Witt, TRCPI

Torts and Regulation: Cases,
Principles, and Institutions
John Fabian Witt
Allen H. Duffy Class of 1960 Professor of Law
Yale Law School

Second Edition
CALI eLangdell® Press 2020

Witt, TRCPI

About the Author
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 two decades 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.

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Notices
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Substantial parts of this work borrow from Karen M. Tani & John Fabian Witt, Torts: Cases,
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For my research assistants and teaching assistants,
with gratitude for all that they do

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TABLE of CONTENTS
About the Author ....................................................................................................................................... i
Notices ..........................................................................................................................................................ii
Preface: A Note on the Text ............................................................................................................... xiv
Preface to the Second Edition .......................................................................................................... xvi
CHAPTER 1. AN INTRODUCTION TO TORTS AND REGULATION ................................................... 1
A. Two Regimes: The Common Law and the Administrative State ........................................ 1
Bruesewitz v. Wyeth LLC .................................................................................................................................. 2
Notes ...................................................................................................................................................................................... 11
Sydney Spiesel, “The Bundaberg Disaster: Immunizations and its Discontents,” .................................... 15

B. Principles and Institutions ........................................................................................................... 15
CHAPTER 2. THE TORT OF BATTERY .................................................................................................. 20
A. Simple Cases and Complex Systems .......................................................................................... 20
1. Vosburg v. Putney, 50 N.W. 403 (Wis. 1891)...................................................................................... 20
2. Anatomy of a Torts Case ............................................................................................................................ 22
3. The Pervasiveness of Settlement ........................................................................................................... 23
4. The Size of the Tort System ...................................................................................................................... 26
5. Accident Rates and the Deterrence Goal............................................................................................. 30
6. Expressing Moral Judgments and Correcting Injustice................................................................. 34
B. Intent and Corrective Justice in the Battery Cause of Action ........................................... 35
Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955) ....................................................................................... 35

Notes ...................................................................................................................................................................................... 37

CHAPTER 3. INTENTIONALLY INFLICTED PHYSICAL HARMS ..................................................... 50
A. Trespass ............................................................................................................................................... 50
1. Trespass to Land .......................................................................................................................................... 50

Dougherty v. Stepp ............................................................................................................................................................ 50
Notes ................................................................................................................................................................................ 51

2. Trespass to Chattels..................................................................................................................................... 53

Intel Corp. v. Hamidi ......................................................................................................................................................... 54
Notes ................................................................................................................................................................................ 59

B. Beyond Battery: Causes of Action for Other Personal Injuries ........................................ 61
1. Offensive Battery ......................................................................................................................................... 61
Fisher v. Carrousel Motor Hotel, Inc........................................................................................................................... 61
Notes ................................................................................................................................................................................ 63

2. Assault .............................................................................................................................................................. 64

I. de S. & Wife v. W. de S. Assizes .................................................................................................................................. 64
Notes ................................................................................................................................................................................ 64
Speicher v. Rajtora ............................................................................................................................................................ 66
Note .................................................................................................................................................................................. 67

3. False Imprisonment.................................................................................................................................... 68
Whittaker v. Sandford ..................................................................................................................................................... 68
Notes ................................................................................................................................................................................ 70

4. Intentional Infliction of Emotional Distress ..................................................................................... 71
GTE Southwest v. Bruce .................................................................................................................................................. 71
Notes ................................................................................................................................................................................ 76

C. Defenses to Intentional Torts ...................................................................................................... 80
1. Self-Defense ................................................................................................................................................... 80
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Courvoisier v. Raymond .................................................................................................................................................. 80
Notes ................................................................................................................................................................................ 82

2. Defense of Real Property .......................................................................................................................... 84

Bird v. Holbrook ................................................................................................................................................................. 84
Notes ................................................................................................................................................................................ 86

3. Defense of Chattels...................................................................................................................................... 88

Gortarez v. Smitty’s Super Valu ................................................................................................................................... 88
Notes ................................................................................................................................................................................ 90

4. Consent ............................................................................................................................................................ 91
Mohr v. Williams ................................................................................................................................................................ 91
Notes ................................................................................................................................................................................ 92

5. Necessity ......................................................................................................................................................... 97

Ploof v. Putnam .................................................................................................................................................................. 97
Vincent v. Lake Erie Transp. Co. .................................................................................................................................. 99
Notes ..............................................................................................................................................................................101

CHAPTER 4. STRICT LIABILITY AND NEGLIGENCE: HISTORY AND INTRODUCTION ........108
A. Negligence ........................................................................................................................................108

Brown v. Kendall ..............................................................................................................................................................108
Notes ..............................................................................................................................................................................111
Oliver Wendell Holmes, Jr., THE COMMON LAW ....................................................................................................113
Note ................................................................................................................................................................................117
Fletcher v. Rylands, 159 Eng. Rep. 737 (1865) ...................................................................................................117
Fletcher v. Rylands, L.R. 1 Ex. 265 (Exchequer Chamber 1866) .................................................................119
Rylands v. Fletcher, L.R. 3 H.L. 330 (House of Lords 1868) ..........................................................................120
Notes ..............................................................................................................................................................................121
Brown v. Collins ................................................................................................................................................................122
Note ................................................................................................................................................................................123
Losee v. Buchanan ...........................................................................................................................................................123
Notes ..............................................................................................................................................................................124
Ives v. South Buffalo Ry .................................................................................................................................................125
Notes ..............................................................................................................................................................................128

CHAPTER 5. THE REASONABLE PERSON .........................................................................................131
A. Introduction.....................................................................................................................................131
Vaughan v. Menlove........................................................................................................................................ 131
OLIVER WENDELL HOLMES, JR., THE COMMON LAW 107-09 (1881) ................................................... 133
Notes ....................................................................................................................................................................................134

