaintiff and defendant upon each other, frequently . . . involving
financial benefit to the defendant arising from the relationship; moral
blameworthiness of defendant’s conduct in failing to act; and social policy
considerations involved in placing the economic burden of the loss on the
defendant.” [quoting Massie, Suicide on Campus: The Appropriate Legal
Responsibility of College Personnel, 91 MARQ. L. REV. 625, 2008].
....
The probability of the harm must of course be considered along with its gravity
including the death of the student. . . . Thus, where a student has attempted to commit
suicide while enrolled at the university or recently before matriculation or stated
plans or intentions to commit suicide, that probability is sufficient to justify
imposition of a duty on the university. The burden on the university is not
insubstantial, but so is the financial benefit received from student tuition.
Nguyen, 96 N.E.3d at 142-144. The court went on to stress that a university’s duty to prevent
student suicide is limited. Such a duty only exists if the university is aware of a student’s
intentions to commit suicide or of a recent suicide attempt; even then, the court emphasized that a
university will usually be able to discharge its obligations under its duty merely by initiating a
reasonable suicide prevention protocol. Moreover, the court observed that the obligations of a
university may decrease over time if, for example, the student appears no longer to be at risk of
suicide.
In Nguyen itself, the court determined that “there was no duty created” to prevent
Nguyen’s suicide, since Nguyen had neither communicated his intent to commit suicide nor
attempted to commit suicide in the year prior to his matriculation. Id. at 146. Why do the factors
listed by the court go to duty rather than breach? Put differently, is the court in Nguyen correct in
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thinking of the duty as never having come into existence, as opposed to not having been
breached? How, if at all, does it matter which way the court organizes the analysis if the arrows
point in the same direction?

5. Duties of A for the Conduct of B? Does a successor corporation, following bankruptcy, owe
a duty to warn consumers about hazards associated with products manufactured and sold by the
pre-bankruptcy corporation? General Motors manufactured millions of cars with a small defect in
the vehicles’ ignition switches could lead to fatal accidents. Then in 2009 it went through a
bankruptcy reorganization and emerged as a new entity; the company that had manufactured the
cars no longer existed.
Judge Jesse Furman in the Southern District of New York concluded that New GM owed
a duty of care to the owners of Old GM’s cars on the theory that tort “places the duty to protect
the public from a dangerous defect on the entity that is best situated to protect the public against
products that are a menace to safety.” In re Gen. Motors LLC Ignition Switch Litig., 154 F. Supp.
3d 30, 39 (S.D.N.Y. 2015) (quoting Okla. Gas & Elec. Co. v. McGraw–Edison Co., 834 P.2d 980,
984–85 (Okla.1992)). Where New GM had “assumed service and repair duties” for Old GM
products,” id., and where New GM had a continuing “contractual warranty duty . . . to Old GM
vehicles, the court concluded that New GM had a tort duty to warn purchasers of Old GM
vehicles. In re Gen. Motors LLC Ignition Switch Litig., 154 F. Supp. 3d 30, 40-41 (S.D.N.Y.
2015) (internal quotation marks omitted).

In re September 11 Litigation, 280 F. Supp. 2d 279 (S.D.N.Y. 2003)
HELLERSTEIN, J.
The injured, and the representatives of the thousands who died from the terrorist-related
aircraft crashes of September 11, 2001, are entitled to seek compensation. By act of Congress,
they may seek compensation by filing claims with a Special Master established pursuant to the
Air Transportation Safety and System Stabilization Act of 2001 . . . . Or they may seek
compensation in the traditional manner, by alleging and proving their claims in lawsuits, with the
aggregate of their damages capped at the limits of defendants’ liability insurance. If they choose
the former alternative, their claims will be paid through a Victim Compensation Fund from money
appropriated by Congress, within a relatively short period after filing. Claimants will not have to
prove fault or show a duty to pay on the part of any defendant. The amount of their
compensation, however, may be less than their possible recovery from lawsuits, for non-economic
damages are limited to $250,000, economic damages are subject to formulas that are likely to be
less generous than those often allowable in lawsuits, and punitive damages are unavailable. . . .
[A small number of the victims’ families, as well as some people injured, and ten owners
of damaged property sued the airlines, the airport security companies, the airport operators, the
airplane manufacturer, and the operators and owners of the World Trade Center. Defendants
moved for dismissal on the grounds that they owed a duty to the crew and passengers on the
planes, but did not owe any duty to “ground victims.” The Port Authority and World Trade
Center Properties argued that “they did not owe a duty to protect occupants in the towers against
injury from hijacked airplanes and, even if they did, the terrorists’ actions broke the chain of
proximate causation, excusing any negligence” by the World Trade Center Defendants. Boeing
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Witt & Tani, TCPI 8. Duty Problem

argued “that it did not owe a duty to ground victims or passengers, and that any negligence on its
part was not the proximate cause for the harms suffered by the plaintiffs.”]
...
A. Aviation Defendants’ Motions to Dismiss
...
ii. Existence of Duty to Ground Victims
“The threshold question in any negligence action is: does the defendant owe a legally
recognized duty of care to plaintiff?” . . . The injured party must show that a defendant owed not
merely a general duty to society but a specific duty to the particular claimant, for “without a duty
running directly to the injured person there can be no liability in damages, however careless the
conduct or foreseeable the harm.” . . .
. . . One additional consideration, the [New York] Court of Appeals added, is that “the
specter of limitless liability is not present because the class of potential plaintiffs to whom the
duty is owed is circumscribed by the relationship.” . . .
Plaintiffs allege that the Aviation Defendants negligently failed to carry out their duty to
secure passenger aircraft against potential terrorists and weapons smuggled aboard. . . . Plaintiffs
argue that the Aviation Defendants employed their security measures specifically to guard against
hijackings, and knew or should have known that the hijacking of a jumbo jet would create
substantial risks of damage to persons and property, not only to passengers and crew, but also to
people and property on the ground. . . .
Airlines typically recognize responsibility to victims on the ground. . . . However, counsel
[for the airline defendants] did not concede duty in relation to those killed and injured on the
ground in the September 11, 2001 aircraft crashes. . . . The distinction, in his opinion, is “no[t][a]
difference in kind,” but “the law of extraordinary consequences [which] can sometimes draw a
distinction based on degree.” . . . He explained:
We are in an area of policy and there are lines to be drawn that may occasionally
seem arbitrary. But what really distinguishes our case from [the hypothetical
example of an airplane crash into Shea Stadium while taking off from, or landing
at, La Guardia airport] is the intentional intervening acts of the third party terrorists.7
. . . As defense counsel commented, “we are in an area of policy,” where “the existence
and scope of a tortfeasor’s duty is . . . a legal question for the courts” . . . .
It is the court’s job to “fix the duty point by balancing factors,” including the following:

7

While defense counsel raised the issue of proximate causation during the oral argument, the issue was not
briefed. Counsel suggested, without legal citation, that the extraordinary nature of the attacks, involving
intervening acts by the terrorists, should negate the duty air carriers owed to ground victims.

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the reasonable expectations of parties and society generally, the proliferation of
claims, the likelihood of unlimited or insurer-like liability, disproportionate risk and
reparation allocation, and public policies affecting the expansion or limitation of
new channels of liability.
[Citing 532 Madison Avenue.]
[In] 532 Madison Avenue, [the] Court of Appeals acknowledged that “[p]olicy-driven
line-drawing is to an extent arbitrary because, wherever the line is drawn, invariably it cuts off
liability to persons who foreseeably might be plaintiffs.” . . . If those who suffered financial losses
were to be allowed to sue, the Court of Appeals held, “an indeterminate group in the affected
areas” would be able to recover. . . . If, however, the field of plaintiffs was to be limited to those
who “suffered personal injury or property damage” as a result of defendants’ negligence, the
limitation would “afford . . . a principled basis for reasonably apportioning liability,” and be
“historically” consistent with New York precedents. . . .
The cases before me involve claims to recover for personal injuries, death, or property
damage. They fall within the line drawn by the New York Court of Appeals in 532 Madison
Avenue. . . . I therefore hold that the Aviation Defendants owed a duty of care, not only to their
passengers to whom they concede they owed this duty, but also to victims on the ground.
[P]laintiffs are favored by the first of the factors set out above, for plaintiffs and society
generally could have reasonably expected that the screening performed at airports by the Aviation
Defendants would be for the protection of people on the ground as well as for those in airplanes.
...
The second factor to consider is “the proliferation of claims.” . . . Proliferation, however,
should not be mistaken for size of number. . . . Their number may be large, tragically large, and
the potential liability may be substantial if negligence and cause is proven, but the class is not
indefinite and claims at this point cannot proliferate. Furthermore, the defendants will be liable
only if plaintiffs sustain their burden of proof. . . . Thus, “the likelihood of unlimited or insurerlike liability,” the third factor of 532 Madison Avenue, does not weigh heavily against a finding of
duty.
The fourth factor of 532 Madison Avenue is “disproportionate risk and reparation
allocation.” This inquiry probes who was best able to protect against the risks at issue and weighs
the costs and efficacy of imposing such a duty. The airlines, and the airport security companies,
could best screen those boarding, and bringing objects onto, airplanes. The same activities
reasonably necessary to safeguard passengers and crew are those that would protect the public as
well. . . . This case is thus distinguishable from other cases where courts did not find a duty to
protect against third-party conduct. . . . [I]n Hamilton [v. Aku-Tech, for example] the court held
that gun manufacturers did not owe a duty to victims of gun violence for negligent marketing and
distribution of firearms. The connection between the manufacturers, criminal wrongdoers, and
victims was too remote, running through many links in a long chain, from manufacturer,
distributor or wholesaler, retailer, legal purchasers, unlawful possessors, and finally to the victims
of gun violence. . . .
Unlike Hamilton and Waters, the Aviation Defendants could best control the boarding of
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Witt & Tani, TCPI 8. Duty Problem

airplanes, and were in the best position to provide reasonable protection against hijackings and the
dangers they presented, not only to the crew and passengers, but also to ground victims. Imposing
a duty on the Aviation Defendants best allocates the risks to ground victims posed by inadequate
screening, given the Aviation Defendants’ existing and admitted duty to screen passengers and
items carried aboard.
Lastly, recognition of a duty on the part of the Aviation Defendants would not
substantially expand or create “new channels of liability,” the fifth and last factor of 532 Madison
Avenue. New York courts have found on other occasions that aircraft owners and operators owe a
duty to those on the ground who may be harmed or sustain property damage resulting from
improper or negligent operation of an aircraft. . . . Although these cases involved injuries
resulting from negligent operation or maintenance of airplanes, rather than negligence in
regulating the boarding of airplanes, there is no principled distinction between the modes of
negligence. . . .
iii. Scope of Duty to Ground Victims: the Issue of Foreseeability
Defendants argue that the ground victims lost their lives and suffered injuries from an
event that was not reasonably foreseeable, for terrorists had not previously used a hijacked
airplane as a suicidal weapon to destroy buildings and murder thousands. Defendants contend
that because the events of September 11 were not within the reasonably foreseeable risks, any
duty of care that they would owe to ground victims generally should not extend to the victims of
September 11. . . .
Construing the factual allegations in the light most favorable to the plaintiffs, I conclude
that the crash of the airplanes was within the class of foreseeable hazards resulting from
negligently performed security screening. While it may be true that terrorists had not before
deliberately flown airplanes into buildings, the airlines reasonably could foresee that crashes
causing death and destruction on the ground was a hazard that would arise should hijackers take
control of a plane. . . . While the crashes into the particular locations of the World Trade Center,
Pentagon, and Shanksville field may not have been foreseen, the duty to screen passengers and
items brought on board existed to prevent harms not only to passengers and crew, but also to the
ground victims resulting from the crashes of hijacked planes . . . .
B. World Trade Center Defendants’ Motions to Dismiss
i. Background
The Port Authority of New York and New Jersey and WTC Properties LLC move to
dismiss all claims brought against them as owners and operators of the World Trade Center for
loss of life, personal injury, and damage to nearby property and businesses resulting from the
collapse of the Twin Towers. . . .
ii. Existence and Scope of Duty
The WTC Defendants contend that they owed no duty to “anticipate and guard against
crimes unprecedented in human history.” Plaintiffs argue that defendants owed a duty, not to
foresee the crimes, but to have designed, constructed, repaired and maintained the World Trade
Center structures to withstand the effects and spread of fire, to avoid building collapses caused by
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Witt & Tani, TCPI 8. Duty Problem

fire and, in designing and effectuating fire safety and evacuation procedures, to provide for the
escape of more people.
The existence of a duty owed by the WTC Defendants to its lessees and business
occupants has been clearly set out in New York law. “A landowner has a duty to exercise
reasonable care under the circumstances in maintaining its property in a safe condition” . . . ,
including the duty to adopt reasonable fire-safety precautions . . . , regardless of the origin of the
fire . . . .
The duty of landowners and lessors to adopt fire-safety precautions applies to fires caused
by criminals. . . . Likewise, the WTC Defendants owed a duty to the occupants to create and
implement adequate fire safety measures, even in the case of a fire caused by criminals such as
those who hijacked flights 11 and 175 on September 11, 2001. . . .
I hold that the WTC Defendants owed a duty to the plaintiffs, and that plaintiffs should
not be foreclosed from being able to prove that defendants failed to exercise reasonable care to
provide a safe environment for its occupants and invitees with respect to reasonably foreseeable
risks.
[The court then reasoned that the rule of supervening causation from the doctrine of
proximate cause did not preclude a judgment for the plaintiff against the WTC defendants because
while “generally, an intervening intentional or criminal act severs the liability of the original tortfeasor,” that “doctrine has no application when the intentional or criminal intervention of a third
party or parties is reasonably foreseeable.” Turning to the Boeing defendant, the court further
concluded that as manufacturer of the airplanes in question, Boeing also owed a duty of
reasonable care to the air and ground victims in the case: “the danger that a plane could crash if
unauthorized individuals invaded and took over the cockpit,” the court concluded, “was the very
risk that Boeing should reasonably have foreseen.”]

Notes

1. The September 11 Fund. Recall that Congress created the September 11 Victim
Compensation Fund in the aftermath of the September 11 tragedy. The Fund allowed victims to
recover through a no-fault basis if they promised not to sue airlines and other potential defendants.
Robert M. Ackerman, The September 11th Victim Compensation Fund: An Effective
Administrative Response to a National Tragedy, 10 HARV. NEGOTIATION L. REV. 135, 137 (2005).
Ninety-seven percent of victims applied for compensation through the Fund. As the
Fund’s filing deadline loomed closer, a number of litigants dropped their suits and recovered
through the Fund. Nearly two months before the deadline, only sixty percent of victims had
applied for compensation from the Fund. But hours before the deadline “there was a mad rush to
file.” Elizabeth Berkowitz, The Problematic Role of the Special Master: Undermining the
Legitimacy of the September 11 Victim Compensation Fund, 24 YALE L. & POL’Y REV. 1, 29
(2006).

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Witt & Tani, TCPI 8. Duty Problem

2. The lawsuits. While the Victim Compensation Fund provided compensation to 97% of
the ground victims in the terrorist attacks of September 11th, the relatives of 95 victims chose to
sue in court. Judge Alvin Hellerstein presided over all 95 cases. In the past, terrorism victims
have not successfully recovered against third parties. See Matthew Diller, Tort and Social
Welfare Principles in the Victim Compensation Fund, 53 DEPAUL U. L. REV. 719, 722 (2003)
(noting that victims of the Oklahoma City bombing and 1993 World Trade Center attacks did not
recover against third parties under a negligence theory). But this time the outcomes were more
complex.
Between the beginning of the lawsuit in 2002 and 2005, 13 out of the original 95 cases
settled. Judge Hellerstein reviewed each settlement for fairness and reasonableness, but otherwise
the settlements were confidential. In re Sept. 11 Litig., 567 F. Supp. 2d 611, 615 (S.D.N.Y.
2008).
In January 2006, Judge Hellerstein suggested the use of mediators to encourage further
settlements; the initial mediation sessions brought lawyers for the plaintiffs and defendants
together with some success—12 additional cases settled. However, Sheila Birnbaum, the chief
mediator, suspected that many of the plaintiffs wanted the “opportunity to tell the story of their
loss and express their feelings to a representative of the Court [or] to a representative of the
airlines and to personally receive expressions of condolences for their loss from the airlines.” In
re Sept. 11 Litig., 600 F. Supp. 2d 549, 557 (S.D.N.Y. 2009). Birnbaum invited the victims’
families to mediation sessions where they were able to express their side of the story to
representatives of the defendant.
Additionally, many of the remaining cases were being delayed by extensive discovery. In
an effort to speed up the cases, Judge Hellerstein separated the question of liability from the
question of damages and ordered that damages-only discovery and damages-only jury trials in six
cases; as Hellerstein later wrote, “[b]oth sides objected because of the absence of precedents, but
they acquiesced upon reconsideration, and when it became clear that I was determined to proceed.
The experiment was successful. After some discovery, and without the need of any trials, all six
cases settled and more followed.” In re Sept. 11 Litig., 600 F. Supp. 2d 549, 554 (S.D.N.Y.
2009).
By involving victims’ families in mediation and by separating the liability questions from
the damages questions, all but three of the original 95 cases settled by March 4, 2009. Ultimately,
none of the 95 cases went to trial. The last plaintiff settled on September 20, 2011. Benjamin
Weiser, Family and United Airlines Settle Last 9/11 Wrongful-Death Suit, N.Y TIMES, Sep. 20,
2011.

3. The Duty Debate (Part 2)
Contemporary debates include whether no-duty decisions should be categorical or casespecific. Dilan Esper and Gregory Keating argue that duty articulates the moral obligations that
guide conduct, and these obligations must therefore be decided in broad categorical fashion or
they cannot provide this guidance. Dilan A. Esper & Gregory C. Keating, Abusing “Duty”, 79 S.
CAL. L. REV. 265, 282 (2006). John Goldberg and Benjamin Zipursky, by contrast, argue that
duties are case-specific because the moral obligation to exercise care depends on the particular
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Witt & Tani, TCPI 8. Duty Problem

facts of any given relationship between a plaintiff and a defendant. John C.P. Goldberg &
Benjamin Zipursky, Shielding Duty: How Attending to Assumption of Risk, Attractive Nuisance,
and Other “Quaint” Doctrines Can Improve Decisionmaking in Negligence Cases, 79 S. CAL. L.
REV. 329, 340 (2006). The Third Restatement sides with the categorical view in those exceptional
instances in which (as the Restatement authors see it) a separate duty analysis is appropriate.
RESTATEMENT (THIRD) OF TORTS: PHYS. & EMOT. HARM §7, cmt. I (2010).
Another debate concerns whether foreseeability should be a component of duty. Scholars
who emphasize the significance of the duty inquiry, even if as an inquiry to be made in unusual
boundary-policing cases, argue that duty determination must include consideration of the
foreseeability of a plaintiff’s injury. Esper & Keating, supra, at 327. By contrast, those who
believe that duty is redundant adopt the view that breach and proximate cause already
accommodate considerations of foreseeability such that they need not reappear in the duty
analysis. 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 §7, cmt. j (2010)
(recommending that courts not use foreseeability in duty determinations and limit no-duty rulings
to articulated policy or principle).

E. Pure Economic Loss
Courts have often announced that pure economic loss, much like pure emotional distress,
is not recoverable in actions for negligence. Consider the following case, which both states the
rule and at least in part questions it:

People Express Airlines, Inc. v. Consolidated Rail Corporation, 100 N.J. 246 (1985)
HANDLER J.
This appeal presents a question that has not previously been directly considered: whether a
defendant’s negligent conduct that interferes with a plaintiff’s business resulting in purely
economic losses, unaccompanied by property damage or personal injury, is compensable in tort. .
..
I
Because of the posture of the case—an appeal taken from the grant of summary judgment
for the defendant railroad, subsequently reversed by the Appellate Division—we must accept
plaintiff’s version of the facts as alleged. The facts are straight-forward.
On July 22, 1981, a fire began in the Port Newark freight yard of defendant Consolidated
Rail Corporation (Conrail) when ethylene oxide manufactured by defendant BASF Wyandotte
Company (BASF) escaped from a tank car, punctured during a “coupling” operation with another
rail car, and ignited. The tank car was owned by defendant Union Tank Car Company (Union
Car) and was leased to defendant BASF.
The plaintiff asserted at oral argument that at least some of the defendants were aware
from prior experiences that ethylene oxide is a highly volatile substance; further, that emergency
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Witt & Tani, TCPI 8. Duty Problem

response plans in case of an accident had been prepared. When the fire occurred that gave rise to
this lawsuit, some of the defendants’ consultants helped determine how much of the surrounding
area to evacuate. The municipal authorities then evacuated the area within a one-mile radius
surrounding the fire to lessen the risk to persons within the area should the burning tank car
explode. The evacuation area included the adjacent North Terminal building of Newark
International Airport, where plaintiff People Express Airlines’ (People Express) business
operations are based. Although the feared explosion never occurred, People Express employees
were prohibited from using the North Terminal for twelve hours.
The plaintiff contends that it suffered business-interruption losses as a result of the
evacuation. These losses consist of cancelled scheduled flights and lost reservations because
employees were unable to answer the telephones to accept bookings; also, certain fixed operating
expenses allocable to the evacuation time period were incurred and paid despite the fact that
plaintiff’s offices were closed. No physical damage to airline property and no personal injury
occurred as a result of the fire.
According to People Express’ original complaint, each defendant acted negligently and
these acts of negligence proximately caused the plaintiff’s harm. An amended complaint alleged
additional counts of nuisance and strict liability based on the defendants’ undertaking an
abnormally dangerous activity, as well as defective manufacture or design of the tank car, causes
of action with which we are not concerned here. Defendants filed answers and cross-claims for
contribution pursuant to the Joint Tortfeasors Contribution Law.
Conrail 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
Union Car. The trial court granted Conrail’s summary judgment motion on the ground that absent
property damage or personal injury economic loss was not recoverable in tort. Defendants BASF
and Union Car subsequently sought summary judgment dismissing the complaint; the trial court
also granted these motions based on the same reasoning. . . .
II
The single characteristic that distinguishes parties in negligence suits whose claims for
economic losses have been regulaly denied by American and English courts from those who have
recovered economic losses is, with respect to the successful claimants, the fortuitous occurrence
of physical harm or property damage, however slight. It is well-accepted that a defendant who
negligently injures a plaintiff or his property may be liable for all proximately caused harm,
including economic losses. Nevertheless, a virtually per se rule barring recovery for economic
loss unless the negligent conduct also caused physical harm has evolved throughout this century .
...
The reasons that have been advanced to explain the divergent results for litigants seeking
economic losses are varied. Some courts have viewed the general rule against recovery as
necessary to limit damages to reasonably foreseeable consequences of negligent conduct. This
concern in a given case is often manifested as an issue of causation and has led to the requirement
of physical harm as an element of proximate cause. In this context, the physical harm requirement
functions as part of the definition of the causal relationship between the defendant’s negligent act
and the plaintiff’s economic damages; it acts as a convenient clamp on otherwise boundless
liability. . . . The physical harm rule also reflects certain deep-seated concerns that underlie
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Witt & Tani, TCPI 8. Duty Problem

courts’ denial of recovery for purely economic losses occasioned by a defendant’s negligence.
These concerns include the fear of fraudulent claims, mass litigation, and limitless liability, or
liability out of proportion to the defendant’s fault.
The assertion of unbounded liability is not unique to cases involving negligently caused
economic loss without physical harm. Even in negligence suits in which plaintiffs have sustained
physical harm, the courts have recognized that a tortfeasor is not necessarily liable for all
consequences of his conduct. While a lone act can cause a finite amount of physical harm, that
harm may be great and very remote in its final consequences. A single overturned lantern may
burn Chicago. Some limitation is required; that limitation is the rule that a tortfeasor is liable only
for that harm that he proximately caused. Proximate or legal cause has traditionally functioned to
limit liability for negligent conduct. Duty has also been narrowly defined to limit liability.
Compare the majority and dissenting opinions in Palsgraf. . . .
It is understandable that courts, fearing that if even one deserving plaintiff suffering
purely economic loss were allowed to recover, all such plaintiffs could recover, have anchored
their rulings to the physical harm requirement. While the rationale is understandable, it supports
only a limitation on, not a denial of, liability. The physical harm requirement capriciously
showers compensation along the path of physical destruction, regardless of the status or
circumstances of individual claimants. Purely economic losses are borne by innocent victims,
who may not be able to absorb their losses. . . . In the end, the challenge is to fashion a rule that
limits liability but permits adjudication of meritorious claims. The asserted inability to fix
chrystalline formulae for recovery on the differing facts of future cases simply does not justify the
wholesale rejection of recovery in all cases.
Further, judicial reluctance to allow recovery for purely economic losses is discordant
with contemporary tort doctrine. The torts process, like the law itself, is a human institution
designed to accomplish certain social objectives. One objective is to ensure that innocent victims
have avenues of legal redress, absent a contrary, overriding public policy. . . . This reflects the
overarching purpose of tort law: that wronged persons should be compensated for their injuries
and that those responsible for the wrong should bear the cost of their tortious conduct.
Other policies underlie this fundamental purpose. Imposing liability on defendants for
their negligent conduct discourages others from similar tortious behavior, fosters safer products to
aid our daily tasks, vindicates reasonable conduct that has regard for the safety of others, and,
ultimately, shifts the risk of loss and associated costs of dangerous activities to those who should
be and are best able to bear them. . . .
III
...
Judicial discomfiture with the rule of nonrecovery for purely economic loss throughout
the last several decades has led to numerous exceptions in the general rule. Although the
rationalizations for these exceptions differ among courts and cases, two common threads run
throughout the exceptions. The first is that the element of foreseeability emerges as a more
appropriate analytical standard to determine the question of liability than a per se prohibitory rule.
The second is that the extent to which the defendant knew or should have known the particular
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Witt & Tani, TCPI 8. Duty Problem

consequences of his negligence, including the economic loss of a particularly foreseeable plaintiff,
is dispositive of the issues of duty and fault.
One group of exceptions is based on the “special relationship” between the tortfeasor and
the individual or business deprived of economic expectations. Many of these cases are recognized
as involving the tort of negligent misrepresentation, resulting in liability for specially foreseeable
economic losses. Importantly, the cases do not involve a breach of contract claim between parties
in privity; rather, they involve tort claims by innocent third parties who suffered purely economic
losses at the hands of negligent defendants with whom no direct relationship existed. . . .
The special relationship exception has been extended to auditors, see H. Rosenblum, Inc.
v. Adler (independent auditor whose negligence resulted in inaccurate public financial statement
held liable to plaintiff who bought stock in company for purposes of sale of business to company;
stock subsequently proved to be worthless); surveyors, see Rozny v. Marnul, (surveyor whose
negligence resulted in error in depicting boundary of lot held liable to remote purchaser); [and]
termite inspectors, see Hardy v. Carmichael (termite inspectors whose negligence resulted in
purchase of infested home liable to out-of-privity buyers)[, among others]. . . .
A related exception in which courts have allowed recovery for purely economic losses has
been extended to plaintiffs belonging to a particularly foreseeable group, such as sailors and
seamen, for whom the law has traditionally shown great solicitude. See Carbone v. Ursich, 209
F.2d 178 (9th Cir.1953) (plaintiff seaman recovered lost wages resulting from lack of work while
the ship on which they were employed, damaged through defendant’s negligence, was being
repaired) . . . .
Particular knowledge of the economic consequences has sufficed to establish duty and
proximate cause in contexts other than those already considered. . . .
These exceptions expose the hopeless artificiality of the per se rule against recovery for
purely economic losses. When the plaintiffs are reasonably foreseeable, the injury is directly and
proximately caused by defendant’s negligence, and liability can be limited fairly, courts have
endeavored to create exceptions to allow recovery. . . .
The . . . theme that may be extracted from these decisions rests on the specificity and
strictness that are infused into the definitional standard of foreseeability. The foreseeability
standard that may be synthesized from these cases is one that posits liability in terms of where,
along a spectrum ranging from the general to the particular, foreseeability is ultimately found. . . .
We hold therefore that a defendant owes a duty of care to take reasonable measures to
avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs or
plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to
know are likely to suffer such damages from its conduct. A defendant failing to adhere to this
duty of care may be found liable for such economic damages proximately caused by its breach of
duty.
We stress that an identifiable class of plaintiffs is not simply a foreseeable class of
plaintiffs. For example, members of the general public, or invitees such as sales and service
persons at a particular plaintiff’s business premises, or persons travelling on a highway near the
scene of a negligently-caused accident, such as the one at bar, who are delayed in the conduct of
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Witt & Tani, TCPI 8. Duty Problem

their affairs and suffer varied economic losses, are certainly a foreseeable class of plaintiffs. Yet
their presence within the area would be fortuitous, and the particular type of economic injury that
could be suffered by such persons would be hopelessly unpredictable and not realistically
foreseeable. Thus, the class itself would not be sufficiently ascertainable. An identifiable class of
plaintiffs must be particularly foreseeable in terms of the type of persons or entities comprising
the class, the certainty or predictability of their presence, the approximate numbers of those in the
class, as well as the type of economic expectations disrupted. [Citing Strauss v. Belle Realty Co.]
...
[T]he judgment of the Appellate Division is modified, and, as modified, affirmed. The case
is remanded for proceedings consistent with this opinion.

Note

1. Across the river, in New York, the high court of the state (the Court of Appeals) has
adopted a stricter version of the pure economic loss rule. Consider the following case. Which
approach is the better one?

532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc., 750 N.E.2d 1097 (N.Y.
2001)
KAYE, C.J.
The novel issues raised by these appeals—arising from construction-related disasters in
midtown Manhattan—concern . . . a landholder’s duty in negligence where plaintiffs’ sole injury
is lost income . . . .
Two of the three appeals involve the same event. On December 7, 1997, a section of the
south wall of 540 Madison Avenue, a 39-story office tower, partially collapsed and bricks, mortar
and other material fell onto Madison Avenue at 55th Street, a prime commercial location
crammed with stores and skyscrapers. The collapse occurred after a construction project, which
included putting 94 holes for windows into the building’s south wall, aggravated existing
structural defects. New York City officials directed the closure of 15 heavily trafficked blocks on
Madison Avenue—from 42nd to 57th Street—as well as adjacent side streets between Fifth and
Park Avenues. The closure lasted for approximately two weeks, but some businesses nearest to
540 Madison remained closed for a longer period.
In 532 Madison Ave. Gourmet Foods v Finlandia Ctr., plaintiff operates a 24- hour
delicatessen one-half block south of 540 Madison, and was closed for five weeks. The two named
plaintiffs in the companion case, 5th Ave. Chocolatiere v. 540 Acquisition Co., are retailers at 510
Madison Avenue, two blocks from the building, suing on behalf of themselves and a putative
class of “all other business entities, in whatever form, including but not limited to corporations,
partnerships and sole proprietorships, located in the Borough of Manhattan and bounded
geographically on the west by Fifth Avenue, on the east by Park Avenue, on the north by 57th
Street and on the South by 42nd Street.” Plaintiffs allege that shoppers and others were unable to
gain access to their stores during the time Madison Avenue was closed to traffic. Defendants in
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Witt & Tani, TCPI 8. Duty Problem

both cases are Finlandia Center (the building owner), 540 Acquisition Company (the ground
lessee) and Manhattan Pacific Management (the managing agent).
On defendants’ motions in both cases, [the trial court] dismissed plaintiffs’ negligence
claims on the ground that they could not establish that defendants owed a duty of care for purely
economic loss in the absence of personal injury or property damage . . . . In 5th Ave.
Chocolatiere, plaintiffs’ additional claims for gross negligence and negligence per se were
dismissed on the ground that plaintiffs could not establish a duty owed by defendants . . . .
Goldberg 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—the
heart of bustling Times Square. Immediately after the accident, the City prohibited all traffic in a
wide area of midtown Manhattan and also evacuated nearby buildings for varying time periods.
Three actions were consolidated—one by a law firm, a second by a public relations firm and a
third by a clothing manufacturer, all situated within the affected area. Plaintiff law firm sought
damages for economic loss on behalf of itself and a proposed class “of all persons in the vicinity
of Broadway and 42nd Street, New York, New York, whose businesses were affected and/or
caused to be closed” as well as a subclass of area residents who were evacuated from their homes.
...
Noting the enormity of the liability sought, including recovery by putative plaintiffs as
diverse as hot dog vendors, taxi drivers and Broadway productions, [the trial court] concluded that
the failure to allege personal injury or property damage barred recovery in negligence. The court
further rejected recovery for strict liability, and dismissed both the public nuisance claim (because
plaintiff was unable to show special damages) and the private nuisance claim (because plaintiff
could not show that the harm threatened only one person or relatively few).
The Appellate Division affirmed dismissal of the Goldberg Weprin complaint,
concluding that, absent property damage, the connection between defendants’ activities and the
economic losses of the purported class of plaintiffs was “too tenuous and remote to permit
recovery on any tort theory” . . . . The court, however, reinstated the negligence . . . claims of
plaintiffs 532 Madison and 5th Ave. Chocolatiere, holding that defendants’ duty to keep their
premises in reasonably safe condition extended to “those businesses in such close proximity that
their negligent acts could be reasonably foreseen to cause injury” (which included the named
merchant plaintiffs) . . . , and that, as such, they established a special injury distinct from the
general inconvenience to the community at large. Two [of the five] Justices dissented, urging
application of the “economic loss” rule, which bars recovery in negligence for economic damage
absent personal injury or property damage. The dissenters further concluded that the public
nuisance claims were properly dismissed because plaintiffs could not establish special injury.
We now reverse in 532 Madison and 5th Ave. Chocolatiere and affirm in Goldberg
Weprin & Ustin.
Plaintiffs’ Negligence Claims
Plaintiffs contend that defendants owe them a duty to keep their premises in reasonably
safe condition, and that this duty extends to protection against economic loss even in the absence
of personal injury or property damage. Defendants counter that the absence of any personal injury
or property damage precludes plaintiffs’ claims for economic injury.
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Witt & Tani, TCPI 8. Duty Problem

The existence and scope of a tortfeasor’s duty is, of course, a legal question for the courts,
which “fix the duty point by balancing factors, including the reasonable expectations of parties
and society generally, the proliferation of claims, the likelihood of unlimited or insurerlike
liability, disproportionate risk and reparation allocation, and public policies affecting the
expansion or limitation of new channels of liability” . . . . At its foundation, the common law of
torts is a means of apportioning risks and allocating the burden of loss. In drawing lines defining
actionable duty, courts must therefore always be mindful of the consequential, and precedential,
effects of their decisions.
As we have many times noted, foreseeability of harm does not define duty . . . . Absent a
duty running directly to the injured person there can be no liability in damages, however careless
the conduct or foreseeable the harm. This restriction is necessary to avoid exposing defendants to
unlimited liability to an indeterminate class of persons conceivably injured by any negligence in a
defendant’s act.
A duty may arise from a special relationship that requires the defendant to protect against
the risk of harm to plaintiff . . . . Landowners, for example, have a duty to protect tenants, patrons
and invitees from foreseeable harm caused by the criminal conduct of others while they are on the
premises, because the special relationship puts them in the best position to protect against the risk
. . . . That duty, however, does not extend to members of the general public . . . . Liability is in this
way circumscribed, because the special relationship defines the class of potential plaintiffs to
whom the duty is owed.
In Strauss v. Belle Realty Co. we considered whether a utility owed a duty to a plaintiff
injured in a fall on a darkened staircase during a citywide blackout. While the injuries were
logically foreseeable, there was no contractual relationship between the plaintiff and the utility for
lighting in the building’s common areas. As a matter of policy, we restricted liability for damages
in negligence to direct customers of the utility in order to avoid crushing exposure to the suits of
millions of electricity consumers in New York City and Westchester.
Even closer to the mark is Milliken & Co. v. Consolidated Edison Co., in which an
underground water main burst near 38th Street and 7th Avenue in Manhattan. The waters flooded
a subbasement where Consolidated Edison maintained an electricity supply substation, and then a
fire broke out, causing extensive damage that disrupted the flow of electricity to the Manhattan
Garment Center and interrupting the biannual Buyers Week. Approximately 200 Garment Center
businesses brought more than 50 lawsuits against Con Edison, including plaintiffs who had no
contractual relationship with the utility and who sought damages solely for economic loss.
Relying on Strauss, we again held that only those persons contracting with the utility could state a
cause of action. We circumscribed the ambit of duty to avoid limitless exposure to the potential
suits of every tenant in the skyscrapers embodying the urban skyline.
A landowner who engages in activities that may cause injury to persons on adjoining
premises surely owes those persons a duty to take reasonable precautions to avoid injuring them . .
. . We have never held, however, that a landowner owes a duty to protect an entire urban
neighborhood against purely economic losses. . . .
Plaintiffs’ reliance on People Express Airlines v. Consolidated Rail Corp. . . . is
misplaced. There, a fire started at defendant’s commercial freight yard located across the street
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Witt & Tani, TCPI 8. Duty Problem

from plaintiff’s airport offices. A tank containing volatile chemicals located in the yard was
punctured, emitting the chemicals and requiring closure of the terminal because of fear of an
explosion. Allowing the plaintiff to seek damages for purely economic loss, the New Jersey court
reasoned that the extent of liability and degree of foreseeability stand in direct proportion to one
another: the more particular the foreseeability that economic loss would be suffered as a result of
the defendant’s negligence, the more just that liability be imposed and recovery permitted. The
New Jersey court acknowledged, however, that the presence of members of the public, or invitees
at a particular plaintiff’s business, or persons traveling nearby, while foreseeable, is nevertheless
fortuitous, and the particular type of economic injury that they might suffer would be hopelessly
unpredictable. Such plaintiffs, the court recognized, would present circumstances defying any
appropriately circumscribed orbit of duty. We see a like danger in the urban disasters at issue
here, and decline to follow People Express.
Policy-driven line-drawing is to an extent arbitrary because, wherever the line is drawn,
invariably it cuts off liability to persons who foreseeably might be plaintiffs. The Goldberg
Weprin class, for example, would include all persons in the vicinity of Times Square whose
businesses had to be closed and a subclass of area residents evacuated from their homes; the 5th
Ave. Chocolatiere class would include all business entities between 42nd and 57th Streets and
Fifth and Park Avenues. While the Appellate Division attempted to draw a careful boundary at
storefront merchant-neighbors who suffered lost income, that line excludes others similarly
affected by the closures—such as the law firm, public relations firm, clothing manufacturer and
other displaced plaintiffs in Goldberg Weprin, the thousands of professional, commercial and
residential tenants situated in the towers surrounding the named plaintiffs, and suppliers and
service providers unable to reach the densely populated New York City blocks at issue in each
case.
As is readily apparent, an indeterminate group in the affected areas thus may have
provable financial losses directly traceable to the two construction-related collapses, with no
satisfactory way geographically to distinguish among those who have suffered purely economic
losses (see also, Matter of Kinsman Tr. Co., [II]) . . . . In such circumstances, limiting the scope of
defendants’ duty to those who have, as a result of these events, suffered personal injury or
property damage—as historically courts have done—affords a principled basis for reasonably
apportioning liability.
We therefore conclude that plaintiffs’ negligence claims based on economic loss alone fall
beyond the scope of the duty owed them by defendants and should be dismissed.

Notes

1. The pure economic loss rule. Virtually all states adopt some version of the economic loss
rule in actions for negligence. DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW
OF TORTS § 646 (2d ed. 2011). Alaska and New Jersey purport to reject the rule altogether. See
Mattingly v. Sheldon Jackson College, 743 P.2d 356 (Ala. 1987). The Supreme Court of
California allows recovery for economic losses under certain conditions, including the
relationship between the parties, the foreseeability of the losses, and the culpability of the
defendant. See J’Aire Corp v. Gregory, 598 P.2d 60 (Cal. 1979).
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Witt & Tani, TCPI 8. Duty Problem

Purely economic losses are typically not available in nuisance cases. See, e.g., Conley v.
Amalgamated Sugar Co., 263 P.2d 705 (Idaho 1953); Innkeepers, Inc. v. Pittsburgh-Des Moines
Corp., 345 N.W.2d 124 (Iowa 1984). Similarly, a number of courts reject pure economic loss
claims in trespass and product liability claims. See, e.g., Dale v. Grant, 34 N.J.L. 142 (1870)
(holding that purely economic damage in an action for trespass is not recoverable); Moore v.
Pavex, Inc., 514 A.2d 137 (Pa. 1986) (refusing to allow business owners to recover for purely
economic damage in a products liability action).

2. Functions of the pure economic loss rule? One role of the pure economic loss rule is to
preserve a boundary between tort cases and contract cases. The U.S. Supreme Court has asserted
that without the pure economic loss rule, “contract law would drown in a sea of tort.” E. River
S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 866 (1986) (holding that a purchaser of
turbines was limited to its contract rights against a manufacturer-seller when the malfunction in
question 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
damages such as lost profits while contract damages typically do not. More generally, restricting
parties to their contract rights allows the parties to tailor their rights and responsibilities as they
see fit. Were the pure economic loss rule abandoned, the Uniform Commercial Code’s capacity
to govern the resolution of disputes concerning sale of goods might be undermined by the
application of tort principles. See Vincent R. Johnson, The Boundary-Line Function of the
Economic Loss Rule, 66 WASH & LEE L. REV. 523, 551 (2009). What is at stake in preserving the
place of contract law and the U.C.C.?

3. Business interruption insurance. One of the justifications for the economic loss rule is
that the rule allocates the risk of economic loss to “the party best situated to assess the risk of his
or her economic loss, to assume, allocate, or insure against that risk.” Below v. Norton, 751
N.W.2d 351, 726 (Wis. 2008). But is business interruption insurance really available? Insurers
offering business interruption insurance typically require a showing of damage to physical assets
in order to trigger business interruption coverage. In other words, the insurance policies very
often contain the same limit on recovery under the policy that the courts impose in tort suits.
Courts regularly uphold denials of coverage where the policy excludes payment for business
interruption absent physical damage. See, e.g., Peerless Dyeing Co., Inc. v. Industrial Risk
Insurers, 573 A.2d 541 (Pa. 1990).

4. Brand tarnishment? What about economic losses that arise when the market devalues a
product based on notorious negligent conduct by the manufacturer? This question became central
to a consumer class action against General Motors following a series of headline-grabbing
automobile recalls over the course of 2014. Plaintiff-consumers advanced a broad theory of harm
by “brand devaluation” under which G.M.’s wrongful conduct tarnished its brand and hurt its
customers by “resulting in lower resale values across the board for the brand’s products.” In re
Gen. Motors LLC Ignition Switch Litig., 14-MD-2543, 2016 WL 3920353, at *7 (S.D.N.Y. July
15, 2016) (Furman, J.). Judge Furman rejected this “unprecedented theory of damages,” on the
ground that the theory would mean “that every time a manufacturer sells a product, it vouches not
just for the value and functionality of that product, but also the product’s resale value and the
brand’s continuing good name.” Id. Is it the right decision to immunize manufacturers against a
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whole class of social harms arising of their conduct? Even for plaintiffs also suffering property
damage or personal injury?

F. Relational Interests
The law of torts recognizes a variety of relational interests as well as personal interests.
Historically, plaintiffs could recover for the loss of services of an injured servant, slave, child, or
wife. Until the early part of the last century, actions for seduction allowed a husband or father to
recover for the seduction of his wife or daughter. Still today, parties can sue third parties for
tortious interference with a contractual relationship.
One of the most striking relational interests, however, is the loss of consortium claim.
Consider the following materials:

1. Spouses
In Diaz v. Eli Lilly (Mass. 1973), Milagros Diaz alleged that the defendant Eli Lilly
negligently manufactured a fungicide that caused severe bodily injuries to her husband, that that
as a consequence, she “suffered a loss of the consortium of [her husband], including his ‘services,
society, affection, companionship, (and) relations.’” After the trial court dismissed the claim on
the ground that Massachusetts law recognized no loss of consortium claim by wives for injuries to
their husbands, the Massachusetts Supreme Judicial Court reversed. Justice Benjamin Kaplan,
now an emeritus member of the Harvard Law School faculty, reviewed the history of the action
for negligent interference with consortium:
In olden days, when married women were under legal disabilities corresponding to
their inferior social status, any action for personal or other injuries to the wife was
brought in the names of the husband and wife, and the husband was ordinarily
entitled to the avails of the action as of his own property. The husband had, in
addition, his own recourse by action without even nominal joinder of the wife
against those who invaded the conjugal relationship, for example, by criminal
conversation with or abduction of his wife. At one time the gravamen of the latter
claims for loss of consortium was the deprivation of the wife’s services conceived
to be owing by the wife to the husband: the action was similar to that of a master
for enticement of his servant. Later the grounds of the consortium action included
loss of the society of the wife and impairment of relations with her as a sexual
partner, and emphasis shifted way from loss of her services or earning capacity. The
defendant, moreover, need not have infringed upon the marital relation by an act of
adultery or the like, for he could inflict similar injuries upon the husband in the way
of loss of consortium by an assault upon the wife or even a negligent injury.
Meanwhile, what of the wife’s rights? She had non analogous to the husband’s.
The husband was of course perfectly competent to sue without joinder of the wife
for injuries to himself, and there was no thought that the wife had any legal claim
to the husband’s services or his sexual or other companionship—any claim, at any
rate, in the form of a cause of action for third-party damage to the relationship.