B. Physical Traits ................................................................................................................................135
Smith v. Sneller ................................................................................................................................................. 135
Davis v. Feinstein ............................................................................................................................................. 136
Notes ....................................................................................................................................................................................137

C. Children .............................................................................................................................................140
Dellwo v. Pearson ............................................................................................................................................ 140
Notes ..............................................................................................................................................................................141

D. Mental Illness ..................................................................................................................................144
Breunig v. American Family Ins. Co., ........................................................................................................ 144
Notes ....................................................................................................................................................................................146

Gould v. American Family Mut. Ins. Co .................................................................................................... 147
Notes ....................................................................................................................................................................................148

E. Unreasonable Faiths? ...................................................................................................................150
F. Unreasonable Gender Identities? .............................................................................................151

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CHAPTER 6. ANTIDISCRIMINATION LAW MODULE #1 -- REASONABLENESS IN
HARASSMENT CASES ...............................................................................................................................153
Ellison v. Brady ................................................................................................................................................. 153
Note ......................................................................................................................................................................................156

McGinest v. GTE Serv. Corp. ......................................................................................................................... 156
Note ......................................................................................................................................................................................159

CHAPTER 7. THE NEGLIGENCE STANDARD ....................................................................................161
A. Cost / Benefit Calculations and the Learned Hand Formula ..........................................161
1. Negligence Basics ...................................................................................................................................... 161
Stone v. Bolton ..................................................................................................................................................................161
Bolton v. Stone ..................................................................................................................................................................163
Notes ..............................................................................................................................................................................164
United States v. Carroll Towing Co ...........................................................................................................................165
Notes ..............................................................................................................................................................................166

2. Critiques of Cost-Benefit Reasoning ................................................................................................. 170
Critiques from First Principles .................................................................................................................................170
Critiques from Distributive Justice .........................................................................................................................171
Critiques from Administrability...............................................................................................................................172
A Precautionary Alternative? ....................................................................................................................................172
Kysar’s Constructivist Critique.................................................................................................................................173

3. In Defense of Cost-Benefit Reasoning ............................................................................................... 173
Robert H. Frank, Why is Cost-Benefit Analysis so Controversial? .............................................................174
Cass Sunstein, Cognition and Cost-Benefit Analysis ........................................................................................174
Cass Sunstein, Moral Heuristics ................................................................................................................................175

4. The Logic of Cost-Benefit ...................................................................................................................... 176
Cooley v. Public Service Co. ..........................................................................................................................................176
Notes ..............................................................................................................................................................................178
Steven Shavell, Strict Liability versus Negligence.............................................................................................178
Guido Calabresi, The Decision for Accidents: An Approach to Nonfault Allocation of Costs ........179
Guido Calabresi & Jon T. Hirschoff, Toward a Test for Strict Liability in Torts ....................................180
Andrews v. United Airlines ...........................................................................................................................................183
Note ................................................................................................................................................................................185

5. Claims Resolution in the Real World ................................................................................................ 185
Rules of Thumb in Auto Collision Cases ...............................................................................................................185
The Failure of No-Fault Auto .....................................................................................................................................187

B. Judges and Juries............................................................................................................................187

Baltimore & Ohio Railroad Co. v. Goodman ..........................................................................................................188

Oliver Wendell Holmes, Jr., The Common Law 111 ......................................................................... 188
Notes ....................................................................................................................................................................................189
Pokora v. Wabash Railroad Co...................................................................................................................................190
Notes ....................................................................................................................................................................................192

C. Custom ...............................................................................................................................................197
1. The Basic Rule—and Its Functions .................................................................................................... 197
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932) ........................................................................................................197
Notes ..............................................................................................................................................................................199
Trimarco v. Klein .............................................................................................................................................................200
Notes ..............................................................................................................................................................................202

2. Custom and Medical Malpractice Cases .......................................................................................... 203
Brune v. Belinkoff ............................................................................................................................................................203
Notes ..............................................................................................................................................................................205
David M. Studdert, Michelle M. Mello & Troyen A. Brennan, Medical Malpractice ...............................206
Notes ..............................................................................................................................................................................206

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D. Statutes and Regulations ............................................................................................................209
1. Violations of Statutory Standards ...................................................................................................... 209
Martin v. Herzog, .............................................................................................................................................................209
Note ................................................................................................................................................................................211
Tedla v. Ellman .................................................................................................................................................................211
Notes ..............................................................................................................................................................................213
Gorris v. Scott....................................................................................................................................................................214
The Restatement Approach .......................................................................................................................................215

2. A Regulatory Compliance Defense? .................................................................................................. 215
3. Torts in the Modern State: Implied Private Causes of Action ................................................ 216
Uhr v. East Greenbush Central School District ....................................................................................................217
Bennett v. Hardy ..............................................................................................................................................................219
Notes ..............................................................................................................................................................................221

4. Implied Private Causes of Action in Federal Statutes................................................................ 225
J. I. Case Co. v. Borak .......................................................................................................................................................225
Notes ..............................................................................................................................................................................227
Alexander v. Sandoval....................................................................................................................................................228
Notes ..............................................................................................................................................................................231

5. Implied Private Causes of Action in the Federal Constitution ............................................... 233
Bivens v. Six Unknown Named Agents .....................................................................................................................233
Ziglar v. Abbasi .................................................................................................................................................................234
Notes ..............................................................................................................................................................................237

E. Proof of Negligence........................................................................................................................238
1. The Basic Problem ............................................................................................................................... 238
Howard v. Wal-Mart Stores, Inc. ...............................................................................................................................238
Notes ..............................................................................................................................................................................240

2. Res Ipsa Loquitur...................................................................................................................................... 241
Byrne v. Boadle .................................................................................................................................................................241
Grajales-Romero v. American Airlines, Inc ............................................................................................................244
Notes ..............................................................................................................................................................................246
Ybarra v. Spangard .........................................................................................................................................................247