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302 N.E.2d at 556-57. “[T]he coming in of the married women’s acts in the mid-nineteenth
century” raised new challenges for the action for negligent interference with consortium. In
Massachusetts, early twentieth-century courts finally decided not to allow loss of consortium
actions by either husbands or wives. Elsewhere, however, “[i]t was held very widely that
husbands still retained their consortium rights, the element of loss of wives’ services and earnings,
however, being excluded from the husbands’ recoveries as belonging to the wives themselves . . .
.” 302 N.E.2d at 557. (Kaplan chalked this up to “the reluctance of judges to accept the women’s
emancipation acts as introducing a general premise for fresh decision.” Id.).
Since the 1950s, Justice Kaplan continued, there had grown a “movement of opinion in
this country . . . toward recognizing a right of action in either spouse for loss of consortium due to
negligent injury of the other”:
We should be mindful of the trend although our decision is not reached by a process
of following the crowd. Without attempting a count of the decisions, we may
summarize the position roughly as follows. The right of the husband has long been
acknowledged in a very substantial majority of the jurisdictions. The right of the
wife, first confirmed in Hitaffer v. Argonne Co. Inc. (D.C. Cir. 1950), . . . has now
been established in perhaps half the American jurisdictions: the result has been
achieved in some States by overruling relatively recent precedent in point. In certain
jurisdictions the wife’s right has been denied although the husband’s right is still
affirmed—a regrettable solecism. . . . Having in the first Restatement of Torts
published in 1938 affirmed the husband’s right and denied the wife’s in accordance
with the then weight of authority, the American law Institute in Restatement Second
will state that the husband and wife have the right on equal terms, adding the
requirement—in recognition of the significant procedural point—that where
possible the consortium claim must be joined with the claim for bodily injury. . . .
To a few critics the idea of a right of consortium seems no more than an anachronism
harking back to the days when a married woman was a chattel slave, and in a
formulation such as that of the new Restatement they would find a potential for
indefinitely expansion of a questionable liability. But that formulation, reflecting a
strong current of recent decisions, is a natural expression of a dominant (and
commonplace) theme of our modern law of torts, namely, that presumptively there
should be a recourse for a definite injury to a legitimate interest due to a lack of the
prudence or care appropriate to the occasion. That it would be very difficult to put
bounds on an interest and value it is a possible reason for leaving it without a
possible reason for leaving it without for money damages. But the law is moderately
confident about the ability of the trier (subject to the usual checks at the trial and
appellate levels) to apply common sense to the question. The marital interest is
quite recognizable and its impairment may be definite, serious, and enduring, more
so that the pain and suffering or mental or psychic distress for which recovery is
now almost routinely allowed in various tort actions. The valuation problem here
may 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
afforded by analogy to other relationships from that of parent-child in a lengthy
regress to that of master-servant; court will rather proceed from case to case with
discerning caution.
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302 N.E.2d at 561-63. The Diaz court thus recognized symmetrical causes of action for negligent
interference with the consortium of a spouse. A few states still resist the cause of action. See,
e.g., Boucher v. Dixie Medical Center, 850 P.2d 1179 (Utah 1992), followed with reservations by
Figueroa v. United States, 64 F. Supp.2d 1125 (D. Utah 1999).

2. Children
Most courts allow fathers and mothers to bring action for loss of the companionship of a
child. See, e.g., Lester v. Sayles, 850 S.W.2d 858 (Mo. 1993). The decision to allow such actions
seems to have been eased by the long existence at common law of actions by fathers for the loss
of their children’s services.2 The early modern common law had also allowed fathers to recover
for the lost earning capacity of children injured by the tortious act of a third party. In the
twentieth century, and especially in the second half of the twentieth century, courts have reasoned
that “[t]he remedy of loss of a minor’s earning capacity during minority is of diminishing
significance” and that “today’s relationship between parents and children is, or should be, more
than that between master and servant.” Davis v. Elizabeth General Medical Center, 548 A.2d 528
(N.J. 1988) (quoting Shockley v. Prier, 225 N.W. 2d 495 (Wis. 1975)).
The question whether to allow actions by children for loss of the companionship and
society of a parent has been more controversial. In Borer v. American Airlines (Cal. 1977), for
example the California Supreme Court upheld the dismissal of loss of consortium actions by nine
children of a woman injured by falling lighting equipment. According to Justice Tobriner, writing
for the Court in Borer, loss of consortium claims must be narrowly limited because they involve
“intangible injury for which money damages do not afford an accurate measure or suitable
recompense.” Moreover, “recognition of a right to recover for such losses in the present context .
. . may substantially increase the number of claims asserted in ordinary accident cases, the
expense of settling or resolving such claims, and the ultimate liability of the defendants.” 563
P.2d 858, 860 (Cal. 1977).
The current trend appears to be toward extending loss of consortium actions to children
for injuries to their parents. The Massachusetts Supreme Judicial Court, for example, allowed
such actions in Ferriter v. Daniel O’Connell’s Sons, Inc., 413 N.E.2d 690 (Mass. 1980). Squarely
rejecting Borer, the Ferriter court allowed dependent children to recover loss of consortium in
cases in which they could establish a dependence that was “rooted in . . . filial needs for closeness,
guidance and nurture” and in which they could show injury to these needs. 413 N.E.2d at 696.
One recent decision allowing children’s loss of consortium actions identified “15 courts and two
state legislatures [that] have recognized the claim of children for loss of parental consortium.”
Giuliani v. Guiler, 951 S.W.2d 318, 319 (Ky. 1977). Citing “[t]he ‘ancient fallacy’ . . . that
children do not have identity as individuals and as members of the family separate from the
parents” and a “legislatively expressed public policy . . . to strengthen and encourage the family”
the Kentucky Supreme Court has held that “it is only logical to recognize that children have a
right to be compensated for their losses when such harm has been caused to them by the
wrongdoing of another. It is the purpose of all tort law to compensate one for the harm caused by
another and to deter future wrongdoing.” Id. at 320.
2

On the transition from actions for loss of services to actions for loss of support, see John Fabian Witt, From
Loss of Services to Loss of Support, 25 L. & SOC. INQ. 717 (2000).

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Courts have been considerably more reluctant—even in the face of the modern trend—to
allow such claims where the victim parent objects to or refuses to cooperate in the suit. Such
cases typically involve suits sponsored by one parent against a third party for injuries to a second,
now-estranged parent. See, e.g., Jacoby. Brinckerhoff, 735 A.2d 347 (Conn. 1999); J.A.H., ex rel
R.M.H. v. Wadle & Associates, 589 N.W.2d 256 (Iowa 1999).

3. Unmarried Partners
Unmarried partners have typically had no action for loss of consortium. This is generally
true for “unmarried cohabiting couples with a ‘stable and significant relationship . . . parallel to a
marital relationship.’” Elden v. Sheldon, 758 P.2d 582, 588 (Cal. 1988).
In 2003, however, the New Mexico Supreme Court made that state the first jurisdiction in
the United States to allow loss of consortium actions by unmarried domestic partners.3
Claimants must prove an “intimate familial relationship” with the victim in order to
recover for loss of consortium. Dunphy.4 “Persons engaged to be married and
living together may foreseeably fall into that category of relationship. “[G]iven the
widespread reality and acceptance of unmarried cohabitation, a reasonable person
would not find the “such a cohabitant’s] emotional trauma to be ‘remote and
unexpected.’” Id.
Of course, not everyone who is engaged to be married, living together, or assuming
the roles of husband and wife (common law or not) will be entitled to recover. The
claimant must prove a close familial relationship with the victim. . . . Courts should
presume that such a relationship exists if the couple fits into one of the above
categories, but a myriad of factors should be considered to determine whether the
relationship was significant enough to recover.
That standard must take into account the duration of the relationship, the degree of
mutual dependence, the extent of common contributions to a life together, the extent
and quality of shared experience, and . . . whether the plaintiff and the injured person
were members of the same household, their emotional reliance on each other, the
particulars of their day to day relationship, and the manner in which they related to
each other in attending to life’s mundane requirements. [Quoting Dunphy (internal
quotation marks and citation omitted).]
66 P.3d at 957. The Lozoya court responded to the defendant’s argument that the rule it was
announcing would be unadministrable by observing certain limits:
First, a person can only have an intimate familial relationship with one other person

3

New Mexico, interestingly enough, has also allowed grandparents to recover for the loss of the consortium of a
grandchild in certain cases. See Fernandez v. Walgreen Hastings Co., 968 P.2d 774 (N.M. 1998).
4
Dunphy v. Gregor, 642 A.2d 372 (N.J. 1994), sought to outline the universe of claimants in negligent infliction
of emotional distress cases.

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at any one time. That is to say, if a person is married to a different person than the
victim of the tort, the claim will be barred. In the case of claims by unmarried
cohabitants, the relationship between the claimant and the victim must be
demonstrated to be committed and exclusive. . . . Second, the burden of proving
that an intimate familial relationship existed will be on the claimant, with a
presumption that this exists if the parties were engaged, married or met the general
test for common law marriage. The defendant should not have the burden of
“fighting off” multiple claims for loss of consortium.
66 P.3d at 958. In the Lozoya case, the Court concluded by reversing the trial judge’s entry of a
directed verdict for the defendant on the loss of consortium claim lodged by Sara Lozoya for
injuries to Ubaldo Lozoya. Sara and Ubaldo were not married at the time of the car accident that
gave rise to the lawsuit.
In the present case, we cannot deny that Ubaldo and Sara enjoyed a relationship that
was very similar, if not identical, to that of the typical married couple, or that a
reasonable jury could so find. They had lived together in a house that they owned
together for at least fifteen years. They had three children whom they raised
together. They carried the same last name, and they generally enjoyed spending
time with one another and participating in social events as a couple. Further, their
intent to be committed to one another indefinitely is evidenced by their marriage
shortly after the first accident, despite Ubaldo’s debilitating injuries.
Id. Several courts have specifically declined to adopt Lozoya. See Robinson v. Hartzell
Propeller, 276 F. Supp. 2d 412 (E.D. Pa. 2003); Milberger v. KBHL, LLC, 486 F. Supp. 1156,
1165 (D. Hawaii 2007); Conner v. Hodges, 333 P.3d 130 (Idaho 2014); Bailey v. Allderdice, No.
54618-0-I, 2005 Wash. App. LEXIS 2542 (Wash. Sept. 26, 2005).
What about same-sex couples? In August 2014, the Connecticut Supreme Court allowed
loss of consortium claims from “members of couples who were not married when the tortious
conduct occurred, but who would have been married if the marriage had not been barred by state
law.” Mueller v. Tepler, 95 A.3d 1011, 1023 (Conn. 2014). A federal district court in New Jersey
rejected a same sex partner’s loss of consortium claim where the claim arose out of injuries
suffered before enactment of the state’s civil union statute, which authorizes loss of consortium
claims between partners. Is it significant that the plaintiff and her same-sex partner did not enter
into a civil union once the New Jersey civil union statute was enacted, and still had not entered
into such a union at the time of the court’s decision? See Brigando v. Walt Disney World Co., No.
06-1191 (SRC), 2007 WL 3124702 (D.N.J. Oct. 23, 2007).
Do unmarried couples, including same sex couples, have a better argument for loss of
consortium, or a worse argument, after the legalization of same-sex marriage?

G. Tort Immunities
So far we’ve seen a number of domains carved out from the standard of reasonableness.
We’ve read that there is no general duty to rescue; that there are limited duties imposed on
landowners and occupiers; that the remedies for emotional distress injuries, pure economic loss
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injuries, and relational harms are highly constrained; and that any number of unusual or
unexpected harms are held to be outside an actor’s obligations.
In addition to these doctrines, there are a number of long-standing immunity doctrines in
the common law that bar suits altogether on the basis of the status of the defendant. Some of them
have been substantially cut back. But many of them are still robust.
The result is that in a very large number of social settings, tort defendants are protected by
a limited- or no-duty rule or an immunity doctrine. As these protections multiply, it becomes
unclear what the general rule of American tort law is. Is it a general rule of liability for harms
caused by unreasonable acts, with specific exceptions? Or is it instead a general rule of no
liability, with special exceptions for certain harms caused by unreasonable acts?

1. Intrafamilial Immunities
Traditionally, under the common law of coverture, courts prevented suits between spouses
because of their supposed metaphysical unity or the husband’s authority. As the English jurist
William Blackstone put it, “husband and wife” were “one person in law,” and “the very being or
legal existence of the woman” was “suspended during the marriage” or “incorporated and
consolidated into that of the husband.” Blackstone, Commentaries on the Laws of England, bk. 1,
ch. 15 (1765). In the nineteenth century, the Married Woman’s Property Acts enacted in most
states allowed wives to bring actions against their husbands for property torts, such as trespass and
conversion. But courts continued to enforce spousal immunity for personal torts because of
concerns for marital harmony or fraud and collusion. See Carl Tobias, Interspousal Tort
Immunity in America, 23 GA. L. REV. 359, 441 (1989). Indeed, on one account, courts adopted
wider and wider ideas about marital privacy that effectively immunized domestic abusers (mostly
male) from damages. See Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and
Privacy, 105 YALE L.J. 2117 (1996). Today, most states have rejected these rationales and
abrogated spousal immunity, at least as a doctrinal matter. See, e.g., Leach v. Leach, 227 Ark.
599 (1957). The Second Restatement adopts this approach. RESTATEMENT (SECOND) OF TORTS §
895F (1979).
Similarly, most states have abrogated traditional parental immunity, either doing so
entirely (Gibson v. Gibson, 3 Cal.3d 914 (1971)), or at least cutting back significantly on the
immunity of parents for torts to their children. States adopting something less than complete
abolition of the immunity typically allow a child’s tort lawsuit except those arising out of acts of
parental authority or discretionary parental responsibility. See Goller v. White, 20 Wis. 2d 402
(Wis. 1963). Some states persist with robust versions of parental immunity, applying it even as
against non-custodial parents. See Ascuitto v. Farricielli, 711 A.2d 708 (Conn. 1998).
Despite doctrinal liberalization, intrafamilial tort suits continue to face serious practical
obstacles. Most tort suits are viable because some form of liability insurance offers the hope that
there will be assets to collect in the event of success. But notwithstanding these doctrinal
changes, many insurance companies write exclusions of intrafamilial claims into their insurance
policies. Why do insurance companies write such exclusions into their policies? The worry is
collusive suits in which parent and child collude to extract money from the insurer.

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Some state legislatures have barred such insurance exclusions with respect to mandatory
automobile insurance. See, e.g., Ohio Rev. Code § 3937.46 (2017); Rupert v. Stienne, 528 P.2d
1013, 1016-17 (Nev. 1974). Some defend the illegality of such exclusions on the ground that they
are an impermissible end-run around the conscious policy change of the courts to allow
intrafamilial suits. But note that requiring insurers to offer insurance against intrafamilial torts
may effectively require families that are safe for children to subsidize the insurance of families
that are dangerous for children. One alternative for insurers would be to develop intrusive
mechanisms for monitoring the parenting of their insureds, which would allow them to terminate
policies for families with children at risk, or to charge higher premiums. Does the pervasiveness
of the exclusion in liability policies (other than vehicular liability policies) suggest that tort law is
only a mechanism for governing intrafamilial conduct in wealthy families?

2. Charitable Immunity
American courts long embraced a doctrine of charitable immunity. See, e.g., McDonald v.
Mass. Gen. Hosp., 120 Mass. 432 (1876). This was a distinctively American rule; English courts
allowed tort suits against charitable enterprises. American courts reasoned that subjecting
charities to liability would redirect their resources, preventing them from conducting their
charitable activities in accordance with the public good. Courts often rationalized the immunity
on the theory that the charity’s funds had been entrusted to the organization by donors for specific
purposes that did not include paying damages to tort victims. They sometimes contended that the
usual respondeat superior doctrines were inapplicable outside the for-profit context. When the
plaintiff was a beneficiary of the charitable enterprise, courts cited a doctrine of implied waiver.
See Dille v. St. Luke’s Hospital, 355 Mo. 436 (1946).
Over time, states created exceptions to the doctrine of charitable immunity, for example,
by recognizing a cause of action for strangers while continuing to bar suits by beneficiaries. See,
e.g., Byrd Theatre Foundation v. Barnett, 754 S.E.2d 299 (Va. 2014); Alabama Baptist Hosp. Bd.
v. Carter, 226 Ala. 109 (1932). Today, most states have abrogated the immunity altogether. See,
e.g., President and Directors of Georgetown College v. Hughes, 130 F.2d 810 (D.C. Cir. 1942).
The Second Restatement, for example, discourages any such immunity. RESTATEMENT (SECOND)
OF TORTS § 895E (1979). Some states preserve the immunity, e.g., George v. Jefferson Hosp.
Ass’n, 987 S.W.2d 710 (Ark. 1999). In other states, legislatures restored a weakened immunity,
such as caps on damage awards against charities, see, e.g., Mass. Gen. L. Ch. 231, § 85 ($20,000),
or a restriction of liability to cases of gross negligence, see, e.g., Crowley v. Bob Jones University,
234 S.E.2d 879 (S.C. 1977), or a restriction of liability to strangers rather than beneficiaries, see,
e.g., N.J. Stat. Ann. 2A:53A-7 (2017).

3. Employers’ Immunity
As you will recall from Chapter 5, the common law of employers’ liability famously set
out a formidable panoply of employer defenses, including assumption of the risk and contributory
negligence, which made it difficult for many employees to recover for injuries arising out of the
negligence of their employers. Since the enactment of workers’ compensation laws beginning a
century ago, most employers have had to pay administrative compensation for workplace injuries.

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The workers’ compensation regime, however, has brought its own form of common law
immunity. The New York compensation program, for example, provides that
[t]he liability of an employer [under the workers’ compensation law] shall be
exclusive and in place of any other liability whatsoever, to such employee . . . or
any person otherwise entitled to recover damages, contribution or indemnity, at
common law or otherwise, on account of such injury or death . . . .
N.Y. WORK. COMP. LAW § 11. Workers’ compensation programs like the one in New York thus
offer a form of tort immunity, immunizing employers from common law tort liability as the quid
pro quo for employees’ new statutory no-fault compensation claim. Other common law countries
have adopted workers’ compensation systems without immunity: injured employees in Great
Britain, for example, choose between tort suits or compensation claims after being injured. Law
Reform (Personal Injuries) Act, 1948, 11 & 12 Geo. 6, c. 41 (Eng.). Moreover, the leading early
statute in the United States also offered injured workers a choice between a common law action
and a workers’ compensation claim. But as we saw in the case of Ives v. South Buffalo Railway
above in Chapter 3, the courts struck down this first compensation statute as unconstitutional.
Virtually all the compensation statutes that followed adopted the immunity provision in the
current New York statute.
This distinctive feature of American employers’ immunity is qualified by the fact that, as
we saw briefly in Chapter 3, injured employees may still bring products liability actions against
third-party product manufacturers for injuries arising out of the workplace, and that those
manufacturers in some states may then implead the employer, effectively producing the
employee-versus-employer tort suits characteristic of the pre-workers’ compensation era. By
some estimates, two-thirds of common law products liability suits arise out of workplace injuries.
We will read more about products cases in the next chapter, Chapter 9.

4. Sovereign Immunity
Since at least the time of King Edward I, the common law held that the King could do no
wrong. The King’s courts were his own creation and therefore could not hold him to account,
especially not for money damages. In the United States, the doctrine of sovereign immunity has
persisted, despite the absence of a king, though with substantial alterations.
Why did sovereign immunity exist? The doctrine of sovereign immunity originated in the
king’s personal immunity. According to Blackstone, sovereign immunity was conceptually
required as a consequence of the King’s supremacy: “no suit or action can be brought against the
King, even in civil matters, because no court can have jurisdiction him. For all jurisdiction
implies superiority of power . . . .” 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 235. Because of the impossibility of subjecting the king to a court’s jurisdiction, “the
law also ascribes to the King, in his political capacity, absolute perfection. The King can do no
wrong . . . .” Id. at 238.
In the United States, Justice Joseph Story and Learned Hand offered two additional
justifications for the doctrine, more consistent with the country’s republican character.

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The government itself is not responsible for the misfeasances or wrongs, or
negligences, or omissions of duty of the subordinate officers or agents employed in
the public service; for it does not undertake to guarantee to any person the fidelity
of any of the officers or agents whom it employs; since that would involve it, in all
its operations, in endless embarrassments, and difficulties, and losses, which would
be subversive of the public interests.
STORY ON AGENCY § 319 (1839).
If it were possible to confine . . . the complaints to the guilty, it would be monstrous
to deny recovery. The justification is . . . that it is impossible to know whether the
claim is well founded until the case has been tried, and that to submit all officials,
the innocent as well as the guilty, to the burden of a trial . . . would dampen the
ardor of all but the most resolute, or the most irresponsible, in the unflinching
discharge of their duties. . . . In this instance, it has been thought in the end better to
leave unredressed the wrongs done by dishonest officers than to subject those who
try to do their duty to the constant dread of retaliation.
Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) (L. Hand, J.), cert. denied, 339 U.S. 949 (1950).
Some early post-revolutionary states allowed actions against themselves in the state
courts, though usually they made any damages payments contingent on a subsequent (and
discretionary) appropriation by the legislative branch. But for most of American history,
sovereign immunity and its rationales meant that petitions to the state legislatures for
discretionary compensation in private bills—rather than lawsuits in the state courts—were the
standard mechanism for gaining redress from the state for wrongs.
In the middle of the twentieth century, however, many states and the federal government
shifted from private bills by waiving their sovereign immunity and allowing, subject to certain
limits, lawsuits against themselves for injuries. At the federal level, the Federal Tort Claims Act
of 1946 set the terms that govern the liability of the federal government to this day. Consider the
following case:

Baum v. U.S., 986 F.2d 716 (4th Cir. 1993)
WIDENER, J.
This appeal requires us to examine the scope of the discretionary function exception to the
limited waiver of sovereign immunity provided for in the Federal Tort Claims Act . . . .
Appellants Price A. Baum and Margaret Leedy were injured in an automobile accident in which
their vehicle penetrated a guardrail on a bridge over the Baltimore-Washington Parkway, causing
them to fall to the roadway below. The bridge and guardrail system was owned and maintained
by the United States Department of Interior, National Park Service. Baum and Leedy brought suit
against the United States pursuant to the FTCA, claiming negligence in the design, construction,
and maintenance of the guardrail system in question. The district court dismissed the action on
the government’s motion, holding that all of the government actions complained of were
inherently ones involving choice and policy considerations, and thus fell within the discretionary
function exception to the FTCA. Finding no error, we affirm.
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I
The accident giving rise to the instant action occurred on May 24, 1987, when Baum was
driving [and] Leedy was a passenger in Baum’s van. In their complaints Baum and Leedy allege
that a vehicle being driven westbound on Route 198 by one Michael Massey crossed into the
eastbound lane on or near the bridge and collided with the driver’s side of Baum’s van. Following
the collision, the Baum vehicle caromed off the south side of the road and ran into a curved stone
bridge approach adjacent to the eastbound lanes. That collision, in turn, caused the van to
rebound across the eastbound and westbound lanes of the bridge on Route 198. There the van
went over a curb, crossed a sidewalk, and hit a steel bridge rail mounted on cast iron bridge posts.
The guardrail gave way upon impact and the van fell 22 feet to the southbound lanes of the
Baltimore-Washington parkway.
...
[Baum and Leedy brought suit under the FTCA claiming their injuries were the result of
the negligence of the National Park Service in designing, constructing, and maintaining the
guardrail.] The government moved for dismissal or, in the alternative, summary judgment on the
grounds that the actions of the government with respect to the guardrail fell within the
discretionary function exception to the FTCA and that the negligence action was thus barred by
sovereign immunity. On May 23, 1991 the district court granted the government’s motion and
dismissed the case. Baum and Leedy now appeal from that dismissal.
II
A
The FTCA waives the sovereign immunity of the United States so that the government
may be liable in tort “in the same manner and to the same extent as a private individual under like
circumstances . . . .” 28 U.S.C. § 2674. This broad waiver of immunity is tempered by a rather
extensive list of exceptions found at 28 U.S.C. § 2680. The instant case involves one of the more
important, and certainly one of the most often-contested, exceptions, the discretionary function
exception of 28 U.S.C. § 2680(a). That exception provides that the FTCA’s waiver of the federal
immunity “shall not apply to—[a]ny claim . . . based upon the exercise or performance or the
failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion be abused.”
The discretionary function exception “marks the boundary between Congress’ willingness
to impose tort liability upon the United States and its desire to protect certain governmental
activities from exposure to suit by private individuals” [citing United States v. Varig Airlines].
The Supreme Court has further identified the purpose of the exception as follows:
Congress wished to prevent judicial “second-guessing” of legislative and
administrative decisions grounded in social, economic, and political policy through
the medium of an action in tort. By fashioning an exception for discretionary
governmental functions, including regulatory activities, Congress took “steps to
protect the Government from liability that would seriously handicap efficient
government operations.”
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Varig Airlines.
...
In [Berkovitz v. United States] and [United States v. Gaubert], the Court settled upon and
then clarified a two-tier analysis for identifying discretionary functions. When evaluating a claim
under the FTCA, we must ask first whether the governmental action complained of “involves an
element of judgment or choice.” The inquiry boils down to whether the government conduct is
the subject of any mandatory federal statute, regulation, or policy prescribing a specific course of
action. If such a mandatory statute, regulation, or policy applies, then the conduct involves no
legitimate element of judgment or choice and the function in question cannot be said to be
discretionary.
...
If no such mandatory statute, regulation, or policy applies to remove the challenged
conduct from the choice and judgment of the government, then we move to the second tier of the
Berkovitz-Gaubert analysis and ask whether the choice or judgment involved is one “based on
considerations of public policy.” This requirement is consistent with and mandated by the general
purpose underlying the FTCA and the discretionary function exception, i.e., to balance Congress’
desire to allow redress of injuries suffered through the negligence of government actors against
the need to protect the government from being hobbled in the discharge of its policy-driven duties
by tort suits. In Gaubert, the Court provided an illustration of the operation of this requirement
that we think particularly helpful in its application:
There are obviously discretionary acts performed by a Government agent that are
within the scope of his employment but not within the discretionary function
exception because these acts cannot be said to be based on the purposes that the
regulatory regime seeks to accomplish. If one of the officials involved in this case
drove an automobile on a mission connected with his official duties and negligently
collided with another car, the exception would not apply. Although driving requires
the constant exercise of discretion, the official’s decisions in exercising that
discretion can hardly be said to be grounded in regulatory policy.
Finally, we note one further point with respect to the application of the second element of
the foregoing analysis that we believe Gaubert clarified. Rather than requiring a fact-based
inquiry into the circumstances surrounding the government actor’s exercise of a particular
discretionary function, we are of opinion that a reviewing court in the usual case is to look to the
nature of the challenged decision in an objective, or general sense, and ask whether that decision
is one which we would expect inherently to be grounded in considerations of policy. To quote the
Court:
When established governmental policy, as expressed or implied by statute,
regulation, or agency guidelines, allows a Government agent to exercise discretion,
it must be presumed that the agent’s acts are grounded in policy when exercising
that discretion. For a complaint to survive a motion to dismiss, it must allege facts
which would support a finding that the challenged actions are not the kind of
conduct that can be said to be grounded in the policy of the regulatory regime. The
focus of the inquiry is not on the agent’s subjective intent in exercising the discretion
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conferred by statute or regulation, but on the nature of the actions taken and on
whether they are susceptible to policy analysis.
Gaubert, 499 U.S. at ___ n.7, 111 S.Ct. at 1275 n.7.
...
B
Baum and Leedy argue that the National Park Service was negligent in designing and
constructing the bridge guardrail in question in that cast iron, rather than cast steel, was used to
construct the posts holding the steel bridge rail. The National Park Service constructed the bridge
in the early 1950’s. Second, they claim the Park Service negligently failed to maintain the
guardrail system during the time preceding their accident. We address separately the two types of
claims.
1
As to the design and construction claim, . . . Baum and Leedy’s only real allegation of
negligence appears to be that the selection of cast iron as the material for the guardrail posts fell
below an objective standard of reasonableness; thus we inquire whether any law or official policy
of that period mandated the exclusive use of cast steel in such projects.
Baum and Leedy strive mightily to find in the legislation authorizing construction of the
Baltimore-Washington Parkway a specific Congressional mandate from which the Park Service
deviated in constructing the guardrail as it did. They suggest that the following portion of that
legislation constitutes such a mandate:
The [Baltimore-Washington] parkway shall be constructed, developed, operated,
and administered as a limited access road primarily to provide a protected, safe, and
suitable approach for passenger-vehicle traffic to the National Capital . . . .
We are of opinion that this very general, sweeping language is insufficient to remove
questions of design and construction of guardrails on the parkway from the discretion of the
National Park Service. . . . Surely such language cannot be interpreted as removing all safetyrelated decisions from the discretion of the agency administering the project.
Finding no mandatory law governing the design and construction of the parkway
guardrails, we turn to the second element of the Berkovitz-Gaubert analysis: whether the choice of
materials to be used in the guardrails is a choice of the type that normally involves considerations
of public policy. The question of what materials to use in such a project is also fundamentally
described as a question of how to allocate limited resources among competing needs. Considered
in this light, we are of opinion that the Park Service’s decision in this regard plainly was one
bound up in economic and political policy considerations. As the Court [in Gaubert] has stated in
the related context of a regulatory agency, “[w]here Congress has delegated the authority . . . to
the executive branch to implement the general provisions of a regulatory statute and to issue
regulations to that end, there is no doubt that planning-level decisions establishing programs are
protected by the discretionary function exception.” . . . Accordingly, we concur with the district
court’s dismissal of the claims related to design and construction.
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2
Next we turn to Baum and Leedy’s argument that the Park Service negligently maintained
the guardrail system in the years preceding their accident. . . . [W]e find no mandatory statute,
regulation, or policy governing the Park Service’s maintenance of bridges or guardrails on park
property; thus maintenance, like design and construction, is a function subject to the judgment of
the Park Service. The only remaining question, then, is whether Park Service judgments
involving when and how to maintain its bridges and guardrails are of the type normally involving
considerations of economic, social, or political policy.
Here we begin by examining exactly what Baum and Leedy contend that the Park Service
should have done in the way of “maintenance” of the guardrail system in this case. As we have
described, the allegedly defective guardrail system was comprised of a steel guardrail supported
by cast iron posts. Despite Baum and Leedy’s allegation of negligence in what they call the
“maintenance” of the guardrail system, nowhere have they suggested that the allegedly defective
condition of the guardrail system could have been remedied by any action short of outright
replacement of the cast iron posts. Indeed, Baum and Leedy appear not to dispute the
government’s assertion that the only act of maintenance that could have put the guardrail in
compliance with current engineering standards is outright replacement.
In light of the nature of Baum and Leedy’s maintenance argument, we are of opinion that
the Park Service’s judgment in this regard falls as squarely within the discretionary function
exception as do its decisions with respect to design and construction. The decision of how and
when to replace a major element of a substantial public facility is, like the decisions involving
design and construction, at bottom a question of how best to allocate resources. . . . While we do
not suggest that every maintenance decision of every government actor is so policy-based as to
fall within the discretionary function exception, on the facts of this case we should reach no other
result.
The judgment of the district court is accordingly affirmed.

Notes

1. Plaintiffs occasionally prevail. While the discretionary function exception often bars
plaintiffs from recovering against the government, the 1988 case of Berkovitz v. United States
shows that plaintiffs can prevail. Two-month-old Kevin Berkovitz contracted polio within one
month of taking an oral polio vaccine approved by the FDA. The Berkovitz family sued, alleging
that the FDA had failed to follow its own policy of testing all vaccine lots. The Third Circuit held
that the licensing and release of polio vaccines are wholly discretionary actions protected by the
discretionary function exception. The Supreme Court, however, found that the government had
“adopted a policy of testing all vaccine lots for compliance with safety standards and preventing
the distribution to the public of any lots that fail to comply.” The Court concluded, therefore, that
the Berkovitz family’s complaint was directed at a government action that involved no policy
discretion. Justice Marshall, writing for a unanimous Court, explained that “the discretionary
function exception will not apply when a federal statute, regulation, or policy specifically
prescribes a course of action for an employee to follow.” 486 U.S. 531, 536 (1988).
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2. Exception swallowing the rule? The discretionary function exception sometimes seems to
undo FTCA liability altogether. Is there really a negligence maintenance claim that could survive
the Baum court? Consider the Sixth Circuit case Rosebush v. United States, in which a child fell
into a fire pit at a national park campsite maintained by the Forest Service. The majority in
Rosebush held that the choice of whether to install a grating or railing over the fire pit fell within
the discretionary function exception. Dissenting Judge Gilbert Merritt had this to say about the
exception:
Our Court’s decision in this case means that the discretionary function exception
has swallowed, digested and excreted the liability-creating sections of the Federal
Tort Claims Act. It decimates the Act.
...
I do not agree that the Forest Service’s decision regarding whether to place a grating,
a railing, or a warning near a campfire pit is the kind of judgment that the
discretionary function exception was designed to shield. In Gaubert, the Supreme
Court explained that the discretionary function exception protects only
governmental actions and decisions “grounded in the policy of the regulatory
regime.” The reasoning behind the exception was to “prevent judicial ‘second
guessing’ of legislative and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort.” Although I agree with
the majority that safety precautions involve some judgment, I do not agree that the
decision of the United States Forest Service in this case is grounded in the “policy
of the regulatory regime.” I fail to see a social, economic, or political policy behind
a decision regarding whether to place gratings or railings or signs near a fire pit to
make it safer for the public.
Rosebush v. U.S., 119 F.3d 438 (6th Cir. 1997).

3. Other exceptions to the FTCA. The discretionary function exception is not the only
exception to the FTCA’s waiver of sovereign immunity. 28 U.S.C. § 2680. The FTCA also
excludes, inter alia, certain claims “arising in respect of the assessment or collection of any tax or
customs duty, or the detention of . . . property by any officer of customs or excise or any other law
enforcement officer,” 28 U.S.C. §2680(c); certain intentional tort claims against “law enforcement
officers,” 28 U.S.C. § 2680(h); “[a]ny claim arising out of the combatant activities of the
military . . . during a time of war,” 28 U.S.C. § 2680(j); and “[a]ny claim arising in a foreign
country,” 28 U.S.C. § 2680(k).
Recent Supreme Court decisions clarify the boundaries of these exceptions. In Ali v. Fed.
Bureau of Prisons, 552 U.S. 214 (2008), the Court ruled that the detention of property exception
covers all law enforcement officers, not only those who enforce customs or excise laws.
Similarly, in Millbrook v. United States, 569 U.S. 50 (2013), the Court ruled that the FTCA’s
intentional tort exception extends all acts or omissions that arise within the scope of a law
enforcement officer’s employment, regardless of whether they are engaged in investigative or law
enforcement activity. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court denied relief to
a Mexican alien who alleged that he was unlawfully abducted from Mexico and arrested in the
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United States. The Court ruled that the foreign country exception barred the claim. In Smith v.
United States, 507 U.S. 197 (1993), the Court ruled that the exception applies to Antarctica.
4. A panoply of exceptions. The FTCA waives sovereign immunity where “a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346 b(1). In United States v. Olson, 546 U.S. 43 (2005), the Supreme
Court unanimously reversed the Ninth Circuit’s ruling that the FTCA waives sovereign immunity
where a state or municipal entity would be liable.
The FTCA provides that “[t]he United States . . . shall not be liable for interest prior to
judgment or for punitive damages.” 28 U.S.C. § 2674. In FAA v. Cooper, 132 S. Ct. 1441
(2012), the Supreme Court denied punitive damages to a pilot who sued the FAA, DOT, and SSA
for disclosing his HIV positive status in violation of the Privacy Act of 1974. However, in Molzof
v. United States, 502 U.S. 301 (1992), the Court ruled that the exception does not bar damages for
loss of enjoyment of life and future medical expenses when their recovery does not depend on any
proof that the defendant engaged in intentional or egregious misconduct and their purpose is not
to punish.

5. Katrina canal breaches litigation. In the aftermath of Hurricane Katrina, Louisiana
residents brought a lawsuit against the Army Corp of Engineers (“Corps”), seeking compensation
for flooding damages.
The government’s defense rested in part on the discretionary-function exception (“DFE”)
to the Federal Tort Claims Act (“FTCA”), alleging that the Corps’s conduct in question
constituted a discretionary function of a federal agency. Plaintiffs disputed the application of
DFE based on three grounds, which the Fifth Circuit Court of Appeals described as follows:
First, they claim that the impact-review requirement of the National Environmental
Policy Act (“NEPA”) constituted a legal mandate that overrides the Corps’s
discretion. Next, they maintain that one or more project authorizations created a
non-discretionary duty to armor the banks of MRGO. Finally, they argue that the
critical calculation made by the Corps in waiting to armor MRGO was an erroneous
scientific judgment, not a decision susceptible to public-policy considerations.
696 F.3d 436, 449 (5th Cir. 2012).
A panel of the Fifth Circuit initially held that the DFE defense did not immunize the
government against damages caused by Katrina’s effects on MRGO. Id. at 391. Reasoning that
the immunity defense under the DFE required that the conduct in question involve “an element of
judgment or choice” and constitute “governmental actions and decisions based on considerations
of public policy,” the panel rejected the discretionary function defense. Id. at 392 (quoting
Freeman v. United States, 556 F.3d 326, 337 (5th Cir. 2009)). In particular, the court found that
the Corps’s delay in armoring the banks failed to satisfy the second prong of the requirement, as
the delay did not involve “a decision rooted in public-policy considerations” but “an erroneous
scientific judgment.” Id. at 394.

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On rehearing, however, the panel reversed itself, finding that the government enjoyed
DFE immunity:
there is ample record evidence indicating the public-policy character of the Corps’s
various decisions contributing to the delay in armoring Reach 2. Although the
Corps appears to have appreciated the benefit of foreshore protection as early as
1967, the record shows that it also had reason to consider alternatives (such as
dredging and levee “lifts”) and feasibility before committing to an armoring strategy
that, in hindsight, may well have been optimal. The Corps’s actual reasons for the
delay are varied and sometimes unknown, but there can be little dispute that the
decisions here were susceptible to policy considerations. Whatever the actual
reasons for the delay, the Corps’s failure to armor timely Reach 2 is shielded by the
DFE.
696 F.3d 436, 451 (5th Cir. 2012) (footnote omitted).

6. Local governmental immunity? Local governments in the United States were initially
deemed to have the same liability as private corporations. But beginning in the middle of the
nineteenth century, courts began to distinguish between local governments in their governmental
capacity, in which they would enjoy sovereign immunity of the state, and local governments in
their proprietary capacity, in which they would not. See Note, Municipal Tort Liability, 7 DUKE
L.J. 142, 142-43 (1958). Today, the state-level waivers of sovereign immunity typically waive
the sovereign immunity of local governments in their governmental capacity. Nonetheless,
questions of local government tort liability continue to raise tricky problems. Consider the “crazy
love” case that gripped New York City for nearly a decade after the 1959 events that led to it:

Riss v. City of New York, 22 N.Y.2d 579 (1968)
BREITEL, J.
This appeal presents, in a very sympathetic framework, the issue of the liability of a
municipality for failure to provide special protection to a member of the public who was
repeatedly threatened with personal harm and eventually suffered dire personal injuries for lack of
such protection. The facts are amply described in the dissenting opinion and no useful purpose
would be served by repetition. The issue arises upon the affirmance by a divided Appellate
Division of a dismissal of the complaint, after both sides had rested but before submission to the
jury.
It is necessary immediately to distinguish those liabilities attendant upon governmental
activities which have displaced or supplemented traditionally private enterprises, such as are
involved in the operation of rapid transit systems, hospitals, and places of public assembly. Once
sovereign immunity was abolished by statute the extension of liability on ordinary principles of
tort law logically followed. To be equally distinguished are certain activities of government
which provide services and facilities for the use of the public, such as highways, public buildings
and the like, in the performance of which the municipality or the State may be liable under
ordinary principles of tort law. The ground for liability is the provision of the services or facilities
for the direct use by members of the public.
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In contrast, this case involves the provision of a governmental service to protect the public
generally from external hazards and particularly to control the activities of criminal wrongdoers. .
. . The amount of protection that may be provided is limited by the resources of the community
and by a considered legislative-executive decision as to how those resources may be deployed.
For the courts to proclaim a new and general duty of protection in the law of tort, even to those
who may be the particular seekers of protection based on specific hazards, could and would
inevitably determine how the limited police resources of the community should be allocated and
without predictable limits. This is quite different from the predictable allocation of resources and
liabilities when public hospitals, rapid transit systems, or even highways are provided.
Before such extension of responsibilities should be dictated by the indirect imposition of
tort liabilities, there should be a legislative determination that that should be the scope of public
responsibility . . . .
It is notable that the removal of sovereign immunity for tort liability was accomplished
after legislative enactment and not by any judicial arrogation of power (Court of Claims Act, s 8).
It is equally notable that for many years, since as far back as 1909 in this State, there was by
statute municipal liability for losses sustained as a result of riot . . . . Yet even this class of liability
has for some years been suspended by legislative action . . . , a factor of considerable significance.
When one considers the greatly increased amount of crime committed throughout the
cities, but especially in certain portions of them, with a repetitive and predictable pattern, it is easy
to see the consequences of fixing municipal liability upon a showing of probable need for and
request for protection. To be sure these are grave problems at the present time, exciting high
priority activity on the part of the national, State and local governments, to which the answers are
neither simple, known, or presently within reasonable controls. To foist a presumed cure for these
problems by judicial innovation of a new kind of liability in tort would be foolhardy indeed and
an assumption of judicial wisdom and power not possessed by the courts.
...
For all of these reasons, there is no warrant in judicial tradition or in the proper allocation
of the powers of government for the courts, in the absence of legislation, to carve out an area of
tort liability for police protection to members of the public. Quite distinguishable, of course, is
the situation where the police authorities undertake responsibilities to particular members of the
public and expose them, without adequate protection, to the risks which then materialize into
actual losses.
Accordingly, the order of the Appellate Division affirming the judgment of dismissal
should be affirmed.
KEATING, J., dissenting.
Linda Riss, an attractive young woman, was for more than six months terrorized by a
rejected suitor well known to the courts of this State, one Burton Pugach. This miscreant,
masquerading as a respectable attorney, repeatedly threatened to have Linda killed or maimed if
she did not yield to him: “If I can’t have you, no one else will have you, and when I get through
with you, no one else will want you.” In fear for her life, she went to those charged by law with
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the duty of preserving and safeguarding the lives of the citizens and residents of this State.
Linda’s repeated and almost pathetic pleas for aid were received with little more than
indifference. Whatever help she was given was not commensurate with the identifiable danger.
On June 14, 1959 Linda became engaged to another man. At a party held to celebrate the event,
she received a phone call warning her that it was her “last chance.” Completely distraught, she
called the police, begging for help, but was refused. The next day Pugach carried out his dire
threats in the very manner he had foretold by having a hired thug throw lye in Linda’s face. Linda
was blinded in one eye, lost a good portion of her vision in the other, and her face was
permanently scarred. After the assault the authorities concluded that there was some basis for
Linda’s fears, and for the next three and one-half years, she was given around-the-clock
protection. . . .
Linda has turned to the courts of this State for redress, asking that the city be held liable in
damages for its negligent failure to protect her from harm. With compelling logic, she can point
out that, if a stranger, who had absolutely no obligation to aid her, had offered her assistance, and
thereafter Burton Pugach was able to injure her as a result of the negligence of the volunteer, the
courts would certainly require him to pay damages. (Restatement, 2d, Torts, s 323.) Why then
should the city, whose duties are imposed by law and include the prevention of crime (New York
City Charter, s 435) and, consequently, extend far beyond that of the Good Samaritan, not be
responsible? . . .
What makes the city’s position particularly difficult to understand is that, in conformity, to
the dictates of the law, Linda did not carry any weapon for self-defense (former Penal Law, s
1897). Thus, by a rather bitter irony she was required to rely for protection on the City of New
York which now denies all responsibility to her.
It is not a distortion to summarize the essence of the city’s case here in the following
language: “Because we owe a duty to everybody, we owe it to nobody.” Were it not for the fact
that this position has been hallowed by much ancient and revered precedent, we would surely
dismiss it as preposterous. To say that there is no duty is, of course, to start with the conclusion.
The question is whether or not there should be liability for the negligent failure to provide
adequate police protection.
. . . The city invokes the specter of a “crushing burden” . . . if we should depart from the
existing rule and enunciate even the limited proposition that the State and its municipalities can be
held liable for the negligent acts of their police employees in executing whatever police services
they do in fact provide. . . .
The fear of financial disaster is a myth. The same argument was made a generation ago in
opposition to proposals that the State waive its defense of “sovereign immunity.” The prophecy
proved false then, and it would now. The supposed astronomical financial burden does not and
would not exist. No municipality has gone bankrupt because it has had to respond in damages
when a policeman causes injury through carelessly driving a police car or in the thousands of
other situations where, by judicial fiat or legislative enactment, the State and its subdivisions have
been held liable for the tortious conduct of their employees. Thus, in the past four or five years,
New York City has been presented with an average of some 10,000 claims each year. The figure
would sound ominous except for the fact the city has been paying out less than $8,000,000 on tort
claims each year and this amount includes all those sidewalk defect and snow and ice cases about
which the courts fret so often. . . . Court delay has reduced the figure paid somewhat, but not
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substantially. Certainly this is a slight burden in a budget of more than six billion dollars (less
than two tenths of 1%) and of no importance as compared to the injustice of permitting
unredressed wrongs to continue to go unrepaired. That Linda Riss should be asked to bear the
loss, which should properly fall on the city if we assume, as we must, in the present posture of the
case, that her injuries resulted from the city’s failure to provide sufficient police to protect Linda
is contrary to the most elementary notions of justice. . . .
Another variation of the “crushing burden” argument is the contention that, every time a
crime is committed, the city will be sued and the claim will be made that it resulted from
inadequate police protection. . . . The argument is . . . made as if there were no such legal
principles as fault, proximate cause or foreseeability, all of which . . . keep liability within
reasonable bounds. No one is contending that the police must be at the scene of every potential
crime or must provide a personal bodyguard to every person who walks into a police station and
claims to have been threatened. They need only act as a reasonable man would under the
circumstances. At first there would be a duty to inquire. If the inquiry indicates nothing to
substantiate the alleged threat, the matter may be put aside and other matters attended to. If,
however, the claims prove to have some basis, appropriate steps would be necessary. . . .
If the police department is in such a deplorable state that the city, because of insufficient
manpower, is truly unable to protect persons in Linda Riss’ position, then liability not only
should, but must be imposed. It will act as an effective inducement for public officials to provide
at least a minimally adequate number of police. If local officials are not willing to meet even such
a low standard, I see no reason for the courts to abet such irresponsibility.
. . . We are not dealing here with a situation where the injury or loss occurred as a result
of a conscious choice of policy made by those exercising high administrative responsibility. . . .
There was no major policy decision taken by the Police Commissioner to disregard Linda Riss’
appeal for help because there was absolutely no manpower available to deal with Pugach. This
“garden variety” negligence case arose in the course of “day-by-day operations of government.” .
. . Linda Riss’ tragedy resulted not from high policy or inadequate manpower, but plain
negligence on the part of persons with whom Linda dealt . . . .
More significant, however, is the fundamental flaw in the reasoning behind the argument
alleging judicial interference. . . . [I]ndirectly courts are reviewing administrative practices in
almost every tort case against the State or a municipality, including even decisions of the Police
Commissioner. Every time a municipal hospital is held liable for malpractice resulting from
inadequate record-keeping, the courts are in effect making a determination that the municipality
should have hired or assigned more clerical help . . . or should have done something to improve its
record-keeping procedures . . . . Every time a municipality is held liable for a defective sidewalk,
it is as if the courts are saying that more . . . resources should have been allocated to sidewalk
repair . . . .
The truth of the matter, however, is that the courts are not making policy decisions for
public officials. In all these municipal negligence cases, the courts are doing two things. First,
they apply the principles of vicarious liability to the operations of government. Courts would not
insulate the city from liability for the ordinary negligence of members of the highway department.
There is no basis for treating the members of the police department differently.