3. Federal Constitutional Constraints on the Burden of Proof .................................................... 249
4. A Note on Settlement Mills .................................................................................................................... 251
5. Aggregation and Sampling by Bellwether Trials .......................................................................... 252
Samuel Issacharoff, Commentary, “Shocked”: Mass Torts and Aggregate ............................................252
Alexandra D. Lahav, Bellwether Trials ..................................................................................................................253
Notes ..............................................................................................................................................................................254

CHAPTER 8. ANTIDISCRIMINATION LAW MODULE #2 – PROVING DISCRIMINATION ...256
A. Disparate Treatment ....................................................................................................................256
McDonnell Douglas Corp. v. Green ............................................................................................................ 256
Note ......................................................................................................................................................................................261

St. Mary’s Honor Center v. Hicks ................................................................................................................ 261
Note ......................................................................................................................................................................................267

Reeves v. Sanderson Plumbing Products................................................................................................. 267
Notes ....................................................................................................................................................................................271

B. Proof and Disparate Impact .....................................................................................................273
1. Griggs v. Duke Power Co ........................................................................................................................ 273
Notes ....................................................................................................................................................................................276

2. Wards Cove Packing Co. v. Atonio ..................................................................................................... 277
Notes ....................................................................................................................................................................................283

3. The Civil Rights Act of 1991 ................................................................................................................. 283
Notes ....................................................................................................................................................................................284

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CHAPTER 9. PLAINTIFFS’ CONDUCT ..................................................................................................287
A. Contributory and Comparative Negligence ......................................................................287
1. Contributory Negligence ....................................................................................................................... 287
Butterfield v. Forrester ..................................................................................................................................................287
Notes ..............................................................................................................................................................................288
Hugh Lawrence Ross, Settled Out of Court: The Social Process ................................................................293

2. Comparative Negligence ........................................................................................................................ 293
Li v. Yellow Cab Company of California, .................................................................................................................293
Notes ..............................................................................................................................................................................297
Coleman v. Soccer Ass’n. of Columbia ......................................................................................................................298
Notes ..............................................................................................................................................................................301

B. Assumption of Risk .......................................................................................................................302
1. Implied Assumption of Risk ................................................................................................................. 302
Murphy v. Steeplechase Amusement Co ..................................................................................................................302
Notes ..............................................................................................................................................................................304
Maddox v. City of New York .........................................................................................................................................306
Notes ..............................................................................................................................................................................308
Landings Association, Inc. v. Williams ....................................................................................................................310
Notes ..............................................................................................................................................................................312

2. Express Assumption of the Risk ......................................................................................................... 314
Dalury v. S-K-I, Ltd ..........................................................................................................................................................314
Notes ..............................................................................................................................................................................316
Waivers in Modern Life: One Professor’s Waivers ..........................................................................................321
Note ................................................................................................................................................................................326

CHAPTER 10. CAUSATION.....................................................................................................................327
A. Causation: An Introduction ........................................................................................................327
LeRoy Fibre Co. v. Chicago, M. & S. P. Railway ...................................................................................... 327
Notes ....................................................................................................................................................................................329

B. Causation-in-Fact ............................................................................................................................332
New York Central RR. Co. v. Grimstad ...................................................................................................... 332
Notes ....................................................................................................................................................................................333

Stubbs v. City of Rochester ........................................................................................................................... 334
Notes ....................................................................................................................................................................................336

Zuchowicz v. United States........................................................................................................................... 338
Notes ....................................................................................................................................................................................340

C. Lost Chances and Indeterminate Plaintiffs ...........................................................................343
Herskovits v. Group Health Coop ............................................................................................................... 343
Notes ....................................................................................................................................................................................346

D. The Problem of Multiple Tortfeasors ......................................................................................348
Kingston v. Chicago & N. W. R. Co .............................................................................................................. 349
Notes ....................................................................................................................................................................................350

E. Alternative Liability and Indeterminate Defendants ........................................................351
Summers v. Tice ............................................................................................................................................... 351
Note ......................................................................................................................................................................................352

Sindell v. Abbott Laboratories .................................................................................................................... 352
Notes ....................................................................................................................................................................................357

The Substantial Factor Test Revisited ................................................................................................... 360
F. Causation Beyond Torts................................................................................................................362
1. The Criminal Law ..................................................................................................................................... 362
2. Environmental Law ................................................................................................................................. 362
3. Securities Litigation................................................................................................................................. 363
4. Psychological Conventions around Causation.............................................................................. 363
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CHAPTER 11.
ANTIDISCRIMINATION LAW MODULE #3 -- CAUSATION AND
DISCRIMINATION CLAIMS .....................................................................................................................365
A. The Mixed Motive Problem ........................................................................................................365
Price Waterhouse v. Hopkins ...................................................................................................................... 365
Notes ....................................................................................................................................................................................373

Univ. of Tex. Southwestern Med. Ctr. v. Nassar ..................................................................................... 376
Notes ....................................................................................................................................................................................383

Comcast v. National Association of African American-Owned Media ......................................... 385
Notes ....................................................................................................................................................................................390

CHAPTER 12. PROXIMATE (“LEGAL”) CAUSE.................................................................................392
A. Introduction.....................................................................................................................................392
Ryan v. New York Central R.R. .................................................................................................................... 392
Notes ....................................................................................................................................................................................394

Berry v. Sugar Notch Borough .................................................................................................................... 396
Note ......................................................................................................................................................................................397

B. Unexpected Harm ..........................................................................................................................397
Benn v. Thomas ................................................................................................................................................ 397
Notes ....................................................................................................................................................................................398

In re Polemis...................................................................................................................................................... 399
Notes ....................................................................................................................................................................................401

The Wagon Mound Cases ............................................................................................................................ 401
Wagon Mound (No. 1) ..................................................................................................................................................402
Wagon Mound (No. 2) ..................................................................................................................................................403
Notes ....................................................................................................................................................................................404

C. Unexpected Manner ......................................................................................................................408
Brauer v. New York Cent. & H.R.R. Co....................................................................................................... 408
Notes ....................................................................................................................................................................................409

McLaughlin v. Mine Safety Appliances Co .............................................................................................. 410
Note ......................................................................................................................................................................................412

Nallan v. Helmsley-Spear, Inc ..................................................................................................................... 413
Notes ....................................................................................................................................................................................414
A Proximate Cause Case Study: Subsequent Negligent Medical Care .....................................................415
Rule of Thumb for No Proximate Cause? .............................................................................................................417

D. Unexpected Person .......................................................................................................................418
Palsgraf v. Long Island R. Co. ...................................................................................................................... 418
Notes ....................................................................................................................................................................................423

Wagner v. International R. Co .................................................................................................................... 423
Notes ....................................................................................................................................................................................425

E. Completely Unexpected? .............................................................................................................425
Petition of Kinsman Transit Co. (Kinsman Transit I) ......................................................................... 425
Notes ....................................................................................................................................................................................430

F. Proximate Cause Beyond Torts .................................................................................................433
1. Proximate Cause and Criminal Law .................................................................................................. 433
2. Proximate Cause and Consequential Damages ............................................................................ 433
CHAPTER 13. THE DUTY PROBLEM ..................................................................................................435
A. Is There a Duty to Rescue?..........................................................................................................435
1. Cases .............................................................................................................................................................. 436
Farwell v. Keaton .............................................................................................................................................................436
Harper v. Herman............................................................................................................................................................437
Notes ..............................................................................................................................................................................439
James Barr Ames, The Law and Morals .................................................................................................................440

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2. Liability for Good Samaritans? ............................................................................................................ 444
Swenson v. Waseca Mutual Insurance Co ..............................................................................................................444

B. Landowners and Occupiers........................................................................................................445
United Zinc & Chemical Co. v. Britt ...........................................................................................................................445
Notes ..............................................................................................................................................................................447
Banker v. McLaughlin ....................................................................................................................................................448
Note ................................................................................................................................................................................449
Rowland v. Christian ......................................................................................................................................................450
Notes ..............................................................................................................................................................................453

C. Negligent Infliction of Emotional Distress ............................................................................455

Mitchell v. Rochester Railway .....................................................................................................................................455
Notes ..............................................................................................................................................................................456
Falzone v. Busch ...............................................................................................................................................................457
Notes ..............................................................................................................................................................................459
Dillon v. Legg .....................................................................................................................................................................460
Notes ..............................................................................................................................................................................463
Metro-North Commuter Railroad Co. v. Buckley ................................................................................................465
Notes ..............................................................................................................................................................................468

D. To Whom Does a Defendant Owe a Duty? .............................................................................471
1. The Duty Debate (Part 1) ...................................................................................................................... 471
William L. Prosser, Handbook of the Law of Torts § 31 ...................................................................................471
John Goldberg & Benjamin Zipursky, The Moral of MacPherson ..................................................................471

2. Cases and Materials ................................................................................................................................. 472
Strauss v. Belle Realty Co. .............................................................................................................................................472
Notes ..............................................................................................................................................................................475
Kline v. 1500 Massachusetts Ave. Apartment Corp. ...........................................................................................476
Notes ..............................................................................................................................................................................480
Ennabe v. Manosa ...........................................................................................................................................................481
Note ................................................................................................................................................................................484
Tarasoff v. Regents of the University of California .............................................................................................485
Notes ..............................................................................................................................................................................487
In re September 11 Litigation ....................................................................................................................................489
Notes ..............................................................................................................................................................................492

3. The Duty Debate (Part 2) ...................................................................................................................... 493
E. Pure Economic Loss.......................................................................................................................494
People Express Airlines, Inc. v. Consolidated Rail Corporation ...................................................... 494
Note ......................................................................................................................................................................................498

532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. ............................................. 498
Notes ....................................................................................................................................................................................501

F. Relational Interests .......................................................................................................................502
1. Spouses ......................................................................................................................................................... 503
2. Children ........................................................................................................................................................ 504
3. Unmarried partners................................................................................................................................. 505
G. Tort Immunities .............................................................................................................................507
1. Intrafamilial Immunities ....................................................................................................................... 507
2. Charitable Immunity ............................................................................................................................... 508
3. Employers’ Immunity ............................................................................................................................. 509
4. Sovereign Immunity ................................................................................................................................ 510
Baum v. U.S. .......................................................................................................................................................................511
Notes ..............................................................................................................................................................................514
Riss v. City of New York .................................................................................................................................................517
Notes ..............................................................................................................................................................................521

5. Government Officer Immunity ............................................................................................................ 523
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a. Federal Officials ..........................................................................................................................................................523
b. State Officials ...............................................................................................................................................................524
c. Constitutional Torts ..................................................................................................................................................524

6. Statutory Immunity ................................................................................................................................. 525
The Protection of Lawful Commerce in Arms Act of 2005 ..........................................................................525
City of New York v. Beretta U.S.A. Corp...................................................................................................................526

7. Wartime and National Security Immunities.................................................................................. 528
8. Immunity Reconsidered ........................................................................................................................ 529
CHAPTER 14. MODERN NON-FAULT LIABILITY? ..........................................................................530
A. Vicarious Liability .........................................................................................................................530
Ira S. Bushey & Sons, Inc. v. United States .............................................................................................. 530
Notes ....................................................................................................................................................................................533

B. Wild and Abnormally Dangerous Animals ...........................................................................535
Rhodes v. MacHugh......................................................................................................................................... 535
Note ......................................................................................................................................................................................538