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Second, and most important, to the extent that the injury results from the failure to allocate
sufficient funds and resources to meet a minimum standard of public administration, public
officials are presented with two alternatives: either improve public administration or accept the
cost of compensating injured persons. Thus, if we were to hold the city liable here for the
negligence of the police, courts would no more be interfering with the operations of the police
department than they ‘meddle’ in the affairs of the highway department when they hold the
municipality liable for personal injuries resulting from defective sidewalks, or a private employer
for the negligence of his employees. In other words, all the courts do in these municipal
negligence cases is require officials to weigh the consequences of their decisions. If Linda Riss’
injury resulted from the failure of the city to pay sufficient salaries to attract qualified and
sufficient personnel, the full cost of that choice should become acknowledged in the same way as
it has in other areas of municipal tort liability. Perhaps officials will find it less costly to choose
the alternative of paying damages than changing their existing practices. . . .
What has existed until now is that the City of New York and other municipalities have
been able to engage in a sort of false bookkeeping in which the real costs of inadequate or
incompetent police protection have been hidden by charging the expenditures to the individuals
who have sustained often catastrophic losses rather than to the community where it belongs,
because the latter had the power to prevent the losses.
. . . At one time the government was completely immunized from this salutary control.
This is much less so now, and the imposition of liability has had healthy side effects. In many
areas, it has resulted in the adoption of better and more considered procedures just as workmen’s
compensation resulted in improved industrial safety practices. To visit liability upon the city here
will no doubt have similar constructive effects. . . .
No doubt in the future we shall have to draw limitations just as we have done in the area
of private litigation, and no doubt some of these limitations will be unique to municipal liability
because the problems will not have any counterpart in private tort law. But if the lines are to be
drawn, let them be delineated on candid considerations of policy and fairness and not on the
fictions or relics of the doctrine of “sovereign immunity.” . . . [H]aving undertaken to provide
professional police and fire protection, municipalities cannot escape liability for damages caused
by their failure to do even a minimally adequate job of it. . . .
FULD, C.J., and BURKE, SCILEPPI, BERGAN and JASEN, JJ. concur with BREITEL, J.
Notes

1. Crazy love. Burton Pugach, the lawyer responsible for Linda Riss’s disfigurement, was
convicted of assault and sentenced to prison for his attack on Riss. During his fourteen-years in
prison, he continued to write love letters to her. Eight months after Pugach was paroled, he and
Riss resumed their relationship. They married soon thereafter. In 1997, Pugach was indicted for
sexually abusing and threatening to kill another woman. During his trial, Riss testified on her
husband’s behalf. Despite his conviction and subsequent imprisonment, they remained married.
The film Crazy Love documents their relationship. CRAZY LOVE (Magnolia Pictures 2007). See
also Ruth La Ferla, What’s Love Got to Do With It?, N.Y. TIMES, May 27, 2007, at H1.

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2. Political accountability? Does it matter that victims of injuries caused by the state have
another way of holding their injurer accountable? The democratic electoral system offers a
political accountability mechanism as an alternative to legal rights enforced through the courts?
When a person is injured by the General Motors Company, a tort suit may be her only remedy.
But when you are injured by the City of New York, you can vote the bums out.

3. Potholes in the law. State level waivers of sovereign immunity often include exceptions
or special treatment for recurring problems.
Consider, for example, the lowly pothole. A New York statute immunizes the state from
liability arising from pothole-related claims between November 1 and May 15—the season in
which ice and snow creates the most severe pothole problems. N.Y. HIGH. LAW § 58 (McKinney
2014); see also Sam Roberts, Taking on a Pothole Law: In Winter, New York State Rejects
Drivers’ Claims, N.Y. TIMES, Apr. 29, 2014.
Ten states have statutory provisions that grant full immunity for injuries arising from
pothole- or weather-related defects. See DEL. CODE ANN. tit. 10, § 4011 (2014); GA. CODE ANN. §
50-21-24 (2014); IDAHO CODE ANN. § 6-904 (2014); KAN. STAT. ANN. § 75-6104 (2014); MISS.
CODE ANN. § 11-46-9 (2014); OKLA. STAT. tit. 51, § 155 (2014); OR. REV. STAT. § 30.265 (2014);
S.C. CODE ANN. § 15-78-60 (2014); WYO. STAT. ANN. § 1-39-120 (2014); Lane v. State, 811 A.2d
190 (Vt. 2002).

4. Local government liability for recreational activities. Every winter a particular
recreational activity creates a slippery slope problem for municipalities across much of the
country: sledding.
Some worry that sledding liability exposes municipalities to vast liabilities, possibly
increasing municipalities’ insurance and tax rates. See Husna Haq, More US Cities Ban Sledding.
Will It Work?, CHRISTIAN SCI. MONITOR (Jan. 5, 2015) (noting that Sioux City, Iowa, and Boone,
Iowa, have paid millions to individuals injured while sledding in city parks). Thus, to limit
potential liability, some municipalities like Dubuque ban sledding in many city parks. See City of
Dubuque, Iowa—City Council Proceedings Regular Session, CITY OF DUBUQUE 2 (Jan. 5, 2015).
Other cities in Iowa have used non-legislative measures to decrease potential liability. For
instance, Des Moines has added signs at sledding hills, warning sledders that they sled at their
own risk. DES MOINES, IOWA, CODE § 74-117 (2013); Scott McFetridge, Liability Concerns
Prompt Some Cities to Limit Sledding, ASSOC. PRESS (Jan. 4, 2015). Such signs likely shield
municipalities from negligence claims. See Hecht v. Des Moines Playground & Recreation Ass’n,
287 N.W. 259, 264 (Iowa 1939) (holding that adequate warnings are “all that [a defendant’s duty
of] reasonable and ordinary care require[s]”). Some states have enacted statutory immunization of
state and local governments for injuries arising out of recreational injuries, as in Michigan and
Wisconsin. MICH. COMP. LAWS § 691.1407 (2014); WIS. STAT. ANN. 895.52 (West 2014).
Which approach is better: closing the slope (Dubuque) or immunizing the municipality by
warning signs (Des Moines) or enacting legislative immunity (Michigan and Wisconsin)? Even

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absent the immunization, liability will only exist where a municipality is found negligent, though
municipalities will sometimes face litigation costs whether they are found negligent or not.
Interestingly, Dubuque’s restrictions have “spark[ed] . . . backlash” among residents.
Dubuque Officials Consider Opening More Parks to Sledding, S.F. GATE (Jan. 17, 2015). In the
wake of protests, Dubuque’s City Council amended its ordinance and opened more of the city’s
parks for sledding. See City of Dubuque, Iowa—City Council Proceedings Regular Session, CITY
OF DUBUQUE 5 (Jan. 20, 2015), https://perma.cc/N564-DYBE.

5. Government Officer Immunity
a. Federal Officials
In the 19th century, federal officials who committed common law torts while serving their
duties received no protection from the judiciary. The existence of a superior’s orders or an
officer’s good faith belief in the legality of his actions provided no shield from personal liability.
See Orval Edwin Jones, Tort Immunity of Federal Executive Officials: The Mutable Scope of
Absolute Immunity, 37 OKLA. L. REV. 285 (1984). The earliest federal case demonstrating this
principle is Little v. Barreme, which arose from the seizure of a foreign vessel sailing from France
by Naval captain George Little. 6 U.S. (2 Cranch) 170 (1804). Little had acted in compliance
with a Presidential order authorizing the capture of any ship suspected of trading with the French
during the Quasi-War. However, the Congressional act that the order sought to execute only
authorized the seizure of ships sailing to any French port. The Court held that the President’s
order did not “legalize an act which without those instructions would have been a plain trespass”
and that Little was thus liable for damages. Id. at 179.
The judiciary’s early refusal to shield federal officials from liability did not necessarily
leave such employees exposed to judgments. Instead, they were able to seek indemnification by
petitioning Congress to pass private bills of reimbursement. Congress would often grant such
requests, particularly when they stemmed from acts made in good faith fulfillment of their duties
and without malicious intent. Indeed, roughly 60% of military officers who sought
indemnification in the antebellum era were successful in receiving Congressional relief—
including Captain Little himself. See James E. Pfander & Jonathan L. Hunt, Public Wrongs and
Private Bills: Indemnification and Government Accountability in the Early Republic, 85 N.Y.U.
L. REV. 1862, 1905 (2010). This case-by-case system of indemnification didn’t undo ex post
review. Instead, it gave both the courts and Congress shared responsibility in determining the
propriety of an officer’s acts.
The doctrine of immunity for common law torts committed in an official’s course of duty
developed slowly, beginning in the latter part of the century. See Theodore P. Stein, Nixon v.
Fitzgerald: Presidential Immunity as a Constitutional Imperative, 32 CATH. U. L. REV. 759-85
(1983). The Supreme Court first laid out the reasoning for officials’ immunity in the case of
Bradley v. Fisher, holding that a federal judge accused of maliciously ordering a lawyer’s
disbarment was absolutely immune from civil liability. 80 U.S. 335 (1871). The Court reasoned
that personal liability would “destroy that independence without which no judiciary can be either
respectable or useful.” Id. at 347. Twenty-five years later, the Court expanded immunity to
federal officials in the President’s cabinet in Spalding v. Vilas, echoing Bradley by stating cabinet
officer liability for acts done in the scope of their duties would “seriously cripple the proper . . .
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administration of public affairs.” 161 U.S. 483, 499 (1896). The Warren Court expanded this
immunity to all federal executive officials in Barr v. Matteo, which relied on an additional policy
justification that forcing officials to defend themselves against civil suits would “consume time
and energies which would otherwise be devoted to governmental service . . . .” 360 U.S. 564, 571
(1959). In 1988, Congress legislated this immunity doctrine into law with the passage of the
Westfall Act, whose purpose was “to protect federal employees from personal liability for
common law torts committed within the scope of their employment . . . .” Federal Employees
Liability Reform and Tort Compensation Act, Pub. L. No. 100-694, 102 Stat. 4563 (1988).

b. State Officials
The history of official immunity for state officials begins, like that of their federal
counterparts, with strict rules of official liability for common law torts. New York, for example,
had a policy of broad liability buttressed by state indemnification. See Note, Tort Liability of
Administrative Officers in New York, 28 ST. JOHN’S L. REV. 265 (1954). In the early case of Hyde
v. Melvin, 11 Johns. 521 (N.Y. Sup. Ct. 1814), the Supreme Court of New York held a state
militia captain liable for improperly forcing a militia member to perform his duties, despite acting
under orders granting him authorization-in-fact to do so. As the 19th century unfolded, New York
created absolute immunity for a limited set of officials whose duties were judicial or highly
discretionary. See, e.g., Wilson v. Mayor, 1 Denio 585 (N.Y. Sup. Ct. 1845) (granting absolute
immunity to mayors and aldermen executing discretionary powers). After the start of the Civil
War, states expanded absolute immunity to low-level officials. David E. Engdahl, Immunity and
Accountability for Positive Governmental Wrongs, 44 U. COLO. L. REV. 1, 48 (1972). For
example, New York expanded absolute immunity to the state highway commissioner, finding that
while the statute that authorized the logging was unconstitutional, no liability existed because the
commissioner’s “duty was to execute the law as he found it.” Dexter v. Alfred, 19 N. Y. Supp.
770, 771 (N.Y. Sup. Ct. 1892).
Unlike the federal government, however, the vast majority of states did not continue the
expansion of absolute immunity to all officials. See 5 F. HARPER, F. JAMES & O. GRAY, THE LAW
OF TORTS § 29.10, n. 44, at 825-26 (3d ed. 2006). Instead, states tend to shield low-level
administrative officials, like prosecutors, with qualified immunity, which protects officials so long
as they (1) use discretion (2) in good faith while (3) acting in the scope of their official duties.
See, e.g., City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex. 1994). Ministerial
officials—those that perform their duties not according to individual choice—are personally liable
for common-law torts, regardless of their good faith or lack of malice. See generally Gray, supra
notes 38-39, at 822-23. Many states, including New York, have enacted indemnification statues
to relieve low-level state employees held liable for acts performed in the course of their duties.
See Carolyn Kearns, Tort Liability of Administrative Officers in New York, 62 ST. JOHN’S L. REV.
181 (1954).

c. Constitutional Torts
Even as Congress and the courts worked to immunize federal officials from liability for
common law torts, the Supreme Court created a new category of constitutional torts for which
federal employees could be held personally liable. In Bivens v. Six Unknown Named Agents, 403
U.S. 388 (1971), the plaintiff sought damages from federal narcotics officers who had made a
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warrantless search of his house. The Court held that it was appropriate to hold such officials
personally liable for violation of constitutionally protected interests where no other federal
remedy was available. Congress may assume any judgments resulting from such constitutional
torts, and indeed Congress has done just that. The federal government provides representation for
officials in 98% of Bivens cases where such representation is requested. Moreover,
indemnification of officers held liable in Bivens actions is “a virtual certainty.” Cornelia T.L.
Pillard, Taking Fiction Seriously: The Strange Results of Public Officials’ Individual Liability
Under Bivens, 88 GEO. L.J. 65, 76-77 (1999).
State officials, like their federal brethren, may be held personally liable for constitutional
torts under a provision of the Civil Rights Act of 1871, which was passed to combat a wave of
atrocities committed by the Ku Klux Klan in the South. See Harry A. Blackmun, Section 1983
and Federal Protection of Individual Rights—Will the Statute Remain Alive or Fade Away?, 60
N.Y.U. L. REV. 1, 5 (1982). Section 1 of the Act, now codified as Section 1983 of Title 42 of the
United States Code, aimed to protect freedmen in the South by providing a cause of action against
every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws . . . .
Section 1983 was narrowly construed by courts and ignored by prosecutors for nearly a century.
But after the Supreme Court’s ruling in Monroe v. Pape, 365 U.S. 167 (1961), Section 1983
became a viable independent federal remedy against state and local officials for violations of
federally protected rights.
States are not subject to Section 1983 actions because they are not “persons” within the
meaning of the statue. Municipalities, by contrast, may be liable. But the Court has ruled that
there is no vicarious Section 1983 liability for the constitutional torts of municipal employees.
Municipal liability exists only when an official policy leads to the violation of a federally
protected civil right. Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 690-91 (1978).
Nevertheless, municipalities routinely indemnify police officers found liable in Section 1983 suits
even when there is no official policy. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L.
REV. 885, 888-90 (2014); see also PETER H. SCHUCK, SUING GOVERNMENT: CITIZEN REMEDIES
FOR OFFICIAL WRONGS 85 (1983).
Does indemnification effectively replicate the economic structure of vicarious liability?
Or should municipalities be vicariously liable for their employees’ constitutional torts under
Section 1983? What is at stake in the difference? Note that regardless how municipalities deal
with the question of indemnity, civil rights lawsuits seem to have served poorly as tools for
deterring police misconduct. Few police departments use information gleaned from tort suits to
reshape their practices. See Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role
of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. REV. 1023, 1032 (2010).

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6. Statutory Immunity
The Protection of Lawful Commerce in Arms Act of 2005
Congress can get into the immunity game, too. Recently it has done so with the
Protection of Lawful Commerce in Arms Act, immunizing arms manufacturers and sellers from a
broad array of potential tort liability. The Act prohibited the bringing of certain civil actions
involving firearms in either the federal or the state courts. It defined those actions to include: “a
civil action or proceeding or an administrative proceeding brought by any person against a
manufacturer or seller of a [firearm], or a trade association, for damages, punitive damages,
injunctive or declaratory relief, abatement, restitution, fines, or penalties, or other relief, resulting
from the criminal or unlawful misuse of a qualified product by the person or a third party.” The
legislation excluded from its immunity rule five categories of firearms injuries, as to which the
civil actions may still be brought:
(i) an action brought against a transferor [knowing that the firearm will be used to
commit a crime of violence or drug trafficking crime], or a comparable or identical
State felony law, by a party directly harmed by the conduct of which the transferee
is so convicted;
(ii) an action brought against a seller for negligent entrustment or negligence per se;
(iii) an action in which a manufacturer or seller of a qualified product knowingly
violated a State or Federal statute applicable to the sale or marketing of the product,
and the violation was a proximate cause of the harm for which relief is sought . . . ;
(iv) an action for breach of contract or warranty in connection with the purchase of
the product;
(v) an action for death, physical injuries or property damage resulting directly from
a defect in design or manufacture of the product, when used as intended or in a
reasonably foreseeable manner, except that where the discharge of the product was
caused by a volitional act that constituted a criminal offense, then such act shall be
considered the sole proximate cause of any resulting death, personal injuries or
property damage . . . .
15 U.S.C. § 7903(5)(A).
City of New York v. Beretta U.S.A. Corp., 524 F.3d 384 (2d Cir. 2008)
MINER, J.
. . . [O]n June 20, 2000 . . . the City filed a complaint against the Firearms Suppliers
seeking injunctive relief and abatement of the alleged public nuisance caused by the Firearms
Suppliers’ distribution practices. The City claimed that the Firearms Suppliers market guns to
legitimate buyers with the knowledge that those guns will be diverted through various
mechanisms into illegal markets. . .
On October 26, 2005, the Protection of Lawful Commerce in Arms Act . . . became
federal law. The PLCAA provides that any “qualified civil liability action that is pending on
October 26, 2005, shall be immediately dismissed by the court in which the action was brought or
is currently pending.” . . .
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On the day the PLCAA was enacted, the Firearms Suppliers moved to dismiss the
Amended Complaint. . . . [T]he City argued that the Act did not bar its causes of action because
this case fell within an exception to the forbidden qualified civil liability actions. . . . [A] suit may
proceed when a plaintiff adequately alleges that a “manufacturer or seller of [firearms transported
in interstate or foreign commerce] knowingly violated a State or Federal statute applicable to the
sale or marketing of [firearms], and the violation was the proximate cause of the harm for which
relief is sought.” . . . This provision has been called the “predicate exception,” which appellation
we adopt. For purposes of this opinion, a statute upon which a case is brought under the predicate
exception is referred to as a “predicate statute.” The predicate statute at issue in this case is New
York Penal Law § 240.45, Criminal Nuisance in the Second Degree.5 . . .
On December 2, 2005, the United States District Court for the Eastern District of New
York (Weinstein, J.) . . . held that, “[b]y its plain meaning, New York [Penal Law § ] 240.45
satisfies the language of the predicate exception requiring a ‘statute applicable to the sale or
marketing of [a firearm].’” . . .
The District Court certified its December 2, 2005 order for immediate appeal to this
Court, pursuant to 28 U.S.C. § 1292(b). Id. at 298 (“There is a substantial ground for
disagreement 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.”). . .
.
[W]e conclude that the City’s claim, predicated on New York Penal Law § 240.45, does
not fall within an exception to the claim restricting provisions of the Act because that statute does
not fall within the contours of the Act’s predicate exception. . . .
We conclude . . . that the meaning of the term “applicable” must be determined in the
context of the statute. We find nothing in the statute that requires any express language regarding
firearms to be included in a statute in order for that statute to fall within the predicate exception. . .
.
We think Congress clearly intended to protect from vicarious liability members of the
firearms industry who engage in the “lawful design, manufacture, marketing, distribution,
importation, or sale” of firearms. Preceding subsection (a)(5), Congress stated that it had found
that “[t]he manufacture, importation, possession, sale, and use of firearms and ammunition in the
United States are heavily regulated by Federal, State, and local laws. Such Federal laws include
the Gun Control Act of 1968, the National Firearms Act, and the Arms Control Act.”15 U.S.C. §
7901(a)(4). We think the juxtaposition of these two subsections demonstrates that Congress meant
that “lawful design, manufacture, marketing, distribution, importation, or sale” of firearms means

5

N.Y. Penal Law § 240.45 provides, in pertinent part:
A person is guilty of criminal nuisance in the second degree when . . .
By conduct either unlawful in itself or unreasonable under all the circumstances, he knowingly
or recklessly creates or maintains a condition which endangers the safety or health of a
considerable number of persons. . . .

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such activities having been done in compliance with statutes like those described in subsection
(a)(4). . . .
[T]he legislative history of the statute supports the Firearms Suppliers’ proffered
interpretation of the term “applicable.” United States Senator Larry E. Craig, a sponsor of the
PLCAA, named the case at bar as an “example . . . of exactly the type of . . . lawsuit . . . this bill
will eliminate.” . . . United States Representative Clifford B. Stearns, the sponsor of H.R. 800, the
House version of the PLCAA, inserted similar comments into the PLCAA’s legislative history so
that the “Congressional Record [would] clearly reflect some specific examples of the type of . . .
lawsuit” the PLCAA would preclude. . . .
The case is remanded to the District Court with instructions to enter judgment dismissing
the case as barred by the PLCAA.
KATZMANN, J., dissenting.
Unlike the majority, I believe this case may be simply resolved by looking only at the
ordinary meaning of the words in the statute. . . .
As the district court correctly noted, 401 F.Supp.2d at 261, the ordinary meaning of the
word “applicable” is clear; any attempt to read that word as meaning anything more than “capable
of being applied” is a strained effort to read an ambiguity that does not exist into the statute. . . .

7. Wartime and National Security Immunities
Tort damages in wartime have received considerable attention in the past decade. There is
no FTCA liability for claims arising out of combat activities of the U.S. armed forces, since the
Act declined to waive sovereign immunity for such claims. 28 U.S.C. s. 2680(j). But in armed
conflict featuring frequent collisions between U.S. armed forces and civilian populations, the
absence of a tort remedy has seemed to be a strategic problem in situations where American
Humvees, tanks, and trucks inevitably run into civilians’ homes, animals, and family members.
See John Fabian Witt, Form and Substance in the Law of Counterinsurgency Damages, 41 LOY.
L. REV. 1455 (2008).
The Foreign Claims Act (FCA), first enacted during World War I, aims to offer a remedy
where tort doesn’t reach. The FCA authorizes the U.S. Armed Forces to pay monetary
compensation to the inhabitants of foreign countries for torts committed against them by the in
non-combat operations. A claimant seeking relief under the FCA must file a grievance with a
Foreign Claims Commission (“FCC”), a quasi-judicial body established by the Army to handle
foreign tort claims. The FCCs, which consist of between one and three commissioned officers,
are authorized to approve payouts of varying size, depending primarily on the number of officers
sitting on the panel. A one-officer commission may approve damages of up to $2,500, unless that
one officer is a Judge Advocate, in which case the figure rises to $15,000. A three-officer
commission, however, may authorize payment of up to $50,000 for a single claim, or $100,000
for multiple claims arising from the same incident. The Secretary of the Army must authorize all
payments in excess of $100,000. Alleged torts stemming from combat activities are barred from
consideration, and any national of a country at war with the United States must be deemed
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“friendly” by the local military commander before becoming eligible to pursue a claim under the
FCA. Furthermore, all claimants must file within two years of the occurrence in question.
FCCs decide claims on the basis of prevailing local tort law for both liability and
damages. Once a claimant accepts the payment authorized by the FCC, the claim is considered
satisfied in full, and the claimant releases the United States from any further liability arising from
the incident at issue. If a claim is denied, the claimant may request that the commission
reconsider the case. Failing that, the claimant may request further review by a higher military
authority—either the Judge Advocate General (JAG) or the Secretary of the relevant branch of the
military (or her designee). Any mistake committed by the FCC in either law or fact permits the
JAG or Secretary to reexamine the case and correct the error. Beyond that, however, only fraud,
substantial new evidence, or an error in calculation justifies further review.
Because neither the FTCA nor the FCA waives sovereign immunity for torts committed
by the United States overseas, the federal judiciary has no jurisdiction to hear claims of this sort
either in the first instance or on appeal. Therefore, the procedure offered by the local FCC stands
as the only recourse for individuals harmed by American forces overseas.
Another place where liability questions have arisen in the armed conflicts of the past
decade is with respect to Bivens liability for torture. In Arar v. Ashcroft, 585 F.3d 559 (2d Cir.
2009) (en banc), the Second Circuit declined to recognize Bivens liability for torture resulting
from the government’s policy of extraordinary rendition. Maher Arar, a Syrian-born Canadian
citizen, was detained by the INS while on a layover at JFK Airport in New York. After twelve
days in custody, he was removed to Syria, where he underwent confinement and torture. Arar
alleged, inter alia, that government officials had violated his Fifth Amendment substantive due
process rights by deporting him to a foreign country to face coercive interrogation. The district
court dismissed Arar’s claim, and the Second Circuit affirmed on the grounds that extending
Bivens liability to cases involving extraordinary rendition would have the “tendency to affect
diplomacy, foreign policy, and the security of the nation.” Id. at 574.
The dissenters objected to reaching the merits of the Bivens claim and argued instead in
favor of deciding the case on the narrower grounds of the state secrets doctrine. They would have
allowed Arar’s claim to proceed, though they conceded that it would almost certainly fail once the
government asserted the state secrets privilege upon remand. Id. at 638 (Calabresi, J., dissenting)
(“holding that Arar, even if all of his allegations are true, has suffered no remediable
constitutional harm legitimates the Government’s actions in a way that a state secrets dismissal
would not”).
Other circuits have been no more willing than the Second to extend Bivens liability to
cases involving allegations of torture arising out of U.S. national security programs. Both the
D.C. Circuit, Ali v. Rumsfeld, 649 F.3d 762, 773 (D.C. Cir. 2011), and the Seventh Circuit, Vance
v. Rumsfeld, 701 F.3d 193, 202 (7th Cir. 2012), have dismissed Bivens actions for post-9/11
torture as prohibitively threatening to important government interests. Only the Fourth Circuit,
El-Masri v. United States, 479 F.3d 296 (4th Cir. 2007), has taken the approach favored by the
Arar dissenters and declined to reach the merits of the Bivens claim, relying instead the state
secrets doctrine in its dismissal of the case. As of yet, no federal court has recognized a Bivens
action for damages arising from torture in the extended national security state.

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8. Immunity Reconsidered
If one thinks about all the areas in which common law immunities, limited common law
duties, or special doctrines such as the rule of pure economic loss or the doctrines of negligent
infliction of emotional distress, it can sometimes seem as if the negligence action is hemmed in on
all sides. At common law, injury victims found immunity doctrines blocking their path if they
were injured at home, at work, by the government, or when receiving medical care from charitable
hospitals. Entire categories of harm were unrecoverable.
Fifty years ago, it seemed apparent that the historical trend was toward abolishing limited
duties and immunities. See Robert Rabin, Tort Law in Transition: Tracing the Patterns of
Sociological Change, 23 VAL. U. L. REV. 1, 26 (1988). Beginning in the 1980s, however, that
trend slowed and even reversed. Today, the trend in the area of limited duties and immunities
seems to some considerably less certain.
At the very same time, in the past fifty years, tort law has witnessed the important but
uncertain expansion of a very different doctrine, one that seems to expand liability rather than
contracting it: liability without fault.

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Witt & Tani, TCPI 9. Liability without Fault?

CHAPTER 9. MODERN NON-FAULT LIABILITY?
For most of this book, we have been focused on torts that involve wrongful behavior,
either intentional or unintentional. We have allocated hundreds of pages to explicating the cause
of action for negligence. But from the very outset of the course, we have entertained the
possibility of other, non-fault based liability standards in the law of unintentional torts. This
chapter picks up this non-fault strand in the law and asks whether there ought to be strict liability
for unintended harm—and, if so, under what circumstances?
We 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
liability of employers, without regard to the fault of the employer, for certain tortious acts of their
employees.

A. Vicarious Liability
Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968)
FRIENDLY, J.
While the United States Coast Guard vessel Tamaroa was being overhauled in a floating
drydock located in Brooklyn’s Gowanus Canal, a seaman returning from shore leave late at night,
in the condition for which seamen are famed, turned some wheels on the drydock wall. He thus
opened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship
listed, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship
partially did—fortunately without loss of life or personal injury. The drydock owner sought and
was granted compensation by the District Court for the Eastern District of New York in an
amount to be determined . . . ; the United States appeals.
...
The Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks
permitting her drive shaft to be removed and repairs to be made to her hull. The contract between
the Government and Bushey provided in part:
(o) The work shall, whenever practical, be performed in such manner as not to
interfere with the berthing and messing of personnel attached to the vessel
undergoing repair, and provision shall be made so that personnel assigned shall have
access to the vessel at all times, it being understood that such personnel will not
interfere with the work or the contractor’s workmen.

Access from shore to ship was provided by a route past the security guard at the gate,
through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway
leading to the fantail deck, where men returning from leave reported at a quartermaster’s shack.
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Seaman Lane, whose prior record was unblemished, returned from shore leave a little after
midnight on March 14. He had been drinking heavily; the quartermaster made mental note that he
was “loose.” For reasons not apparent to us or very likely to Lane, he took it into his head, while
progressing along the gangway wall, to turn each of three large wheels some twenty times;
unhappily, as previously stated, these wheels controlled the water intake valves. After boarding
ship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had “turned some valves” and
also muttered something about “valves” to another who was standing the engineering watch.
Neither did anything; apparently Lane’s condition was not such as to encourage proximity. At
12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship
began to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the
vessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks
and fell against the drydock wall.
The Government attacks imposition of liability on the ground that Lane’s acts were not
within the scope of his employment. It relies heavily on § 228(1) of the Restatement of Agency
2d which says that “conduct of a servant is within the scope of employment if, but only if: . . . (c)
it is actuated, at least in part by a purpose to serve the master.” Courts have gone to considerable
lengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand
concluded that a drunken boatswain who routed the plaintiff out of his bunk with a blow, saying
“Get up, you big son of a bitch, and turn to,” and then continued to fight, might have thought he
was acting in the interest of the ship. . . . It would be going too far to find such a purpose here;
while Lane’s return to the Tamaroa was to serve his employer, no one has suggested how he could
have thought turning the wheels to be, even if—which is by no means clear—he was unaware of
the consequences.
In light of the highly artificial way in which the motive test has been applied, the district
judge believed himself obliged to test the doctrine’s continuing vitality by referring to the larger
purposes respondeat superior is supposed to serve. He concluded that the old formulation failed
this test. We do not find his analysis so compelling, however, as to constitute a sufficient basis in
itself for discarding the old doctrine. It is not at all clear, as the court below suggested, that
expansion of liability in the manner here suggested will lead to a more efficient allocation of
resources. As the most astute exponent of this theory has emphasized, a more efficient allocation
can only be expected if there is some reason to believe that imposing a particular cost on the
enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the
accident. Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs,
78 HARV. L. REV. 713, 725-34 (1965). And the suggestion that imposition of liability here will
lead to more intensive screening of employees rests on highly questionable premises, see
Comment, Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of
His Employees, 70 YALE L.J. 1296, 1301-04 (1961). The unsatisfactory quality of the allocation
of resource rationale is especially striking on the facts of this case. It could well be that
application of the traditional rule might induce drydock owners, prodded by their insurance
companies, to install locks on their valves to avoid similar incidents in the future,6 while placing

6

The record reveals that most modern drydocks have automatic locks to guard against unauthorized use of
valves.

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Witt & Tani, TCPI 9. Liability without Fault?

the burden on shipowners is much less likely to lead to accident prevention.7 It is true, of course,
that in many cases the plaintiff will not be in a position to insure, and so expansion of liability
will, at the very least, serve respondeat superior’s loss spreading function. . . . But the fact that
the defendant is better able to afford damages is not alone sufficient to justify legal responsibility .
. . , and this overarching principle must be taken into account in deciding whether to expand the
reach of respondeat superior.
A policy analysis thus is not sufficient to justify this proposed expansion of vicarious
liability. This is not surprising since respondeat superior, even within its traditional limits, rests
not so much on policy grounds consistent with the governing principles of tort law as in a deeply
rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents
which may fairly be said to be characteristic of its activities. It is in this light that the inadequacy
of the motive test becomes apparent. Whatever may have been the case in the past, a doctrine that
would create such drastically different consequences for the actions of the drunken boatswain
in Nelson and those of the drunken seaman here reflects a wholly unrealistic attitude toward the
risks characteristically attendant upon the operation of a ship. We concur in the statement of Mr.
Justice Rutledge in a case involving violence injuring a fellow-worker, in this instance in the
context of workmen’s compensation:
Men do not discard their personal qualities when they go to work. Into the job they
carry their intelligence, skill, habits of care and rectitude. Just as inevitably they
take along also their tendencies to carelessness and camaraderie, as well as
emotional make-up. In bringing men together, work brings these qualities together,
causes frictions between them, creates occasions for lapses into carelessness, and
for fun-making and emotional flare-up. . . . These expressions of human nature are
incidents inseparable from working together. They involve risks of injury and these
risks are inherent in the working environment.
...
Put another way, Lane’s conduct was not so “unforeseeable” as to make it unfair to charge
the Government with responsibility. We agree with a leading treatise that “what is reasonably
foreseeable in this context [of respondeat superior] . . . is quite a different thing from the
foreseeably unreasonable risk of harm that spells negligence . . . . The foresight that should impel
the prudent man to take precautions is not the same measure as that by which he should perceive
the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own
part. The proper test here bears far more resemblance to that which limits liability for workmen’s
compensation than to the test for negligence. The employer should be held to expect risks, to the
public also, which arise ‘out of and in the course of’ his employment of labor.” 2 HARPER &
JAMES, THE LAW OF TORTS 1377-78 (1956). . . . Here it was foreseeable that crew members
crossing the drydock might do damage, negligently or even intentionally, such as pushing a
Bushey employee or kicking property into the water. Moreover, the proclivity of seamen to find
solace for solitude by copious resort to the bottle while ashore has been noted in opinions too

7

Although it is theoretically possible that shipowners would demand that drydock owners take appropriate
action, see Coase, The Problem of Social Cost, 3 J.L. & Econ. 1 (1960), this would seem unlikely to occur in real
life.

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Witt & Tani, TCPI 9. Liability without Fault?

numerous to warrant citation. Once all this is granted, it is immaterial that Lane’s precise action
was not to be foreseen. . . .
One can readily think of cases that fall on the other side of the line. If Lane had set fire to
the bar where he had been imbibing or had caused an accident on the street while returning to the
drydock, the Government would not be liable; the activities of the “enterprise” do not reach into
areas where the servant does not create risks different from those attendant on the activities of the
community in general. . . . We agree with the district judge that if the seaman “upon returning to
the drydock, recognized the Bushey security guard as his wife’s lover and shot him,” . . . vicarious
liability would not follow; the incident would have related to the seaman’s domestic life, not to
his seafaring activity . . . , and it would have been the most unlikely happenstance that the
confrontation with the paramour occurred on a drydock rather than at the traditional spot. Here
Lane had come within the closed-off area where his ship lay . . . to occupy a berth to which the
Government insisted he have access, . . . and while his act is not readily explicable, at least it was
not shown to be due entirely to facets of his personal life. The risk that seamen going and coming
from the Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise
bear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end,
as Judge Andrews said in a related context, “it is all a question [of expediency,] * * * of fair
judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will
be practical and in keeping with the general understanding of mankind.” Palsgraf v. Long Island
R.R. Co., 162 N.E. 99, 104 (N.Y. 1928) (dissenting opinion).
...
Affirmed.

Notes

1. Why respondeat superior? The Ira Bushey case takes for granted the well-established
proposition that employers are liable for the torts of their employees so long as those torts arise
within the scope of the employment, properly defined. Why should this be so? Note that we are
not talking about cases where an employer negligently supervises its employees, or fails to use
reasonable care in making hiring decisions. These would be independent grounds for suing the
employer in negligence. The distinctive feature of vicarious liability is that the employer is liable
without regard to whether the employer did anything unreasonable or otherwise tortious.
Observe also that employers’ vicarious liability does not vitiate employee liability: Ira
Bushey & Sons could have sued Seaman Lane instead of, or in addition to, his employer.
Similarly, the United States (as Lane’s employer) could have pursued an indemnification claim
against Seaman Lane for the damages it had to pay out to Ira Bushey & Sons. But employers
rarely pursue such claims against their employees. For one thing, individual employees often lack
assets or the appropriate insurance; in other words, they are frequently judgment proof and so not
worth suing. In addition, bringing damages claims against one’s own employees can have
negative effects on workplace morale. Employers typically decide that it is better simply to bear
the burden of the damages they incur from their employees’ conduct.

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2. The Restatement approach. Judge Friendly focuses on one piece of the Restatement test
for the scope of employment—the requirement that the conduct of the servant be “actuated, at
least in part, by a purpose to serve the master.” Section 228(1) of The Restatement (Second) of
Agency further provides that conduct is within the scope of employment only if “it is of the kind
he is employed to perform” and “it occurs substantially within the authorized time and space
limits.” In cases of intentional violence by one servant against another, such violence is only
within the scope of employment if “the use of force is not unexpectable by the master.”
RESTATEMENT (SECOND) OF AGENCY § 228(1) (1958).

3. The back-story to Ira Bushey. In the district court opinion, District Judge Jack B.
Weinstein took a different approach than Judge Friendly: instead of rejecting law and economics
in his decision, Judge Weinstein used a “law and economics analysis” to impose liability on the
United States. DAVID M. DORSEN, HENRY FRIENDLY, GREATEST JUDGE OF HIS ERA 264 (2012).
Citing then-Professor Guido Calabresi, Judge Weinstein held that liability should be imposed on
the employer because the employer can “obtain insurance more cheaply than those who may be
injured.” Ira S. Bushey & Sons, Inc. v. United States, 276 F. Supp. 518, 530 (E.D.N.Y. 1967).
On appeal, while Judge Friendly was uncharacteristically out of the office, his law clerk, a
recent Yale Law School graduate named Bruce Ackerman (now a professor at Yale) drafted an
opinion affirming the economic approach adopted by Judge Weinstein and drawing on the
economics of his torts teacher, Guido Calabresi. As the story goes, Judge Friendly returned from
the office, rewrote the opinion, and soundly rejected the Calabresian approach to imposing
liability. All that remained of the substance of the law clerk’s draft was the opinion’s dismissive
discussion of the economic approach the draft had taken.
When later asked about Judge Friendly’s opinion, Calabresi remarked, “[The] irony is that
Friendly got it right and Bruce [Ackerman] got it wrong. I cite the case as a great judge’s
response to academic theory on the basis of his own experience and intuition.” DORSEN, HENRY
FRIENDLY, at 266. Is that right? What is the basis on which our “deeply rooted sentiments,” as
Friendly describes them, lead us to decide that the costs in question are characteristic of being an
employer of seamen rather than characteristic of being a dry dock?

4. Vicarious liability and tort theory. Vicarious liability is pervasive. As one recent
commentator puts it, “most tort suits are filed against businesses, and most businesses . . . are sued
for the acts of their employees.” See Alan Calnan, The Distorted Reality of Civil Recourse Theory,
60 CLEVELAND L. REV. 159, 181 (2012). Though we have not paused to notice, the doctrine has
been involved in many of the cases we have read in this book to this point. It is necessarily
involved in every tort case against a corporate defendant, since corporations can only act through
their agents. Virtually every products liability case is a respondeat superior case. Every municipal
liability case is. Most cases arising out of economic activity seem to be vicarious liability cases,
since so much economic activity is collective or group activity in one way or another.
The prevalence of vicarious liability may have important implications for the basic logic
of tort law. For although the field is often conceived of as a law of wrongs, vicarious liability
means that many and perhaps even most tort defendants have not done anything wrong at all.
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Witt & Tani, TCPI 9. Liability without Fault?

Only their employees have acted wrongfully. And yet we hold these blameless employers liable
nonetheless. If we add this to the fact that most cases against non-corporate defendants feature
liability insurance in which the insurer—not the defendant himself or herself—will pay the
damages, if any, we can only conclude that virtually all tort damages are paid by a party whom no
one thinks has acted in a wrongful manner. Gary T. Schwartz, The Hidden and Fundamental
Issue of Employer Vicarious Liability, 69 S. CAL. L. REV. 1739, 1754 (1996).

5. Vicarious liability in sexual abuse cases. Professor Martha Chamallas argues that courts
apply the doctrine of vicarious liability inconsistently in sexual abuse cases:
[E]mployers are automatically liable for torts committed by their employees “in the
course and scope of their employment.” . . . In sexual abuse cases, however, the
“course and scope of employment” test has been applied much more restrictively.
Courts are far less likely to hold employers vicariously liable for sexual abuse
committed by employees, even as compared to other cases of non-sexual,
intentional torts.
Martha Chamallas, Vicarious Liability in Torts: The Sex Exception, 48 VAL. U. L. REV. 133, 136
(2013). For example, in Lisa M. v. Henry Mayo Newhall Memorial Hosp., 907 P.2d 358 (Cal.
1995), the California Supreme Court refused to hold a hospital vicariously liable when its medical
technician molested a nineteen-year-old pregnant woman during the performance an ultrasound.
The court also refused to hold a school district liable for a teacher’s molestation of a ninth grader
during an extra-curricular activity sanctioned by school. John R. v. Oakland Unified Sch. Dist.,
769 P.2d 948 (Cal. 1989).
Chamallas argues that such cases reflect a misguided notion that sexual misconduct is
unique and a tendency to fixate on the psychological state of the offender, while ignoring the
significance of situational factors. Cases such as Lisa M. and John R., Chamallas argues, frame
the sex offender as an outsider, when, in significant part, the individual offender is part of the
institution or enterprise.
Chamallas recommends a different approach to sexual abuse cases, inspired by the
Canadian Supreme Court’s decision in Bazley v. Curry, [1999] 2.S.C.R. 534 (Can. B.C.). In
Bazley, the court held liable a non-profit organization—which operated treatment facilities for
emotionally disturbed children—for its employee’s abuse of children under its care. The court
based its ruling on the finding that the abuse constituted a risk characteristic of the enterprise.
And thus, Chamallas proposes the following rule: “Vicarious liability shall be imposed if an
employer materially increases the risk of tortious action either by conferring power or authority
on its employees over vulnerable persons or by regularly placing its employees in situations of
intimate or personal contact with clients, customers, or other potential victims.” Chamallas,
supra, at 187 (emphasis in original). For a counterargument skeptical of the claim that sex cases
have been treated differently in the doctrine, see John Goldberg, When is Sexual Abuse Within the
Scope of Employment?, JOTWELL (November 21, 2014), https://perma.cc/FKY7-JA3W.