C. Abnormally Dangerous Activities ............................................................................................539
Spano v. Perini Corp ....................................................................................................................................... 539
Notes ....................................................................................................................................................................................542

Indiana Harbor Belt R.R. v. American Cyanamid Co........................................................................... 544
Notes ....................................................................................................................................................................................548

D. Nuisance............................................................................................................................................549
1. Private Nuisance ....................................................................................................................................... 549
Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc ..............................................................................549
Notes ..............................................................................................................................................................................551
Ensign v. Walls ..................................................................................................................................................................554
Notes ..............................................................................................................................................................................555
Boomer v. Atlantic Cement Co ....................................................................................................................................559
Notes ..............................................................................................................................................................................561
Spur Industries v. Del Webb Development Co ......................................................................................................564
Notes ..............................................................................................................................................................................566

2. Public Nuisance ......................................................................................................................................... 568

Leo v. General Electric Co .............................................................................................................................................568
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center .....................................................................569
Notes ..............................................................................................................................................................................571
Lead Paint and Public Nuisance: Two Stories ...................................................................................................572
Peter B. Lord, Three Companies Found Liable in Lead-Paint Nuisance Suit, PROVIDENCE JOURNAL
..........................................................................................................................................................................................572
Joe Nocera, The Pursuit of Justice, or Money?, N.Y. TIMES........................................................................572
Peter B. Lord, R.I. High Court Overturns Lead-Paint Verdict, PROVIDENCE JOURNAL .......................573
Rhode Island v. Lead Industries Association .........................................................................................................573
Note ................................................................................................................................................................................576
County of Santa Clara v. Atl. Richfield Co...............................................................................................................576
Note ................................................................................................................................................................................578
Camden County v. Beretta ............................................................................................................................................578
Note ................................................................................................................................................................................582

E. Strict Liability for Products? ......................................................................................................582
1. Beginnings .................................................................................................................................................... 582
Winterbottom v. Wright ...............................................................................................................................................582
Notes ..............................................................................................................................................................................583
MacPherson v. Buick Motor Company .....................................................................................................................584
Notes ..............................................................................................................................................................................588
Escola v. Coca Cola Bottling Co. of Fresno .............................................................................................................590
Notes ..............................................................................................................................................................................592

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Temple v. Wean United, Inc .........................................................................................................................................594
Notes ..............................................................................................................................................................................596

2. Manufacturing Defects ........................................................................................................................... 597
Speller v. Sears, Roebuck and Co ...............................................................................................................................597
Notes ..............................................................................................................................................................................599

3. Design Defects............................................................................................................................................ 601
Barker v. Lull Engineering Company, Inc ..............................................................................................................601
Notes ..............................................................................................................................................................................606
Wright v. Brooke Group, Ltd. ......................................................................................................................................609
Notes ..............................................................................................................................................................................612

4. Warning Defects ......................................................................................................................................... 613
Liriano v. Hobart Corp. (“Liriano I”) .......................................................................................................................614
Liriano v. Hobart Corp. (“Liriano II”) ......................................................................................................................617
Note ................................................................................................................................................................................620
Liriano v. Hobart Corp. (“Liriano III”) ....................................................................................................................620
Notes ..............................................................................................................................................................................623
Hood v. Ryobi Am. Corp .................................................................................................................................................625
Notes ..............................................................................................................................................................................627

5. Plaintiff’s Conduct .................................................................................................................................... 628
Daly v. Gen. Motors Corp ...............................................................................................................................................628
Notes ..............................................................................................................................................................................632

6. The Preemption Question ..................................................................................................................... 633
Geier v. American Honda Motor Co ..........................................................................................................................633
Notes ..............................................................................................................................................................................637
Wyeth v. Levine ................................................................................................................................................................638
Notes ..............................................................................................................................................................................643
PLIVA, Inc. v. Mensing ....................................................................................................................................................646
Notes ..............................................................................................................................................................................650
Merck Sharp & Dohme Corp. v. Albrecht ................................................................................................................652

CHAPTER 15. ANTIDISCRIMINATION LAW MODULE #4 -- RESPONDEAT SUPERIOR IN
HARASSMENT CASES UNDER TITLE VII ............................................................................................659
1. Meritor Sav. Bank, FSB v. Vinson ....................................................................................................... 659
Note ......................................................................................................................................................................................662

2. Burlington Indus. v. Ellerth .................................................................................................................. 662
Note ......................................................................................................................................................................................665

3. Faragher v. City of Boca Raton ............................................................................................................ 666
Notes: ...................................................................................................................................................................................671

CHAPTER 16. DAMAGES .........................................................................................................................673
A. Compensatory Damages ..............................................................................................................674
1. Pecuniary Damages ................................................................................................................................. 674
O’Shea v. Riverway Towing Co ...................................................................................................................................674
Notes ..............................................................................................................................................................................677
Feldman v. Allegheny Airlines ....................................................................................................................................680
Notes ..............................................................................................................................................................................682

2. Nonpecuniary Damages ......................................................................................................................... 686
The Rise of Pain and Suffering ..................................................................................................................................686
McDougald v. Garber .....................................................................................................................................................689
Notes ..............................................................................................................................................................................694

3. Environmental Damages ....................................................................................................................... 699
United States v. CB & I Constructors, Inc ................................................................................................................699
Note ................................................................................................................................................................................701

4. Death Cases ................................................................................................................................................. 701
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Witt, TRCPI
Wrongful Death Actions ..............................................................................................................................................701
Survival Actions ..............................................................................................................................................................702
Death Cases and Family Structure ..........................................................................................................................702
The Death Case Paradox ..............................................................................................................................................703