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B. Wild and Abnormally Dangerous Animals
Rhodes v. MacHugh, 361 P.3d 260 (Wash. 2015)
SIDDOWAY, C.J.
Comments to § 23 of the Restatement (Third) of Torts, which deals with strict liability
imposed on the owners of abnormally dangerous animals, observe that the common law has been
satisfied overall with the generalization that livestock are not excessively dangerous, but “[i]n the
future, courts might wish to give consideration to particular genders ... of a species that involve
danger levels uncommon for the species itself.” Restatement (Third) of Torts: Liability for
Physical and Emotional Harm § 23 cmt. e (2010) (emphasis added). In this case, Jay Rhodes asks
us to hold the owner of a ram (a male sheep) strictly liable for harm caused by the ram on account
of the ram’s gender-based dangerousness, rather than any abnormal dangerousness of which the
owner was aware.
...
FACTS AND PROCEDURAL BACKGROUND
Jay Rhodes and Rodney MacHugh are longtime friends and neighbors. Both men live in
Richland and have farmed for decades. Mr. Rhodes has raised cows, horses, and occasionally
pigs and goats, but he described the summer of 2012 as “my first excursion with sheep. And an
unfortunate one.” Mr. MacHugh has bred sheep for over 30 years. Because Mr. MacHugh’s land
is prone to flooding, Mr. Rhodes has allowed Mr. MacHugh to keep some of his livestock on Mr.
Rhodes’s property.
In the summer of 2012, Mr. MacHugh and Mr. Rhodes went to a livestock yard in
Lewiston, Idaho, where Mr. MacHugh purchased a ram to replace his existing ram . . . .The
replacement ram was eight or nine months old and weighed in the neighborhood of 150 pounds.
It showed no vicious tendencies. The men took it directly to Mr. Rhodes’s property where, for the
following month, it caused no problems. In the weeks before Mr. MacHugh put the ram in with
ewes, Mr. Rhodes described it as “real friendly. He’d come up to me several times when I was
changing water, and I’d pet him.”
On August 20, 2012, Mr. Rhodes went into his yard to turn on his sprinklers. By that
time, Mr. MacHugh had put several ewes in the pasture with the ram. Mr. Rhodes walked past
them and toward the five-foot sprinklers in the pasture. Just as he touched the valve at the top of
the sprinklers, the ram butted him from behind, knocking him to the ground. According to Mr.
Rhodes, the ram continued to “jump up in the air and then he’d hit me with his head,” knocking
him out “a couple of times,” for as much as 30 minutes. Fortunately, a neighbor who stopped by
to bring Mr. Rhodes some cantaloupes saw what was going on. . . . [S]he began throwing her
cantaloupes at the ram, which was sufficiently distracted that Mr. Rhodes was able to crawl to the
gate. She helped him out and slammed the gate on the charging ram. Mr. Rhodes, then 82 years
old, suffered a concussion, five broken ribs, and a broken sternum and shoulder. He was
hospitalized for 16 days.
Mr. Rhodes filed this action in an effort to recover for his injuries. He did not contend
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Witt & Tani, TCPI 9. Liability without Fault?

that the ram was abnormally dangerous, and he refused to accuse his friend of negligence,
testifying, “I don’t think Mr. MacHugh thought there was anything wrong” with the ram. For his
part, Mr. MacHugh admitted that he had owned as many as three “mean” rams over the years, but
that “on my place, if they’re the least bit mean, they go real quick.” He testified that he had
selected this ram because it was the “friendliest” of three that the seller had raised on a bottle after
their mother died.
Because Mr. Rhodes relied exclusively on a theory of strict liability that he asked the
court to extend to the owners of all rams, not just those known to be abnormally dangerous, the
parties presented the legal issue to the trial court on summary judgment. Mr. MacHugh’s motion
for summary judgment dismissing the claim was granted. Mr. Rhodes appeals.
ANALYSIS
The sole issue on appeal is whether summary judgment in favor of Mr. MacHugh was
proper because he is not strictly liable for harm caused by a ram he did not know to be abnormally
dangerous. . . .
For more than a century, the rule in Washington regarding liability for harm caused by a
domestic animal [defined by the Restatement (Second) of Torts as one “that is by custom devoted
to the service of mankind at the time and in the place in which it is kept.” Restatement (Second)
of Torts § 506(2) (1977)] has been:
“The owner or keeper of a domestic animal not naturally inclined to commit
mischief, while bound to exercise ordinary care to prevent injury being done by it
to another, is not liable for such injury if the animal be rightfully in the place when
the mischief is done, unless it is affirmatively shown, not only that the animal was
vicious, but that the owner or keeper had knowledge of the fact. When such scienter
exists, the owner or keeper is accountable for all the injury such animal may do,
without proof of any negligence or fault in the keeping, and regardless of his
endeavors to so keep the animal as to prevent the mischief.”
....
Washington cases are consistent with the Restatement (Second) of Torts (1977). In Arnold
v. Laird, 94 Wash.2d 867, 871, 621 P.2d 138 (1980), our Supreme Court noted that the
Restatement (Second) “recognizes two separate causes of action” against the owner of a domestic
animal that causes injury. Under section 509, strict liability applies where the animal “has known
dangerous propensities abnormal to its class.” Section 518, on the other hand, “provides that if
there are no known abnormally dangerous propensities, the owner is liable only if he is negligent
in failing to prevent the harm. The amount of care required is commensurate with the character of
the animal.”
Mr. Rhodes concedes that rams have not historically been regarded as being inherently
dangerous animals. . . . Nevertheless, relying on a comment to § 23 of the most recent
Restatement, he asks that we recognize that “[t]he dangerous propensities of rams are well-known
and strict liability should attach, and this whether the animal is ‘domestic’ or otherwise.”
The language of § 23 of the Restatement (Third) is similar to that of Restatement (Second)
§ 509 [“An owner or possessor of an animal that the owner or possessor knows or has reason to
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Witt & Tani, TCPI 9. Liability without Fault?

know has dangerous tendencies abnormal for the animal’s category is subject to strict liability for
physical harm caused by the animal if the harm ensues from that dangerous tendency.”
Restatement (Third) § 23, at 303 (2010)], yet the comments to § 23 propose a possible gender-or
breed-based modification of the general rule treating domestic animals as not excessively
dangerous. Comment e states, in part:
Overall, the common law has been satisfied with the generalization that livestock
and dogs are not excessively dangerous and has applied this generalization to all
livestock and dogs. In the future, courts might wish to give consideration to
particular genders or breeds of a species that involve danger levels uncommon for
the species itself. If so, it might be appropriate to impose strict liability, without
individualized scienter, on the owner of such an animal.
Restatement (Third) § 23 cmt. e (emphasis added). Mr. Rhodes asks us to act on this
acknowledgment and common knowledge that while ewes may be timid, rams are known to be
dangerous.
Prior versions of the Restatement have not overlooked the different temperament of male
domestic animals . . . . But historically the framework of liability for negligence has been viewed
as adequate to address gender differences, and refusing to broaden strict liability has also been
justified by policy reasons.
The Restatement (Second) recognizes the relatively dangerous propensities of male
domestic animals such as bulls, stallions, and rams but characterizes them as normal to their class.
As the comments to § 509 observe, “[T]hese animals have been kept for stud purposes from time
immemorial so that the particular danger involved in their dangerous tendencies has become a
normal incident of civilized life.” Restatement (Second) § 509 cmt. e; . . . . In other words, a ram
has not been considered “abnormally” dangerous for purposes of applying strict liability under §
509 because its dangerous propensities are “normal” for its species.
It is also for policy reasons that owners of male domestic animals have not been held to a
standard of strict liability, because often it is the very characteristics that cause the males to be
dangerous that make them useful to society. The comments to § 518 of the Restatement (Second)
observe that “[t]he high temper normal to stud animals is so inseparable from their usefulness for
breeding purposes that they are not kept at the risk of the liability stated in § 509.” Restatement
(Second) § 518 cmt. f. . . .
The law is not oblivious to the greater risk posed by male livestock used for breeding in
the context of liability for negligence, and greater precautions are typically required in light of
their characteristics. . . . As the comments to § 518 explain, “the keeper of a bull or stallion is
required to take greater precautions to confine it to the land on which it is kept and to keep it
under effective control when it is taken from the land than would be required of the keeper of a
cow or gelding.” Restatement (Second) § 518 cmt. g.
“Rules of law ... should not be changed for light or transient causes; but, when time and
events prove the need for a change, changed they must be.” Here, the utility of domestic animals
remains undiminished. Those who raise them and face the greatest exposure to relatively more
dangerous genders or breeds will be familiar with their characteristics. Third parties continue to
have recourse for an owner’s negligence, and owners are required to take greater precautions to
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confine and control animals in light of their characteristics. Mr. Rhodes’s unfortunate excursion
with Mr. MacHugh’s ram does not persuade us that the limited scope of strict liability that
Washington has historically imposed on the owners of domestic animals should be enlarged.4
Affirmed.

Note

1. Wild animals. Tort law holds possessors of wild animals to the same level of
responsibility as possessors of abnormally dangerous animals. In the Restatement formulation:
“A possessor of a wild animal is subject to liability to another for harm done by the animal to the
other, his person, land or chattels, although the possessor has exercised the utmost care to confine
the animal, or otherwise prevent it from doing harm.” RESTATEMENT (SECOND) OF TORTS §
507(1) (1977). Note that as with abnormally dangerous animals, the possessor of a wild animal is
not strictly liable for any harm that the animal causes—only “harm that results from a dangerous
propensity that is characteristic of wild animals of the particular class, or of which the possessor
knows or has reason to know.” RESTATEMENT (SECOND) OF TORTS § 507(2) (1977). Can you
imagine a concrete scenario in which this language would allow a possessor of a wild animal to
avoid being held strictly liable for an injury the animal caused?

C. Abnormally Dangerous Activities
Spano v. Perini Corp., 250 N.E.2d 31 (N.Y. 1969)
FULD, C.J.
The principal question posed on this appeal is whether a person who has sustained
property damage caused by blasting on nearby property can maintain an action for damages
without a showing that the blaster was negligent. Since 1893, when this court decided the case of
Booth v. Rome, Watertown and Ogdensburg Terminal Railroad, 140 N.Y. 267 (1893), it has been
the law of this State that proof of negligence was required unless the blast was accompanied by an
actual physical invasion of the damaged property—for example, by rocks or other material being
cast upon the premises. We are now asked to reconsider that rule.
The plaintiff Spano is the owner of a garage in Brooklyn which was wrecked by a blast
occurring on November 27, 1962. There was then in that garage, for repairs, an automobile owned
by the plaintiff Davis which he also claims was damaged by the blasting. Each of the
plaintiffs brought suit against the two defendants who, as joint venturers, were engaged in
constructing a tunnel in the vicinity pursuant to a contract with the City of New York. The two
cases were tried together, without a jury, in the Civil Court of the City of New York, New York
County, and judgments were rendered in favor of the plaintiffs. The judgments were reversed by
the Appellate Term and the Appellate Division affirmed that order, granting leave to appeal to this
court.

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It is undisputed that, on the day in question (November 27, 1962), the defendants had set
off a total of 194 sticks of dynamite at a construction site which was only 125 feet away from the
damaged premises. Although both plaintiffs alleged negligence in their complaints, no attempt
was made to show that the defendants had failed to exercise reasonable care or to take necessary
precautions when they were blasting. Instead, they chose to rely, upon the trial, solely on the
principle of absolute liability either on a tort theory or on the basis of their being third-party
beneficiaries of the defendants’ contract with the city. At the close of the plaintiff Spano’s case,
when defendants’ attorney moved to dismiss the action on the ground, among others, that no
negligence had been proved, the trial judge expressed the view that the defendants could be held
liable even though they were not shown to have been careless. The case then proceeded, with
evidence being introduced solely on the question of damages and proximate cause. Following the
trial, the court awarded damages of some $ 4,400 to Spano and of $329 to Davis.
On appeal, a divided Appellate Term reversed that judgment, declaring that it deemed
itself concluded by the established rule in this State requiring proof of negligence. . . .
In our view, the time has come for this court to make that “announcement” and declare
that one who engages in blasting must assume responsibility, and be liable without fault, for any
injury he causes to neighboring property.
The concept of absolute liability in blasting cases is hardly a novel one. The
overwhelming majority of American jurisdictions have adopted such a rule. (See PROSSER, TORTS
[2d ed.], § 59, p. 336; RESTATEMENT (THIRD) TORTS, §§ 519, 520, comment e; Ann.) Indeed, this
court itself, several years ago, noted that a change in our law would “conform to the more widely
(indeed almost universally) approved doctrine that a blaster is absolutely liable for any damages
he causes, with or without trespass.”
We need not rely solely, however, upon out-of-state decisions in order to attain our
result. In . . . Hay v. Cohoes Co., 2 N.Y. 159 . . . , for example, the defendant was engaged in
blasting an excavation for a canal and the force of the blasts caused large quantities of earth and
stones to be thrown against the plaintiff’s house, knocking down his stoop and part of his
chimney. The court held the defendant absolutely liable for the damage caused, stating:
It is an elementary principle in reference to private rights, that every individual is
entitled to the undisturbed possession and lawful enjoyment of his own property.
The mode of enjoyment is necessarily limited by the rights of others—otherwise it
might be made destructive of their rights altogether. Hence the maxim sic utere tuo,
&c. The defendants had the right to dig the canal. The plaintiff the right to the
undisturbed possession of his property. If these rights conflict, the former must
yield to the latter, as the more important of the two, since, upon grounds of public
policy, it is better that one man should surrender a particular use of his land, than
that another should be deprived of the beneficial use of his property altogether,
which might be the consequence if the privilege of the former should be wholly
unrestricted. The case before us illustrates this principle. For if the defendants in
excavating their canal, in itself a lawful use of their land, could, in the manner
mentioned by the witnesses, demolish the stoop of the plaintiff with impunity, they
might, for the same purpose, on the exercise of reasonable care, demolish his house,
and thus deprive him of all use of his property.
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Although the court in Booth drew a distinction between a situation—such as was
presented in the Hay case—where there was “a physical invasion” of, or trespass on, the
plaintiff’s property and one in which the damage was caused by “setting the air in motion, or in
some other unexplained way” (140 N. Y., at 279, 280), it is clear that the court, in the earlier
cases, was not concerned with the particular manner by which the damage was caused but by the
simple fact that any explosion in a built-up area was likely to cause damage. Thus, in
Heeg v. Licht, 80 N. Y. 579 . . . , the court held that there should be absolute liability where the
damage was caused by the accidental explosion of stored gunpowder, even in the absence of a
physical trespass:
“The defendant had erected a building and stored materials therein, which from their
character were liable to and actually did explode, causing injury to the plaintiff. The
fact that the explosion took place tends to establish that the magazine was dangerous
and liable to cause damage to the property of persons residing in the vicinity. . . .
The fact that the magazine was liable to such a contingency, which could not be
guarded against or averted by the greatest degree of care and vigilance, evinces its
dangerous character, . . . In such a case, the rule which exonerates a party engaged
in a lawful business, when free from negligence, has no application.”
Such reasoning should, we venture, have led to the conclusion that the intentional setting
off of explosives—that is, blasting—in an area in which it was likely to cause harm to
neighboring property similarly results in absolute liability. However, the court in the Booth case
rejected such an extension of the rule for the reason that “[to] exclude the defendant from blasting
to adapt its lot to the contemplated uses, at the instance of the plaintiff, would not be a
compromise between conflicting rights, but an extinguishment of the right of the one for the
benefit of the other.” 140 N. Y., at 281. The court expanded on this by stating, “This sacrifice, we
think, the law does not exact. Public policy is promoted by the building up of towns and cities
and the improvement of property. Any unnecessary restraint on freedom of action of a property
owner hinders this.”
This rationale cannot withstand analysis. The plaintiff in Booth was not seeking, as the
court implied, to “exclude the defendant from blasting” and thus prevent desirable improvements
to the latter’s property. Rather, he was merely seeking compensation for the damage which was
inflicted upon his own property as a result of that blasting. The question, in other words, was
not whether it was lawful or proper to engage in blasting but who should bear the cost of any
resulting damage—the person who engaged in the dangerous activity or the innocent neighbor
injured thereby. Viewed in such a light, it clearly appears that Booth was wrongly decided and
should be forthrightly overruled.
In more recent cases, our court has already gone far toward mitigating the harsh effect of
the rule laid down in the Booth case. Thus, we have held that negligence can properly be inferred
from the mere fact that a blast has caused extensive damage, even where the plaintiff is unable to
show “the method of blasting or the strength of the charges or the character of the soil or rock.” . .
. But, even under this liberal interpretation . . . , it would still remain possible for a defendant who
engages in blasting operations—which he realizes are likely to cause injury—to avoid liability by
showing that he exercised reasonable care. Since blasting involves a substantial risk of harm no
matter the degree of care exercised, we perceive no reason for ever permitting a person who

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engages in such an activity to impose this risk upon nearby persons or property without assuming
responsibility therefor.
. . . The principle thrust of [defendants’] argument is directed not to the requisite standard
of care to be used but, rather, to . . . the proof adduced on the issue of causation.
. . . Although the evidence adduced by the plaintiffs on th[e] question [of causation] was
entirely circumstantial, it may not be said that it was insufficient as a matter of law. The
plaintiffs’ principal witness was a contractor who had leased a portion of the premises from
Spano. It was his testimony that there was no damage on or to the premises prior to November 27;
that he had heard an explosion at about noon on that day while he was working some three blocks
away and that, when he returned a few hours later, the building “was cracked in the wall . . . the
window broke, and the cement floor all pop up.” In addition, an insurance adjuster, an expert
with wide experience in handling explosion claims, who inspected the damage to Davis’s car,
testified that the damage was evidently “caused by a concussion of one form or another.” The
defendants’ expert attributed the damage to another cause—poor maintenance and building
deterioration—but, admittedly, the defendants were engaged in blasting operations in the area at
the time and, as the Appellate Term expressly found, the inference that this was the cause of the
damage could properly be drawn. Even though the proof was not insufficient as a matter of law,
however, the Appellate Division affirmed on the sole ground that no negligence had been proven
against the defendants and thus had no occasion to consider the question whether, in fact, the
blasting caused the damage. That being so, we must remit the case to the Appellate Division so
that it may pass upon the weight of the evidence. . . .
The order appealed from should be reversed, with costs, and the matter remitted to the
Appellate Division for further proceedings in accordance with this opinion.
Order reversed. . . .

Notes

1. What is an abnormally dangerous activity? As the Spano court indicates, the blasting rule
has been extended in the Restatement to include abnormally dangerous activities more generally.
The standard view is that abnormally dangerous activities include explosives and “high-energy
activities.” See DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, DOBBS’ LAW OF TORTs §
443 (2d ed. 2014). Courts have ruled that the category encompasses gasoline explosions, Nat’l
Steel Serv. Ctr, Inc. v. Gibbons, 319 N.W.2d 269 (Iowa 1982), and fireworks injuries, Klein v.
Pyrodyne Corp., 810 P.2d 917 (Wash. 1991). Courts, however, do not consider gasoline and
related fuels to be abnormally dangerous when they are stored, McLane v. Nw. Nat’l Gas Co., 467
P.2d 635 (Or. 1970), or used as fuels, Allison v. Ideal Laundry & Cleaners, 55 S.E.2d 281 (S.C.
1949). Courts similarly do not consider electricity to be abnormally dangerous when it is
transported over uninsulated or insulated powerlines. Kent v. Gulf States Utils. Co., 418 So. 2d
493 (La. 1982).
Courts have held that using toxic materials to kill pests may be an abnormally dangerous
activity. Luthringer v. Moore, 190 P.2d 1 (Cal. 1948). The same is true with using toxic
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substances to protect crops. See Loe v. Lenhardt, 362 P.2d 312 (Or. 1961). At least one court has
held that storing radioactive material may be considered an abnormally dangerous activity. See In
re Hanford Nuclear Reservation Litigation, 534 F.3d 986 (9th Cir. 2008) (amended opinion).
A number of recent academic articles have argued that hydraulic fracturing (or “fracking”)
should be considered an abnormally dangerous activity. See, e.g., Leonard S. Rubin, Frack to the
Future: Considering a Strict Liability Standard for Hydraulic Fracturing Activities, 3 GEO.
WASH. J. ENERGY & ENVIRO. L. 117 (2012). Some have blamed fracking for explosions,
groundwater contamination, and even flammable tap water. See, e.g., Abrahm Lustgarten, Does
Natural Gas Drilling Make Water Burn?, SCI. AM., Apr. 27, 2009. The courts have been less
enthusiastic. Kansas has explicitly refused to categorize fracking as abnormally dangerous,
Williams v. Amoco Prod. Co., 734 P.2d 1113 (Kan. 1987). Wyoming has held all oil and gas
drilling to be abnormally dangerous, Hull v. Chevron, U.S.A., Inc., 812 F.2d 584, 589 (10th Cir.
1987). But as of the summer of 2017, no state had applied the doctrine to fracking in particular.

2. The Restatements. Both the Restatement (Second) and (Third) of Torts impose strict
liability on abnormally dangerous activities. The two Restatements, however, have different
definitions of “abnormally dangerous activities.” The Restatement (Third) classifies an activity as
abnormally dangerous if “(1) the activity creates a foreseeable and highly significant risk of
physical harm even when reasonable care is exercised by all actors; and (2) the activity is not one
of common usage.” RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM §
20(b)(1)-(2) (2010). By contrast, the Restatement (Second) laid out a series of factors to be
considered in classifying an activity as abnormally dangerous. Those factors include: (a) a “high
degree of risk of some harm” to others; (b) a likelihood that such harm would be great; (c) an
“inability to eliminate the risk by the exercise of reasonable care”; (d) the “extent to which the
activity is not a matter of common usage”; (e) the “inappropriateness” of the setting in which the
activity takes place; and (f) the extent to which the activity’s dangerousness outweighs its “value
to the community.” RESTATEMENT (SECOND) OF TORTS § 520 (1977).

3. The case of the cannibal minks. In 1942, the Utah Supreme Court decided Madsen v. East
Jordan Irrigation Co., 125 P.2d 794 (Utah 1942). The case arose when the defendant, in repairing
its canal, “blasted with explosives, causing vibrations and noises which frightened the mother
mink and caused 108 of them to kill 230 of their ‘kittens.’” The plaintiff sued for damages,
arguing that the defendant was strictly liable for the lost mink kittens. The court rejected the
claim and explained that even though Utah law did not require any concussive effect to invoke the
doctrine of strict liability for blasting, still a blaster was not liable for all damages caused by its
activities:
[H]e who fires explosives is not liable for every occurrence following the explosion
which has a semblance of connection to it. Jake’s horse might become so excited
that he would run next door and kick a few ribs out of Cy’s jersey cow, but is such
a thing to be anticipated from an explosion? Whether the cases are concussion or
nonconcussion, the results chargeable to the nonnegligent user of explosives are
those things ordinarily resulting from an explosion. Shock, air vibrations, thrown
missiles are all illustrative of the anticipated results of explosives; they are physical
as distinguished from mental in character. The famous Squib case does not mitigate
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what has been said in the preceding lines. That was a case where the mental reaction
was to be anticipated as an instinctive matter of self-preservation. In the instant
case, the killing of their kittens was not an act of self-preservation on the part of the
mother mink but a peculiarity of disposition which was not within the realm of
matters to be anticipated. Had a squib been thrown and suddenly picked up by a
dog, in fun, and carried near another, it is ventured that we would not have had a
famous Squib case, as such a result would not have been within the realm of
anticipation.
Madsen, 125 P.2d at 795. Does the question of the relative risk reduction capacity of the parties
help to explain the outcome in Madsen? If Madsen is correctly decided, is Spano? Isn’t the
Spano v. Perini Corp. garage the equivalent of the cannibal mink in Madsen? When a plaintiff’s
property is damaged by percussive force and vibrations is it as likely, as it is in cases of physical
impact, that the defendant blaster was better positioned to reduce the risks than the plaintiff
property owner?

4. A notice principle. Contrast Madsen with Wadsworth v. Marshall, 34 A. 30 (Me. 1896).
In Wadsworth, a blast from the defendant’s mine frightened the plaintiff’s horse, thereby injuring
the plaintiff. A state statute required that “persons engaged in blasting . . . give . . . notice” to
parties that were in close proximity to the blasting, but the defendant failed to do so. Because the
defendant failed to abide by the statute, the court held the defendant “liable for the consequences
of his negligence, if no negligence of the plaintiff contributed to the injury. If it did, plaintiff
cannot recover. The established doctrine of contributory negligence, as a defense, applies to this
class of actions.” Id. at 32.

Indiana Harbor Belt R.R. v. American Cyanamid Co., 916 F.2d 1174 (7th Cir. 1990)
POSNER, J.
American Cyanamid Company, the defendant in this diversity tort suit governed by
Illinois law, is a major manufacturer of chemicals, including acrylonitrile, a chemical used in
large quantities in making acrylic fibers, plastics, dyes, pharmaceutical chemicals, and other
intermediate and final goods. On January 2, 1979, at its manufacturing plant in Louisiana,
Cyanamid loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car that it had leased
from the North American Car Corporation. The next day, a train of the Missouri Pacific Railroad
picked up the car at Cyanamid’s siding. The car’s ultimate destination was a Cyanamid plant in
New Jersey served by Conrail rather than by Missouri Pacific. The Missouri Pacific train carried
the car north to the Blue Island railroad yard of Indiana Harbor Belt Railroad, the plaintiff in this
case, a small switching line that has a contract with Conrail to switch cars from other lines to
Conrail, in this case for travel east. The Blue Island yard is in the Village of Riverdale, which is
just south of Chicago and part of the Chicago metropolitan area.
The car arrived in the Blue Island yard on the morning of January 9, 1979. Several hours
after it arrived, employees of the switching line noticed fluid gushing from the bottom outlet of
the car. The lid on the outlet was broken. After two hours, the line’s supervisor of equipment was
able to stop the leak by closing a shut-off valve controlled from the top of the car. No one was
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sure at the time just how much of the contents of the car had leaked, but it was feared that all
20,000 gallons had, and since acrylonitrile is flammable at a temperature of 30 degrees Fahrenheit
or above, highly toxic, and possibly carcinogenic . . . the local authorities ordered the homes near
the yard evacuated. The evacuation lasted only a few hours, until the car was moved to a remote
part of the yard and it was discovered that only about a quarter of the acrylonitrile had leaked.
Concerned nevertheless that there had been some contamination of soil and water, the Illinois
Department of Environmental Protection ordered the switching line to take decontamination
measures that cost the line $981,022.75, which it sought to recover by this suit.
One count of the two-count complaint charges Cyanamid with having maintained the
leased tank car negligently. The other count asserts that the transportation of acrylonitrile in bulk
through the Chicago metropolitan area is an abnormally dangerous activity, for the consequences
of which the shipper (Cyanamid) is strictly liable to the switching line . . . . After the district judge
denied Cyanamid’s motion to dismiss the strict liability count . . . the switching line moved for
summary judgment on that count— and won. . . . [The district judge then awarded the switching
line plaintiff $981.022.75 in damages and dismissed the plaintiff’s negligence claim with
prejudice. Cyanamid appealed the entry of judgment on the abnormally dangerous strict liability
claim and the switching line cross-appealed, challenging the dismissal of the negligence count.]
The question whether the shipper of a hazardous chemical by rail should be strictly liable
for the consequences of a spill or other accident to the shipment en route is a novel one in Illinois .
...
The key provision is section 520 [of the Restatement (Second) of Torts], which sets forth
six factors to be considered in deciding whether an activity is abnormally dangerous and the actor
therefore strictly liable.
The roots of section 520 are in nineteenth-century cases. The most famous one is Rylands
v. Fletcher, . . . but a more illuminating one in the present context is Guille v. Swan. . . . In Guille,
a man took off in a hot-air balloon and landed, without intending to, in a vegetable garden in New
York City. A crowd that had been anxiously watching his involuntary descent trampled the
vegetables in their endeavor to rescue him when he landed. The owner of the garden sued the
balloonist for the resulting damage, and won. Yet the balloonist had not been careless. In the
then-state of ballooning it was impossible to make a pinpoint landing.
Guille is a paradigmatic case for strict liability. (a) The risk (probability) of harm was
great, and (b) the harm that would ensue if the risk materialized could be, although luckily was
not, great (the balloonist could have crashed into the crowd rather than into the vegetables). The
confluence of these two factors established the urgency of seeking to prevent such accidents. (c)
Yet such accidents could not be prevented by the exercise of due care; the technology of care in
ballooning was insufficiently developed. (d) The activity was not a matter of common usage, so
there was no presumption that it was a highly valuable activity despite its unavoidable riskiness.
(e) The activity was inappropriate to the place in which it took place—densely populated New
York City. The risk of serious harm to others (other than the balloonist himself, that is) could
have been reduced by shifting the activity to the sparsely inhabited areas that surrounded the city
in those days. (f) Reinforcing (d), the value to the community of the activity of recreational
ballooning did not appear to be great enough to offset its unavoidable risks.

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These are, of course, the six factors in section 520. They are related to each other in that
each is a different facet of a common quest for a proper legal regime to govern accidents that
negligence liability cannot adequately control. The interrelations might be more perspicuous if
the six factors were reordered. One might for example start with (c), inability to eliminate the risk
of accident by the exercise of due care. . . . The baseline common law regime of tort liability is
negligence. When it is a workable regime, because the hazards of an activity can be avoided by
being careful (which is to say, nonnegligent), there is no need to switch to strict liability.
Sometimes, however, a particular type of accident cannot be prevented by taking care but can be
avoided, or its consequences minimized, by shifting the activity in which the accident occurs to
another locale, where the risk or harm of an accident will be less ((e)), or by reducing the scale of
the activity in order to minimize the number of accidents caused by it ((f)). . . . Shavell, Strict
Liability versus Negligence, 9 J. LEGAL STUD. 1 (1980). By making the actor strictly liable—by
denying him in other words an excuse based on his inability to avoid accidents by being more
careful—we give him an incentive, missing in a negligence regime, to experiment with methods
of preventing accidents that involve not greater exertions of care, assumed to be futile, but instead
relocating, changing, or reducing (perhaps to the vanishing point) the activity giving rise to the
accident. . . . The greater the risk of an accident ((a)) and the costs of an accident if one occurs
((b)), the more we want the actor to consider the possibility of making accident-reducing activity
changes; the stronger, therefore, is the case for strict liability. Finally, if an activity is extremely
common ((d)), like driving an automobile, it is unlikely either that its hazards are perceived as
great or that there is no technology of care available to minimize them; so the case for strict
liability is weakened.
The largest class of cases in which strict liability has been imposed under the standard
codified in the Second Restatement of Torts involves the use of dynamite and other explosives for
demolition in residential or urban areas. RESTATEMENT, supra, § 519, cmt. d. . . . Explosives are
dangerous even when handled carefully, and we therefore want blasters to choose the location of
the activity with care and also to explore the feasibility of using safer substitutes (such as a
wrecking ball), as well as to be careful in the blasting itself. Blasting is not a commonplace
activity like driving a car, or so superior to substitute methods of demolition that the imposition of
liability is unlikely to have any effect except to raise the activity’s costs.
Against this background we turn to the particulars of acrylonitrile. [W]e have been given
no reason . . . for believing that a negligence regime is not perfectly adequate to remedy and deter,
at reasonable cost, the accidental spillage of acrylonitrile from rail cars. . . . [A]lthough
acrylonitrile is flammable even at relatively low temperatures, and toxic, it is not so corrosive or
otherwise destructive that it will eat through or otherwise damage or weaken a tank car’s valves
although they are maintained with due (which essentially means, with average) care. No one
suggests, therefore, that the leak in this case was caused by the inherent properties of
acrylonitrile. It was caused by carelessness—whether that of the North American Car Corporation
in failing to maintain or inspect the car properly, or that of Cyanamid in failing to maintain or
inspect it, or that of the Missouri Pacific when it had custody of the car, or that of the switching
line itself in failing to notice the ruptured lid, or some combination of these possible failures of
care. Accidents that are due to a lack of care can be prevented by taking care; and when a lack of
care can . . . be shown in court, such accidents are adequately deterred by the threat of liability for
negligence.
It is true that the district court purported to find as a fact that there is an inevitable risk of
derailment or other calamity in transporting “large quantities of anything.” . . . This is not a
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finding of fact, but a truism: anything can happen. The question is, how likely is this type of
accident if the actor uses due care? For all that appears from the record of the case or any other
sources of information that we have found, if a tank car is carefully maintained the danger of a
spill of acrylonitrile is negligible. If this is right, there is no compelling reason to move to a
regime of strict liability, especially one that might embrace all other hazardous materials shipped
by rail as well. This also means, however, that the amici curiae who have filed briefs in support
of Cyanamid cry wolf in predicting “devastating” effects on the chemical industry if the district
court’s decision is affirmed. If the vast majority of chemical spills by railroads are preventable by
due care, the imposition of strict liability should cause only a slight, not as they argue a
substantial, rise in liability insurance rates, because the incremental liability should be slight. The
amici have momentarily lost sight of the fact that the feasibility of avoiding accidents simply by
being careful is an argument against strict liability. . . .
The district judge and the plaintiff’s lawyer make much of the fact that the spill occurred
in a densely inhabited metropolitan area. Only 4,000 gallons spilled; what if all 20,000 had done
so? Isn’t the risk that this might happen even if everybody were careful sufficient to warrant
giving the shipper an incentive to explore alternative routes? Strict liability would supply that
incentive. But this argument overlooks the fact that, like other transportation networks, the
railroad network is a hub-and-spoke system. And the hubs are in metropolitan areas. Chicago is
one of the nation’s largest railroad hubs. In 1983, the latest date for which we have figures,
Chicago’s railroad yards handled the third highest volume of hazardous-material shipments in the
nation. East St. Louis, which is also in Illinois, handled the second highest volume. . . . With most
hazardous chemicals (by volume of shipments) being at least as hazardous as acrylonitrile, it is
unlikely—and certainly not demonstrated by the plaintiff—that they can be rerouted around all
the metropolitan areas in the country, except at prohibitive cost. Even if it were feasible to reroute
them one would hardly expect shippers, as distinct from carriers, to be the firms best situated to
do the rerouting. Granted, the usual view is that common carriers are not subject to strict liability
for the carriage of materials that make the transportation of them abnormally dangerous, because a
common carrier cannot refuse service to a shipper of a lawful commodity. RESTATEMENT, supra, §
521. Two courts, however, have rejected the common carrier exception. . . . If it were rejected in
Illinois, this would weaken still further the case for imposing strict liability on shippers whose
goods pass through the densely inhabited portions of the state.
The difference between shipper and carrier points to a deep flaw in the plaintiff’s case.
Unlike Guille . . . and unlike the storage cases, beginning with Rylands itself, here it is not the
actors—that is, the transporters of acrylonitrile and other chemicals—but the manufacturers, who
are sought to be held strictly liable. . . . A shipper can . . . designate the route of his shipment if he
likes, . . . but is it realistic to suppose that shippers will become students of railroading in order to
lay out the safest route by which to ship their goods? Anyway, rerouting is no panacea. Often it
will increase the length of the journey, or compel the use of poorer track, or both. When this
happens, the probability of an accident is increased, even if the consequences of an accident if one
occurs are reduced; so the expected accident cost, being the product of the probability of an
accident and the harm if the accident occurs, may rise. . . . It is easy to see how the accident in this
case might have been prevented at reasonable cost by greater care on the part of those who
handled the tank car of acrylonitrile. It is difficult to see how it might have been prevented at
reasonable cost by a change in the activity of transporting the chemical. This is therefore not an
apt case for strict liability. . . .

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[T]he plaintiff overlooks the fact that ultrahazardousness or abnormal dangerousness is, in
the contemplation of the law at least, a property not of substances, but of activities: not of
acrylonitrile, but of the transportation of acrylonitrile by rail through populated areas. . . . Natural
gas is both flammable and poisonous, but the operation of a natural gas well is not an
ultrahazardous activity. . . . [T]he manufacturer of a product is not considered to be engaged in an
abnormally dangerous activity merely because the product becomes dangerous when it is handled
or used in some way after it leaves his premises, even if the danger is foreseeable. . . . The
plaintiff does not suggest that Cyanamid should switch to making some less hazardous chemical
that would substitute for acrylonitrile in the textiles and other goods in which acrylonitrile is used.
Were this a feasible method of accident avoidance, there would be an argument for making
manufacturers strictly liable for accidents that occur during the shipment of their products (how
strong an argument we need not decide). Apparently it is not a feasible method.
The relevant activity is transportation, not manufacturing and shipping. This essential
distinction the plaintiff ignores. But even if the plaintiff is treated as a transporter and not merely
a shipper, it has not shown that the transportation of acrylonitrile in bulk by rail through populated
areas is so hazardous an activity, even when due care is exercised, that the law should seek to
create—perhaps quixotically—incentives to relocate the activity to nonpopulated areas, or to
reduce the scale of the activity, or to switch to transporting acrylonitrile by road rather than by
rail. . . . It is no more realistic to propose to reroute the shipment of all hazardous materials around
Chicago than it is to propose the relocation of homes adjacent to the Blue Island switching yard to
more distant suburbs. It may be less realistic. Brutal though it may seem to say it, the
inappropriate use to which land is being put in the Blue Island yard and neighborhood may be, not
the transportation of hazardous chemicals, but residential living. The analogy is to building your
home between the runways at O’Hare.
The briefs hew closely to the Restatement, whose approach to the issue of strict liability is
mainly allocative rather than distributive. By this we mean that the emphasis is on picking a
liability regime (negligence or strict liability) that will control the particular class of accidents in
question most effectively, rather than on finding the deepest pocket and placing liability there. At
argument, however, the plaintiff’s lawyer invoked distributive considerations by pointing out that
Cyanamid is a huge firm and the Indiana Harbor Belt Railroad a fifty-mile-long switching line
that almost went broke in the winter of 1979, when the accident occurred. Well, so what? A
corporation is not a living person but a set of contracts the terms of which determine who will
bear the brunt of liability. Tracing the incidence of a cost is a complex undertaking which the
plaintiff sensibly has made no effort to assume, since its legal relevance would be dubious. We
add only that however small the plaintiff may be, it has mighty parents: it is a jointly owned
subsidiary of Conrail and the Soo line. . . .
The judgment is reversed . . . and the case remanded for further proceedings, consistent
with this opinion, on the plaintiff’s claim for negligence.
Reversed and remanded, with directions.

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Notes

1. Commentary on Indiana Harbor Belt Railroad. A number of scholars have weighed in on
Judge Posner’s decision. According to Professor David Rosenberg, Judge Posner took an
unnecessarily narrow view of strict liability’s potential benefits. Instead of recognizing that strict
liability could “reduce the frequency and amount of risky activity,” Judge Posner only focused on
strict liability’s ability to end dangerous activities, thus “dismissing strict liability’s potential
benefits.” David Rosenberg, The Judicial Posner on Negligence Versus Strict Liability: Indiana
Harbor Belt Railroad Co. v. American Cyanamid Co., 120 HARV. L. REV. 1210, 1216 (2007).
According to Professor Alan Sykes, Judge Posner could have held that the appellant,
Indiana Harbor Belt Railroad, assumed the risk by accepting shipments from the appellee,
American Cyanamid Company. Alan O. Sykes, Strict Liability Versus Negligence in Indiana
Harbor, 74 U. CHI. L. REV. 1911, 1928-29 (2007). According to the Restatement (Second) of
Torts, assumption of risk is a defense against liability arising from abnormally dangerous
activities. RESTATEMENT (SECOND) OF TORTS § 523 (1977). According to Professor Sykes, such
an approach would have been “a simpler way to dispose of the case than the questionable analysis
of the Restatement factors to which Judge Posner devoted most of his opinion.” Id. at 1929.
According to Professor Klass, Indiana Harbor Belt Railroad establishes an
insurmountable standard for plaintiffs pleading strict liability in the Seventh Circuit:
By [Indiana Harbor Belt Railroad], the Seventh Circuit . . . set out a very narrow
role for strict liability in modern tort law—one that puts a significant burden on
plaintiffs to bring in statistical, historical, and technical expert evidence to
essentially prove an impossible hypothetical: that no amount of care under any
circumstances would allow the particular activity to be performed safely.
Alexandra B. Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law
Strict Liability Environmental Claims, 39 WAKE FOREST L. REV. 903, 960 (2004).
2. The “shale revolution.” The transformation in the American natural gas industry and the
boom in the oil and gas business in places like North Dakota has arguably made Indiana Harbor
Belt Railroad’s holding more significant than ever. Rail shipments of oil are steadily increasing.
Moreover, oil companies prefer shipping by rail to shipping via pipeline because pipeline
construction is more capital-intensive and controversial.
The increase in rail shipping, however, has led to a spate of accidents. In July 2013, a
train carrying North Dakota oil through Quebec derailed and exploded, killing 47 people and
destroying virtually an entire small town. In November 2013, a train carrying crude oil derailed in
Alabama. A month later, a train carrying crude oil collided with a derailed train carrying grain,
forcing the evacuation of Casselton, North Dakota. Although no one was hurt in the explosion,
experts believe that the explosion was relatively harmless only because of luck; had the train
exploded near a “more populated town,” people would have been injured. In January and
February 2014, two derailments took place in Pennsylvania, one in the remote western part of the
state, the other in densely populated Philadelphia. At the end of April 2014, an oil train derailed
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and burst into flames near Lynchburg, Virginia, spilling 30,000 gallons of crude oil into the James
River.
The U.S. Department of Transportation has called the transporting of crude oil by rail “an
imminent hazard” to the public. Jad Mouwad, U.S. issues Safety Alert for Oil Trains, N.Y. TIMES,
May 7, 2014. According to the Association of American Railroads, however, “99.9977% of rail
hazmat shipments . . . reach their destination without a spill.” In the last decade, the Association
contends, “pipelines have spilled 474,441 barrels of oil,” but rail cars have only spilled 2,268
barrels of oil. Bryan Walsh, North Dakota Derailment Shows Dark Side of America’s Oil Boom,
TIME, Dec. 31, 2013, available at https://perma.cc/5Y5C-LQPK.
Should an increase in shipments of dangerous chemicals on the nation’s railroads change
the way we think about Judge Posner’s Indiana Harbor Belt Railroad opinion?

D. Nuisance
Nuisance is one of the most amorphous and protean areas of the law of torts. Classically,
the common law divides up the law of nuisance into two categories: private and public. Private
nuisances are unreasonable interferences with the use and enjoyment of land. Public nuisances
are unreasonable interferences with a right of the general public. Both doctrines rely heavily on
conceptions of what counts as reasonable under the circumstances. In this sense, both doctrines
share a lot in common with the law of negligence. But as we shall see, both doctrines also contain
significant domains of strict or ostensibly strict liability.

1. Private Nuisance
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., 114 So. 2d 357 (Fla. App. 1959)
PER CURIAM.
This is an interlocutory appeal from an order temporarily enjoining the appellants from
continuing with the construction of a fourteen-story addition to the Fontainebleau Hotel, owned
and operated by the appellants. Appellee, plaintiff below, owns the Eden Roc Hotel, which was
constructed in 1955, about a year after the Fontainebleau, and adjoins the Fontainebleau on the
north. Both are luxury hotels, facing the Atlantic Ocean. The proposed addition to the
Fontainebleau is being constructed twenty feet from its north property line, 130 feet from the
mean high water mark of the Atlantic Ocean, and 76 feet 8 inches from the ocean bulkhead line.
The 14-story tower will extend 160 feet above grade in height and is 416 feet long from east to
west. During the winter months, from around two o’clock in the afternoon for the remainder of
the day, the shadow of the addition will extend over the cabana, swimming pool, and sunbathing
areas of the Eden Roc, which are located in the southern portion of its property.
In this action, plaintiff-appellee sought to enjoin the defendants-appellants from
proceeding with the construction of the addition to the Fontainebleau (it appears to have been
roughly eight stories high at the time suit was filed), alleging that the construction would interfere
with the light and air on the beach in front of the Eden Roc and cast a shadow of such size as to
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render the beach wholly unfitted for the use and enjoyment of its guests, to the irreparable injury
of the plaintiff; [and] further, that the construction of such addition on the north side of
defendants’ property, rather than the south side, was actuated by malice and ill will on the part of
the defendants’ president toward the plaintiff’s president . . . . It was also alleged that the
construction would interfere with the easements of light and air enjoyed by plaintiff and its
predecessors in title for more than twenty years [which is the length of Florida’s rule of property
rights by so-called “adverse possession,” or possession by claim of right]. . . .
The chancellor heard considerable testimony on the issues made by the complaint and the
answer and, as noted, entered a temporary injunction restraining the defendants from continuing
with the construction of the addition. His reason for so doing was stated by him . . . as follows:
The ruling is not based on any alleged presumptive title nor prescriptive right of the
plaintiff to light and air . . . . It is not based on any zoning ordinance nor on any
provision of the building code of the City of Miami Beach . . . . It is based solely on
the proposition that no one has a right to use his property to the injury of another.
In this case it is clear from the evidence that the proposed use by the Fontainebleau
will materially damage the Eden Roc. There is evidence indicating that the
construction of the proposed annex by the Fontainebleau is malicious or deliberate
for the purpose of injuring the Eden Roc, but it is scarcely sufficient, standing alone,
to afford a basis for equitable relief.
This is indeed a novel application of the maxim sic utere tuo ut alienum non laedas. This
maxim does not mean that one must never use his own property in such a way as to do any injury
to his neighbor. . . . It means only that one must use his property so as not to injure the lawful
rights of another. . . .
No American decision has been cited, and independent research has revealed none, in
which it has been held that—in the absence of some contractual or statutory obligation—a
landowner has a legal right to the free flow of light and air across the adjoining land of his
neighbor. Even at common law, the landowner had no legal right, in the absence of an easement
or uninterrupted use and enjoyment for a period of 20 years, to unobstructed light and air from the
adjoining land. . . . And the English doctrine of “ancient lights” has been unanimously repudiated
in this country. . . .
There being, then, no legal right to the free flow of light and air from the adjoining land, it
is universally held that where a structure serves a useful and beneficial purpose, it does not give
rise to a cause of action, either for damages or for an injunction under the maxim sic utere tuo ut
alienum non laedas, even though it causes injury to another by cutting off the light and air and
interfering with the view that would otherwise be available over adjoining land in its natural state,
regardless of the fact that the structure may have been erected partly for spite. . . .
We see no reason for departing from this universal rule. If, as contended on behalf of
plaintiff, public policy demands that a landowner in the Miami Beach area refrain from
constructing buildings on his premises that will cast a shadow on the adjoining premises, an
amendment of its comprehensive planning and zoning ordinance, applicable to the public as a
whole, is the means by which such purpose should be achieved. . . . But to change the universal
rule—and the custom followed in this state since its inception—that adjoining landowners have an
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equal right under the law to build to the line of their respective tracts and to such a height as is
desired by them (in in absence, of course, of building restrictions or regulations) amounts, in our
opinion, to judicial legislation. . . .
Since it affirmatively appears that the plaintiff has not established a cause of action
against the defendants by reason of the structure here in question, the order granting a temporary
injunction should be and it is hereby reversed with directions to dismiss the complaint.
Reversed with directions.

Notes

1. The doctrine of ancient lights. According to William Blackstone, the ancient lights
doctrine prohibits one from “erect[ing] a house or other building . . . [that] obstructs [others’]
ancient lights and windows.” 3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 216-17. In England, the ancient lights doctrine enabled landowners to enforce their
right to light by bringing a nuisance claim against alleged tortfeasors.
In contrast to English courts, American courts have refused to apply the doctrine of
ancient lights. Why has American jurisprudence diverged from English jurisprudence?
According to one court, American judges have rejected the ancient lights doctrine to encourage
economic development. See Parker v. Foote, 19 Wend. 309, 318 (N.Y. Sup. Ct. 1838) (noting
that the doctrine could not “be applied in growing cities and villages of this country without
working the most mischievous consequences”); see also Klein v. Gehrung, 25 Tex. Supp. 232,
238 (1860) (“The doctrine of ancient lights is not much relished in this country, owing to the rapid
changes and improvements in our cities and villages.”).

2. A malice exception? Although American courts have repudiated the doctrine of ancient
lights, malice is one of the few exceptions that some courts recognize to the ancient lights doctrine
in the United States. Daniel B. Kelly, Strategic Spillovers, 111 COLUM. L. REV. 1641, 1667-68
(2011). Thus, courts regularly prohibit a defendant from building a “spite wall” or “spite fence” if
the “structure interferes with a neighbor’s access to light, air, or a view if the [defendant’s]
motivation is . . . malicious.” Id. at 1668. Courts that recognize the malice rule typically require
plaintiffs to show that malice was the sole, if not predominant, motivation for the defendants’
actions. Wilson v. Handley, 119 Cal. Rptr. 2d 263 (Ct. App. 2002).
Why does the Florida court in the Fontainebleau case reject the malice rule and permit the
spite wall?