B. Damages in Practice......................................................................................................................703
1. Plaintiffs’ Lawyers and the Contingency Fee ................................................................................ 704
2. The Role of Defendants’ Insurance ................................................................................................... 707
3. Subrogation; or, The Role of Plaintiffs’ Insurance ...................................................................... 708
4. The “Bronx Jury” Effect .......................................................................................................................... 710
5. Beyond Dollars .......................................................................................................................................... 712
6. The Death of Liability?............................................................................................................................ 713
C. Mass Settlements............................................................................................................................716
1. The September 11th Victim Compensation Fund ....................................................................... 716
2. Aggregation: Class Actions and their Limits.................................................................................. 718
3. The Vioxx Settlement .............................................................................................................................. 720
4. The BP Oil Spill ........................................................................................................................................... 723
5. State Attorneys General ......................................................................................................................... 724
D. Punitive Damages ...........................................................................................................................724
Kemezy v. Peters .............................................................................................................................................. 725
Notes ....................................................................................................................................................................................727

State Farm Mut. Auto. Ins. Co. v. Campbell ............................................................................................ 730
Notes ....................................................................................................................................................................................734

Philip Morris USA v. Williams ..................................................................................................................... 735
Notes ....................................................................................................................................................................................740

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Preface: A Note on the Text
Torts and Regulation: Cases, Principles, and Institutions (TRCPI) is a new casebook designed to bring
together common law principles in the field of torts with related statutory and regulatory materials.
The aim is to provide a text that introduces students to key tort principles and the way in which those
tort principles have in part shaped the regulatory state and in part been supplanted by the regulatory
state.
The occasion for the book is a new course at Yale Law School. For the first time since 1956, the Yale
faculty voted in early 2018 to alter its required curriculum beginning in the fall 2019 term. As law
professors understand, curricular innovation is fraught with peril. Change disrupts instructors’
investments in particular ways of teaching, sometimes rooted in decades of practice and learning.
Changes can produce unanticipated ripple effects in other areas of the curriculum.
In making this change, my colleagues and I were especially attentive to the fact that there is no perfect
law school curriculum, and certainly no perfect curriculum for all times and places. The required
curriculum at Yale Law School, for example, shuffled constantly in the first half of the twentieth
century. The course in Common Law Pleading dropped out; the “Auxiliary Course” became “Legal
Analysis and Legal Method.” Legal Ethics was added as an upper year requirement. But reforms did
not stop there. The Law School soon required Procedure I and dropped the Agency requirement. By
1929 a required first-year course in Political and Legal Theory had pushed out Property, at least for
the time being. In came Jurisprudence and Constitutional Law. The Depression brought a required
course in Commercial Bank Credit alongside a course called Marketing I, which dealt with the law of
sales and agency. Constitutional Law became Judicial Process. Courses in Professional Organization
and Ethics were required in the mid-1930s, and a course called Trials and Appeals was added in 1935.
Agency came back into the required curriculum, and with the New Deal the faculty added
Administrative Process as a required course, too. Churn continued after World War Two.
Administrative Process fell away. So did Legal Ethics. Criminal Law moved in and out of the required
list and oscillated between the first and second terms.
In 1956, the Law School established its modern curriculum by adding the school’s signature “small
group” for first-term students and establishing four basic first-term courses: Constitutional Law,
Contracts, Procedure, and Torts. Since then the only formal alteration to the required courses in the
Law School has been the abolition of the upper-level requirement in Property.
The mid-century faculty seems to have learned a lesson: Curricular reform can be a quagmire. Since
1971, when Property was dropped as a required course, leaving only Criminal Law as a required course
after the first term, the Law School has altered neither its list of required courses, nor the courses’
place in the three-year law school sequence.
In the 2017-2018 academic year, the first year in Dean Heather Gerken’s deanship, the faculty
undertook to consider whether one or more changes to the required curriculum might be in order. A
committee chaired by the author of this book studied the question and concluded that the required
curriculum at the Law School lacked substantial attention, at least nominally, to statutory and
regulatory material. That this was so was odd in no small part because as a substantive matter the
required curriculum was full of statutes and regulations. In Torts, instructors taught substantial
statutory and regulatory material. Instructors in Procedure inevitably engaged rules promulgated
pursuant to statutes. Contracts teachers taught statutes like the Uniform Commercial Code. And
Constitutional Law teachers of course engaged statutes and the constitutional structure of the
legislative process.
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Nonetheless, the committee recommended, and the faculty approved, a change to make the place of
statutes and regulation more explicit in the Law School’s curriculum. Under this change, the Torts
course became “Torts and Regulation.” Torts was the natural place to make the formal change. For
six decades, our fearless leader Judge Guido Calabresi – Sterling Professor, Dean, and now senior
judge on the U.S. Court of Appeals for the Second Circuit – has taught a torts course that draws
powerful and continuous connections between the common law and what Guido memorably describes
as The Age of Statutes. His 1993 book, The Common Law for the Age of Statutes, is an inspiration for
the newly named course.
Torts was also a natural place for change because the instructors who have labored in Judge Calabresi’s
gardens here in New Haven have largely followed Guido’s lead and introduced a variety of statutory
and regulatory materials to their courses already.
This casebook is designed specifically for use in the new course, though it would also work for an
instructor aiming to teach an innovative torts course. It increases the role of statutes and regulations
in the material. In addition, it offers a major innovation by leading the students into the ways in which
basic tort doctrine animate fields of statutory law. In particular, the book adopts a series of “modules”
that follow the adoption and adaptation of tort principles in the law of employment discrimination.
One final innovation in this book is its copyright structure. The book borrows substantially from a
torts casebook co-authored with Karen Tani of the University of California at Berkeley. That book,
Torts: Cases, Principles, and Institutions (4th ed., 2019), or TCPI, supplies much of the basic tort
material that follows here in TRCPI. Both TCPI and TRCPI are published on Creative Commons
licenses that permit the borrowing and lending of the relevant materials. I am very grateful to Professor
Tani for her amazing additions to the 4th edition of TCPI. Readers of TRCPI get the benefit of many
of them, but Professor Tani bears no blame for any errors and infelicities I have introduced here in
TRCPI.
Many thanks to Dean Heather Gerken for supporting the curricular change that inspired this text.
Thanks, too, to the students in my torts classes at Yale and Columbia for honing much of this material
over nearly two decades. Alieta-Marie Lynch provided unstinting and omni-competent assistance
helping me manage the text. Excellent work by research assistants including Jessie Agatstein, William
Baldwin, Michael Beechert, Aurelia Chaudhury, Jessica Garland, Stephanie Garlock, Tanya Kapoor,
Hyungwoo Lee, Matthew Quallen, Matthew Shapiro, Jessica Tueller, and Helen White made possible
the completion this book and its predecessor. They have my abiding gratitude.
John Fabian Witt
Lakeville, Connecticut
June 2019