3. The epic battle between the Fontainebleau and the Eden Roc. The spite wall in
Fontainebleau, pictured below, was built by the angered owner of the Fontainebleau Hotel when
his business partner defected to a competitor and built a new hotel—the Eden Roc—directly to his
north. Both hotels aimed to set new standards for luxury in the Miami hotel trade. Leading
celebrities of the 1950s, including Elizabeth Taylor and Lucille Ball, appeared regularly at the
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Eden Roc. Frank Sinatra filmed movies at the Fontainebleau and spent long stays there in the
1960s.
In the image below, the curved building and accompanying S-shaped beach structure form
the original Fontainebleau. The white structure in the far lower right-hand corner is the Eden Roc
Hotel. The spite wall forms the northern face of the long tower running east to west along the
northern property line of the Fontainebleau. The shadow cast on the Eden Roc pool area was
especially pronounced in the popular winter months.

Source: Florida State Photographic Collection, Florida Memory, https://perma.cc/NF2T-VYCE.

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Here is another image, which makes the effects of the wall on the Eden Roc pool especially clear:

Source: Florida State Photographic Collection, Florida Memory, https://perma.cc/9PJP-4NB6.

After losing in its litigation effort, the Eden Roc made renovations to lessen the effects of
the spite wall. In the summer of 1960, the Eden Roc built a new pool area on a raised platform 20
feet off the ground on the far northeastern corner of its property so as to minimize the shadow cast
during the winter height of the season. The sun, announced the Miami News, would once again
“shine on the Eden Roc the year around.” Herb Kelly, Eden Roc to Start on Pool, MIAMI NEWS,
June 28, 1960, at 28. Today, the spite wall no longer blocks sunlight at the Eden Roc Hotel’s
pool. In 2011, during a course of renovations, the Eden Roc constructed a twenty-one-story tower
directly along the north face of the spite wall.

4. Reasonable interferences? The Florida court resolved the Fontainebleau case by finding
that the Eden Roc had no protectable interest in the light and air crossing over its neighbor’s
property. The case was thus concluded without taking into account the character of the
interference with the Eden Roc’s property interests. Suppose, however, the court had concluded
that the Eden Roc did have a protectable interest? At this point, the question would be a classic
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nuisance question: does the defendant’s infringement on the plaintiff’s property interest constitute
an actionable infringement?
In the law of private nuisance,
one is subject to liability for a private nuisance if his conduct is a legal cause of the
invasion of the interest in the private use and enjoyment of land and such invasion
is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under
the rules governing liability for abnormally dangerous conditions or activities.
Copart Industries, Inc. v. Consolidated Edison Co., 362 N.E.2d 968, 971 (N.Y. 1977). The view
of the Second Restatement is essentially identical. See RESTATEMENT (SECOND) OF TORTS § 822.
When is an invasion of private use and enjoyment of land unreasonable? The Restatement
takes the position that an intentional invasion of another’s interest in land is unreasonable if (a)
“the gravity of the harm outweighs the utility of the actor’s conduct” or (b) “the harm caused by
the conduct is serious and the financial burden of compensating for this and similar harm to others
would not make the continuation of the conduct not feasible.” RESTATEMENT (SECOND) OF TORTS
§ 826.
What part of this definition of private nuisance, if any, amounts to liability without fault?

Ensign v. Walls, 34 N.W.2d 549 (Mich. 1948)
CARR, J.
Defendant herein has for some years past carried on at 13949 Dacosta Street, in the city of
Detroit, the business of raising, breeding and boarding St. Bernard dogs. Plaintiffs are property
owners and residents in the immediate neighborhood. Claiming that the business conducted by
defendant constituted a nuisance as to them and their property, plaintiffs brought suit for
injunctive relief. The bill of complaint alleged that obnoxious odors came from defendant’s
premises at all times, that the continual barking of the dogs interfered with and disturbed plaintiffs
in the use and enjoyment of their respective properties, that the premises were infested with rats
and flies, and that on occasions dogs escaped from defendant’s premises and roamed about the
neighborhood. Defendant in her answer denied that her business was conducted in such a manner
as to constitute a nuisance, and claimed further that she had carried on the business at the premises
in question since 1926, that she had invested a considerable sum of money in the purchase of the
property and in the subsequent erection of buildings thereon, and that under the circumstances
plaintiffs were not entitled to the relief sought.
On the trial of the case testimony was offered on behalf of the parties tending to
substantiate their respective claims as set forth in the pleadings. . . . The trial judge inspected the
premises of the defendant, and it appears from the record that his observations confirmed, in many
respects at least, the proofs offered by plaintiffs with reference to the existing conditions. Decree
was entered enjoining the carrying on of the business at the location in question after the
expiration of 90 days from the entry of the decree, and requiring defendant to abate, within the
period of time stated, the nuisance found to exist. . . .
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The record discloses that the plaintiffs, or the majority of them at least, have moved into
the neighborhood in recent years. In view of this situation it is claimed by defendant that,
inasmuch as she was carrying on her business of raising, breeding and boarding dogs on her
premises at the time plaintiffs established their residences in the neighborhood, they cannot now
be heard to complain. Such circumstance may properly be taken into account in a proceeding of
this nature in determining whether the relief sought ought, in equity and good conscience, to be
granted. Doubtless under such circumstances courts of equity are more reluctant to restrain the
continued operation of a lawful business than in instances where it is sought to begin in a
residential district a business of such character that it will constitute a nuisance. . . .
Defendant cites and relies on prior decisions of this Court in each of which consideration
was given to the circumstance that the parties seeking relief had established residences near the
business the operation of which was sought to be enjoined. That such a circumstance may
properly be considered in any case of this character in determining whether equitable relief should
be granted is scarcely open to question. However it is not necessarily controlling. Looking to all
the facts and circumstances involved, the question invariably presented is whether the discretion
of the court should be exercised in favor of the parties seeking relief. In the case at bar the trial
court came to the conclusion that the nuisance found by him to exist ought to be abated, and that
such action was necessary in order to protect the plaintiffs in their rights and in the use and
enjoyment of their homes. It may be assumed that new residences will be built in the community
in the future, as they have been in the past, and that in consequence the community will become
more and more thickly populated. This means of course that the injurious results of the carrying
on of defendant’s business, if the nuisance is not abated, will be greater in the future than it has
been in the past. Such was obviously the view of the trial judge, and we cannot say that he abused
his discretion in granting relief. . . .
The decree of the circuit is affirmed. Plaintiffs may have costs.

Notes

1. The logic of collective action. Why did the court think it necessary to enjoin the defendant
in Ensign v. Walls? Why not simply put the homeowners to the burden of purchasing the property
if they did not like its use as a kennel? More concretely, the homeowners could have paid the
property owner to cease operations and to write into the property deed a restriction on any similar
use of the property in the future.
The problem comes into view if we look at the surrounding properties from above. Go
ahead, use the satellite function in Google Maps on a laptop or a handheld or some such device.
Use it to look at 13949 Dacosta Street, Detroit, Michigan, zip code 48223. The defendant’s
property, located in the middle of the Google Earth image below, had been encroached on such
that by the time of the litigation it was ringed by a circle of new homes—homes that had arrived
thanks to the mid-century boom in the Detroit auto industry, which had in turn caused the
footprint of Detroit to grow considerably, sending new homes for auto workers further and further
out into what had been rural and remote land only a short time previously.

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Source: Google Satellite image of 13949 Dacosta Street, Detroit, Michigan 48223.

Imagine that the new homeowners ringing the defendant at 13949 Dacosta did in fact
suffer greatly from the noise and smell and side effects of the kennel. Imagine further that they
would in the aggregate have been willing to pay the defendant property owner an amount that she
would have found sufficient to induce her to part with the right to operate a kennel on the
property. There is nonetheless good reason to think that this transaction will not happen even
where all the parties would be, by hypothesis and by their own lights, made better off by it. The
difficulty is that no one of the new homeowners can capture the benefits of purchasing the
property owner’s right to operate a kennel or other noxious business. Those benefits will be
shared with all the new homeowners in the ring. But each one of those homeowners would prefer
that one of their neighbors be the one to make the payment that will benefit them all. The result is
a classic collective action problem: absent some powerful mechanism for promoting cooperation
among the homeowners, it is very likely that the surrender of the 13949 Dacosta owner’s right to
certain noxious uses will not take place. See generally MANCUR OLSON, THE LOGIC OF
COLLECTIVE ACTION (1965).
Put in the terms adopted by Ronald Coase, which we first encountered in Chapter 2, the
collective action problem here is a kind of transaction cost that is obstructing the allocation in the
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market of entitlements to their highest value users. The court’s injunction cuts through the failure
of the market and imposes the socially optimal outcome.
Or, at least what it hopes is the socially optimal outcome. Note that the existence of the
collective action problem means that the court had better be right in its judgment of what the right
outcome is. Once the entitlement is allocated to the neighbors, the owner of 13949 Dacosta is
unlikely to be able to buy it back, even if for some reason she values being a kennel owner in that
lot more highly than her neighbors value being free from the noise and smells and inconveniences.
The problem is the flip side of the same collective action problem that would have hindered the
neighbors from buying the right to run the kennel from her in the first place. If each neighbor
retains the right to enjoin her from running the kennel, she will have to acquire the right to run the
kennel from all the neighbors. But each neighbor will have a powerful incentive to hold out and
become the last obstacle to the kennel. The last hold out is in a powerful position to extract
virtually all the value of the project as a condition to his or her permission.
Collective action problems here mean that a mistake by the court will not likely be
remedied by the marketplace.

2. Coming to the nuisance. In nuisance cases, courts give priority in time significant weight.
For example, defendants who “move[] hog production to an established residential neighborhood”
are unlikely to escape liability. Similarly, a plaintiff who moves into “a neighborhood of small
factories” is unlikely to bring a successful nuisance claim. DOBBS, HAYDEN & BUBLICK, DOBBS’
LAW OF TORTS § 401 (2014). Priority in time, however, is not dispositive in nuisance cases. See
RESTATEMENT (SECOND) OF TORTS § 840D (1979) (“The fact that the plaintiff has acquired or
improved his land after a nuisance interfering with it has come into existence is not in itself
sufficient to bar his action, but it is a factor to be considered in determining whether the nuisance
is actionable.”). As Ensign v. Walls illustrates, plaintiffs in nuisance cases may still recover if
they come to the nuisance (i.e., they move or acquire land after the alleged nuisance has come into
existence).
According to Professor Robert Ellickson, a majority of jurisdictions may award plaintiffs
damages or injunctive relief even though plaintiffs came to the nuisance. Ellickson observes that
remedies in such cases may be inappropriate where plaintiffs who build residences in close
proximity to a factory or feedlot have thereby “failed to mitigate damages.” On the other hand,
the rationale for remedies is that the existence of a first in time rule creates a race to develop lest
the use of Parcel A preclude certain uses of neighboring Parcel B. See Robert C. Ellickson,
Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls, 40 U. CHI.
L. REV. 681, 759 (1973).

3. Social policy in a decentralized regime. Subsequent events suggest that the court’s
solution in Ensign was tragically but unforeseeably short-sighted. Not long after Ensign was
decided, Congress authorized funds to build an interstate highway near Dacosta Street. See
Federal-Aid Highway Act of 1956, 23 U.S.C. 48 (2012). Look back at the Google Maps image
you visited above. The interstate that resulted, known as I-96, passes within 200 feet of 13949
Dacosta Street. The noise and smell from the kennel would soon have been completely
overwhelmed by the noises and smells of massive eighteen-wheel trucks carrying the products of
industrial Detroit to the great American post war markets.
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Source: Google Maps image of 13949 Dacosta Street, Detroit, Michigan 48223.

We might think of this as a cost of the decentralized structure of American policymaking.
State courts do not—and realistically cannot—coordinate with Congress when developing
regulatory solutions to collective action problems.

4. Doing market failure one better? The great problem in cases like Dacosta is that the court
seems to be left with the obligation to make an extraordinarily all-things-considered judgment as
to which use for 13949 Dacosta is better: simple quiet residential use, or a semi-industrial kennel
use? The likelihood that markets will fail to rectify an improper initial allocation of the
entitlement looms. But what if we could identify a solution, at least in some cases, that would put
the ball back in the hands of the parties themselves? This is what the innovation in the next case
tries to accomplish.

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Boomer v. Atlantic Cement Co., 257 N.E.2d 870 (N.Y. 1970)
BERGAN, J.
Defendant operates a large cement plant near Albany. These are actions for injunction
and damages by neighboring land owners alleging injury to property from dirt, smoke and
vibration emanating from the plant. A nuisance has been found after trial, temporary damages
have been allowed; but an injunction has been denied. . . .
The threshold question raised by the division of view on this appeal is whether the court
should resolve the litigation between the parties now before it as equitably as seems possible; or
whether, seeking promotion of the general public welfare, it should channel private litigation into
broad public objectives.
A court performs its essential function when it decides the rights of parties before it. Its
decision of private controversies may sometimes greatly affect public issues. Large questions of
law are often resolved by the manner in which private litigation is decided. But this is normally
an incident to the court’s main function to settle controversy. It is a rare exercise of judicial
power to use a decision in private litigation as a purposeful mechanism to achieve direct public
objectives greatly beyond the rights and interests before the court.
Effective control of air pollution is a problem presently far from solution even with the
full public and financial powers of government. In large measure adequate technical procedures
are yet to be developed and some that appear possible may be economically impracticable. It
seems apparent that the amelioration of air pollution will depend on technical research in great
depth; on a carefully balanced consideration of the economic impact of close regulation; and of
the actual effect on public health. It is likely to require massive public expenditure and to demand
more than any local community can accomplish and to depend on regional and interstate controls.
A court should not try to do this on its own as a by-product of private litigation and it
seems manifest that the judicial establishment is neither equipped in the limited nature of any
judgment it can pronounce nor prepared to lay down and implement an effective policy for the
elimination of air pollution. This is an area beyond the circumference of one private lawsuit. It is
a direct responsibility for government and should not thus be undertaken as an incident to solving
a dispute between property owners and a single cement plant—one of many—in the Hudson River
valley.
The cement making operations of defendant have been found by the court at Special Term
to have damaged the nearby properties of plaintiffs in these two actions. That court, as it has been
noted, accordingly found defendant maintained a nuisance and this has been affirmed at the
Appellate Division. The total damage to plaintiffs’ properties is, however, relatively small in
comparison with the value of defendant’s operation and with the consequences of the injunction
which plaintiffs seek.
The ground for the denial of injunction, notwithstanding the finding both that there is a
nuisance and that plaintiffs have been damaged substantially, is the large disparity in economic
consequences of the nuisance and of the injunction. This theory cannot, however, be sustained
without overruling a doctrine which has been consistently reaffirmed in several leading cases in
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this court and which has never been disavowed here, namely that where a nuisance has been
found and where there has been any substantial damage shown by the party complaining an
injunction will be granted.
The rule in New York has been that such a nuisance will be enjoined although marked
disparity be shown in economic consequence between the effect of the injunction and the effect of
the nuisance.
The problem of disparity in economic consequence was sharply in focus in Whalen v.
Union Bag & Paper Co. A pulp mill entailing an investment of more than a million dollars
polluted a stream in which plaintiff, who owned a farm, was “a lower riparian owner.” The
economic loss to plaintiff from this pollution was small. This court, reversing the Appellate
Division, reinstated the injunction granted by the Special Term against the argument of the mill
owner that in view of “the slight advantage to plaintiff and the great loss that will be inflicted on
defendant” an injunction should not be granted. “Such a balancing of injuries cannot be justified
by the circumstances of this case,” Judge Werner noted. He continued: “Although the damage to
the plaintiff may be slight as compared with the defendant’s expense of abating the condition that
is not a good reason for refusing an injunction.”
Thus the unconditional injunction granted at Special Term was reinstated. The rule laid
down in that case, then, is that whenever the damage resulting from a nuisance is found not
“unsubstantial,” . . . injunction would follow. This states a rule that had been followed in this
court with marked consistency. . . .
Although the court at Special Term and the Appellate Division held that injunction should
be denied, it was found that plaintiffs had been damaged in various specific amounts up to the
time of the trial and damages to the respective plaintiffs were awarded for those amounts. The
effect of this was, injunction having been denied, plaintiffs could maintain successive actions at
law for damages thereafter as further damage was incurred.
The court at Special Term also found the amount of permanent damage attributable to
each plaintiff, for the guidance of the parties in the event both sides stipulated to the payment and
acceptance of such permanent damage as a settlement of all the controversies among the parties.
The total of permanent damages to all plaintiffs thus found was $185,000. This basis of
adjustment has not resulted in any stipulation by the parties.
This result at Special Term and at the Appellate Division is a departure from a rule that
has become settled; but to follow the rule literally in these cases would be to close down the plant
at once. This court is fully agreed to avoid that immediately drastic remedy; the difference in
view is how best to avoid it.
One alternative is to grant the injunction but postpone its effect to a specified future date
to give opportunity for technical advances to permit defendant to eliminate the nuisance; another
is to grant the injunction conditioned on the payment of permanent damages to plaintiffs which
would compensate them for the total economic loss to their property present and future caused by
defendant’s operations. . . . [T]he court chooses the latter alternative. . . .
[T]o grant the injunction unless defendant pays plaintiffs such permanent damages as may
be fixed by the court seems to do justice between the contending parties. All of the attributions of
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economic loss to the properties on which plaintiffs’ complaints are based will have been
redressed.
The nuisance complained of by these plaintiffs may have other public or private
consequences, but these particular parties are the only ones who have sought remedies and the
judgment proposed will fully redress them. The limitation of relief granted is a limitation only
within the four corners of these actions and does not foreclose public health or other public
agencies from seeking proper relief in a proper court.
It seems reasonable to think that the risk of being required to pay permanent damages to
injured property owners by cement plant owners would itself be a reasonable effective spur to
research for improved techniques to minimize nuisance. . . .
The orders should be reversed, without costs, and the cases remitted to Supreme Court,
Albany County to grant an injunction which shall be vacated upon payment by defendant of such
amounts of permanent damage to the respective plaintiffs as shall for this purpose be determined
by the court.

Notes

1. Collective action problems redux. In Boomer, as in Ensign, it is highly likely that the
market will not be able to resolve the problem in a manner that achieves the socially optimal
outcome. An injunction to the plaintiffs would allow any one plaintiff to shut down the plant by
refusing consent. Just as in Ensign, every plaintiff will thus have an incentive to hold out to
extract as much value from the plant as possible. The difference in Boomer, however, is that the
conditional injunction dischargeable by a payment of permanent damages allocates the
entitlement to the plaintiffs—but allows the defendant to reacquire that entitlement, if it chooses,
at a price set by the court. Unlike in Ensign, the court’s initial allocation is not determinative of
the allocation of the entitlement. Why? Because the court’s setting of a price at which the
defendant can force the plaintiffs into parting with their entitlement means that no plaintiff can
hold out. In the event that the value of the cement plant is not sufficient to justify paying for the
right to operate the plant, then the entitlement will stay with the plaintiffs and the plant will shut
down, at least until some better technology comes on board that allows the plant to operate
without causing a nuisance, or that reduces the damages sufficiently so as to make paying for the
right to operate worthwhile. For the general conceptual framework, see Guido Calabresi & A.
Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral,
85 HARV. L. REV. 1089, 1106-07 (1972).

2. The secret logic of tort law? Calabresi and Melamed take the analysis of Boomer a step
further. The injunction in cases like Ensign, they say, allocates the entitlement in question to the
plaintiffs and protects that entitlement with a property rule. The damages remedy in Boomer also
allocates the entitlement in question to the plaintiffs. But it protects that entitlement with a
different remedy, namely a liability rule. The difference is that the liability rule allows others to
separate the entitlement holder from the entitlement at a price set by the court without gaining the
consent of the entitlement holder.
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Why would one select a liability rule rather than a property rule as the better remedy?
Calabresi and Melamed focus on transaction costs. In those settings in which we think that
transaction costs are low enough that the market will allocate resources to their highest value
users, property rules will be perfectly adequate. But when transaction costs lead us to think that
the market will not allocate resources to their highest value users, liability rules allow actors to
decide to go ahead with conduct so long as that conduct can pay its way.
At this stage, Calabresi and Melamed make a breathtaking claim. They contend that the
ongoing character of the injury in nuisance cases, and the availability of the injunction remedy for
such ongoing cases, reveal for us a logic underlying tort cases more generally. In those cases, too,
the tort remedy is simply a substitute for the marketplace. Cases of completed injuries between
strangers, they suggest, are essentially cases in which the transaction costs were sufficiently high
that we allowed the defendant to impose the risk and indeed injury on the plaintiff without her
consent, at the cost of having to pay damages after the fact. We could of course protect plaintiffs’
interests in their bodily integrity or property as against negligent conduct by a property rule; such
a regime might lead to punitive damages or perhaps even criminal punishment in order to force
actors to negotiate up front with possible victims. But we don’t adopt this approach. In tort law,
we allow people to impose risk and injury on others—so long as they are willing to pay for it.
Calabresi and Melamed’s “View of the Cathedral” (to echo the title of their classic article)
posits a logic for private law generally—for the law of contract, property, and tort. In this logic,
tort law’s liability rules substitute for the entitlements of property law when market failures
prevent the law of contract from achieving the right social outcomes. Tort law, in other words,
allows actors like the cement plant in Boomer or a driver in an ordinary automobile accident case
to compel others to bear some of the risks generated by their activity in return for a price set by
the courts. And it typically does so in areas in which the transaction cost obstacles to getting
consent up front are simply too great, either because the consent would have to come from
unreachable strangers (the highway case) or because collective action problems and strategic
behavior are likely to prevent an actor from gaining consent.
3. Tort and contract in “the Cathedral.” Some say that the Calabresi / Melamed view of tort
reduces tort law to a sort of contract law substitute: one designed to recreate contract’s virtues in
those areas that contracts and the market are otherwise unable to reach. How plausible a reading
of the law of torts is this? Consider the cases and materials we have reviewed in the past nine
chapters. What, for example, would the Calabresi / Melamed theory hold for relational cases, i.e.,
cases where there is a contract or relationship between the parties such that transaction costs have
not been insuperable? Are these cases in which the terms of the contract itself ought to govern the
torts resolution? Would tort be swallowed up into contract in such cases? Or does tort law supply
something independent in such cases such that it is not simply reduceable to contract?

4. Markets and inequality. One critique of the Cathedral is that market-mimicking liability
rules may reflect and reproduce economic inequality. In the context of pollution, if liability rules
are imposed, polluting defendants are incentivized to relocate to poorer neighborhoods where the
damages to the neighbors will be less. Even more troublingly, it may sometimes be the case that
the residents of poorer neighborhoods will accept lower monetary compensation for putting up
with pollution. Imagining for the moment that this is so, should we respect such deals?
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Note further that even if the Cathedral’s liability rules reflect economic inequality in this
way, they do so no more than ordinary tort law does. As we will see in Chapter 10, ordinary tort
law takes correction of the status quo ante as its goal, without regard to the distributive justice or
lack thereof of the regime requiring repair.
Moreover, one should ask what the alternatives are. The alternative to compulsory
transactions is not that pollution will magically be allocated fairly among all members of society.
The alternative is that pollution siting will be a product of the political process – a process that
tends to privilege the wealthy and powerful. Looking around America’s cities today, who can say
that the pollution-causing facilities have been sited fairly as between poor and wealthy
neighborhoods? At the very least, the Cathedral approach would provide compensation to those
living in the affected areas—something the political process can rarely say for itself.

5. A long history for the Cathedral? Although Boomer treats the doctrine of undue hardship
as an innovation in New York tort law, Professor Douglas Laycock notes that the nuisance
defense of undue hardship was “long established in New York and elsewhere.” Douglas Laycock,
The Neglected Defense of Undue Hardship (and the Doctrinal Train Wreck in Boomer v. Atlantic
Cement) 1 (Univ. of Va. Law Sch. Pub. Law & Legal Theory Research Paper Series No. 2012-27,
2012), https://perma.cc/2LZS-YMEY; see also Louise A. Halper, Nuisance, Courts and Markets
in the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301 (1990) (noting that several
New York cases that were not recognized in Boomer balanced remedies at the hardship stage).
The undue hardship doctrine allowed a nuisance defendant to convert an injunction against its
activities into a damages obligation to the victims of pollution or other nuisance effects. In New
York in particular, the defense of undue hardship had been considered at the remedy stage in other
cases. E.g., Squaw Island Freight Terminal Co. v. City of Buffalo, 7 N.E.2d 10, 14 (N.Y.1937)
(allowing the City of Buffalo to continue dumping sewage on the condition that it pay plaintiffs
permanent damages for the injury caused by the sewage).

6. The Calabresi / Melamed 2x2 Matrix. The three cases we have read so far in this section
can be summarized on the matrix below, with entitlements running down the left column and
remedies running across the top row:

Injunction (Property Rule)

Damages (Liability
Rule)

Entitlement to Plaintiff

Ensign v. Walls

Boomer

Entitlement to Defendant

Fontainebleau Hotel Corp.

Box 4

Source: Adapted from James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules:
The Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 444 (1995).

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What about the lower right quadrant? The so-called “Box 4” seemed likely to remain
empty until just as Calabresi and Melamed were publishing their article, the Supreme Court of
Arizona decided a case that seemed to match Box 4 perfectly:

Spur Industries v. Del Webb Development Co., 494 P.2d 700 (Ariz. 1972)
CAMERON, J.
From a judgment permanently enjoining the defendant, Spur Industries, Inc., from
operating a cattle feedlot near the plaintiff Del E. Webb Development Company’s Sun City, Spur
appeals. Webb cross-appeals. Although numerous issues are raised, we feel that it is necessary to
answer only two questions. They are:
1. Where the operation of a business, such as a cattle feedlot is lawful in the first instance,
but becomes a nuisance by reason of a nearby residential area, may the feedlot operation be
enjoined in an action brought by the developer of the residential area?
2. Assuming that the nuisance may be enjoined, may the developer of a completely new
town or urban area in a previously agricultural area be required to indemnify the operator of the
feedlot who must move or cease operation because of the presence of the residential area created
by the developer?
The facts necessary for a determination of this matter on appeal are as follows. The area
in question is located in Maricopa County, Arizona, some 14 to 15 miles west of the urban area of
Phoenix, on the Phoenix-Wickenburg Highway . . . .
Farming started in this area about 1911. In 1929, with the completion of the Carl Pleasant
Dam, gravity flow water became available to the property located to the west of the Agua Fria
River, though land to the east remained dependent upon well water for irrigation. By 1950, the
only urban areas in the vicinity were the agriculturally related communities . . . .
In 1956, Spur’s predecessors in interest, H. Marion Welborn and the Northside Hay Mill
and Trading Company, developed feedlots . . . . The area is well suited for cattle feeding and in
1959, there were 25 cattle feeding pens or dairy operations within a 7 mile radius of the location
developed by Spur’s predecessors. In April and May of 1959, the Northside Hay Mill was
feeding between 6,000 and 7,000 head of cattle and Welborn approximately 1,500 head on a
combined area of 35 acres.
In May of 1959, Del Webb began to plan the development of an urban area to be known
as Sun City. For this purpose, the Marinette and the Santa Fe Ranches, some 20,000 acres of
farmland, were purchased for $ 15,000,000 or $ 750.00 per acre. This price was considerably less
than the price of land located near the urban area of Phoenix, and along with the success of
Youngtown was a factor influencing the decision to purchase the property in question.
By September 1959, Del Webb had started construction of a golf course south of Grand
Avenue and Spur’s predecessors had started to level ground for more feedlot area. In 1960, Spur
purchased the property in question and began a rebuilding and expansion program extending both
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to the north and south of the original facilities. By 1962, Spur’s expansion program was
completed and had expanded from approximately 35 acres to 114 acres. See Exhibit A above.
Accompanied by an extensive advertising campaign, homes were first offered by Del
Webb in January 1960 and the first unit to be completed was south of Grand Avenue and
approximately 2 1/2 miles north of Spur. By 2 May 1960, there were 450 to 500 houses
completed or under construction. At this time, Del Webb did not consider odors from the Spur
feed pens a problem and Del Webb continued to develop in a southerly direction, until sales
resistance became so great that the parcels were difficult if not impossible to sell. . . .
Del Webb filed its original complaint alleging that in excess of 1,300 lots in the southwest
portion were unfit for development for sale as residential lots because of the operation of the Spur
feedlot. . . . The testimony indicated that cattle in a commercial feedlot will produce 35 to 40
pounds of wet manure per day, per head, or over a million pounds of wet manure per day for
30,000 head of cattle, and that despite the admittedly good feedlot management and good
housekeeping practices by Spur, the resulting odor and flies produced an annoying if not
unhealthy situation as far as the senior citizens of southern Sun City were concerned.
[The court concluded that the operations of Spur Industries constituted an enjoinable
nuisance. But that did not end the inquiry:]
A suit to enjoin a nuisance sounds in equity and the courts have long recognized a special
responsibility to the public when acting as a court of equity . . . . In addition to protecting the
public interest . . . courts of equity are concerned with protecting the operator of a lawfully, albeit
noxious, business from the result of a knowing and willful encroachment by others near his
business.
In the so-called “coming to the nuisance” cases, the courts have held that the
residential landowner may not have relief if he knowingly came into a neighborhood reserved for
industrial or agricultural endeavors and has been damaged thereby:
Plaintiffs chose to live in an area uncontrolled by zoning laws or restrictive
covenants and remote from urban development. In such an area plaintiffs cannot
complain that legitimate agricultural pursuits are being carried on in the vicinity,
nor can plaintiffs, having chosen to build in an agricultural area, complain that the
agricultural pursuits carried on in the area depreciate the value of their homes. The
area being primarily agricultural, any opinion reflecting the value of such property
must take this factor into account. . . .
People employed in a city who build their homes in suburban areas of the county
beyond the limits of a city and zoning regulations do so for a reason. . . . But with
all these advantages in going beyond the area which is zoned and restricted to
protect them in their homes, they must be prepared to take the disadvantages. Dill
v. Excel Packing Company . . . .
“. . . [A] party cannot justly call upon the law to make that place suitable for his residence
which was not so when he selected it. . . .” Gilbert v. Showerman.

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Were Webb the only party injured, we would feel justified in holding that the doctrine of
“coming to the nuisance” would have been a bar to the relief asked by Webb, and, on the other
hand, had Spur located the feedlot near the outskirts of a city and had the city grown toward the
feedlot, Spur would have to suffer the cost of abating the nuisance as to those people locating
within the growth pattern of the expanding city. . . .
There was no indication in the instant case at the time Spur and its predecessors located in
western Maricopa County that a new city would spring up, full-blown, alongside the feeding
operation and that the developer of that city would ask the court to order Spur to move because of
the new city. Spur is required to move not because of any wrongdoing on the part of Spur, but
because of a proper and legitimate regard of the courts for the rights and interests of the public.
Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction),
not because Webb is blameless, but because of the damage to the people who have been
encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that
Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been
the cause of the damage Spur has sustained. It does not seem harsh to require a developer, who
has taken advantage of the lesser land values in a rural area as well as the availability of large
tracts of land on which to build and develop a new town or city in the area, to indemnify those
who are forced to leave as a result.
Having brought people to the nuisance to the foreseeable detriment of Spur, Webb must
indemnify Spur for a reasonable amount of the cost of moving or shutting down. It should be
noted that this relief to Spur is limited to a case wherein a developer has, with foreseeability,
brought into a previously agricultural or industrial area the population which makes necessary the
granting of an injunction against a lawful business and for which the business has no adequate
relief.
It is therefore the decision of this court that the matter be remanded to the trial court for a
hearing upon the damages sustained by the defendant Spur as a reasonable and direct result of the
granting of the permanent injunction. Since the result of the appeal may appear novel and both
sides have obtained a measure of relief, it is ordered that each side will bear its own costs.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this
opinion.

Notes

1. Filling in Box 4. The Spur Industries case filled in the formerly empty Box 4 of the
matrix in the notes above. The court allocated the entitlement to the defendant Spur Industries—
but protected that entitlement with a liability rule rather than a property rule. That is to say, the
court allowed the developer to seize the entitlement from the feedlot owner without the latter’s
consent in return for a payment of damages set not in the marketplace but by the court.

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Injunction (Property Rule)

Damages
(Liability Rule)

Entitlement to Plaintiff

Ensign v. Walls

Boomer

Entitlement to Defendant

Fontainebleau Hotel Corp.

Spur Industries

Source: Adapted from James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules:
The Cathedral in Another Light, 70 N.Y.U. L. REV. 440, 444 (1995).

One question here is why authorize the developer to force a transaction on the feedlot
owner? After all, a Coasean observer might object that if real estate development is preferable to
feedlot operations, then the parties will reallocate the entitlement accordingly. Under such
circumstances, the developer and the feedlot owner might be expected to enter into a transaction
in which the developer pays the feedlot owner to get the latter to cease its noxious operations.
There are no transaction impediments to finding one another, as there are in a typical highway
case. And there are no multi-party collective action problems causing individual rationality to
diverge from social rationality.
One possible answer is that this is a case of “bilateral monopoly” in which there is only
one possible buyer and one possible seller of the right to engage in noxious operations on the
feedlot in question. Economists have long observed that settings of bilateral monopoly such as a
unionized labor force and a monopsonist employer often entail considerable friction—for
example, labor strikes—as the parties struggle for control of the surplus value that any such
transaction would generate. In such settings, perhaps the idea is that the courts can step in and cut
off the friction that would otherwise transpire as the parties battled over the right price. Perhaps
in the Spur Industries case, such friction would be especially undesirable because it would come
at the expense of the third-party homeowners who are suffering the effects of the feedlot’s
continued operations.
Note that the rarity of the Spur Industries case is that the beneficiaries of the injunction
were represented by a single entity, the developer, who was in a position to make payments to
acquire the entitlement from the feedlot owner. Had the homeowners been a class of plaintiffs in
their individual capacities, it is not clear how such a remedy would work.

2. The thin edge of the wedge? Some scholars disagree with the holding in Spur Industries.
For example, Professor Richard Epstein contends that the outcome in Spur Industries suggests
that “the polluter has property rights in the activities that generated the pollution.” Richard A.
Epstein, A Clear View of The Cathedral: The Dominance of Property Rules, 106 YALE L.J. 2091,
2104 (1997). Instead of paying the polluter, Professor Epstein argues that the plaintiff should be
able to obtain an injunction without having to “purchase it.” According to Professor Epstein,
“there is no reason why the plaintiff should have to buy for a second time land that she purchased
before.” Id. at 2105.
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3. The empirics of bargaining around injunctions. Do parties in the real world behave as the
Calabresi / Melamed model suggests? Dean Ward Farnsworth at the University of Texas at
Austin studied twenty cases litigated to judgment and resulting in injunctions. Professor
Farnsworth found that parties in private nuisance cases are often acrimonious and do not prefer
money damages; thus, these parties were unwilling to bargain around the injunction. Crucially,
they were perfectly able to bargain. There were no transaction costs preventing them from doing
so. But they declined to do so. Ward Farnsworth, Do Parties to Nuisance Cases Bargain After
Judgment? A Glimpse Inside The Cathedral, 66 U. CHI. L. REV. 1, 30 (1999).
Does Dean Farnsworth’s study suggest that parties to suits are not bargainers as the
Cathedral model posits? One response is to observe that Farnsworth examined cases that were
litigated to judgment—not cases that were settled. But almost all cases are settled. Recall our
discussion of settlement back in Chapter 1. Who doesn’t settle? Parties peculiarly committed, or
just mistakenly committed, to idiosyncratic values in the underlying dispute. So it should hardly
be surprising that the cases in Farnsworth’s sample didn’t reach deals after injunctions issued.
They had ample opportunity to reach such deals long before the final stage of the litigation, and
those few who had been unwilling to make a deal in the run-up to the final judgment should
hardly have been expected to enter into one thereafter.

2. Public Nuisance
The Restatement (Second) of Torts defines public nuisance as “an unreasonable
interference with a right common to the general public.” Whether an interference with a “right
common to the public” is unreasonable depends on whether it significantly interferes with “the
public health, the public safety, the public peace, the public comfort or the public convenience”;
whether it is “proscribed by a statute, ordinance or administrative regulation”; and whether it is
“of a continuing nature or has produced a permanent or long-lasting effect.” RESTATEMENT
(SECOND) OF TORTS § 821B (1979).
Both government entities and private individuals may bring claims for public nuisance. A
government entity bringing a claim must have “authority as a public official or public agency to
represent the state or a political subdivision in the matter.” RESTATEMENT (SECOND) OF TORTS §
821C (1979).
Private individuals bringing public nuisance claims must make a further showing. They
must show that they “suffered harm of a kind different from that suffered by other members of
the public. . . .” RESTATEMENT (SECOND) OF TORTS § 821C (1979). How do courts determine
whether a private plaintiff’s harm is different in kind? Consider the following two cases:

Leo v. General Electric Co., 538 N.Y.S.2d 844 (N.Y. App. Div. 1989)
HARWOOD, J.
We are called upon to determine whether commercial fishermen and their representative
associations are aggrieved by the discharge of pollutants into public waters, resulting, for reasons
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of public safety, in a ban by the New York State Department of Environmental Conservation
(hereinafter DEC) on the sale of striped bass throughout New York State. We hold that the
plaintiffs have standing to maintain the instant action. . . . We therefore conclude that the Supreme
Court properly declined to dismiss the complaint.
It is not disputed that over a 30-year period the defendant discharged a total of at least
500,000 pounds of polychlorinated biphenyls (hereinafter PCBs) from two of its manufacturing
plants into the Hudson River. The PCBs collected on the river floor and were absorbed by the
marine life, including the striped bass, a species which returns to the Hudson River each year to
spawn. When the defendant became aware of the highly toxic effect of PCBs is one of the issues
to be determined in this litigation. In 1975 the DEC commenced a proceeding to enforce various
provisions of the Environmental Conservation Law against the defendant and to enjoin or limit its
discharge of PCBs. Following an interim finding that defendant was responsible for the presence
of PCBs in the Hudson River and its marine life, that proceeding was settled and, apparently in
1977, the defendant ceased all discharge of PCBs into the Hudson River. Subsequent studies
showed that excessively high levels of PCBs had been absorbed by the striped bass, and, in 1985,
the DEC imposed a ban on the sale of striped bass fished from the lower Hudson and western
Long Island waters. . . . It appears that the ban will remain in effect for some time to come.
Methods for removal of PCBs from the Hudson River are still under study by the DEC and the
United States Environmental Protection Agency.
The individual plaintiffs, each a member of one of the plaintiff associations, are
commercial fishermen who, as a means of earning a livelihood, fish the Hudson River or the
waters of Long Island. The plaintiffs allege in their complaint that the defendant intentionally
discharged PCBs into the river in spite of its awareness of their toxicity and in reckless disregard
of the consequences. They also allege that the defendant negligently allowed PCBs to enter the
river through percolation and runoff from contaminated earth used by the defendant as a dumping
ground, and that the defendant intentionally or recklessly failed to adopt effective means for the
removal of PCBs from the river. The plaintiffs claim that the sale of striped bass accounted for a
substantial part of a commercial fisherman’s income, that as commercial fishermen they have a
special interest in use of public waters, that this special interest was invaded by the defendant’s
pollution of the water and contamination of the fish and, in effect, that the defendant’s creation of
a public nuisance had and will continue to have a devastating effect upon the individual plaintiffs’
ability to earn a living. As indicated, they seek damages and injunctive relief.
Pollution of navigable public waters which causes death to or contamination of fish
constitutes a public nuisance. It is settled law in this State that, in the absence of special damage,
a public nuisance is subject to correction only by a public authority. . . . If there is some injury
peculiar to a plaintiff, a private action premised on a public nuisance may be maintained. . . .
Allegations of pecuniary injury may be sufficient to satisfy the peculiar injury test . . . so long as
the injuries involved are not common to the entire community exercising the same public right. . .
.
[A]ssuming the allegations of the complaint to be true, as we must on a motion to dismiss,
the breadth and depth of the tragedy do not preclude a determination that a peculiar or special
harm has also been done to these plaintiffs: diminution or loss of livelihood is not suffered by
every person who fishes in the Hudson River or waters of Long Island . . . ; the harm alleged is

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peculiar to the individual plaintiffs in their capacity as commercial fishermen and goes beyond the
harm done them as members of the community at large. . . .
Accordingly, the order should be affirmed . . . .

532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, 750 N.E.2d 1097 (N.Y. 2001)
KAYE, C.J.
[Recall the facts of 532 Madison Ave. from Chapter 8 above, where we looked at the part
of the opinion dealing with the pure economic loss rule. The case arose out of a building collapse
in midtown Manhattan. In addition to a cause of action for negligence and economic loss, the
plaintiffs in several underlying cases—including a law firm and several retailers—brought claims
for public nuisance:]
Plaintiffs contend that they stated valid causes of action for public nuisance, alleging that
the collapses forced closure of their establishments, causing special damages beyond those
suffered by the public.
A public nuisance exists for conduct that amounts to a substantial interference with the
exercise of a common right of the public, thereby offending public morals, interfering with the use
by the public of a public place or endangering or injuring the property, health, safety or comfort of
a considerable number of persons. A public nuisance is a violation against the State and is subject
to abatement or prosecution by the proper governmental authority. . . .
A public nuisance is actionable by a private person only if it is shown that the person
suffered special injury beyond that suffered by the community at large. . . . This principle
recognizes the necessity of guarding against the multiplicity of lawsuits that would follow if
everyone were permitted to seek redress for a wrong common to the public . . . .
A nuisance is the actual invasion of interests in land, and it may arise from varying types
of conduct. . . . In the cases before us, the right to use the public space around Madison Avenue
and Times Square was invaded not only by the building collapses but also by the City’s decision,
in the interest of public safety, to close off those areas. Unlawful obstruction of a public street is a
public nuisance, and a person who as a consequence sustains a special loss may maintain an
action for public nuisance. . . . Indeed, “in a populous city, whatever unlawfully turns the tide of
travel from the sidewalk directly in front of a retail store to the opposite side of the street is
presumed to cause special damage to the proprietor of that store, because diversion of trade
inevitably follows diversion of travel.”
The question here is whether plaintiffs have suffered a special injury beyond that of the
community so as to support their damages claims for public nuisance. We conclude that they
have not.
In Burns Jackson we refused to permit a public nuisance cause of action by two law firms
seeking damages for increased expenses and lost profits resulting from the closure of the New
York City transit system during a labor strike. We concluded that, because the strike was so
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widespread, every person, firm and corporation conducting a business or profession in the City
suffered similar damage and thus the plaintiffs could not establish an injury different from that of
the public at large.
While not as widespread as the transit strike, the Madison Avenue and Times Square
closures caused the same sort of injury to the communities that live and work in those
extraordinarily populous areas. As the trial court in [one of the underlying cases] pointed out,
though different in degree, the hot dog vendor and taxi driver suffered the same kind of injury as
the plaintiff law firm. Each was impacted in the ability to conduct business, resulting in financial
loss. When business interference and ensuing pecuniary damage is “so general and widespread as
to affect a whole community, or a very wide area within it, the line is drawn.” While the degree
of harm to the named plaintiffs may have been greater than to the window washer, per diem
employee or neighborhood resident unable to reach the premises, in kind the harm was the same.
Leo v General Elec. Co. . . . is inapposite. . . . Plaintiffs were able to establish that their
injuries were special and different in kind, not merely in degree: a loss of livelihood was not
suffered by every person who fished the Hudson. By contrast, every person who maintained a
business, profession or residence in the heavily populated areas of Times Square and Madison
Avenue was exposed to similar economic loss during the closure periods. Thus, in that the
economic loss was “common to an entire community and the plaintiff[s] suffer[ed] it only in a
greater degree than others, it is not a different kind of harm and the plaintiff[s] cannot recover for
the invasion of the public right.” RESTATEMENT (SECOND) OF TORTS § 821C, cmt. h.

Notes

1. Private attorneys general in public nuisance? Should private individuals be able to bring
claims for public nuisance? According to Professor Thomas Merrill, the rule that allows private
parties to bring public nuisance claims arose out of a “mistaken reading of an old precedent.”
Professor Merrill writes that the doctrine rests on a sixteenth-century English case that Merrill
contends correctly refused to allow a private party to bring an action for public nuisance:
In a separate opinion, one of the judges, Fitzherbert, argued that under certain
circumstances private persons should be allowed to sue for what would otherwise
constitute a public nuisance. He offered the hypothetical of a defendant who digs a
trench across a highway, causing injury to a horse and rider. The obstruction of the
highway would be a public nuisance, subject to indictment in local criminal court
(the “leet”). Fitzherbert thought that the injured rider would nevertheless also have
an action “to recover his damages that he had by reason of this special hurt.”
Fitzherbert’s hypothetical was cited much later by English and American courts and
by the authors of the Restatement, to mean that the injured rider could sue for public
nuisance. What Fitzherbert more likely meant was that the action for public
nuisance did not preclude the rider from bringing a separate action for damages
based on what in his day was called an action on the case or what we would today
call negligence. In other words, digging the trench in the road gave rise to two

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causes of action: a public action to abate the injury to the general public, and a
private action to recover damages for personal injury.
Merrill contends that the action that Fitzherbert’s hypothetical contemplated was not an action on
the public nuisance but rather a simple action for negligence. Thomas W. Merrill, Is Public
Nuisance a Tort?, 4 J. TORT L. 1, 13-14 (2011).

2. Private lawyers and public nuisance. Even where there is no special injury to a particular
plaintiff or class of plaintiffs, the private torts bar has become deeply involved in recent years in
the pursuit of public nuisance claims. State attorneys general and city corporation counsel’s
offices have hired private lawyers, typically on a contingency fee, to prosecute high-stakes public
nuisance claims on behalf of the public. The law firms bringing these cases have the high-octane
motivation of the contingent fees in what are often very high-value claims. But they do not face
the obstacles that private litigants face when bringing public nuisance claims. On the
phenomenon generally, see Margaret H. Lemos, Privatizing Government Litigation, 104 GEO. L.J.
515 (2016); Eric Lipton, Lawyers Create Big Paydays by Coaxing Attorneys General to Sue,
N.Y. TIMES, Dec. 18, 2014.
The Rhode Island lead paint litigation described below was precisely such a case: litigated
by private plaintiffs’ lawyers on behalf of the state itself as the party to the litigation. In Rhode
Island the lead paint case ended poorly for the plaintiffs’ lawyers. A more recent litigation in
California has ended very differently.

Lead Paint and Public Nuisance: Two Stories
Peter B. Lord, 3 companies found liable in lead-paint nuisance suit, PROVIDENCE J., February
23, 2006
PROVIDENCE — Six Rhode Islanders yesterday made up the first jury in the country to find
major corporations liable for creating a public nuisance by making lead-based paints that have
poisoned thousands of children. The verdict may cost the companies billions of dollars.
The jury ordered Sherwin Williams Co., Millennium Holdings and NL Industries to abate,
or clean up, the paints that were used generations ago on thousands of Rhode Island homes. . . .
The value of Sherwin Williams stock began to plummet within moments of the verdict.
By the end of the day, the value of the company’s shares dropped by nearly 18 percent—a loss
totaling $1.3 billion. The value of NL Industries stock dropped by 8 percent, for a total loss of
$642 million. . . .
The biggest potential expenditures are the abatement costs. The state argued that 240,000
houses in Rhode Island have lead paint on them that must be removed. Assuming an average
expense of $10,000 per house, the total cost would be about $2.4 billion.

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. . . Attorney General Patrick C. Lynch . . . . pointed out that children continue to be
poisoned by lead paints and there were victims in nearly every community in Rhode Island last
year. . . .
The losing companies had little to say. They issued a statement from spokesperson
Bonnie Campbell that said, “This is but one step in a lengthy process and there are a number of
issues still to be decided by the Court.”
Joe Nocera, The Pursuit of Justice, or Money?, N.Y. TIMES, December 8, 2007
“If I don’t bring the lead paint industry to its knees in three years, I will give them my
boat.”
So declared Ronald L. Motley to The Dallas Morning News in the fall of 1999—and why
not? In addition to being the owner of a very large yacht, Mr. Motley is also one of the country’s
pre-eminent plaintiffs’ lawyers, the titular head of the 70-lawyer firm Motley Rice, based in
Charleston, S.C. . . .
The state [of Rhode Island], with the help of its friends at Motley Rice, recently unveiled
an abatement plan that would require the companies to pay for the inspection of a staggering
240,000 homes as well as thousands of other structures like hospitals and day care centers, and
remove lead from most of them. The estimated cost for doing this—almost surely understated—is
$2.4 billion, with a hefty chunk of that going to the lawyers, of course. Never mind that for the
vast majority of homes, the far better and cheaper solution is simply to keep them maintained. . . .
One thing I couldn’t help wondering was why the gasoline makers weren’t subject to
these kinds of lawsuits. After all, gasoline, not pigment, was the primary cause of elevated blood
lead levels back in the day. When I mentioned this to David Rosner, a Columbia professor who
has served as an expert witness for the plaintiffs, he reassured me.
“I think there might be a suit like that filed next week,” he said.
Peter B. Lord, R.I. high court overturns lead-paint verdict, PROVIDENCE J., July 2, 2008
PROVIDENCE — The Rhode Island Supreme Court yesterday brought an abrupt end to the
state’s nine-year campaign to force some of the nation’s major corporations to clean up the leadbased paints that the state believes poisoned tens of thousands of Rhode Island children.
In a unanimous 4 to 0 ruling, the court overturned a string of decisions by Superior Court
Judge Michael A. Silverstein and a verdict by a six-person jury that found the companies created a
public nuisance by making and selling the paints. . . .
By day’s end, the price of Sherwin Williams’ stock rose 6.4 percent, while NL Industries
was up 4.6 percent.
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Witt & Tani, TCPI 9. Liability without Fault?

Rhode Island v. Lead Industries Association, 951 A.2d 428 (R.I. 2008)
. . . We agree with defendants that the public nuisance claim should have been dismissed
at the outset because the state has not and cannot allege that defendants’ conduct interfered with a
public right or that defendants were in control of lead pigment at the time it caused harm to
children in Rhode Island. We reach this conclusion with a keen realization of how limited the
judicial system often is. We believe that the following recent observation by this Court in another
case is equally applicable to this case:
“The American judicial system as it exists today is admirable: it is the product of
many decades of fine-tuning of an already excellent substantive and procedural
construct which this country took with it when it parted ways with England.
Nevertheless, our judicial system is not a panacea that can satisfy everyone who has
recourse to it. Some wrongs and injuries do not lend themselves to full redressment
by the judicial system.” Ryan v. Roman Catholic Bishop of Providence, 941 A.2d
174, 188 (R.I.2008).
1 History of Public Nuisance
. . . “At common law public nuisance came to cover a large, miscellaneous and
diversified group of minor offenses . . .” RESTATEMENT (SECOND) TORTS § 821B, cmt. b at 40.
Notably, all these offenses involved an “interference with the interests of the community at largeinterests that were recognized as rights of the general public entitled to protection.” Id.
Public nuisance as it existed in English common law made its way to Colonial America
without change. . . . In time, public nuisance became better known as a tort, and its criminal
counterpart began to fade away in American jurisprudence. As state legislatures started enacting
statutes prohibiting particular conduct and setting forth criminal penalties there was little need for
the broad, vague, and anachronistic crime of nuisance. RESTATEMENT (SECOND) TORTS § 821B,
cmt. c at 88. . . .
2 Public Nuisance in Rhode Island
As the law of public nuisance began to take hold in Rhode Island, it reflected the principle
“so long ago laid down by Lord Holt, that ‘in every case where a statute enacts or prohibits a thing
for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for
his advantage, or for the recompense of the wrong done to him contrary to the said law.’” Aldrich
v. Howard, 7 R.I. 199, 213 (1862) (quoting Couch v. Steel, 3 Ellis and Blackburn, (77 Eng.
C.L.R.) 411). Some of Rhode Island’s earliest cases involved activities designated as “common
nuisances” by the General Assembly. Those cases recognized that “‘a public nuisance becomes a
private one to him who is specially and in some particular way inconvenienced thereby * * *.’”
State v. Keeran, 5 R.I. 497, 511 (1858). See also State v. Paul, 5 R.I. 185, 194 (1858) (an action
for abatement of a public nuisance may be brought “by those who are specially injured or
obstructed”).
In Rhode Island, actions to abate public nuisances originally were brought in the form of
an indictment. Keeran, 5 R.I. at 511; Paul, 5 R.I. at 194. Today, the state Attorney General is
empowered to bring actions to abate public nuisances. See G.L. 1956 § 42-9-2 (vesting the
Attorney General with the power to commence a public nuisance suit) and G.L. 1956 § 10-1-1
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Witt & Tani, TCPI 9. Liability without Fault?

(providing that “[w]henever a nuisance is alleged to exist, the attorney general . . . may bring an
action in the name of the state . . . to abate the nuisance”).
...
This Court has defined public nuisance as “an unreasonable interference with a right
common to the general public.” . . . “[I]t is behavior that unreasonably interferes with the health,
safety, peace, comfort or convenience of the general community.” . . . Put another way, “public
nuisance is an act or omission which obstructs or causes inconvenience or damage to the public in
the exercise of rights common to all.” . . .
This Court recognizes three principal elements that are essential to establish public
nuisance: (1) an unreasonable interference; (2) with a right common to the general public; (3) by a
person or people with control over the instrumentality alleged to have created the nuisance when
the damage occurred. . . .
A necessary element of public nuisance is an interference with a public right—those
indivisible resources shared by the public at large, such as air, water, or public rights of way. The
interference must deprive all members of the community of a right to some resource to which they
otherwise are entitled. See RESTATEMENT (SECOND) TORTS § 821B, cmt. g at 92. The
Restatement (Second) provides much guidance in ascertaining the fine distinction between a
public right and an aggregation of private rights. “Conduct does not become a public nuisance
merely because it interferes with the use and enjoyment of land by a large number of persons.”
Id. . . .
Although the state asserts that the public’s right to be free from the hazards of unabated
lead had been infringed, this contention falls far short of alleging an interference with a public
right as that term traditionally has been understood in the law of public nuisance. The state’s
allegation that defendants have interfered with the “health, safety, peace, comfort or convenience
of the residents of the [s]tate” standing alone does not constitute an allegation of interference with
a public right. . . . The term public right is reserved more appropriately for those indivisible
resources shared by the public at large, such as air, water, or public rights of way. . . . Expanding
the definition of public right based on the allegations in the complaint would be antithetical to the
common law and would lead to a widespread expansion of public nuisance law that never was
intended, as we discuss infra. In declining to adopt such a widespread expansion of the law, we
are mindful of the words of Edmund Burke that “bad laws are the worst sort of tyranny.” 1
Edmund Burke, The Works of Edmund Burke: With a Memoir 318 (1860).
...
The enormous leap that the state urges us to take is wholly inconsistent with the widely
recognized principle that the evolution of the common law should occur gradually, predictably,
and incrementally. Were we to hold otherwise, we would change the meaning of public right to
encompass all behavior that causes a widespread interference with the private rights of numerous
individuals.
The Illinois Supreme Court recently hypothesized on the effect of a broader recognition of
public right. In Beretta, the Illinois Supreme Court considered whether there was a public right to
be “free from unreasonable jeopardy to health, welfare, and safety, and from unreasonable threats
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Witt & Tani, TCPI 9. Liability without Fault?

of danger to person and property, caused by the presence of illegal weapons in the city of
Chicago.” Beretta U.S.A. Corp., 290 Ill. Dec. 525, 821 N.E.2d at 1114. In concluding that there
was not, the court acknowledged the far-reaching effects of a decision otherwise. Id. 290 Ill. Dec.
525, 821 N.E.2d at 1116. The court speculated that
“[i]f there is public right to be free from the threat that others may use a lawful
product to break the law, that right would include the right to drive upon the
highways, free from the risk of injury posed by drunk drivers. This public right to
safe passage on the highways would provide the basis for public nuisance claims
against brewers and distillers, distributing companies, and proprietors of bars,
taverns, liquor stores, and restaurants with liquor licenses, all of whom could be said
to contribute to an interference with the public right.” Id.
In taking the analogy a step further, the court considered the effect of other product
misuse, stating:
“Similarly, cell phones, DVD players, and other lawful products may be misused
by drivers, creating a risk of harm to others. In an increasing number of
jurisdictions, state legislatures have acted to ban the use of these otherwise legal
products while driving. A public right to be free from the threat that other drivers
may defy these laws would permit nuisance liability to be imposed on an endless
list of manufacturers, distributors, and retailers of manufactured products that are
intended to be, or are likely to be, used by drivers, distracting them and causing
injury to others.” Id.
Like the Beretta court, we see no reason to depart from the long-standing principle that a
public right is a right of the public to shared resources such as air, water, or public rights of way.
Even had the state adequately alleged an interference with a right common to the general
public, which we conclude it did not, the state’s complaint also fails to allege any facts that would
support a conclusion that defendants were in control of the lead pigment at the time it harmed
Rhode Island’s children.
The state filed suit against defendants in their capacity “either as the manufacturer of . . .
lead pigment . . . or as the successors in interest to such manufacturers” for “the cumulative
presence of lead pigment in paints and coatings in or on buildings throughout the [s]tate of Rhode
Island.” For the alleged public nuisance to be actionable, the state would have had to assert that
defendants not only manufactured the lead pigment but also controlled that pigment at the time it
caused injury to children in Rhode Island—and there is no allegation of such control.
The New Jersey Supreme Court applied these same elements to the lead paint litigation in
that jurisdiction and likewise held that public nuisance was an improper cause of action. The
court emphasized that were it “to permit these complaints to proceed, [it] would stretch the
concept of public nuisance far beyond recognition and would create a new and entirely unbounded
tort antithetical to the meaning and inherent theoretical limitations of the tort of public nuisance.”
In re Lead Paint Litigation, 924 A.2d at 494. We agree.

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Note

1. Not with a bang but a whimper. Many critics have contended that this is for the good.
Lead-poisoning rates, they observe, have declined sharply over the past two decades. “In 1998,
3,437 children tested before they entered school in Rhode Island had elevated lead levels, which
can cause neurological problems ranging from loss of intelligence to behavior and attention
problems.” More recent studies found that the “the number of new cases dropped to 614.”
Moreover, “[d]uring that period, state, federal and local governments have spent millions of
dollars cleaning up lead paints.” Lord, “R.I. high court overturns lead-paint verdict,” supra.
The California litigation brought under much the same theory has had a different fate:

Cty. of Santa Clara v. Atl. Richfield Co., 137 Cal. App. 4th 292 (2006)
MIHARA, J.
A group of governmental entities acting for themselves, as class representatives, and on
behalf of the People of the State of California, filed a class action against a group of lead
manufacturers. The governmental entities alleged that the manufacturers . . . should be required
to abate the public nuisance created by lead paint. . . . The superior court sustained the
manufacturers’ demurrers to the public nuisance causes of action. . . .
We conclude that the superior court’s rulings were erroneous as to plaintiffs’ public
nuisance . . . cause[] of action. We therefore reverse the judgment. . . .
The public nuisance cause of action . . . . alleged that the People had “a common right to
be free from the detrimental [e]ffects . . . of Lead in homes, buildings, and property in the State of
California.” Yet “Lead is present on large numbers of homes, buildings, and other property
throughout the State of California,” “is injurious to the health of the public” and constitutes a
nuisance. “Defendants are liable in public nuisance in that they created and/or contributed to the
creation of and/or assisted in the creation and/or were a substantial contributing factor in the
creation of the public nuisance” by: “[e]ngaging in a massive campaign to promote the use of
Lead on the interiors and exteriors of private residences and public and private buildings and for
use on furniture and toys;” failing to warn the public about the dangers of lead; selling, promoting
and distributing lead; trying to discredit evidence linking lead poisoning to lead; trying to stop
regulation and restrictions on lead; and trying to increase the market for lead. Plaintiffs alleged
that the lead distributed by defendants “inevitably has deteriorated and/or is deteriorating and/or
will deteriorate thereby contaminating these homes, buildings, and property” and exposing people
to lead. The remedy sought was abatement “from all public and private homes and property so
affected throughout the State of California.”
Defendants . . . . claim that no public nuisance cause of action may be pleaded against a
manufacturer of a product that creates a health hazard because such hazards are remediable solely
through products liability. . . . [T]hey claim that, even where the facts would otherwise constitute
a public nuisance, a cause of action does not lie because the underlying cause of the public
nuisance is a product for which only a products liability cause of action will lie.
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“Anything which is injurious to health . . . or is indecent or offensive to the senses, or an
obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or
property . . . is a nuisance.” Cal. Civ. Code, § 3479 (italics added). “A public nuisance is one
which affects at the same time an entire community or neighborhood, or any considerable number
of persons . . . .” Cal. Civ. Code, § 3480. . . .
“[P]ublic nuisances are offenses against, or interferences with, the exercise of rights
common to the public.” People ex rel. Gallo v. Acuna[, 929 P.2d 596 (Cal. 1997)]. “Of course,
not every interference with collective social interests constitutes a public nuisance. To qualify,
and thus be enjoinable [or abatable], the interference must be both substantial and unreasonable.”
Id. It is substantial if it causes significant harm and unreasonable if its social utility is outweighed
by the gravity of the harm inflicted. Id.
Santa Clara, SF, and Oakland . . . alleged that lead causes grave harm, is injurious to
health, and interferes with the comfortable enjoyment of life and property. Clearly their
complaint was adequate to allege the existence of a public nuisance . . . . The next question was
whether defendants could be held responsible for this public nuisance.
“[L]iability for nuisance does not hinge on whether the defendant owns, possesses or
controls the property, nor on whether he is in a position to abate the nuisance; the critical question
is whether the defendant created or assisted in the creation of the nuisance.” (City of Modesto
Redevelopment Agency v. Superior Court, 119 Cal. App. 4th 28, 39 [Cal. Ct. App. 2004] . . .)
Here, Santa Clara, SF, and Oakland alleged that defendants assisted in the creation of this
nuisance by concealing the dangers of lead, mounting a campaign against regulation of lead, and
promoting lead paint for interior use even though defendants had known for nearly a century that
such a use of lead paint was hazardous to human beings. . . .
Yet defendants claim that they may not be held liable on a public nuisance cause of action
because two Court of Appeal opinions have held that public nuisance is an inappropriate cause of
action against a product manufacturer for a nuisance caused by the product. They rely on the
Second District Court of Appeal’s decision in City of San Diego v. U.S. Gypsum Co.[ 30 Cal.
App. 4th 575 (Cal. Ct. App. 1995)] and the First District Court of Appeal’s decision in Modesto. .
..
San Diego and Modesto are distinguishable from the case before us. Here, the
representative cause of action is a public nuisance action brought on behalf of the People seeking
abatement. Santa Clara, SF, and Oakland are not seeking damages for injury to their property or
the cost of remediating their property. Liability is not based merely on production of a product or
failure to warn. Instead, liability is premised on defendants’ promotion of lead paint for interior
use with knowledge of the hazard that such use would create. This conduct is distinct from and far
more egregious than simply producing a defective product or failing to warn of a defective
product . . . .
A representative public nuisance cause of action seeking abatement of a hazard created by
affirmative and knowing promotion of a product for a hazardous use is not “essentially” a
products liability action “in the guise of a nuisance action” and does not threaten to permit public
nuisance to “‘become a monster that would devour in one gulp the entire law of tort . . . .’”
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Witt & Tani, TCPI 9. Liability without Fault?

The judgment is reversed. The superior court is directed to (1) vacate its order sustaining
the demurrer to the representative public nuisance cause of action in the third amended complaint
and enter a new order overruling the demurrer to that cause of action. . . . Plaintiffs shall recover
their costs on appeal.

Note

1. In December 2013, a California trial court awarded damages to the plaintiffs in the
amount of $1.1 billion, later increased to $1.5 billion. An intermediate California appellate court
affirmed most of the judgment in November 2017. People v. Conagra Grocery Products Co., 17
Cal. App. 5th 51 (Cal. App. 6th Dist. 2017). The California Supreme Court declined to review the
case in February 2018. In October 2018, the U.S. Supreme Court denied certiorari, putting an end
to nearly two decades of litigation and leaving in place the damages award, including a $409
million abatement fund. ConAgra Grocery Prod. Co. v. California, 139 S. Ct. 377 (2018); see
also Greg Stohr, Supreme Court Rejects Lead-Paint Maker Appeals in $400 Million Case,
BLOOMBERG, Oct. 15, 2018.
Few other efforts to deploy the public nuisance doctrine for broad social policy ends have
had as much success as the California lead paint case. The next case, arising out of a creative
effort to deploy public nuisance in New Jersey, is more typical of the outcomes of such cases.

Camden County v. Beretta, 273 F.3d 536 (3d Cir. 2001)
PER CURIAM.
The Camden County Board of Chosen Freeholders (hereinafter “Camden County”)
contends that handgun manufacturers, because of their marketing and distribution policies and
practices, are liable under a public nuisance theory for the governmental costs associated with the
criminal use of handguns in Camden County. The District Court, in a 53-page opinion, dismissed
the complaint. . . . We affirm the order of the District Court.
I
In its Second Amended Complaint, Camden County alleged that Defendants’ conduct—
the marketing and distribution of handguns—created and contributed to the widespread criminal
use of handguns in the County. . . . The County invoked three theories of liability: negligence,
negligent entrustment, and public nuisance. The County requested several forms of relief,
including compensation for the additional costs incurred by the County to abate the alleged public
nuisance (costs borne by the County’s prosecutor, sheriff, medical examiner, park police,
correctional facility, and courts) . . . and other compensatory and punitive damages. The
manufacturers countered that the County had failed to state claims on which relief could be
granted and that, in any event, damages were barred by the municipal cost recovery rule.
Moreover, the manufacturers contended that the claims were barred by New Jersey’s product
liability statute, the Dormant Commerce Clause, and the Due Process Clause.

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Witt & Tani, TCPI 9. Liability without Fault?

The District Court rejected all three of Camden County’s theories of liability and granted
the defendants’ motion to dismiss the complaint. It dismissed the two negligence claims after its
thorough six-factor analysis found proximate cause lacking. . . . It also found that the public
nuisance claim was defective because the County had not alleged “the required element that the
defendants exercised control over the nuisance to be abated.”
On appeal, Camden County has dropped the two negligence claims and pursues only the
public nuisance claim. The County alleges that the manufacturers’ conduct endangered public
safety, health, and peace, and imposed inordinate financial burdens on the County’s fisc. It argues
that the defendants “knowingly facilitated, participated in, and maintain a handgun distribution
system that provides criminals and youth easy access to handguns.” Appellant’s Brief at 2.
Relying on general data about the marketing and distribution of handguns, the County argues that
Defendants knowingly created the public nuisance of “criminals and youth with handguns.”
Appellant’s Brief at 3 (emphasis in original).
The County makes the following pertinent factual allegations: the manufacturers release
into the market substantially more handguns than they expect to sell to law-abiding purchasers;
the manufacturers continue to use certain distribution channels, despite knowing (often from
specific crime-gun trace reports produced by the federal Bureau of Alcohol, Tobacco, and
Firearms) that those channels regularly yield criminal end-users; the manufacturers do not limit
the number, purpose, or frequency of handgun purchases and do not supervise these sales or
require their distributors to do so; the manufacturers’ contracts with distributors do not penalize
distributor practices that facilitate criminal access to handguns; the manufacturers design,
produce, and advertise handguns in ways that facilitate sales to and use by criminals; the
manufacturers receive significant revenue from the crime market, which in turn generates more
sales to law-abiding persons wishing to protect themselves; and the manufacturers fail to take
reasonable measures to mitigate the harm to Camden County. Appellant’s Brief at 4-5. The
County makes no allegation that any manufacturer violated any federal or state statute or
regulation governing the manufacture and distribution of firearms, and no direct link is alleged
between any manufacturer and any specific criminal act.
The manufacturers respond that the County’s factual allegations amount to the following
attenuated chain of events: (1) the manufacturers produce firearms at their places of business; (2)
they sell the firearms to federally licensed distributors; (3) those distributors sell them to federally
licensed dealers; (4) some of the firearms are later diverted by unnamed third parties into an
illegal gun market, which spills into Camden County; (5) the diverted firearms are obtained by
unnamed third parties who are not entitled to own or possess them; (6) these firearms are then
used in criminal acts that kill and wound County residents; and (7) this harm causes the County to
expend resources to prevent or respond to those crimes. Appellees’ Brief at 3. The manufacturers
note that in this chain, they are six steps removed from the criminal end-users. Moreover, the
fourth link in this chain consists of acts committed by intervening third parties who divert some
handguns into an illegal market.
II
Because this appeal presents a question of state law, we do not find it necessary to write at
length. In brief, we agree with the District Court that the County has failed to state a valid public
nuisance claim under New Jersey law.
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A
A public nuisance is “‘an unreasonable interference with a right common to the general
public.’” Philadelphia Elec. Co. v. Hercules, Inc.[, 762 F.2d 303, 315 (3d Cir. 1985)] . . . . For the
interference to be actionable, the defendant must exert a certain degree of control over its source.
Traditionally, the scope of nuisance claims has been limited to interference connected
with real property or infringement of public rights. See PROSSER & KEETON ON TORTS § 86 at
617-18 (5th ed. 1984). In this 1984 edition of the hornbook, the authors lamented that “there is
perhaps no more impenetrable jungle in the entire law than that which surrounds the word
‘nuisance.’ It has meant all things to all people, and has been applied indiscriminately to
everything from an alarming advertisement to a cockroach baked in a pie. ” Id. at 616. They
recommended dismissal of nuisance claims “not connected with land or with any public right, as
mere aberration, adding to the vagueness of an already uncertain word. Unless the facts can be
brought within one of the two categories mentioned, there is not, with any accurate use of the
term, a nuisance.” Id. at 618-19. Since that edition, the scope of nuisance law appears to have
returned to its more narrow focus on these two traditional areas, as courts “across the nation have
begun to refine the types of cases amenable to a nuisance theory.” City of Philadelphia v. Beretta,
126 F. Supp. 2d 882, 909 (E.D. Pa. 2000).
Whatever the precise scope of public nuisance law in New Jersey may be, no New Jersey
court has ever allowed a public nuisance claim to proceed against manufacturers for lawful
products that are lawfully placed in the stream of commerce. On the contrary, the courts have
enforced the boundary between the well-developed body of product liability law and public
nuisance law. Otherwise, if public nuisance law were permitted to encompass product liability,
nuisance law “would become a monster that would devour in one gulp the entire law of
tort.” Tioga Public Sch. Dist. v. U.S. Gypsum Co.[, 984 F.2d 915, 921 (8th Cir. 1993)]. . . . If
defective products are not a public nuisance as a matter of law, then the non-defective, lawful
products at issue in this case cannot be a nuisance without straining the law to absurdity.
B
Within the narrower context of similar tort actions against handgun manufacturers around
the country, a majority of courts have rejected these claims as a matter of law. In a few other
courts, the claim was not dismissed outright, but each such case is distinguishable from the instant
case. To extend public nuisance law to embrace the manufacture of handguns would be
unprecedented under New Jersey state law and unprecedented nationwide for an appellate court.
See City of Philadelphia, 126 F. Supp. 2d at 910.
Even if public nuisance law could be stretched far enough to encompass the lawful
distribution of lawful products, the County has failed to allege that the manufacturers exercise
sufficient control over the source of the interference with the public right. The District Court
found this to be the “fatal defect” of the County’s claim . . . . The County argues that proximate
cause, remoteness, and control are not essential to a public nuisance claim, i.e., that conduct that
merely contributes to the source of the interference can be sufficient. But the relevant case law
shows that, even if the requisite element is not always termed “control,” the New Jersey courts in
fact require a degree of control by the defendant over the source of the interference that is absent
here.
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Witt & Tani, TCPI 9. Liability without Fault?

To connect the manufacture of handguns with municipal crime-fighting costs requires, as
noted above, a chain of seven links. This causal chain is simply too attenuated to attribute
sufficient control to the manufacturers to make out a public nuisance claim. In the initial steps,
the manufacturers produce lawful handguns and make lawful sales to federally licensed gun
distributors, who in turn lawfully sell those handguns to federally licensed dealers. Further down
the chain, independent third parties, over whom the manufacturers have no control, divert
handguns to unauthorized owners and criminal use. The manufacturers may not be held
responsible “without a more tangible showing that the defendants were a direct link the causal
chain that resulted in the plaintiffs’ injuries, and that the defendants were realistically in a position
to prevent the wrongs.” Hamilton v. Beretta U.S.A. Corp. et al.[, 264 F.3d 21 (2d Cir. 2001)] . .
(finding no duty because gun manufacturers did not control criminals with guns, and injuries were
too remote).
A public-nuisance defendant can bring its own conduct or activities at a particular
physical site under control. But the limited ability of a defendant to exercise control beyond its
sphere of immediate activity may explain why public nuisance law has traditionally been confined
to real property and violations of public rights. In the negligence context, this Court recently held
that a defendant has no duty to control the misconduct of third parties. . . . We agree with the
District Court that this logic is equally compelling when applied in the public nuisance context. . .
. If independent third parties cause the nuisance, parties that have not controlled or created the
nuisance are not liable. . . .
Public nuisance is a matter of state law, and the role of a federal court ruling on a matter
of state law in a diversity case is to follow the precedents of the state’s highest court and predict
how that court would decide the issue presented. It is not the role of a federal court to expand or
narrow state law in ways not foreshadowed by state precedent. Here, no New Jersey precedents
support the County’s public nuisance claim or provide a sound basis for predicting that the
Supreme Court of New Jersey would find that claim to be valid. While it is of course conceivable
that the Supreme Court of New Jersey may someday choose to expand state public nuisance law
in the manner that the County urges, we cannot predict at this time that it will do so.
III
Because Camden County failed to state a cognizable public nuisance claim against the gun
manufacturers under New Jersey law, the District Court’s order dismissing the County’s
complaint is AFFIRMED.

Note

1. Critics object that the use of public nuisance as a policy-making tool puts far too much
authority in the hands of the judiciary. Judges, as the critics see it, are asked in public nuisance
cases to make impossibly open-ended decisions, balancing a wide array of interests. Such
decisions, critics insist, are better made by democratically accountable legislatures or by expert
administrative agencies. Defenders of the nuisance causes of action, by contrast, observe that
vindicating rights as against injury is a quintessential judicial function.

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Witt & Tani, TCPI 9. Liability without Fault?

E. Strict Liability for Products?
1. Beginnings
Few areas of twenty-first-century tort law are more important than the law of products
liability. Products cases typically involve deep-pocket defendants. But proving product defects,
especially in the design of a product, can be exceedingly difficult—and exceedingly expensive—
to do.
For most of the history of modern tort law, products cases presented limited- or no-duty
rules insulating product manufacturers from liability for injuries to the ultimate users of their
products. Today, however, the doctrine contains strict liability principles. Partly in response to
the difficulty of proving defects, the law holds certain product sellers and manufacturers liable
without regard to fault for injuries arising out of product defects. But traditional negligence
principles persist in the law of products liability as well. Note, for example, that a plaintiff
seeking to invoke strict liability for a product injury still needs to show that the product was
defective. Very often, that showing requires recourse to principles similar to those in the
negligence standard.
But we are getting ahead of ourselves and starting with the end of the story. For a
century, the leading case for the old rule of no-duty was the English decision in Winterbottom v.
Wright.

Winterbottom v. Wright, 152 Eng. Rep. 402 (Exch. of Pleas. 1842)
[Defendant was a contractor for the supply of mail-coaches to the Postmaster-General
whose agreement with the Postmaster-General specified that defendant would keep the coaches in
“a fit, proper, safe, and secure state and condition.” Plaintiff was a mail coachman employed by a
second contractor who had agreed to supply horses and coachmen. Plaintiff’s declaration alleged
that the mail-coach “being then in a frail, weak, and infirm, and dangerous state and condition,”
gave way while he was driving it, that the accident threw him from the coach, that “no other
cause, circumstance matter or thing whatsoever” caused the accident, and that he was thereby left
“lame for life.”]
LORD ABINGER, C.B. I am clearly of opinion that the defendant is entitled to our judgment. We
ought not to permit a doubt to rest upon this subject, for our doing so might be the means of
letting in upon us an infinity of actions. . . . [T]he action is brought simply because the defendant
was a contractor with a third person; and it is contended that thereupon he became liable to every
body who might use the carriage. If there had been any ground for such an action, there certainly
would have been some precedent of it; but with the exception of actions against innkeepers, and
some few other persons, no case of a similar nature has occurred in practice. That is a strong
circumstance, and is of itself a great authority against its maintenance. It is contended, that this
contract being made on the behalf of the public by the Postmaster-General, no action could be
maintained against him, and therefore the plaintiff must have a remedy against the defendant. But
that is by no means a necessary consequence—he may be remediless altogether. There is no
privity of contract between these parties; and if the plaintiff can sue, every passenger, or even any
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Witt & Tani, TCPI 9. Liability without Fault?

person passing along the road, who was injured by the upsetting of the coach, might bring a
similar action. Unless we confine the operation of such contracts as this to the parties who
entered into them, the most absurd and outrageous consequences, to which I can see no limit,
would ensue. Where a party becomes responsible to the public, by undertaking a public duty, he
is liable, though the injury may have arisen from the negligence of his servant or agent. So, in
cases of public nuisances, whether the act was done by the party as a servant, or in any other
capacity, you are liable to an action at the suit of any person who suffers. Those, however, are
cases where the real ground of the liability is the public duty, or the commission of the public
nuisance. There is also a class of cases in which the law permits a contract to be turned into a tort;
but unless there has been some public duty undertaken, or public nuisance committed, they are all
cases in which an action might have been maintained upon the contract. Thus, a carrier may be
sued either in assumpsit or case; but there is no instance in which a party, who was not privy to
the contract entered into with him, can maintain any such action. The plaintiff in this case could
not have brought an action on the contract; if he could have done so, what would have been his
situation, supposing the Postmaster-General had released the defendant? That would, at all
events, have defeated his claim altogether. By permitting this action, we should be working this
injustice, that after the defendant had done everything to the satisfaction of his employer, and after
all matters between them had been adjusted, and all accounts settled on the footing of their
contract, we should subject them to be ripped open by this action of tort being brought against
him.
ALDERSON, 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
at which such actions would stop. The only safe rule is to confine the right to recover to those
who enter into the contract: if we go one step beyond that, there is no reason why we should not
go fifty. . . .
GURNEY, B., concurred.
ROLFE, B. . . . This is one of those unfortunate cases in which there certainly has been damnum,
but it is damnum absque injuria; it is, no doubt, a hardship upon the plaintiff to be without a
remedy, but by that consideration we ought not to be influenced. Hard cases, it has been
frequently observed, are apt to introduce bad law.
Judgment for the defendant.

Notes

1. Liability by contract? The Winterbottom regime was not a regime of no liability for
injuries arising out of products. It was a regime of liability by contract—and liability by contract
only. Had the plaintiff in Winterbottom made an arrangement by contract with his employer for
compensation in the event of injury arising out of work, including injury caused by the negligence
of the coach-maker, he would have had an action for damages under the contract.
Why limit damages to actions on contracts? Are there things to be said for such a
limitation? Note that the existence of tort liability for products is still controversial today. Some
scholars contend that tort liability for products is misguided and that we would be better off in the
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Witt & Tani, TCPI 9. Liability without Fault?

regime of Winterbottom against Wright. Professors Polinsky and Shavell, for example, argue that
product sellers and manufacturers are motivated to produce safe products by market forces:
consumer products that are unreasonably dangerous will go unsold. They observe further that
many products, such as pharmaceuticals, are designed, manufactured, and marketed under strict
regulations.
Consequently, product liability might not exert a significant additional influence on
product safety for many products—and empirical studies of several widely sold
products lend support to this hypothesis. A second benefit of product liability is
that it can improve consumer purchase decisions by causing product prices to
increase to reflect product risks. But because of litigation costs and other factors,
product liability may raise prices excessively and undesirably chill purchases. A
third benefit of product liability is that it compensates victims of product-related
accidents for their losses. Yet this benefit is only partial, for accident victims are
frequently compensated by insurers for some or all of their losses. . . . Opposing the
benefits of product liability are its costs, which are great.
A. Mitchell Polinsky & Steven Shavell, The Uneasy Case for Product Liability, 123 HARV. L.
REV. 1437 (2010).

2. The bystander problem. What would the Winterbottom rule mean for injured bystanders
and other injured third parties? Take for example a bystander to the coach accident in
Winterbottom who is injured by the collapsing coach. Should such a person have an action
against the coach-maker for injuries caused by the coach-maker’s negligence? If not, why not?
The answer cannot be that such plaintiffs ought to have protected themselves by contract. These
people were not in a position to demand contractual protection against the risk of injury. They
could, of course, purchase insurance against general risks of accident and injury. But why should
the injured bystander bear these costs as a general matter rather than the coach-maker?
Regardless of the merits, the caselaw on product injuries began to develop certain
exceptions to the Winterbottom privity rule. Eventually, the exceptions culminated in a decision
by Judge Cardozo in the New York Court of Appeals.

MacPherson v. Buick Motor Company, 111 N.E. 1050 (N.Y. 1916)
CARDOZO, J.
The defendant is a manufacturer of automobiles. It sold an automobile to a retail dealer.
The retail dealer resold to the plaintiff. While the plaintiff was in the car, it suddenly collapsed.
He was thrown out and injured. One of the wheels was made of defective wood, and its spokes
crumbled into fragments. The wheel was not made by the defendant; it was bought from another
manufacturer. There is evidence, however, that its defects could have been discovered by
reasonable inspection, and that inspection was omitted. There is no claim that the defendant knew
of the defect and willfully concealed it. . . . The charge is one, not of fraud, but of negligence.
The question to be determined is whether the defendant owed a duty of care and vigilance to any
one but the immediate purchaser.

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The foundations of this branch of the law, at least in this state, were laid in Thomas v.
Winchester [6 N.Y. 397 (1852)]. A poison was falsely labeled. The sale was made to a druggist,
who in turn sold to a customer. The customer recovered damages from the seller who affixed the
label. ‘The defendant’s negligence,’ it was said, ‘put human life in imminent danger.’ A poison
falsely labeled is likely to injure any one who gets it. Because the danger is to be foreseen, there
is a duty to avoid the injury. . . .
Thomas v. Winchester became quickly a landmark of the law. In the application of its
principle there may at times have been uncertainty or even error. There has never in this state
been doubt or disavowal of the principle itself. The chief cases are well known, yet to recall some
of them will be helpful. Loop v. Litchfield is the earliest. It was the case of a defect in a small
balance wheel used on a circular saw. The manufacturer pointed out the defect to the buyer, who
wished a cheap article and was ready to assume the risk. The risk can hardly have been an
imminent one, for the wheel lasted five years before it broke. In the meanwhile the buyer had
made a lease of the machinery. It was held that the manufacturer was not answerable to the
lessee. . . .
These early cases suggest a narrow construction of the rule. Later cases, however, evince
a more liberal spirit. First in importance is Devlin v. Smith. The defendant, a contractor, built a
scaffold for a painter. The painter’s servants were injured. The contractor was held liable. He
knew that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was
to be used by the workmen. He was building it for that very purpose. Building it for their use, he
owed them a duty, irrespective of his contract with their master, to build it with care.
From Devlin v. Smith we pass over intermediate cases and turn to the latest case in this
court in which Thomas v. Winchester was followed. That case is Statler v. Ray Mfg. Co., [88 N.E.
1063 (N.Y. 1909)]. The defendant manufactured a large coffee urn. It was installed in a
restaurant. When heated, the urn exploded and injured the plaintiff. We held that the
manufacturer was liable. We said that the urn ‘was of such a character inherently that, when
applied to the purposes for which it was designed, it was liable to become a source of great danger
to many people if not carefully and properly constructed.’ It may be that Devlin v. Smith and
Statler v. Ray Mfg. Co. have extended the rule of Thomas v. Winchester. If so, this court is
committed to the extension. The defendant argues that things imminently dangerous to life are
poisons, explosives, deadly weapons—things whose normal function it is to injure or destroy. But
whatever the rule in Thomas v. Winchester may once have been, it has no longer that restricted
meaning. A large coffee urn . . . may have within itself, if negligently made, the potency of
danger, yet no one thinks of it as an implement whose normal function is destruction. . . .
We hold, then, that the principle of Thomas v. Winchester is not limited to poisons,
explosives, and things of like nature, to things which in their normal operation are implements of
destruction. If the nature of a thing is such that it is reasonably certain to place [a] limb in peril
when negligently made, it is then a thing of danger. Its nature gives warning of the consequences
to be expected. If to the element of danger there is added knowledge that the thing will be used
by persons other than the purchaser, and used without new tests then, irrespective of contract, the
manufacturer of this thing of danger is under a duty to make it carefully. That is as far as we are
required to go for the decision of this case. There must be knowledge of a danger, not merely
possible, but probable. It is possible to use almost anything in a way that will make it dangerous
if defective. That is not enough to charge the manufacturer with a duty independent of his
contract.
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Whether a given thing is dangerous may be sometimes a question for the court and
sometimes a question for the jury. There must also be knowledge that in the usual course of
events the danger will be shared by others than the buyer. Such knowledge may often be inferred
from the nature of the transaction. But it is possible that even knowledge of the danger and of the
use will not always be enough. The proximity or remoteness of the relation is a factor to be
considered. We are dealing now with the liability of the manufacturer of the finished product,
who puts it on the market to be used without inspection by his customers. If he is negligent,
where danger is to be foreseen, a liability will follow. We are not required at this time to say that
it is legitimate to go back of the manufacturer of the finished product and hold the manufacturers
of the component parts. To make their negligence a cause of imminent danger, an independent
cause must often intervene; the manufacturer of the finished product must also fail in his duty of
inspection. It may be that in those circumstances the negligence of the earlier members of the
series as too remote to constitute, as to the ultimate user, an actionable wrong. . . . We have put
aside the notion that the duty to safeguard life and limb, when the consequences of negligence
may be foreseen, grows out of contract and nothing else. We have put the source of the obligation
where it ought to be. We have put its source in the law.
From this survey of the decisions, there thus emerges a definition of the duty of a
manufacturer which enables us to measure this defendant’s liability. Beyond all question, the
nature of an automobile gives warning of probable danger if its construction is defective. This
automobile was designed to go fifty miles an hour. Unless its wheels were sound and strong,
injury was almost certain. It was as much a thing of danger as a defective engine for a railroad.
The defendant knew the danger. It knew also that the care would be used by persons other than
the buyer. This was apparent from its size; there were seats for three persons. It was apparent
also from the fact that the buyer was a dealer in cars, who bought to resell. The maker of this car
supplied it for the use of purchasers from the dealer just as plainly as the contractor in Devlin v.
Smith supplied the scaffold for use by the servants of the owner. The dealer was indeed the one
person of whom it might be said with some approach to certainly that by him the car would not be
used. Yet the defendant would have us say that he was the one person whom it was under a legal
duty to protect. The law does not lead us to so inconsequent a conclusion. Precedents drawn
from the days of travel by stage coach do not fit the conditions of travel today. The principle that
the danger must be imminent does not change, but the things subject to the principle do change.
They are whatever the needs of life in a developing civilization require them to be. . . .
We think the defendant was not absolved from a duty of inspection because it bought the
wheels from a reputable manufacturer. It was not merely a dealer in automobiles. It was a
manufacturer of automobiles. It was responsible for the finished product. It was not at liberty to
put the finished product on the market without subjecting the component parts to ordinary and
simple tests. Under the charge of the trial judge nothing more was required of it. The obligation
to inspect must vary with the nature of the thing to be inspected. The more probable the danger,
the greater the need of caution. . . .
The judgment should be affirmed.

BARTLETT, C.J., dissenting. . . .
I do not see how we can uphold the judgment in the present case without overruling what
has been so often said by this court and other courts of like authority in reference to the absence of
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any liability for negligence on the part of the original vendor of an ordinary carriage to any one
except his immediate vendee. The absence of such liability was the very point actually decided in
the English case of Winterbottom v. Wright, and the . . . opinion of Chief Judge Ruggles in
Thomas v. Winchester assumes that the law on the subject was so plain that the statement would
be accepted almost as a matter of course. In the case at bar the defective wheel on an automobile
moving only eight miles an hour was not any more dangerous to the occupants of the car than a
similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same
speed; and yet unless the courts have been all wrong on this question up to the present time there
would be no liability to strangers to the original sale in the case of the horse-drawn carriage.
HISCOCK, CHASE and CUDDEBACK, JJ., concur with CARDOZO, J., and HOGAN, J., concurs in result;
WILLARD BARTLETT, C.J., reads dissenting opinion; POUND, J., not voting.

Notes

1. The dawn of the automobile. So many of the founding moments in tort law arise out of
the railroad. In MacPherson, we see a critical moment in the early development of the automobile
economy. The Buick automobile in question probably resembled the Buick featured in the
following image:

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Witt & Tani, TCPI 9. Liability without Fault?

Source: Library of Congress, Prints and Photographs Division.

As the caption to the image suggests, reliability was much discussed in the early days of
the automobile.