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Preface to the Second Edition
This Second Edition of TRCPI tracks the first, with modest changes to the material drawn from old
TCPI book (many of them authored by Karen Tani, now a University Professor at the University of
Pennsylvania).
In addition, the Second Edition adds in substantial new materials in two modules drawing torts
principles in the area of antidiscrimination law.
In Chapter 8, a new Section B develops the law of proof in the context of employment discrimination
cases alleging that an employment practice is unlawful because of its disparate impact on people in a
protected class under Title VII of the Civil Rights Act of 1964. The disparate impact cases have
followed a path drawn from the res ipsa loquitor cases in negligence cases, and it is a path that departs
in complicated ways from the proof of disparate treatment claims under Title VII, which is dealt with
in Chapter 8’s Section A and which appeared in the First Edition.
A new Chapter 15 extends the vicarious liability and respondeat superior materials from tort in Chapter
14 and helps students watch those same issues play out in the context of harassment claims under Title
VII. In the 1990s, the Supreme Court developed a distinctive and controversial approach to respondeat
superior liability for employers in harassment cases – an approach that both draws from the common
law of tort and departs from it.
Additional research assistance by Tobi Kuehne and Ann Manov helped me prepare these new
materials.
John Fabian Witt
Lakeville, Connecticut
June 2020