2. How radical is MacPherson? One view of the MacPherson case is that it utterly rejects
the old privity rule of Winterbottom. After the exceptions of Devlin and Statler, Cardozo seems to
say, the old privity rule has given way to the kind of reasonable foreseeability test we saw in
Chapter 8 in cases like Rowland v. Christian, 443 P.2d 561 (Cal. 1968) (replacing the common
law rules for trespassers, licensees, and invitees in landowner and occupier liability with a
reasonable foreseeability standard) and Dillon v. Legg, 441 P.2d 912 (Cal. 1968) (replacing the
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Witt & Tani, TCPI 9. Liability without Fault?

common law bar on actions for the infliction of negligent emotional distress with a reasonable
foreseeability standard).
But other observers contend that Cardozo’s opinion does not substitute what Holmes
called “the featureless generality” of the reasonableness standard for the old crystal clarity of the
privity rule. In this latter view, the MacPherson case aims to craft a new approach to the duty of
the product manufacturer, one that does not abandon Winterbottom’s effort to be attentive to the
specific moral obligations arising out of the particular kind of relationship at issue in products
cases:
For Cardozo . . . the resolution . . . turned on the duty issue . . . [that] itself had
meaning for him apart from the question of liability. Moreover, its meaning did not
concern whether a manufacturer does, or should, have a duty to compensate such a
plaintiff. The questions, according to the court, were whether Buick had a “duty of
vigilance,” whether it bore an “obligation to inspect,” how great was the “need of
caution,” and how “strict[ ]” was the duty to which Buick had to conform its
conduct.
John C. P. Goldberg & Benjamin C. Zipursky, The Moral of MacPherson, 146 U. PA. L. REV.
1733, 1813 (1998). The answer to these questions, argue Goldberg and Zipursky, is not reducible
to the kind of public policy functions that modern tort jurists often attribute to open-ended
reasonableness tests.
Many, however, argued that neither of these interpretations of Cardozo’s opinion in
MacPherson went far enough. What was the basis for incursions on the Winterbottom rule?
Presumably the ground for the proliferation of exceptions to the privity rule was a felt sense that
the manufacturer should bear the costs of many of the injuries arising out of the modern consumer
economy. If this was the intuition or policy ground behind the new approach, then why should a
plaintiff in such a case have to show the defendant’s negligence or fault? A California Supreme
Court decision in 1944 extending the res ipsa loquitor doctrine in the products area seemed to
embrace this policy intuition. And one justice, in his concurring opinion, took the idea a step
further:

Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal. 2d 453 (1944)
GIBSON, C.J.
Plaintiff, a waitress in a restaurant, was injured when a bottle of Coca Cola broke in her
hand. . . . This appeal is from a judgment upon a jury verdict in favor of plaintiff.
Defendant’s driver delivered several cases of Coca Cola to the restaurant, placing them on
the floor, one on top of the other, under and behind the counter, where they remained at least
thirty-six hours. Immediately before the accident, plaintiff picked up the top case and set it upon
a near-by ice cream cabinet in front of and about three feet from the refrigerator. She then
proceeded to take the bottles from the case with her right hand, one at a time, and put them into
the refrigerator. Plaintiff testified that after she had placed three bottles in the refrigerator and had
moved the fourth bottle about 18 inches from the case ‘it exploded in my hand.’ The bottle broke
into two jagged pieces and inflicted a deep five-inch cut, severing blood vessels, nerves and
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muscles of the thumb and palm of the hand.
[Plaintiff submitted evidence that the bottle had exploded and that carbonated bottled
beverages can explode when improperly filled.] Plaintiff then rested her case, having announced
to the court that being unable to show any specific acts of negligence she relied completely on the
doctrine of res ipsa loquitur. . . .
Upon an examination of the record, the evidence appears sufficient to support a
reasonable inference that the bottle here involved was not damaged by any extraneous force after
delivery to the restaurant by defendant. It follows, therefore, that the bottle was in some manner
defective at the time defendant relinquished control, because sound and properly prepared bottles
of carbonated liquids do not ordinarily explode when carefully handled. . . .
It is true that defendant presented evidence tending to show that it exercised considerable
precaution by carefully regulating and checking the pressure in the bottles and by making visual
inspections for defects in the glass at several stages during the bottling process. It is well settled,
however, that when a defendant produces evidence to rebut the inference of negligence which
arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the
jury to determine whether the inference has been dispelled.
The judgment is affirmed.
TRAYNOR, J.
I concur in the judgment, but I believe the manufacturer’s negligence should no longer be
singled out as the basis of a plaintiff’s right to recover in cases like the present one. In my
opinion it should now be recognized that a manufacturer incurs an absolute liability when an
article that he has placed on the market, knowing that it is to be used without inspection, proves to
have a defect that causes injury to human beings. MacPherson v. Buick established the principle,
recognized by this court, that irrespective of privity of contract, the manufacturer is responsible
for an injury caused by such an article to any person who comes in lawful contact with it. In these
cases the source of the manufacturer’s liability was his negligence in the manufacturing process or
in the inspection of component parts supplied by others. Even if there is no negligence, however,
public policy demands that responsibility be fixed wherever it will most effectively reduce the
hazards to life and health inherent in defective products that reach the market. It is evident that
the manufacturer can anticipate some hazards and guard against the recurrence of others, as the
public cannot. Those who suffer injury from defective products are unprepared to meet its
consequences. The cost of an injury and the loss of time or health may be an overwhelming
misfortune to the person injured, and a needless one, for the risk of injury can be insured by the
manufacturer and distributed among the public as a cost of doing business. It is to the public
interest to discourage the marketing of products having defects that are a menace to the public. If
such products nevertheless find their way into the market it is to the public interest to place the
responsibility for whatever injury they may cause upon the manufacturer, who, even if he is not
negligent in the manufacture of the product, is responsible for its reaching the market. However
intermittently such injuries may occur and however haphazardly they may strike, the risk of their
occurrence is a constant risk and a general one. Against such a risk there should be general and
constant protection and the manufacturer is best situated to afford such protection.
The injury from a defective product does not become a matter of indifference because the
defect arises from causes other than the negligence of the manufacturer, such as negligence of a
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submanufacturer of a component part whose defects could not be revealed by inspection . . . or
unknown causes that even by the device of res ipsa loquitur cannot be classified as negligence of
the manufacturer. The inference of negligence may be dispelled by an affirmative showing of
proper care. If the evidence against the fact inferred is ‘clear, positive, uncontradicted, and of
such a nature that it can not rationally be disbelieved, the court must instruct the jury that the
nonexistence of the fact has been established as a matter of law.’ An injured person, however, is
not ordinarily in a position to refute such evidence or identify the cause of the defect, for he can
hardly be familiar with the manufacturing process as the manufacturer himself is. In leaving it to
the jury to decide whether the inference has been dispelled, regardless of the evidence against it,
the negligence rule approaches the rule of strict liability. It is needlessly circuitous to make
negligence the basis of recovery and impose what is in reality liability without negligence. If
public policy demands that a manufacturer of goods be responsible for their quality regardless of
negligence there is no reason not to fix that responsibility openly.
[Traynor goes on to discuss a state statute that criminalizes, without proof of fault, the
“manufacturing, preparing, compounding, packing, selling, offering for sale, or keeping for sale,
or advertising within the state, of any adulterated food.” The result is a kind of strict liability for
manufacturers.]
The retailer, even though not equipped to test a product, is under an absolute liability to
his customer, for the implied warranties of fitness for proposed use and merchantable quality
include a warranty of safety of the product. This warranty is not necessarily a contractual one, for
public policy requires that the buyer be insured at the seller’s expense against injury. . . . The
courts recognize, however, that the retailer cannot bear the burden of this warranty, and allow him
to recoup any losses by means of the warranty of safety attending the wholesaler’s or
manufacturer’s sale to him. . . . Such a procedure, however, is needlessly circuitous and engenders
wasteful litigation. Much would be gained if the injured person could base his action directly on
the manufacturer’s warranty.
The liability of the manufacturer to an immediate buyer injured by a defective product
follows without proof of negligence from the implied warranty of safety attending the sale.
Ordinarily, however, the immediate buyer is a dealer who does not intend to use the product
himself, and if the warranty of safety is to serve the purpose of protecting health and safety it must
give rights to others than the dealer. . . .
As handicrafts have been replaced by mass production with its great markets and
transportation facilities, the close relationship between the producer and consumer of a product
has been altered. Manufacturing processes, frequently valuable secrets, are ordinarily either
inaccessible to or beyond the ken of the general public. The consumer no longer has means or
skill enough to investigate for himself the soundness of a product, even when it is not contained in
a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of
manufacturers to build up confidence by advertising and marketing devices such as trade-marks.
Consumers no longer approach products warily but accept them on faith, relying on the reputation
of the manufacturer or the trade mark. Manufacturers have sought to justify that faith by
increasingly high standards of inspection and a readiness to make good on defective products by
way of replacements and refunds. The manufacturer’s obligation to the consumer must keep pace
with the changing relationship between them; it cannot be escaped because the marketing of a
product has become so complicated as to require one or more intermediaries. Certainly there is
greater reason to impose liability on the manufacturer than on the retailer who is but a conduit of a
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product that he is not himself able to test.
The manufacturer’s liability should, of course, be defined in terms of the safety of the
product in normal and proper use, and should not extend to injuries that cannot be traced to the
product as it reached the market.
Rehearing denied; EDMONDS, J., dissenting.

Notes

1. Justice Traynor’s concurring opinion in Escola proposed to go a good deal further than
Judge Cardozo had in MacPherson. What features of products cases would warrant such a step?

2. Henningsen v. Bloomfield Motors. One reason Traynor may have been skeptical of the
negligence cause of action in the products context emerged in Henningsen v. Bloomfield Motors
decided in New Jersey in 1960. In Henningsen, husband and wife purchased a new Plymouth
from a dealer in 1955. Ten days later, while Mrs. Henningsen was driving the vehicle, it made a
loud cracking noise, the steering wheel spun, and the car veered off the roadway and into a brick
wall. When the Henningsens sued for damages, however, they were hard-pressed to present
evidence of a defect in the automobile or of any negligence by either the dealer or the
manufacturer. At the close of evidence, the trial judge awarded judgment to the defendant on the
negligence claim.
Plaintiffs had also brought an action for breach of warranty. New Jersey, like many states,
authorizes damages for personal injuries arising from breach of warranty. And such actions do
not require any showing of negligence or fault on the part of the seller of a product, merely that
the product not satisfy the warranties of fitness and merchantability. But the plaintiffs’ warranty
action faced an obstacle of its own. In fine print, the back of the sales agreement provided that
there were “no warranties, express or implied” other than that “the manufacturer agrees to replace
defective parts for 90 days after the sale or until the car has been driven 4,000 miles, whichever is
first to occur.” Moreover, defendants contended that the warranty only created obligations to the
buyer, Mr. Henningsen, not to Mrs. Henningsen, who was not a party to the contract. Warranty
liability, they contended, still required the privity that Cardozo had abolished in negligence
actions in MacPherson.
The Henningsen court smashed through both of these obstacles. First, it held that third
parties could bring actions on the warranty:
Under modern conditions the ordinary layman, on responding to the importuning of
colorful advertising, has neither the opportunity nor the capacity to inspect or to
determine the fitness of an automobile for use; he must rely on the manufacturer
who has control of its construction, and to some degree on the dealer who, to the
limited extent called for by the manufacturer’s instructions, inspects and services it
before delivery. In such a marketing milieu his remedies and those of persons who
properly claim through him should not depend upon the intricacies of the law of
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sales. The obligation of the manufacturer should not be based alone on privity of
contract. It should rest, as was once said, upon the demands of social justice.
Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69, 83 (N.J. 1960) (quotations and citations
omitted). Then the court held that the warranty of merchantability was not disclaimable.
“Automobile manufacturers,” the court observed, “undertake large scale advertising programs
over television, radio, in newspapers, magazines and all media of communication in order to
persuade the public to buy their products,” and “when a manufacturer engages in advertising in
order to bring his goods and their quality to the attention of the public and thus to create consumer
demand, the representations made constitute an express warranty running directly to a buyer who
purchases in reliance thereon.” Id. at 84. Citing “the gross inequality of bargaining position
occupied by the consumer in the automobile industry” and claiming that “there is no competition
among the motor vehicle manufacturers with respect to the scope of protection guaranteed to the
buyer,” the court struck the express disclaimer of the warranty and allowed the plaintiffs to
recover on an implied warranty of merchantability. Id. at 87.
After Henningsen, plaintiffs could bring warranty actions for personal injury without
showing negligence even if the seller or manufacturer had attempted to disclaim the warranty.
Such a warranty action was a species of contract claim. That meant that liability could only be
had for injuries arising out of failures of the product to perform as impliedly or expressly
warranted. But many observed that this warranty liability looked a lot like strict liability in tort.
Meanwhile, back in California, Justice Traynor’s idea in Escola soon made its way into a majority
opinion in tort.

3. Greenman v. Yuba Power Products. Traynor had the opportunity to convert his Escola
concurrence into the law of California in 1963. Plaintiff William Greenman, whose wife
purchased him a power tool, was injured when the tool caused a piece of wood to strike him in the
forehead. He brought implied and express warranty claims, as well as negligence claims, against
both the retailer and the manufacturer. The defendants objected, however, that he had failed to
give notice of the breach of warranty in reasonable time, as required in the law of warranties.
Justice Traynor responded that “[t]he remedies of injured consumers ought not to be made to
depend upon the intricacies of the law of sales,” and he held that injured consumers were not
subject to the notice requirement of the traditional law of warranties. Greenman v. Yuba Power
Products, 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
distinctions between the warranty and tort causes of action had been abolished:
The purpose of such liability is to insure that the costs of injuries resulting from
defective products are borne by the manufacturers that put such products on the
market rather than by the injured persons who are powerless to protect themselves.
Id.

4. Corrective justice without fault? The Escola case and the rise of strict liability raises a
question about whether corrective justice adequately accounts for the modern law of torts. If tort
law is a law of wrongs, as the corrective justice view has it, how can there be liability without
wrongful harm, as there seems to be in non-fault liability regimes? Gregory C. Keating has
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recently suggested one answer: that strict liability torts involve a “distinctive wrong,” namely, the
wrong of “harming-without-repairing.” Gregory C. Keating, Strict Liability Wrongs, in
PHILOSOPHICAL FOUNDATIONS OF THE LAW OF TORTS 292 (2014); see also Jules L. Coleman, Some
Reflections on Richard Brooks’s “Efficient Performance Hypothesis,” 116 YALE L.J. POCKET
PART 416 (2007), https://perma.cc/T9DT-57GX (arguing that strict liability falls in the category
of tort liability in which the relevant wrong arises not merely out of injuring but out of injuring
without providing compensation).
John Goldberg and Benjamin Zipursky justify the modern doctrine of strict liability by
arguing that sometimes we simply owe duties to refrain from injuring others. In this view, a
defendant acts wrongly when she fails to live up to her obligation not to injure. John C.P.
Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 TEX. L. REV. 917, 918-19 (2010).

5. The Second Restatement Revolution. Torts scholar William Prosser at the University of
California, Berkeley called cases like Henningsen and Greenman an “assault on the citadel” of
privity and negligence in products cases. William L. Prosser, The Assault Upon the Citadel, 69
YALE L.J. 1099, 1124-34 (1960). Prosser himself led the charge forward in 1965, when the
American Law Institute published the Second Restatement of the law of torts—a restatement for
which Prosser was the reporter. In section 402A, the Restatement set out a new account of the
law of a seller’s liability for physical injuries to a user or consumer. Consider the next case, in
which Ohio, like many states around the country in the 1960s and 1970s, adopted the Restatement
approach.
Pay special attention to the Restatement section (Section 402A) set out by the court in
footnote 2.

Temple v. Wean United, Inc., 364 N.E.2d 267 (Ohio 1977)
CELEBREZZE, J.
On January 25, 1972, appellant, Beverly A. Temple, was operating a Warco 75 ton power
punch press in the course of her employment at Superior Metal Products, Inc. (Superior). As Mrs.
Temple placed an aluminum extrusion into the back die of the press, an unknown number of
extrusions fell from the bolster plate, in front of her, onto the dual operating buttons, causing the
press to close on her arms. As a result, Mrs. Temple’s hands and forearms were crushed,
requiring amputation of both arms just below the elbow.
. . . The press was manufactured and sold in 1954 by Federal Machine & Welder
Company, now Wean United, Inc. (Wean), to a division of the General Motors Corporation (G.
M.). At the time of manufacture two hand-operated “run” buttons were mounted on the uprights
of the press, at shoulder level. In July of 1971, the press was sold by G. M. to Turner Industries,
and Turner immediately sold the press to Temple’s employer.
Upon receipt of the press, Superior personnel modified the operating control circuits by
replacing the single clutch valve with a safer dual valve, and by replacing the original rotary
switch. In addition, Superior installed new operating buttons which were manufactured by the
Square D Company (Square D). Pursuant to a standard company policy, Superior’s engineers
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positioned the buttons waist high, in an upward position, 24 inches apart. The press was then put
into operation, stamping out metal bowls, no larger than nine inches in diameter.
On the day of the accident the dies were changed and 36 inch linear stock was run through
the press. It is not disputed that the accident occurred when several pieces of the 36 inch stock
fell off the bolster and bridged the dual operating buttons, thus simultaneously depressing them.
Stated otherwise, it is clear that there was no malfunction in the press or in any of its component
parts. . . .
[Mrs. Temple, along with her husband, sued the defendant as manufacturer of the press.
The trial court granted summary judgment to the defendants; plaintiff appealed.]
I
This is a products liability action brought under theories of negligence, implied warranty,
and strict liability in tort. The latter two counts are virtually indistinguishable . . . .1
The paramount Ohio decision in the law of products liability is Lonzrick v. Republic Steel
Corp., 218 N.E.2d 185 (Ohio 1966). In Lonzrick this court traced the “slow, orderly and
evolutionary development” in this area . . . . Whereas [earlier cases had] imposed a warranty upon
the manufacturer because of its advertising to the public, Lonzrick dispensed with this
rationalization, and thus the doctrine of strict liability in tort was adopted by Ohio.
It is now well established that, in order for a party to recover based upon a strict liability
in tort theory, it must be proven that: “(1) There was, in fact, a defect in the product manufactured
and sold by the defendant; (2) such defect existed at the time the product left the hands of the
defendant; and (3) the defect was the direct and proximate cause of the plaintiff’s injuries or loss.”
...
Although acknowledging the absence of any mechanical malfunction, appellants contend
that the power press was defective in that it was unreasonably dangerous and was placed in the
hands of the user, Mrs. Temple, without adequate warning. This conception of defectiveness is
premised upon Section 402A of the Restatement of Torts 2d,2 Comment J, which states that: “In

Although we have referred to this theory of liability in various ways, including “strict liability in tort for breach
of implied warranty of fitness for ordinary use”; “implied warranty, which is a form of strict liability in tort”; and
“strict liability”; it is recognized that this fictional “warranty” differs from those found in the sale of goods, since
many of the traditional defenses and requirements arising out of the law of contracts are inapplicable. See
Prosser, The Assault Upon the Citadel, 69 Yale L.J. 1099 (1960).
1

2

Section 402A . . . reads as follows:
Special Liability of Seller of Product for Physical Harm to User or Consumer.
(1) One who sells any product in a defective condition unreasonably dangerous to the
user or consumer or to his property is subject to liability for physical harm thereby
caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although

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order to prevent the product from being unreasonably dangerous, the seller may be required to
give directions or warning . . . as to its use.” Although this court has never expressly adopted
Section 402A as the standard for strict liability in tort, we did, in Lonzrick, supra, cite Section
402A, as well as Greenman v. Yuba Power Products, the first case to apply the principles
underlying the section. Since Greenman was decided, the rule of the Restatement has been
adopted or approved by the vast majority of courts which have considered it. Because there are
virtually no distinctions between Ohio’s “implied warranty in tort” theory and the Restatement
version of strict liability in tort, and because the Restatement formulation, together with its
numerous illustrative comments, greatly facilitates analysis in this area, we hereby approve
Section 402A of the Restatement of Torts 2d.
II
Under Section 402A, as well as under our case law, a plaintiff must prove that the product
was defective at the time it left the seller’s hands. . . . Section 402A(1)(b) imposes strict liability
only where the defective product reaches “the user or consumer without substantial change in the
condition in which it is sold.”
The evidence of record reveals the prior to the date of the accident Superior had a
company policy which specified that all power press activating buttons be located facing upward,
waist high, 24 inches apart. Pursuant to this policy, upon receipt of the press, Superior altered the
existing method of guarding by lowering the buttons, which were at that time shoulder high.
Clearly, in relation to the danger of unintentional activation, this alteration was a “substantial
change” within the meaning of Section 402A(1)(b). Indeed, it is our conclusion that there was no
original defect of any sort in the punch press, and that, as a matter of law, Superior’s alteration of
the safety device, coupled with the utilization of the press for the stamping of stock long enough
to bridge the 24-inch gap between the buttons, was the sole responsible cause of the maiming of
Mrs. Temple.
...
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.

Notes

1. Completing the revolution. Mrs. Temple may have lost her suit. But the Second
Restatement nonetheless helped to touch off a transformation in product liability law. Before the
Restatement, there had been a number of influential products liability decisions rejecting the longstanding negligence standard—opinions such as Traynor’s opinions in Henningsen and
Greenman. But the Restatement provision proved to be highly influential. Before long, Prosser

(a) the seller has exercised all possible care in the preparation and sale of his
product, and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.

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expressed confidence that the assault had completely destroyed the seller defenses of privity and
non-negligence. See William L. Prosser, The Fall of the Citadel, 50 MINN. L. REV. 791 (1966).

2. Consumer expectations versus ex post cost benefit. Despite the early exuberance of
judges like Traynor and scholars like Prosser, and despite the ready adoption of the Restatement
by states such as Ohio, the Second Restatement turned out to present a number of puzzles.
One leading puzzle in 402A’s treatment of defective products was how to determine
whether a product was “defective” and “unreasonably dangerous to the user.” The Restatement
purported to set out a standard of liability only for products that are defective and unreasonably
dangerous. These are critical limitations. After all, no one thinks that kitchen knife
manufacturers ought to be liable for cuts arising out of ordinary cooking activities. Without the
limitation to defective products, the strict liability rule of 402A would threaten to create a liability
so sweeping as to include even obviously absurd cases.
Here is the puzzle: Subsection (2)(a) indicates that liability exists even though the seller
has “exercised all possible care” in the preparation and sale of the product. How, some torts
jurists began to ask, could any product as to which all possible care had been given be described
as defective? Such a seller or manufacturer, after all, might have lavished more care than the
mere reasonable care required by the negligence standard. And yet the law imagined that such an
immaculately carefully produced product might nonetheless be describable as defective. How
could that be?
Two possible answers emerged to the puzzle of strict liability for defective products
unreasonably dangerous to the user. The first was that defectiveness was to be measured not by
reference to the care put into the product by the seller and manufacturer, but by reference to the
reasonable expectations of the user. The consumer’s expectations would be the yardstick for
determining defectiveness.
A second answer to the puzzle of defectiveness hewed closer to the traditional negligence
approach, but with a twist. A product could be characterized as defective, after all, even if all
possible care had been put into its design and production, if the characterization was not made
from the ex ante view but instead from the ex post perspective. That is, a product might have
been made with all possible care at the time of its design and manufacture. It might have been a
perfectly fine product given the state of the art at that time. But given what we know at the time
of the trial, we might well conclude that the product is—given what we know now—substandard.
This approach is essentially an ex post Learned Hand test: it takes the ex ante reasonable person
test of the Carroll Towing case we read back in Chapter 4 and turns it around such that the costbenefit test takes into account all that we know at the time of trial about the costs and benefits of
the product’s features.

2. Manufacturing Defects
One category of products cases involves allegations of defects in the manufacturing
process. In these cases, the claim is not that the product was ineptly designed, but rather that a
perfectly reasonably designed product was made in such a way that rendered it defective. Escola
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was such a case. And as Escola indicated, a chief problem in these cases is one of proof. How
does a plaintiff prove an error in the production process?

Speller v. Sears, Roebuck and Co., 790 N.E.2d 252 (N.Y. 2003)
GRAFFEO, J.
In this products liability case, defendants—a product manufacturer and retailer—were
granted summary judgment dismissing plaintiffs’ complaint. Because we conclude that plaintiffs
raised a triable issue of fact concerning whether a defective refrigerator caused the fire that
resulted in plaintiffs’ injuries, we reverse and reinstate the complaint against these defendants.
Plaintiffs’ decedent Sandra Speller died in a house fire that also injured her seven-year-old
son. It is undisputed that the fire originated in the kitchen. Plaintiffs commenced this action
against Sears, Roebuck and Co., Whirlpool Corporation and the property owner alleging
negligence, strict products liability and breach of warranty. Relevant to this appeal, plaintiffs
asserted that the fire was caused by defective wiring in the refrigerator, a product manufactured by
Whirlpool and sold by Sears.
After discovery, defendants Sears and Whirlpool moved for summary judgment seeking
dismissal of the complaint. Relying principally on a report issued by the New York City Fire
Marshal, defendants rejected the refrigerator as the source of the fire, instead contending that a
stovetop grease fire was the cause of the conflagration. Thus, they argued that their product was
outside the chain of causation that resulted in plaintiffs’ damages.
In opposition to defendants’ motion for summary judgment, plaintiffs submitted excerpts
from the depositions of two experts and an affidavit from a third, as well as other materials.
Plaintiffs’ experts refuted the conclusions reached in the Fire Marshal’s report, opining that the
fire started in the upper right quadrant of the refrigerator, an area with a concentration of electrical
wiring. All three rejected the stove as the source of the fire. Plaintiffs also submitted portions of
the deposition of a Whirlpool engineer retained as an expert by defendants. Although the
engineer disputed that the fire originated in the refrigerator, he acknowledged that a fire would not
occur in a refrigerator unless the product was defective.
Supreme Court denied defendants’ request for summary judgment, holding that plaintiffs’
submissions raised a triable issue of fact as to whether the fire was caused by a defect in the
refrigerator. The Appellate Division reversed and granted the motion, dismissing the complaint as
against Sears and Whirlpool. The Court reasoned that defendants’ evidence suggesting an
alternative cause of the fire shifted the burden to plaintiffs to come forward with specific evidence
of a defect. . . .
[P]laintiffs’ theory was that the wiring in the upper right quadrant of the refrigerator was
faulty, causing an electrical fire which then spread to other areas of the kitchen and residence.
Because that part of the refrigerator had been consumed in the fire, plaintiffs noted that it was
impossible to examine or test the wiring to determine the precise nature of the defect. Thus,
plaintiffs sought to prove their claim circumstantially by establishing that the refrigerator caused
the house fire and therefore did not perform as intended.
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New York has long recognized the viability of this circumstantial approach in products
liability cases. . . . In order to proceed in the absence of evidence identifying a specific flaw, a
plaintiff must prove that the product did not perform as intended and exclude all other causes for
the product’s failure that are not attributable to defendants. In this regard, New York law is
consistent with the Restatement, which reads:
“It may be inferred that the harm sustained by the plaintiff was caused by a product
defect existing at the time of sale or distribution, without proof of a specific defect,
when the incident that harmed the plaintiff:
“(a) was of a kind that ordinarily occurs as a result of product defect; and
“(b) was not, in the particular case, solely the result of causes other than product
defect existing at the time of sale or distribution” (RESTATEMENT (THIRD) OF TORTS:
PRODS. LIAB. § 3 [1998]).”
. . . Here, in their motion for summary judgment, defendants . . . [offered] evidence that
the injuries were not caused by their product but by an entirely different instrumentality—a grease
fire that began on top of the stove. This was the conclusion of the Fire Marshal who stated during
deposition testimony that his opinion was based on his interpretation of the burn patterns in the
kitchen, his observation that one of the burner knobs on the stove was in the “on” position, and his
conversation with a resident of the home who apparently advised him that the oven was on when
the resident placed some food on the stovetop a few hours before the fire.
In order to withstand summary judgment, plaintiffs were required to come forward with
competent evidence excluding the stove as the origin of the fire. To meet that burden, plaintiffs
offered three expert opinions: the depositions of an electrical engineer and a fire investigator, and
the affidavit of a former Deputy Chief of the New York City Fire Department. Each concluded
that the fire originated in the refrigerator and not on the stove.
...
Upon review of these expert depositions and affidavit, we conclude that plaintiffs raised a
triable question of fact by offering competent evidence which, if credited by the jury, was
sufficient to rebut defendants’ alternative cause evidence. In other words, based on plaintiffs’
proof, a reasonable jury could conclude that plaintiffs excluded all other causes of the fire.
...
Accordingly, the order of the Appellate Division should be reversed, with costs, and the
motion of defendants Sears, Roebuck and Co. and Whirlpool Corporation for summary judgment
denied. . .

Notes

1. Causation or not? Which side’s story of causation in Speller do you think is the right
one? Did the mistake happen in the tightly-controlled environs of the Whirlpool Corporation
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factory? Or in the plaintiff’s kitchen, where the burner dial was found to have been set to “on”
after the fire? Are the facts strong enough on either side to keep the case from a jury?

2. Explaining the products transformation. A modest literature aims to explain the
transformation in products liability law in the decades after World War Two. George Priest
contends that the explanation lies in the history of the ideas, and in particular in the rise of the
kinds of regulatory ideas associated with the New Deal: one highly skeptical of markets and
equally confident in the capacity of compulsory state regulation to accomplish public policy goals.
See George L. Priest, The Invention of Enterprise Liability: A Critical History of the Intellectual
Foundations of Modern Tort Law, 14 J. LEGAL STUDS. 461 (1985).
Witt offers two complementary institutional explanations. The idea that enterprises ought
to be liable for all the injuries arising out of their activities—the idea that Priest and others call
enterprise liability—was coined not by New Dealers, but by the first generation of corporate
managers in the new mega-firms of the early twentieth century. Human resource engineers and
scientific management experts aimed to bring the firm completely under the control of
management. And to complete this control, they urged that firms be deemed responsible for all
the injuries with which they were connected. This idea soon became the basic principle of
workmen’s compensation programs. And the same idea of managerial domination was soon
associated with the relationship between firms and their consumers. (Just think of Traynor’s
language of consumer helplessness in Escola and Greenman.) See John Fabian Witt, Speedy Fred
Taylor and the Ironies of Enterprise Liability, 103 COLUM. L. REV. 1 (2003).
Ideas from the domain of work did not simply migrate as if magically to the domain of
consumption. The labor of bringing ideas from one space to the other was carried out by a group
that coalesced in the years immediately following World War Two. The National Association of
Compensation Claimants’ Attorneys, or NACCA, brought work accident claimants’
representatives together starting in the early 1940s. The group initially aimed to work collectively
to combat employers’ groups, which lobbied state legislatures to reduce workers’ compensation
benefits. But when it became clear that common law of torts offered claimants’ lawyers better
prospects than workers’ compensation claims (which had sharply limited lawyers’ fees), the
claimants’ lawyers began to advocate for broader common law liability as well as higher workers’
compensation benefits. Within a few years, the group renamed itself the Association of Trial
Lawyers of America, or ATLA.
NACCA and ATLA lawyers litigated many of the most important products liability cases,
including Escola. They also began to turn their attention to helping friendly judges get elected in
the state supreme courts. And their project seems to have worked, at least through the 1970s. For
an account, see John Fabian Witt, The King and the Dean: Melvin Belli, Roscoe Pound, and the
Common Law Nation, in JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES
OF AMERICAN LAW (2007).

3. Compulsory insurance. Speller makes apparent one important feature of products liability
after Greenman and Henningsen. Modern products liability is a form of compulsory insurance for
all product purchasers and users. When a consumer buys a product, she is also buying an
insurance policy from the seller, one that she may not waive or decline, even if she would like to
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do so. That insurance policy covers her injuries, or the injuries of other users or third parties, in
the event of injury arising out of the use of the product.
But note that this is not like the insurance our consumer would purchase from her friendly
neighborhood insurance broker. For example, unlike health or accident insurance, this insurance
does not set the premium on the basis of the consumer’s own risk profile. Sellers rarely possess
information about the purchaser’s risk when they sell a product. They cannot price discriminate
on that basis. And even if they could, their exposure to non-purchaser users and third parties
would make such knowledge inadequate.
Moreover, unlike a life insurer, a seller of products (and thus of products liability
insurance) cannot price the product according to the value of damages to be paid out should the
insured-against event come to pass. Life insurance premiums vary depending on the amount of
insurance purchased. But once again product sellers cannot know the damages to which they will
be exposed by any one purchaser or subsequent user.
The result is that sellers of products have to charge all purchasers the same premium in the
purchase price—even though certain consumers will find the implicit insurance policy far more
valuable (because they are risky users or may have high damages) than other consumers for whom
the same implicit insurance policy is worth far less (because they are safe users or because they
are likely to have lower damages). Products liability and its compulsory insurance, in other
words, creates cross-subsidies among classes of consumers.
Cross-subsidies alone might not be bad. They can be useful policy devices, as in health
insurance regimes, for example, where absent compulsory insurance mandates and crosssubsidies, adverse selection problems will make insurance unavailable for certain classes of
unfortunate would-be buyers. But the products liability cross-subsidy is potentially perverse.
Why should low-risk users be required to subsidize high-risk users? Shouldn’t public policy aim
to reward low-risk users over high-risk users? Most of all, why should low-expected-damage
purchasers subsidize high-expected-damage purchasers? This second cross-subsidy is especially
galling given that those who can expect low damages are those with relatively modest wages.
Their damages from lost income, for example, will be lower. Those who can expect high
damages, by contrast, are those with high wages whose lost income will be higher. The result of
this cross-subsidy, in other words, is that the low incomes are subsidizing purchases of the same
product by those with high incomes. See generally George L. Priest, The Current Insurance
Crisis and Modern Tort Law, 96 YALE L.J. 1521 (1987).
Of course, any such problem is lessened to the extent that the product in question has a
relatively homogenous class of purchasers: homogenous with respect to risk and income. And
there is good reason to think that many consumer product markets sort themselves along these
axes. High-income car purchasers buy BMWs, while low-income car purchasers buy Kias. Highrisk car purchasers buy sports cars, while low-risk car purchasers buy station wagons. But there
are lots of product markets that have highly heterogeneous consumers. Who buys Ford sport
utility vehicles? Well-heeled hunters and middle class soccer moms. Who buys riding lawn
mowers? Working class garden laborers and the owners of mansions with sweeping lawns. Both
pay the same for the product liability insurance that comes—by law—with their product.

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4. Manufacturing versus design. So long as the product liability revolution transpired in the
domain of manufacturing defects—areas where a product was defective because it departed from
the manufacturer or seller’s design—it met with widespread acceptance. There were controversial
cases, to be sure: cases like Speller where some believed the outcomes flawed. But such
controversies were over generic features of tort law like causation and juries, not over anything
specific to the modern products liability transformation. Not so in the law of design defects.

3. Design Defects
Barker v. Lull Engineering Company, Inc., 573 P.2d 443 (Cal. 1978)
TOBRINER, Acting C.J.
In August 1970, plaintiff Ray Barker was injured at a construction site at the University of
California at Santa Cruz while operating a high-lift loader manufactured by defendant Lull
Engineering Co. and leased to plaintiff’s employer by defendant George M. Philpott Co., Inc.
[The high-lift loader was a large construction vehicle akin to an oversized fork-lift resting on four
giant, five-foot tires. The loader in question was designed for use on moderate slopes. Plaintiff
(who was substituting for the regular loader operator) was using it to lift lumber on behalf of his
employer one day when the loader seemed to tip. Plaintiff leapt from the loader to try to reach
safety but was struck by falling lumber. In his suit, plaintiff claimed that the loader ought to have
been outfitted with outriggers, seat-belts, and roll-bars. Defendant contended that plaintiff had
been operating the loader on the kind of steep slope for which the loader was not designed, that a
seat belt would have added to the operator’s risk by trapping him in his seat, and that roll bars
were unnecessary because the machine was too bulky to roll.] . . .
The jury returned a verdict in favor of defendants, and plaintiff appeals from the judgment
entered upon that verdict, contending primarily that in view of this court’s decision in Cronin v. J.
B. R. Olson Corp., 501 P.2d 1153 (Cal. 1972), the trial court erred in instructing the jury “that
strict liability for a defect in design of a product is based on a finding that the product was
unreasonably dangerous for its intended use . . . .”
As we explain, we agree with plaintiff’s objection to the challenged instruction and
conclude that the judgment must be reversed. In Cronin, we reviewed the development of the
strict product liability doctrine in California at some length, and concluded that, for a variety of
reasons, the “unreasonably dangerous” element which section 402A of the Restatement (Second)
of Torts had introduced into the definition of a defective product should not be incorporated into a
plaintiff’s burden of proof in a product liability action in this state. Although defendants maintain
that our Cronin decision should properly be interpreted as applying only to “manufacturing
defects” and not to the alleged “design defects” at issue here, we shall point out that the Cronin
decision itself refutes any such distinction. Consequently, we conclude that the instruction was
erroneous and that the judgment in favor of defendants must be reversed.
. . . Although in Cronin we rejected the Restatement’s “unreasonably dangerous” gloss on
the defectiveness concept as potentially confusing and unduly restrictive, we shall explain that our
Cronin decision did not dictate that the term “defect” be left undefined in jury instructions given
in all product liability cases.

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As Cronin acknowledged, in the past decade and a half California courts have frequently
recognized that the defectiveness concept defies a simple, uniform definition applicable to all
sectors of the diverse product liability domain. Although in many instances as when one machine
in a million contains a cracked or broken part the meaning of the term “defect” will require little
or no elaboration, in other instances, as when a product is claimed to be defective because of an
unsafe design or an inadequate warning, the contours of the defect concept may not be selfevident. In such a case a trial judge may find it necessary to explain more fully to the jury the
legal meaning of “defect” or “defective.” We shall explain that Cronin in no way precluded such
elucidation of the defect concept, but rather contemplated that, in typical common law fashion, the
accumulating body of product liability authorities would give guidance for the formulation of a
definition.
As numerous recent judicial decisions and academic commentaries have recognized, the
formulation of a satisfactory definition of “design defect” has proven a formidable task; trial
judges have repeatedly confronted difficulties in attempting to devise accurate and helpful
instructions in design defect cases. Aware of these problems, we have undertaken a review of the
past California decisions which have grappled with the design defect issue, and have measured
their conclusions against the fundamental policies which underlie the entire strict product liability
doctrine.
As we explain in more detail below, we have concluded from this review that a product is
defective in design either (1) if the product has failed to perform as safely as an ordinary
consumer would expect when used in an intended or reasonably foreseeable manner, or (2) if, in
light of the relevant factors discussed below, the benefits of the challenged design do not
outweigh the risk of danger inherent in such design. In addition, we explain how the burden of
proof with respect to the latter “risk-benefit” standard should be allocated.
This dual standard for design defect assures an injured plaintiff protection from products
that either fall below ordinary consumer expectations as to safety, or that, on balance, are not as
safely designed as they should be. At the same time, the standard permits a manufacturer who has
marketed a product which satisfies ordinary consumer expectations to demonstrate the relative
complexity of design decisions and the trade-offs that are frequently required in the adoption of
alternative designs. Finally, this test reflects our continued adherence to the principle that, in a
product liability action, the trier of fact must focus on the product, not on the manufacturer’s
conduct, and that the plaintiff need not prove that the manufacturer acted unreasonably or
negligently in order to prevail in such an action. . . .
2. The trial court erred in instructing the jurors that “strict liability for a defect in design . . . is
based on a finding that the product was unreasonably dangerous for its intended use.”
Plaintiff principally contends that the trial court committed prejudicial error in instructing
the jury “that strict liability for a defect in design of a product is based on a finding that the
product was unreasonably dangerous for its intended use. . . .” Plaintiff maintains that this
instruction conflicts directly with this court’s decision in Cronin, decided subsequently to the
instant trial, and mandates a reversal of the judgment. Defendants argue, in response, that our
Cronin decision should not be applied to product liability actions which involve “design defects”
as distinguished from “manufacturing defects.”
The plaintiff in Cronin, a driver of a bread delivery truck, was seriously injured when,
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during an accident, a metal hasp which held the truck’s bread trays in place broke, permitting the
trays to slide forward and propel plaintiff through the truck’s windshield. Plaintiff brought a strict
liability action against the seller, contending that his injuries were proximately caused by the
defective condition of the truck. Evidence at trial established that the metal hasp broke during the
accident “because it was extremely porous and had a significantly lower tolerance to force than a
non-flawed aluminum hasp would have had,” and, on the basis of this evidence, the jury returned
a verdict in favor of plaintiff.
On appeal, defendant in Cronin argued that the trial court had erred “by submitting a
definition of strict liability which failed to include, as defendant requested, the element that the
defect found in the product be ‘unreasonably dangerous.’” Relying upon section 402A of the
Restatement Second of Torts and a number of California decisions which had utilized the
“unreasonably dangerous” terminology in the product liability context, the defendant in Cronin
maintained that a product’s “unreasonable dangerousness” was an essential element that a plaintiff
must establish in any product liability action.
After undertaking a thorough review of the origins and development of both California
product liability doctrine and the Restatement’s “unreasonably dangerous” criterion, we rejected
the defendant’s contention, concluding “that to require an injured plaintiff to prove not only that
the product contained a defect but also that such defect made the product unreasonably dangerous
to the user or consumer would place a considerably greater burden upon him than that articulated
in Greenman v. Yuba Power Products, California’s seminal product liability decision . . . .
As we noted in Cronin, the Restatement draftsmen adopted the “unreasonably dangerous”
language primarily as a means of confining the application of strict tort liability to an article
which is “dangerous to an extent beyond that which would be contemplated by the ordinary
consumer who purchases it, with the ordinary knowledge common to the community as to its
characteristics.” RESTATEMENT (SECOND) TORTS, § 402A, com. i. In Cronin, however, we flatly
rejected the suggestion that recovery in a products liability action should be permitted only if a
product is more dangerous than contemplated by the average consumer, refusing to permit the low
esteem in which the public might hold a dangerous product to diminish the manufacturer’s
responsibility for injuries caused by that product. . . .
Thus, our rejection of the use of the “unreasonably dangerous” terminology in Cronin
rested in part on a concern that a jury might interpret such an instruction, as the Restatement
draftsman had indeed intended, as shielding a defendant from liability so long as the product did
not fall below the ordinary consumer’s expectations as to the product’s safety. [T]he dangers
posed by such a misconception by the jury extend to cases involving design defects as well as to
actions involving manufacturing defects: indeed, the danger of confusion is perhaps more
pronounced in design cases in which the manufacturer could frequently argue that its product
satisfied ordinary consumer expectations since it was identical to other items of the same product
line with which the consumer may well have been familiar. . . .
Consequently, we conclude that the design defect instruction given in the instant case was
erroneous.
Defendants contend, however, that if Cronin is interpreted as precluding the use of the
“unreasonably dangerous” language in defining a design defect, the jury in all such cases will
inevitably be left without any guidance whatsoever in determining whether a product is defective
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in design or not. . . . In reaching this conclusion, however, Cronin did not purport to hold that the
term “defect” must remain undefined in all contexts . . . .
As this court has recognized on numerous occasions, the term defect as utilized in the
strict liability context is neither self-defining nor susceptible to a single definition applicable in all
contexts. . . .
[T]he defect or defectiveness concept has embraced a great variety of injury-producing
deficiencies, ranging from products that cause injury because they deviate from the
manufacturer’s intended result (e.g., the one soda bottle in ten thousand that explodes without
explanation), to products which, though “perfectly” manufactured, are unsafe because of the
absence of a safety device (e. g., a paydozer without rear view mirrors), and including products
that are dangerous because they lack adequate warnings or instructions (e.g., a telescope that
contains inadequate instructions for assembling a “sun filter” attachment).
...
In general, a manufacturing or production defect is readily identifiable because a defective
product is one that differs from the manufacturer’s intended result or from other ostensibly
identical units of the same product line. For example, when a product comes off the assembly line
in a substandard condition it has incurred a manufacturing defect.
A design defect, by contrast, cannot be identified simply by comparing the injuryproducing product with the manufacturer’s plans or with other units of the same product line,
since by definition the plans and all such units will reflect the same design. Rather than applying
any sort of deviation-from-the-norm test in determining whether a product is defective in design
for strict liability purposes, our cases have employed two alternative criteria . . . .
First, our cases establish that a product may be found defective in design if the plaintiff
demonstrates that the product failed to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner. This initial standard, somewhat
analogous to the Uniform Commercial Code’s warranty of fitness and merchantability, reflects the
warranty heritage upon which California product liability doctrine in part rests. . . .
As Professor Wade has pointed out, however, the expectations of the ordinary consumer
cannot be viewed as the exclusive yardstick for evaluating design defectiveness because “(i)n
many situations . . . the consumer would not know what to expect, because he would have no idea
how safe the product could be made.” [John] Wade, On the Nature of Strict Tort Liability for
Products, 44 MISS. L.J. 825, 829. . . .
A review of past cases indicates that in evaluating the adequacy of a product’s design . . .
a jury may consider, among other relevant factors, the gravity of the danger posed by the
challenged design, the likelihood that such danger would occur, the mechanical feasibility of a
safer alternative design, the financial cost of an improved design, and the adverse consequences to
the product and to the consumer that would result from an alternative design. . . . [A] product may
alternatively be found defective in design if the plaintiff demonstrates that the product’s design
proximately caused his injury and the defendant fails to establish, in light of the relevant factors,
that, on balance, the benefits of the challenged design outweigh the risk of danger inherent in such
design. . . .
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[P]ast design defect decisions demonstrate that, as a practical matter, in many instances it
is simply impossible to eliminate the balancing or weighing of competing considerations in
determining whether a product is defectively designed or not. . . .
[But] an instruction which advises the jury that it may evaluate the adequacy of a
product’s design by weighing the benefits of the challenged design against the risk of danger
inherent in such design is not simply the equivalent of an instruction which requires the jury to
determine whether the manufacturer was negligent in designing the product. It is true, of course,
that in many cases proof that a product is defective in design may also demonstrate that the
manufacturer was negligent in choosing such a design. As we have indicated, however, in a strict
liability case, as contrasted with a negligent design action, the jury’s focus is properly directed to
the condition of the product itself, and not to the reasonableness of the manufacturer’s conduct.
Thus, the fact that the manufacturer took reasonable precautions in an attempt to design a
safe product or otherwise acted as a reasonably prudent manufacturer would have under the
circumstances, while perhaps absolving the manufacturer of liability under a negligence theory,
will not preclude the imposition of liability under strict liability principles if, upon hindsight, the
trier of fact concludes that the product’s design is unsafe to consumers, users, or bystanders.
Conclusion
The technological revolution has created a society that contains dangers to the individual
never before contemplated. The individual must face the threat to life and limb not only from the
car on the street or highway but from a massive array of hazardous mechanisms and products.
The radical change from a comparatively safe, largely agricultural, society to this industrial unsafe
one has been reflected in the decisions that formerly tied liability to the fault of a tortfeasor but
now are more concerned with the safety of the individual who suffers the loss. . . .
Because the jury may have interpreted the erroneous instruction given in the instant case
as requiring plaintiff to prove that the high-lift loader was ultrahazardous or more dangerous than
the average consumer contemplated, and because the instruction additionally misinformed the jury
that the defectiveness of the product must be evaluated in light of the product’s “intended use”
rather than its “reasonably foreseeable use,” . . . we cannot find that the error was harmless on the
facts of this case. In light of this conclusion, we need not address plaintiff’s additional claims of
error, for such issues may not arise on retrial.
The judgment in favor of defendants is reversed.

Notes

1. Burdens of persuasion? The Barker court went even further than this excerpt indicates: it
held that the burden of persuasion as to whether a product satisfies the risk-utility balancing test
lies with the defendant, who is better positioned to offer evidence about the product’s design

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virtues and vices than the plaintiff. Barker, 573 P.2d at 452. Few courts, if any, followed Barker
in this. See, e.g., Ray v. BIC Corp., 925 S.W.2d 527, 532-33 (Tenn. 1996).

2. Risk-utility and consumer expectations. Other features of Barker have produced
controversy, too. Barker offers the two answers we discussed above to the puzzle of how to
understand when a product is defective for purposes of strict liability determinations under the
Second Restatement’s section 402A. The first is the risk-utility balancing test that compares the
costs and benefits of the challenged design feature. On first glance, this approach might seem to
reproduce the basic cost-benefit reasoning of Learned Hand’s approach to the negligence
standard. But look closely at the end of the Barker opinion: the question, as the Barker court puts
it, is whether in “hindsight” the product’s costs outweigh its benefits. This, as we noted, is an ex
post Learned Hand test, one that asks about the risks and utility of the product in question not
knowing what a reasonable manufacturer would have known at the time of the product’s design,
but knowing what we know now. In this sense, it is not a negligence approach at all, or at least
not a fault-based approach at all, because one can hardly fault a manufacturer for failing to act on
the basis of information that was not reasonably available to it at the time of design and
manufacture. The insight of Barker’s ex post cost-benefit analysis is that the absence of
information at the time of product design may not be sufficient reason to relieve manufacturers of
the costs of their product design decisions. If the manufacturer or designer of the product is in a
better position to generate the kinds of information required to make products safe for consumer
use, perhaps we should adopt the ex post rather than the ex ante view. See, for example, Halphen
v. Johns-Manville Sales Corp., 484 So. 2d 110 (La. 1986), where the Louisiana Supreme Court
deemed a product design defective because “the danger-in-fact of the product, whether
foreseeable or not, outweigh[ed] the utility of the product.” Id. at 114.
The second approach in Barker to determining defectiveness is the consumer expectations
approach that we noted above. If a reasonable consumer would have expected the product to be
safer than it is, then the product is defective for purposes of the strict liability of 402A. This
approach has the virtue of not reproducing the cost-benefit test of the negligence standard (even as
modified in Barker). But its difficulty is that using consumer expectations as the touchstone of an
analysis designed around the premise of consumers’ relative ignorance in the marketplace seems
perverse. If there are product designs that could have made a product safer, why should we
expect consumers to know about them rather than a manufacturers’ expert engineers and
designers?
What have the courts done? Some courts have refused to take up the cost-benefit test’s
invitation to “open-ended balancing” of risk and utility. The Montana Supreme Court, for
instance, rejected the cost-benefit analysis and held that if a design fails the consumer expectation
test, then “strict liability may be imposed even if the seller has ‘exercised all possible care,’ and
even though the product was faultlessly manufactured.” Malcolm v. Evenflo Co., 217 P.3d 514,
520 (Mont. 2009).
A number of courts have stuck with a test “centered on the reasonable expectations of the
ordinary consumer.” Connor v. Skagit Corp., 638 P.2d 115 (Wash. 1981); Massey v. Conagra
Foods, Inc., 328 P.3d 456 (Idaho 2014). But even here, some courts insist that we have not
completely left costs and benefits behind. These courts insist that consumer expectations are the
critical question, but regard risk and utility as “a guide in determining the expectations of
consumers in complex cases.” Delaney v. Deere & Co., 999 P.2d 930, 944 (Kan. 2000). How
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else, after all, ought a consumer to expect a product to perform other than in a way that the
benefits outweigh the costs? See Potter v. Chicago Pneumatic Tool Co., 694 A.2d 1319 (Conn.
1997); Jenkins v. Amchem Products, Inc., 886 P.2d 869, 883 (Kan. 1994).
Setting the controversy to one side, however, Barker has been highly influential. For in
addition to setting out two central tests for defectiveness, it identified three different classes of
products cases: manufacturing defect cases, design defect cases, and warning defect cases. That
trichotomy has gone on to be highly influential, as we will see shortly.

3. Compulsory product features? Does Barker offer a sensible approach to regulating the
market in lift-loaders? Note that after Barker, a seller of lift-loaders may no longer be willing to
sell loaders without outriggers, since to do so is to expose the seller to liability in the event the
user deploys the loader on steep slopes. But what does this mean for would-be buyers of lift
loaders who plan to use their loaders on even or flat surfaces? It means that they will have to buy
loaders with outriggers—which are doubtlessly more expensive—regardless of their planned uses.
Has the Barker court just made a valuable product unavailable, or at least added considerably to
its cost? Should all lift loaders have outriggers, even when designed for use on sites where the
outriggers are unnecessary?

4. Compulsory insurance, adverse selection, and unraveling products markets? Recall from
note 3 after Speller the problem of compulsory insurance and potentially perverse cross-subsidies.
The problem is potentially even greater than it seemed. For in some circumstances, the
compulsory insurance will not only produce unfairness between high- and low-risk or high- and
low-income purchasers. Sometimes compulsory insurance will cause the product market to break
down completely.
As described in George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96
YALE L.J. 1521, 1553-60 (1987), the problem goes like this: for certain products, like general
aviation airplanes, for example, the implicit insurance premium is quite high. But for low-risk
would-be purchasers, a substantial part of that implicit premium will reflect the risks posed by
high-risk fliers. (The seller cannot effectively distinguish between the two when it sells a plane,
and moreover will be liable to subsequent high-risk users of the plane even if it initially sells to a
low-risk flier.) As a result, some marginal low-risk would-be purchasers will drop out of the
relevant market, because the products and the compulsory insurance are too expensive. But when
they do that, the insurance pool changes. The first consumers to drop out are likely to be among
the lowest risk consumers, since they are the ones bearing the highest costs from the cross-subsidy
to high-risk users. The pool of product users is therefore now made up of consumers who are, on
balance, a little bit riskier than they were before the lowest risk consumers dropped out. And if
the pool is riskier than it would have been before the low-risk consumers dropped out, the
insurance seller (here the product seller) will have to increase the price of the implicit insurance
policy by increasing the price of the product.
It is here that the potential perversity of compulsory insurance risks becomes truly
pernicious. For now at the higher price point, a new round of low-risk consumers may reconsider
their willingness to purchase. If they drop out of the market, the insurance pool will again
become riskier, requiring a second new price point for the implicit insurance. But that new price
will lead yet another set of consumers to reconsider their willingness to buy. Once again, the
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consumers dropping out of the market will tend to be the lowest risk would-be users remaining in
the pool. And once again the riskiness of the pool and the price of the product will have to go up.
In theory, this dynamic of adverse selection in the product market—of consumer dropouts and price hikes—may continue until there are no consumers remaining in the market. If this
were to happen, products liability would have accomplished the goal of improving product safety
by eliminating entire classes of products from the market altogether—often products that are very
useful and that we would very much like to have around!
Priest contends that the problem is not only a theoretical problem. The insurance crisis of
the late 1980s, he argues, was a real-world example of the adverse selection unraveling theory he
developed. Liability insurance became difficult or impossible to purchase for a wide variety of
product sellers, ranging from vaccine manufacturers to sports equipment makers, and service
providers ranging from obstetrics care providers to commercial truckers. In markets like general
aviation airplanes, the unraveling of the market in new planes even made flying less safe than it
had been by leaving old, less safe planes up in the air longer. See George L. Priest, Can Absolute
Manufacturer Liability be Defended, 9 YALE J. REG. 237 (1992).
Others argue that the liability insurance price cycles are the result of interest rate swings,
which affect insurers’ bottom lines by eroding the returns the insurers can get by investing the
premiums in the interim period between when insureds make premium payments, on the one
hand, and policy obligations come due, on the other. See, e.g., Robert T. McGee, The Cycle in
Property / Casualty Insurance, FED. RES. BANK OF N.Y. Q. REV., Autumn 1986, at 22-30.
Either way, the problem of adverse selection is potentially a serious obstacle to achieving
systemic policy goals in products liability cases.

5. A Third Restatement Rollback? After three decades of experience with Prosser’s Second
Restatement, the American Law Institute reissued a Third Restatement dedicated exclusively to
products liability in 1998. The Restatement of the Law Third, Torts: Products Liability almost
completely overturned 402A. In its place, it adopted the three-part structure drawn from cases
like Barker for liability arising out of defective products sold by someone “engaged in the
business of selling or otherwise distributing products” when the defect causes harm to persons or
property. RESTATEMENT (THIRD): PRODS. LIAB. § 1 (1998). Consider the next case, which
illustrates the Third Restatement approach in action:

Wright v. Brooke Group, Ltd., 652 N.W.2d 159 (Iowa 2002)
TERNUS, J.
The United States District Court for the Northern District of Iowa has certified [a
question] to this court arising out of a personal injury action filed by a smoker against several
cigarette manufacturers. The certified question. . . address[es] the nature and extent of the
manufacturers’ liability under products liability, warranty and tort law. . . .
I. Factual and Procedural Background.
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The plaintiffs, Robert and DeAnn Wright, filed a petition against the defendants, all
cigarette manufacturers, alleging they had been damaged as a result of Robert’s cigarette
smoking. . . .
Thereafter, the defendants asked the federal court to certify questions of law to the Iowa
Supreme Court . . . . Concluding the case presented several questions of state law that are
potentially determinative and as to which there is either no controlling precedent or the precedent
is ambiguous, the district court certified eight questions to this court.
The [relevant question] certified is:
1. In a design defect products liability case, what test applies under Iowa law to determine
whether cigarettes are unreasonably dangerous? What requirements must be met under the
applicable test?
...
II. In a Design Defect Products Liability Case, What Test Applies Under Iowa Law to Determine
Whether Cigarettes Are Unreasonably Dangerous? What Requirements Must Be Met Under the
Applicable Test?
The Iowa Supreme Court first applied strict liability in tort for a product defect in 1970,
adopting Restatement (Second) of Torts section 402A. . . . Our purpose in adopting this provision
was to relieve injured plaintiffs of the burden of proving the elements of warranty or negligence
theories, thereby insuring “‘that the costs of injuries resulting from defective products are borne
by the manufacturers that put such products on the market.’”
Consistent with this purpose we held that a plaintiff seeking to recover under a strict
liability theory need not prove the manufacturer’s negligence. Moreover, we concluded that
application of strict liability in tort was not exclusive and did not “‘preclude liability based on the
alternative ground of negligence, when negligence could be proved.’”
In Aller v. Rodgers Machinery Manufacturing Co., [1978], a design defect case, our court
discussed in more detail the test to be applied in strict liability cases. In that case, the plaintiff
asked the court to eliminate the “unreasonably dangerous” element of strict products liability,
arguing that to require proof that the product was unreasonably dangerous injected considerations
of negligence into strict liability, thwarting the purpose of adopting a strict liability theory. We
rejected the plaintiff’s request to eliminate the “unreasonably dangerous” element, concluding the
theories of strict liability and negligence were distinguishable . . . .
Relying on comment i to section 402A, we held that a plaintiff seeking to prove a product
was in a “defective condition unreasonably dangerous” must show that the product was
“dangerous to an extent beyond that which would be contemplated by the ordinary consumer who
purchases it, with the ordinary knowledge common to the community as to its characteristics.” Id.
at 834 (quoting Restatement (Second) of Torts 402A cmt. i). We went on, however, to discuss
how the plaintiff is to prove the defective condition was unreasonably dangerous:
In order to prove that a product is unreasonably dangerous, the injured plaintiff must
prove the product is dangerous and that it was unreasonable for such a danger to
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exist. Proof of unreasonableness involves a balancing process. On one side of the
scale is the utility of the product and on the other is the risk of its use.
Whether the doctrine of negligence or strict liability is being used to impose liability
the same process is going on in each instance, i.e., weighing the utility of the article
against the risk of its use.
Id. at 835 (emphasis added). Two conclusions can be drawn from our discussion in Aller: (1) the
legal principles applied in a strict liability case include both a consumer expectation or consumer
contemplation test and a risk/benefit or risk/utility analysis; and (2) the risk/benefit analysis
employed in a strict liability design defect case is the same weighing process as that used in a
negligence case.
Since Aller, this court has varied in its application of the tests set forth in that decision,
sometimes applying both tests and sometimes applying only the consumer expectation test. On
the other hand, we have continued to equate the strict liability risk/benefit analysis used in a
design defect case with that applied in a design negligence case.
...
In determining what test should be applied in assessing whether cigarettes are
unreasonably dangerous, we are confronted with the anomaly of using a risk/benefit analysis for
purposes of strict liability based on defective design that is identical to the test employed in
proving negligence in product design. This incongruity has drawn our attention once again to the
“debate over whether the distinction between strict liability and negligence theories should be
maintained when applied to a design defect case.” [citation omitted] We are convinced such a
distinction is illusory . . . .
[A]ny attempts to distinguish the two theories in the context of a defective design are in
vain. That brings us to the Products Restatement, which reflects a similar conclusion by its
drafters.
The Products Restatement demonstrates a recognition that strict liability is appropriate in
manufacturing defect cases, but negligence principles are more suitable for other defective
product cases. See 2 DAN B. DOBBS, THE LAW OF TORTS § 353, at 977 (2001) (“The effect . . . of
the Products Restatement is that strict liability is retained when it comes to product flaws, but
negligence or something very much like it is the test of liability when it comes to design and
warning defects.”). Accordingly, it “establish[es] separate standards of liability for manufacturing
defects, design defects, and defects based on inadequate instructions or warnings.” Products
Restatement § 2 cmt. a, at 14. . . .
The “unreasonably dangerous” element of section 402A has been eliminated and has been
replaced with a multi-faceted definition of defective product. This definition is set out in section
2:
A product is defective when, at the time of sale or distribution, it contains a
manufacturing defect, is defective in design, or is defective because of inadequate
instructions or warning. A product:
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(a) contains a manufacturing defect when the product departs from its intended
design even though all possible care was exercised in the preparation and marketing
of the product;
(b) is defective in design when the foreseeable risks of harm posed by the product
could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the alternative design renders the product not
reasonably safe;
(c) is defective because of inadequate instructions or warnings when the foreseeable
risks of harm posed by the product could have been reduced or avoided by the
provision of reasonable instructions or warnings by the seller or other distributor,
or a predecessor in the commercial chain of distribution, and the omission of the
instructions or warnings renders the product not reasonably safe.
Products Restatement § 2, at 14.
The commentators give the following explanation for the analytical framework adopted in the
Products Restatement:
In contrast to manufacturing defects, design defects and defects based on inadequate
instructions or warnings are predicated on a different concept of responsibility. In
the first place, such defects cannot be determined by reference to the manufacturer’s
own design or marketing standards because those standards are the very ones that
the plaintiffs attack as unreasonable. Some sort of independent assessment of
advantages and disadvantages, to which some attach the label “risk-utility
balancing,” is necessary. Products are not generically defective merely because
they are dangerous. Many product-related accident costs can be eliminated only by
excessively sacrificing product features that make products useful and desirable.
Thus, the various trade-offs need to be considered in determining whether accident
costs are more fairly and efficiently borne by accident victims, on the one hand, or,
on the other hand, by consumers generally through the mechanism of higher product
prices attributable to liability costs imposed by the courts on product sellers.
Products Restatement § 2 cmt. a, at 15-16. [T]he Products Restatement has essentially “dropped
the consumer expectation test traditionally used in the strict liability analysis and adopted a riskutility analysis traditionally found in the negligence standard.” [citation omitted]
...
In summary, we now adopt Restatement (Third) of Torts: Product Liability sections 1 and
2 for product defect cases. Under these sections, a plaintiff seeking to recover damages on the
basis of a design defect must prove “the foreseeable risks of harm posed by the product could
have been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe.” . . .

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Witt & Tani, TCPI 9. Liability without Fault?

Notes

1. The Third Restatement. The Third Restatement approach preserves the strict liability of
402A for manufacturing defects: liability exists “even though all possible care” was exerted to
make the manufacturing process safe.
But for design defects—for situations like the one in Barker and Wright—the American
Law Institute recommends a different approach, one that determines defectiveness not on the basis
of ex post risk-utility or consumer expectations, but on the basis of an ex ante cost-benefit test.
The view of section 2(b) of the Third Restatement is that a product is defective in its design if the
“foreseeable” risks could have been reduced or avoided by a “reasonable alternative design,”
which by hypothesis must have been available at the time of production. The current view of the
American Law Institute is thus that liability for design defects effectively ought to be liability for
negligence in design.
As for what courts actually do, a fifty state survey published in 2015 found “no consensus
with respect to application of either the consumer expectations test or the risk-utility test,” and
among the jurisdictions that employ a risk-utility test, no consensus as to whether the plaintiff
must prove that the harm could have been avoided by a “reasonable alternative design.” Mike
McWilliams & Margaret Smith, An Overview of the Legal Standard Regarding Product Design
Defect Claims and a Fifty State Survey on the Applicable Law in Each Jurisdiction, 82 DEF.
COUNSEL J. 80 (2015). In the early 2000s, some scholars predicted that the Third Restatement
would eventually prevail. See, e.g., Cami Perkins, The Increasing Acceptance of the Restatement
(Third) Risk Utility Analysis in Design Defect Claims, 4 Nev. L.J. 609 (2004). The trendline is no
longer clear. The Wisconsin Supreme Court observed in 2007 that “[s]ome jurisdictions that have
adopted the Restatement (Third) are now back-tracking. The current judicial trend appears to be a
return to the pro-consumer policies of origin and reinstating strict products liability under §
402A.” Godoy ex rel. Gramling v. E.I. du Pont de Nemours & Co., 768 N.W.2d 674, 690 (2007).

2. General Motors fuel tank saga. In 1999, a California jury awarded $4.9 billion to six
plaintiffs injured in Chevrolet Malibu cars who alleged that the fuel tank of the vehicle was placed
unreasonably and dangerously close to the bumper. The plaintiffs’ injuries were severe. Plaintiff
Patricia Anderson and her children, for example, were struck from the rear by a drunk driver; the
collision caused the fuel tank to explode, causing severe injuries to all the occupants of the car.
Ms. Anderson’s daughter Alisha was “horribly disfigured on her face and lost her right hand.”
Still, the size of the damages award stunned observers. The General Motors Corporation as a
whole reported only $3 billion in earnings from its operations the previous year. The jury
awarded $107.6 million in compensatory damages and $4.8 billion in punitive damages.
For our purposes, there are two striking features of the GM fuel tank case. The first has to
do with cost-benefit calculations and the jury. A key piece of evidence for the plaintiffs was an
internal General Motors memorandum revealing that the costs of moving the fuel tank further
from the bumper would have been $8.59 per vehicle, while the costs of fuel tank fires arising out
of the existing bumper would amount only to $2.40 per vehicle. The jury seems to have viewed
the defendant’s cost-benefit calculation as a kind of reckless disregard for the safety of its
customers and their passengers. But versions of this kind of cost-benefit calculation seem to be
precisely what the risk-utility analysis of the Second Restatement and the reasonable alternative
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design analysis of the Third Restatement are designed to encourage. Perhaps the jury’s outrage
arose out of the fact that General Motors seems to have been comparing its private benefits and
costs, rather than the social benefits and costs. What the jury thought precisely we will never
really know.
The second striking piece of the GM fuel tank case was the way it played in the media and
the culture. On July 10, 1999, the New York Times covered the huge jury verdict prominently in
its national page coverage. $4.9 Billion Jury Verdict in G.M. Fuel Tank Case, N.Y. TIMES, Jul.
10, 1999, at A8. A month and a half later the trial judge slashed the damages by over $3 billion,
reducing the punitive damages award from $4.8 billion to $1.09 billion. This time, the story was
covered in a small notice near the back of the Times’s front page. See G. M. Damages Cut by
Over $3 Billion in Gas Tank Case, N.Y. TIMES, Aug. 27, 1999, at A18.
Most readers presumably only saw the first story. Some readers may have noticed the
second. Both groups would have come away with a massively inflated sense of the dollars that
products liability cases transfer from defendants to plaintiffs. Because of course the case did not
end with the trial judge’s reduction of the damages. Four years later, after continuing appellate
litigation, General Motors and the plaintiffs settled.
The details of the settlement were private. But a GM spokesman said the company was
“pleased with the settlement.” This time, the story did not appear at all in the New York Times.
The Los Angeles Times covered the story in a short unsigned notice along with assorted A.P. wire
reports in its local coverage. See GM to Settle Case over Gas Tank Explosion, L.A. TIMES, Jul.
25, 2003, at 4.
What’s the lesson? First, settlement is pervasive, even after entry of an ostensible
judgment by a jury and trial judge, and these settlements are almost invariably private and
confidential. Second, news coverage of tort law systematically distorts the way tort law works.
It’s hard to blame any one newspaper. Newspapers barely survive these days anyway, and the
first story in the sequence is as interesting as the last one is boring. Nevertheless, the picture in
the press of how tort works badly misrepresents the actual system, and usually in the direction of
exaggerating the size and frequency of plaintiff-friendly verdicts. On this theme, see WILLIAM
HARTORN & MICHAEL MCCANN, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION
CRISIS (2004).

4. Warning Defects
As the Third Restatement indicates, there is a third category of product defect cases—one
that is beyond manufacturing and design defects, though some say it resembles design defect
cases. This third category involves cases of allegedly defective warnings. In recent years,
warnings cases have become hotly controversial. The basic problem is that viewed either ex post
(with the Second Restatement) or ex ante (with the Third), warnings are exceedingly inexpensive
to adopt. Failure to adopt a warning can therefore often seem to have been negligent if the
warning would have prevented even a modest number of injuries. On the other hand, warning
proliferation threatens to desensitize product users or perhaps risks overwhelming their cognitive
capacities.

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Consider the following sequence of cases involving a meat grinder and a warning defect
claim:

Liriano v. Hobart Corp. (“Liriano I”), 132 F.2d 124 (2d Cir. 1998)
CALABRESI, J.
I. BACKGROUND
Luis Liriano, a seventeen-year-old employee in the meat department at Super Associated
grocery store (“Super”), was injured on the job in September 1993 when he was feeding meat into
a commercial meat grinder whose safety guard had been removed. His hand was caught in the
“worm” that grinds the meat; as a result, his right hand and lower forearm were amputated.
The meat grinder was manufactured and sold in 1961 by Hobart Corporation (“Hobart”).
At the time of the sale, it had an affixed safety guard that prevented the user’s hands from coming
into contact with the feeding tube and the grinding “worm.” No warnings were placed on the
machine or otherwise given to indicate that it was dangerous to operate the machine without the
safety guard in place. Subsequently, Hobart became aware that a significant number of
purchasers of its meat grinders had removed the safety guards. And in 1962, Hobart began
issuing warnings on its meat grinders concerning removal of the safety guard.
There is no dispute that, when Super acquired the grinder, the safety guard was intact.
It is also not contested that, at the time of Liriano’s accident, the safety guard had been
removed. There is likewise no doubt that Hobart actually knew, before the accident, that
removals of this sort were ocurring and that use of the machine without the safety guard was highly
dangerous. And Super does not question that the removal of the guard took place while the
grinder was in its possession.
Liriano sued Hobart under theories of negligence and strict products liability for, inter alia,
defective product design and failure to warn. He brought his claims in the Supreme Court, Bronx
County, New York. Hobart removed the case to the United States District Court for the Southern
District of New York, and also impleaded Super as a third-party defendant, seeking
indemnification and/or contribution. The District Court (Shira A. Scheindlin, Judge) dismissed
all of Liriano’s claims except those based on failure to warn.
Following trial, the jury concluded that the manufacturer’s failure to warn was the
proximate cause of Liriano’s injuries and apportioned liability 5% to Hobart and 95% to Super.
. . . [The jury awarded Liriano $1.3 million in damages. ] On appeal, Hobart and Super argue,
inter alia, that the question of whether Hobart had a duty to warn Liriano should have been
decided in their favor by the court, as a matter of law. It is this question that gives rise to the
current certification.
II. DISCUSSION
A. Applicable New York Law

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Witt & Tani, TCPI 9. Liability without Fault?

It is well-settled under New York law that a manufacturer is under a duty to use
reasonable care in designing its product so that it will be safe when “used in the manner for which
the product was intended, as well as unintended yet reasonably foreseeable use.” Micallef v.
Miehle Co., 348 N.E.2d 571 ([N.Y.] 1976) (citations omitted). It is equally well-settled in
New York that manufacturers have a duty to warn users of foreseeable dangers inherent in their
products. In Robinson v. Reed-Prentice Division, 403 N.E.2d 440 (N.Y. 1980), the New York
Court of Appeals in effect removed a set of product liability cases from the Micallef analysis of
“intended” and “reasonably foreseeable use.” The Robinson case itself involved a machine
designed with a safety shield that could not be kept in an open (unprotecting) position due to a
sophisticated interlock system. This interlock was designed to prevent the machine from
operating unless its safety shield was in a closed (protecting) position. The plaintiff’s employer,
however, cut holes in the safety shield so that the machine would still operate (without the
protections of the safety shield). In other words, the employer bypassed the safety devices of the
shield and the interlocking safety system.
The New York Court of Appeals held that a manufacturer of a product may not be held
liable “either on a strict products liability or negligence cause of action, where, after the product
leaves the possession and control of the manufacturer, there is a subsequent modification which
substantially alters the product and is the proximate cause of plaintiff’s.” “Material alterations at
the hands of a third party which work a substantial change in the condition in which the product
was sold by destroying the functional utility of a key safety feature, however foreseeable that
modification may have been, are not within the ambit of a manufacturer’s responsibility.”1
Robinson, though never overruled, has not been left undisturbed. Thus in Cover v.
Cohen, 461 N.E.2d 864 (N.Y. 1984), decided four years after Robinson, the Court of Appeals
not only reaffirmed a manufacturer’s duty to warn purchasers of dangers in the product, but
clearly held that this duty on the part of the manufacturer to warn can continue even after the
original sale. . . .
Six years after Robinson, moreover, the Court of Appeals qualified Robinson in
another way and declined to hold that all disablements of safety devices constitute subsequent
modifications precluding a manufacturer’s liability. In Lopez v. Precision Papers, Inc., 492
N.E.2d 1214 (N.Y. 1986), the court held that a disablement does not necessarily foreclose liability
where safeguards can be easily removed and where such removal thereby increases the efficacy
of the product.
...
B. Unsettled Issues of Law
The further articulation of Cover and Lopez has, we think, left the law uncertain in
various respects. Of particular moment to the case before us, the law appears to be unclear on

Indeed, in Robinson, the evidence established that the manufacturer “knew, or should have known, that the
particular safety gate designed for the machine made it impossible” for the purchaser-employer to use the
machine to produce its product. In rejecting the foreseeability standard, however, the Court of Appeals stated
that to hold otherwise “would expand the scope of a manufacturer’s duty beyond all reasonable bounds and
would be tantamount to imposing absolute liability on manufacturers for all product-related injuries.”
1

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Witt & Tani, TCPI 9. Liability without Fault?

whether a manufacturer may be liable for failure to warn of dangers associated with foreseeable
and/or known misuses of a product, where the product has been substantially modified by a third
party’s removal of the product’s safety devices (i.e., in situations in which no liability for design
defect would exist).
The Court of Appeals has not addressed the circumstances under which a manufacturer
may be liable for not warning against known or reasonably foreseeable misuse resulting in a
dangerous product alteration. While Robinson squarely holds that a manufacturer may not be
liable—in strict products liability or negligence—on a design defect claim for injuries caused
in part by alteration or modification of a safety device, the question remains whether a
manufacturer who knew of or should have foreseen the removal or modification is liable under
either negligence or strict products liability for failure to warn of the dangers of misusing the
product following such modification.6
The dissent in Robinson implied that the substantial modification defense created by the
majority barred not only a manufacturer’s liability for defective design, but also, sub silentio, its
liability for negligent failure to warn. . . .
[A]t least four possible views of New York law present themselves: Whenever a
substantial modification has occurred, Robinson: (1) bars claims both for design defect and failure
to warn, regardless of whether negligence and/or strict products liability is alleged; (2) bars all
actions for design defect, whether based on strict liability or negligence, but does not foreclose
suits for failure to warn, whether based on strict liability or negligence; (3) bars all actions for
design defect, and also bars strict liability actions for failure to warn, but does not preclude
claims based on negligent failure to warn; (4) bars only strict liability claims (whether for design
defect or failure to warn) and forecloses neither category of suit when negligence is alleged and
proved.
There is a logic to each of these possibilities under Robinson, and all but the last find
support in New York cases subsequent to Robinson. The last, which distinguishes between
liability for negligence and strict products liability, seems negated by Robinson, and yet is perhaps
the most consistent of all with Robinson‘s peroration which stated that its holding was crucial
since any other decision “would be tantamount to imposing absolute liability on manufacturers
for all product-related injuries.”12

6

When addressing negligence, the Robinson majority cabined its analysis to the design defect claim. See
Robinson, 403 N.E.2d at 444 (“Nor does the record disclose any basis for a finding of negligence on the part of
[the manufacturer] in the design of the machine.”).
12
The same peroration would also support the third possibility (barring strict liability actions for failure to warn
but permitting such actions when based on negligence). Unlike the fourth possibility, however, the third would
require no further restriction on Robinson, since, as discussed supra note 6, the negligence analysis in
Robinson was limited to its discussion of design defect.
Moreover, a reason does appear to exist in tort theory for treating negligence and strict liability similarly
when dealing with design defects, but differently in failure to warn cases. One definition of a defective product
is based on the so-called risk-utility test. See RESTATEMENT (THIRD) OF TORTS: PRODS. LIAB. B. § 2 cmt. a
(Proposed Final Draft Apr. 1, 1997). (This ground for design defect liability applies in New York. See Denny v.
Ford Motor Co., 662 N.E.2d 730 (N.Y. 1995). The other definition—which also applies in New York—is the
implied warranty/consumer expectations basis.)

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Witt & Tani, TCPI 9. Liability without Fault?

We welcome enlightenment on which of these, or other possibilities, is the law of New York
today.
III. CERTIFICATION
Certification is particularly appropriate when the state’s highest court has cast doubt on
the scope or continued validity of one of its earlier holdings, or when there is some law in the
intermediate state courts, but no definitive holding by the state’s highest tribunal.14 Absent
certification, the danger in both situations—as Professors Corbin and Shulman foresaw—is that a
party favored by the lower court decisions or by the weakened high court holding will seek
federal jurisdiction with the knowledge that the federal courts, unlike the state’s highest court, will
feel virtually bound to follow these decisions. . . .
Accordingly, we certify the following question to the New York Court of Appeals:
Can manufacturer liability exist under a failure to warn theory in cases in which
the substantial modification defense would preclude liability under a design defect
theory, and if so, is such manufacturer liability barred as a matter of law on the facts
of this case, viewed in the light most favorable to the plaintiff?

The risk-utility test involves the making of a cost-benefit analysis to gauge the benefits of a product in
relation to its dangers. In this respect, it is very similar to the Learned Hand cost-benefit analysis undertaken to
determine whether negligence exists, see United States v. Carroll Towing Co. The difference—and it is a
significant one—is that under negligence analysis, the cost-benefit test is made on the basis of what the
defendant knew or ought to have known at the time he acted, while on the no-fault, risk-utility test, the analysis
relies on the knowledge that is available at the time of trial (i.e., it includes data that has become available even
after the accident). Despite this difference, both tests involve a similar weighing of advantages and
disadvantages associated with the product. Cf. Denny, 662 N.E.2d at 735 (“The adoption of th[e] risk/utility
balance as a component of the ‘defectiveness’ element has brought the inquiry in [strict products liability] design
defect cases closer to that used in traditional negligence cases, where the reasonableness of an actor’s conduct is
considered in light of a number of situational and policy-driven factors.”).
While strict liability is also available for failure to warn, substantial authority exists for not basing
such strict liability on the risk-utility test, see Freund v. Cellofilm Properties, Inc., 432 A.2d 925, 929 & 930 n.1
(N.J. 1981) (citing “[a] growing trend of cases and authority . . . [that] has perceived a difference between the
utilization of strict liability [based on the risk-utility test], as opposed to negligence, in the inadequate warning
area”). The argument is that ex post, it would almost always have been worthwhile to have warned a particular user
of the danger that in fact came about, and hence, there would almost always be an actionable failure to warn
under the risk-utility test. Yet such ex post analysis usually gives no indication of what warnings would be
appropriate in the future. And unless it does so, failure to warn strict liability must be based on other grounds. But
these other grounds—essentially implied warranty or consumer expectations—amount to another way of saying
that the product was defective in design because no warning was given.
While it doesn’t follow necessarily, the applicability of the negligence- related risk-utility test to define
design defect may well have led a court like that in Robinson to deny all liability, whether strict or based on
negligence, as to design defects. Its underlying reasoning might then apply to bar strict liability for failure to
warn, since this is akin to liability for design defect, but not to preclude liability for negligent failure to warn,
since that is a totally separate basis for relief.
14
Certification might also be appropriate in circumstances where doubt on the continued validity of an earlier
decision of a state’s highest court has been cast: (a) by significant questioning of that decision in the opinions of
the state’s intermediate appellate courts; (b) by abandonment of the rule in neighboring, or otherwise cognate,
states; or (c) perhaps even by substantial criticism from respected commentators.

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. . . This panel retains jurisdiction so that after we receive a response from the New York
Court of Appeals we may dispose of various additional questions that may remain on appeal.

Liriano v. Hobart Corp. (“Liriano II”), 700 N.E.2d 303 (1998)
COPARICK, J.
[In response to the first half of the question certified by the Second Circuit, the New York Court of
Appeals issued the following decision:]
...
This Court’s rationale in Robinson stemmed from the recognition that a manufacturer is
responsible for a “purposeful design choice” that presents an unreasonable danger to the user.
This responsibility derives from the manufacturer’s superior position to anticipate reasonable uses
of its product and its obligation to design a product that is not harmful when used in that manner.
However, this duty is not open-ended, and it is measured as of the time the product leaves the
manufacturer’s premises. Thus, a manufacturer is not required to insure that subsequent owners
and users will not adapt the product to their own unique uses. That kind of obligation is much too
broad and would effectively impose liability on manufacturers for all product-related injuries.
While this Court stated that principles of foreseeability are inapplicable where there has
been a substantial modification of the product, that discussion was limited to the manufacturer’s
responsibility for defective design where there had been a substantial alteration of a product by a
third party. Thus, this Court stated that a manufacturer’s duty “does not extend to designing a
product that is impossible to abuse or one whose safety features may not be circumvented” and the
manufacturer need not trace its “product through every link in the chain of distribution to insure
that users will not adapt the product to suit their own unique purposes.”1
Hobart and amici argue that the rationale of Robinson is equally applicable to failure-towarn claims where a substantial modification of the product occurs and that application of the
failure-to-warn doctrine in these circumstances would undermine Robinson’s policy justification
and destroy its purpose. This Court is not persuaded that the existence of a substantial
modification defense precludes, in all cases, a failure to warn claim.
The factors militating against imposing a duty to design against foreseeable post-sale
product modifications are either not present or less cogent with respect to a duty to warn against
making such modifications. The existence of a design defect involves a risk/utility analysis that
requires an assessment of whether “if the design defect were known at the time of the manufacture,
a reasonable person would conclude that the utility of the product did not outweigh the risk
inherent in marketing a product designed in that manner” (Voss v. Black & Decker Mfg. Co.; see
also Denny v. Ford Motor Co.). Such an analysis would be unreasonably complicated, and may
very well be impossible to measure, if a manufacturer has to factor into the design equation all

1

Although the plaintiff in Robinson also raised a claim for failure to warn (. . . [Fuchsberg, J., dissenting]), the
dismissal of plaintiff’s claim, not discussed in the majority opinion, was fact-specific. The manufacturer had even
warned Robinson’s employer that the alteration compromised the safety features of the machine.

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foreseeable post-sale modifications. Imposition of a duty that is incapable of assessment would
effectively result in the imposition of absolute liability on manufacturers for all product-related
injuries. See, Robinson v. Reed-Prentice Div. of Package Mach. Co., 286 F.2d 478 (9th Cir. 1961).
This Court has drawn a policy line against that eventuality.
These concerns are not as strongly implicated in the context of a duty to warn. Unlike
design decisions that involve the consideration of many interdependent factors, the inquiry in a
duty to warn case is much more limited, focusing principally on the foreseeability of the risk and the
adequacy and effectiveness of any warning. The burden of placing a warning on a product is less
costly than designing a perfectly safe, tamper-resistant product. Thus, although it is virtually
impossible to design a product to forestall all future risk-enhancing modifications that could
occur after the sale, it is neither infeasible nor onerous, in some cases, to warn of the dangers of
foreseeable modifications that pose the risk of injury.
Furthermore, this Court has held that a manufacturer may be liable for failing to warn
against the dangers of foreseeable misuse of its product. No material distinction between
foreseeable misuse and foreseeable alteration of a product is evident in this context.2
This Court has also recognized that, in certain circumstances, a manufacturer may have a
duty to warn of dangers associated with the use of its product even after it has been sold. Such a
duty will generally arise where a defect or danger is revealed by user operation and brought to the
attention of the manufacturer; the existence and scope of such a duty are generally fact-specific
(see, Cover v. Cohen, 461 N.E.2d 864 (N.Y. Ct. App. 1984) [technical service bulletin issued by
manufacturer and sent to vendor 13 months after delivery relevant and admissible]).3
The justification for the post-sale duty to warn arises from a manufacturer’s unique (and
superior) position to follow the use and adaptation of its product by consumers. Compared to
purchasers and users of a product, a manufacturer is best placed to learn about post-sale
defects or dangers discovered in use. A manufacturer’s superior position to garner information and
its corresponding duty to warn is no less with respect to the ability to learn of modifications made
to or misuse of a product. Indeed, as in this case, Hobart was the only party likely to learn
about the removal of the safety guards and, as it ultimately did, pass along warnings to
customers.
This Court therefore concludes that manufacturer liability can exist under a failure-towarn theory in cases in which the substantial modification defense as articulated in Robinson
might otherwise preclude a design defect claim.

2

True, issues of foreseeability, obviousness, proximate cause or the adequacy of warnings can be troublesome in
failure-to-warn cases, as has been noted by various commentators (see, e.g., Henderson & Twerski, Doctrinal
Collapse in Products Liability: The Empty Shell of Failure to Warn, 65 N.Y.U. L. Rev. 265 [1990]). Those
difficulties do not, however, negate the duty to warn against foreseeable product misuse which is well
established in this Court’s precedents as well as contemporary products liability jurisprudence.
3
As we noted in Cover, the post-sale duty of a manufacturer to warn involves the weighing of a number of factors
including the degree of danger the problem involves, the number of reported incidents, the burden of providing
the warning, as well as the burden and/or ability to track a product post-sale.

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We should emphasize, however, that a safety device built into the integrated final product
is often the most effective way to communicate that operation of the product without the device is
hazardous. Thus, where the injured party was fully aware of the hazard through general
knowledge, observation or common sense, or participated in the removal of the safety device
whose purpose is obvious, lack of a warning about that danger may well obviate the failure to warn
as a legal cause of an injury resulting from that danger. Thus, in appropriate cases, courts could
as a matter of law decide that a manufacturer’s warning would have been superfluous given an
injured party’s actual knowledge of the specific hazard that caused the injury. Nevertheless, in
cases where reasonable minds might disagree as to the extent of plaintiff’s knowledge of the
hazard, the question is one for the jury.
Similarly, a limited class of hazards need not be warned of as a matter of law because
they are patently dangerous or pose open and obvious risks (cf., Amatulli v. Delhi Constr. Corp.,
571 N.E.2d 645 [had aboveground pool not been installed two feet below ground level, “its depth
would have been readily apparent and would itself have served as an evident warning against
diving”] ). Where a danger is readily apparent as a matter of common sense, “there should be no
liability for failing to warn someone of a risk or hazard which he [or she] appreciated to the same
extent as a warning would have provided” (Prosser and Keeton, at 686). Put differently, when a
warning would have added nothing to the user’s appreciation of the danger, no duty to warn exists
as no benefit would be gained by requiring a warning. On the other hand, the open and
obvious defense generally should not apply when there are aspects of the hazard which are
concealed or not reasonably apparent to the user.
This is particularly important because requiring a manufacturer to warn against obvious
dangers could greatly increase the number of warnings accompanying certain products. If a
manufacturer must warn against even obvious dangers, “[t]he list of foolish practices warned
against would be so long, it would fill a volume” (Kerr v. Koemm, 557 F. Supp. 283, 288
[S.D.N.Y. 1983] ). Requiring too many warnings trivializes and undermines the entire purpose
of the rule, drowning out cautions against latent dangers of which a user might not otherwise be
aware. Such a requirement would neutralize the effectiveness of warnings as an inexpensive way
to allow consumers to adjust their behavior based on knowledge of a product’s inherent dangers.
While important to warning law, the open and obvious danger exception is difficult to
administer. The fact-specific nature of the inquiry into whether a particular risk is obvious
renders bright-line pronouncements difficult, and in close cases it is easy to disagree about
whether a particular risk is obvious. It is hard to set a standard for obviousness that is neither
under-nor over-inclusive.
Because of the factual nature of the inquiry, whether a danger is open and obvious is
most often a jury question. Where only one conclusion can be drawn from the established
facts, however, the issue of whether the risk was open and obvious may be decided by the court as
a matter of law. . . .

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Note

1. In Liriano II, the New York Court of Appeals declined to answer the second certified
question—whether manufacturer liability for failure to warn was barred as a matter of law
on the facts of this case, viewed in the light most favorable to the plaintiff—“in deference to
the Second Circuit’s review and application of existing principles of law to the facts, as
amplified by the full record before that Court.” On return from certification, the Court of
Appeals for the Second Circuit issued the following decision in Liriano III:

Liriano v. Hobart Corp. (“Liriano III”), 170 F.3d 264 (2d Cir. 1999)
CALABRESI, J.
Hobart makes two arguments challenging the sufficiency of the evidence. The first
concerns the obviousness of the danger that Liriano faced, and the second impugns the causal
relationship between Hobart’s negligence and Liriano’s injury. Each of these arguments
implicates issues long debated in the law of torts. . . . The obviousness question was the subject of
an important but now generally rejected opinion by Justice Holmes, then on the Massachusetts
Supreme Judicial Court; the causation question is answered in a celebrated opinion of Judge
Cardozo, then on the New York Court of Appeals. We examine each in turn.
(1) Obviousness
More than a hundred years ago, a Boston woman named Maria Wirth profited from an
argument about obviousness as a matter of law that is very similar to the one Hobart urges today.
See Lorenzo v. Wirth, 49 N.E. 1010 (Mass. 1898). Wirth was the owner of a house on whose
property there was a coal hole. The hole abutted the street in front of the house, and casual
observers would have no way of knowing that the area around the hole was not part of the public
thoroughfare. A pedestrian called Lorenzo fell into the coal hole and sued for her injuries. See id.
Writing for a majority of the Supreme Judicial Court of Massachusetts, Oliver Wendell Holmes,
Jr., held for the defendant. He noted that, at the time of the accident, there had been a heap of coal
on the street next to the coal hole, and he argued that such a pile provided sufficient warning to
passers-by that they were in the presence of an open hole. “A heap of coal on a sidewalk in
Boston is an indication, according to common experience, that there very possibly may be a coal
hole to receive it.” And that was that.
It was true, Holmes acknowledged, that “blind men, and foreigners unused to our ways,
have a right to walk in the streets,” and that such people might not benefit from the warning that
piles of coal provided to sighted Bostonians. But Holmes wrote that coal-hole cases were
simple, common, and likely to be oft repeated, and he believed it would be better to establish a
clear rule than to invite fact-specific inquiries in every such case. “In simple cases of this sort,”
he explained, “courts have felt able to determine what, in every case, however complex,
defendants are bound at their peril to know.” Id. With the facts so limited, this was an
uncomplicated case in which the defendant could, as a matter of law, rely on the plaintiff’s
responsibility to know what danger she faced.

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Justice Knowlton disagreed. His opinion delved farther into the particular circumstances
than did Holmes’s opinion for the majority. In so doing, he showed that Lorenzo’s failure to
appreciate her peril might have been foreseen by Wirth and hence that Wirth’s failure to warn
might constitute negligence. He noted, for example, that the accident occurred after nightfall,
when Lorenzo perhaps could not see, or recognize, the heap of coal for what it was. There was “a
throng of persons” on the street, such that it would have been difficult even in daylight to see very
far ahead of where one was walking. And the plaintiff was, in fact, a foreigner unused to
Boston’s ways. “[S]he had just come from Spain, and had never seen coal put into a cellar
through a coal hole.” In sum, the case was not the “simple” one that Holmes had made it out to
be. What is more, none of the facts he recited was either unusual or unforeseeable by Wirth.
“What kind of conduct is required under complex conditions, to reach the usual standard of due
care, namely, the ordinary care of persons of common prudence, is a question of fact . . . [and
thus] a question for a jury.” Even cases involving “obvious” dangers like coal holes, Knowlton
believed, might not be resolvable as matters of law when viewed in the fullness of circumstances
that rendered the issue less clear than it would be when posed in the abstract.
Holmes commanded the majority of the Supreme Judicial Court in 1898, but Knowlton’s
position has prevailed in the court of legal history. “‘[T]he so-called Holmes view—that
standards of conduct ought increasingly to be fixed by the court for the sake of certainty—has
been largely rejected . . . . The tendency has been away from fixed standards and towards
enlarging the sphere of the jury.’” FOWLER V. HARPER, FLEMING JAMES, JR. & OSCAR S. GRAY,
THE LAW OF TORTS § 15.3, at 358-59 n.15 (2d ed. 1986). . . .
If the question before us were, therefore, simply whether meat grinders are sufficiently
known to be dangerous so that manufacturers would be justified in believing that further
warnings were not needed, we might be in doubt. On one hand, just as a coal hole was deemed
a danger appreciated by most Bostonians in 1898, so most New Yorkers would probably
appreciate the danger of meat grinders a century later. Any additional warning might seem
superfluous. On the other hand, Liriano was only seventeen years old at the time of his injury and
had only recently immigrated to the United States. He had been on the job at Super for only one
week. He had never been given instructions about how to use the meat grinder, and he had used
the meat grinder only two or three times. And, as Judge Scheindlin noted, the mechanism that
injured Liriano would not have been visible to someone who was operating the grinder. It could be
argued that such a combination of facts was not so unlikely that a court should say, as a matter of
law, that the defendant could not have foreseen them or, if aware of them, need not have guarded
against them by issuing a warning. . . .
Nevertheless, it remains the fact that meat grinders are widely known to be dangerous.
Given that the position of the New York courts on the specific question before us is anything but
obvious, we might well be of two minds as to whether a failure to warn that meat grinders are
dangerous would be enough to raise a jury issue.
But to state the issue that way would be to misunderstand the complex functions of
warnings. . . . [A] warning can do more than exhort its audience to be careful. It can also
affect what activities the people warned choose to engage in. And where the function of a
warning is to assist the reader in making choices, the value of the warning can lie as much in
making known the existence of alternatives as in communicating the fact that a particular choice

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is dangerous. It follows that the duty to warn is not necessarily obviated merely because a
danger is clear.
To be more concrete, a warning can convey at least two types of messages. One states
that a particular place, object, or activity is dangerous. Another explains that people need not risk
the danger posed by such a place, object, or activity in order to achieve the purpose for which they
might have taken that risk. Thus, a highway sign that says “Dan
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