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CHAPTER 1. AN INTRODUCTION TO TORTS AND REGULATION

A. Two Regimes: The Common Law and the Administrative State
There may be no better illustration of the cross-cutting institutional structures of American
law than the struggles over whether statutes enacted by Congress (and regulations promulgated
pursuant to those statutes by federal agencies) displace the common law principles of state law. In
recent years, the relationship between federal law and state law has been fought out in cases
resolving whether federal law displaces private causes of action based in state law common law
principles. Consider the United States Supreme Court’s 2011 decision in the childhood vaccines
case, Bruesewitz v. Wyeth.
For now, don’t worry about the terminology too much, including whatever you did not
understand in the previous paragraph. We will rehearse the basics of tort law beginning in Section
B of this chapter. The childhood vaccines case serves as our introduction to the forms and functions
of American law.
Vaccination made extraordinary gains against infectious disease in the twentieth century,
especially in wealthy countries. The significance of scientific advancements in the development of
vaccines which are now given in childhood cannot be understated. In the early 20th century, the
infant mortality rate in the United States was 20 percent; the childhood mortality rate before the
age of five was an additional 20 percent. Today, according to a 2017 study, the infant mortality rate
in the United States is 0.58 percent; a 2015 study found that the childhood mortality rate before the
age of five is 0.7 percent. Although every area of medical science has made great strides since
1900, much of the drop in death rates has been due to the lifesaving effects of vaccines.
The first vaccine for smallpox was invented by Edward Jenner in 1796. But the vaccines
that are given to children today were developed beginning in the early 20th century with the
introduction of immunizations against pertussis (1914), diphtheria (1926), and tetanus (1938). The
biggest breakthrough came in 1955, when Dr. Jonas Salk helped develop the polio vaccine. Further
vaccines -- against measles, mumps, rubella, and hepatitis B, among others -- were introduced to
the public over the subsequent half century. The success of these introductions has been
spectacular. There were 12 million cases of rubella in the United States in 1964-65. In 2015, there
were six.
Current child vaccination rates in the United States are relatively high considering how
many children fail to attend routine well visits. According to insurance provider Blue Cross Blue
Shield, 77 percent of American children were fully vaccinated in 2016, up from 69 percent in 2013.
Cause for worry, however, is to be found in statistics about the rate at which parents affirmatively
refuse vaccinations for their children. For children born in 2010, the figure was 2.5 percent; for
those born in 2013, it was 4.2 percent.
It is well known that vaccines can have rare side effects, most of which are entirely benign,
such as injection-site pain, redness, or elevated body temperature. More serious side effects, such
as those stemming from immediate allergic reactions, occur in fewer than one out of every million
cases. It is true that, due to mistakes in the development or manufacturing process or for some
other reason, public health scares involving vaccine side effects have occurred. (If you’re curious,
look up the Cutter incident and the 1976 swine flu vaccine fiasco.) But these sorts of events are
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exceedingly rare. Medical science attributes many of the serious health problems which crop up in
the wake of a vaccination to pure coincidence. And of course, not vaccinating poses dangers, too
-- dangers that scientists by acclimation agree are ordinarily far greater than vaccinating.
At the same time that the modern culture of vaccination arose, American tort law
underwent a period of sustained growth in liability. In the law of tort liability for products, in
particular, courts expanded the liability of defendants, establishing new doctrines that allowed
certain plaintiffs to recover damages from product manufacturers for injuries, sometimes even
where the manufacturer had done nothing wrong. The result was a boom in litigation against the
pharmaceutical industry in the late 1970s and early 1980s.
The late Justice Antonin Scalia’s opinion in Bruesewitz tells the story of Congress’s
response and concludes that Congress’s response preempts (or displaces) the state tort law causes
of action for damages. Justice Stephen Breyer writes an opinion concurring in the result. Justice
Sonia Sotomayor adds an opinion (joined by Justice Ruth Bader Ginsburg) dissenting from the
majority view. In reading through the following opinions, ask yourself which justices have the
better of the argument. Most importantly, ask yourself what the criteria ought to be for deciding
which is the best argument.
Bruesewitz v. Wyeth LLC, 562 U.S. 223 (2011)
Justice SCALIA delivered the opinion of the Court.
We consider whether a preemption provision enacted in the National Childhood Vaccine Injury
Act of 1986 (NCVIA) bars state-law design-defect claims against vaccine manufacturers.
I.
A.
For the last 66 years, vaccines have been subject to the same federal premarket approval
process as prescription drugs, and compensation for vaccine-related injuries has been left largely
to the States. Under that regime, the elimination of communicable diseases through vaccination
became “one of the greatest achievements” of public health in the 20th century. But in the 1970’s
and 1980’s vaccines became, one might say, victims of their own success. They had been so
effective in preventing infectious diseases that the public became much less alarmed at the threat
of those diseases, and much more concerned with the risk of injury from the vaccines themselves.
Much of the concern centered around vaccines against diphtheria, tetanus, and pertussis
(DTP), which were blamed for children's disabilities and developmental delays. This led to a
massive increase in vaccine-related tort litigation. Whereas between 1978 and 1981 only nine
product-liability suits were filed against DTP manufacturers, by the mid–1980’s the suits numbered
more than 200 each year. This destabilized the DTP vaccine market, causing two of the three
domestic manufacturers to withdraw; and the remaining manufacturer, Lederle Laboratories,
estimated that its potential tort liability exceeded its annual sales by a factor of 200. Vaccine
shortages arose when Lederle had production problems in 1984.
Despite the large number of suits, there were many complaints that obtaining compensation
for legitimate vaccine-inflicted injuries was too costly and difficult. A significant number of parents
were already declining vaccination for their children, and concerns about compensation threatened
to depress vaccination rates even further. This was a source of concern to public health officials,
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since vaccines are effective in preventing outbreaks of disease only if a large percentage of the
population is vaccinated.
To stabilize the vaccine market and facilitate compensation, Congress enacted the NCVIA
in 1986. The Act establishes a no-fault compensation program “designed to work faster and with
greater ease than the civil tort system.” Shalala v. Whitecotton, 514 U.S. 268, 269 (1995). A person
injured by a vaccine, or his legal guardian, may file a petition for compensation in the United States
Court of Federal Claims, naming the Secretary of Health and Human Services as the respondent.
A special master then makes an informal adjudication of the petition within (except for two limited
exceptions) 240 days. The Court of Federal Claims must review objections to the special master's
decision and enter final judgment under a similarly tight statutory deadline. At that point, a claimant
has two options: to accept the court's judgment and forgo a traditional tort suit for damages, or to
reject the judgment and seek tort relief from the vaccine manufacturer.
Fast, informal adjudication is made possible by the Act’s Vaccine Injury Table, which lists
the vaccines covered under the Act; describes each vaccine’s compensable, adverse side effects;
and indicates how soon after vaccination those side effects should first manifest themselves.
Claimants who show that a listed injury first manifested itself at the appropriate time are prima
facie entitled to compensation. No showing of causation is necessary; the Secretary bears the
burden of disproving causation. A claimant may also recover for unlisted side effects, and for listed
side effects that occur at times other than those specified in the Table, but for those the claimant
must prove causation. Unlike in tort suits, claimants under the Act are not required to show that the
administered vaccine was defectively manufactured, labeled, or designed.
Successful claimants receive compensation for medical, rehabilitation, counseling, special
education, and vocational training expenses; diminished earning capacity; pain and suffering; and
$250,000 for vaccine-related deaths. Attorney’s fees are provided, not only for successful cases,
but even for unsuccessful claims that are not frivolous. These awards are paid out of a fund created
by an excise tax on each vaccine dose.
The quid pro quo for this, designed to stabilize the vaccine market, was the provision of
significant tort-liability protections for vaccine manufacturers. The Act requires claimants to seek
relief through the compensation program before filing suit for more than $1,000. Manufacturers
are generally immunized from liability for failure to warn if they have complied with all regulatory
requirements (including but not limited to warning requirements) and have given the warning either
to the claimant or the claimant's physician. They are immunized from liability for punitive damages
absent failure to comply with regulatory requirements, “fraud,” “intentional and wrongful
withholding of information,” or other “criminal or illegal activity.” And most relevant to the present
case, the Act expressly eliminates liability for a vaccine's unavoidable, adverse side effects:
No vaccine manufacturer shall be liable in a civil action for damages arising from
a vaccine-related injury or death associated with the administration of a vaccine
after October 1, 1988, if the injury or death resulted from side effects that were
unavoidable even though the vaccine was properly prepared and was accompanied
by proper directions and warnings.
[42 U.S.C. § 300aa–22(b)(1).]

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Witt, TRCPI 1. Introduction

B.
The vaccine at issue here is a DTP vaccine manufactured by Lederle Laboratories. It first
received federal approval in 1948 and received supplemental approvals in 1953 and 1970.
Respondent Wyeth purchased Lederle in 1994 and stopped manufacturing the vaccine in 1998.
Hannah Bruesewitz was born on October 20, 1991. Her pediatrician administered doses of
the DTP vaccine according to the Center for Disease Control's recommended childhood
immunization schedule. Within 24 hours of her April 1992 vaccination, Hannah started to
experience seizures. She suffered over 100 seizures during the next month, and her doctors
eventually diagnosed her with “residual seizure disorder” and “developmental delay.” Hannah, now
a teenager, is still diagnosed with both conditions.
In April 1995, Hannah's parents, Russell and Robalee Bruesewitz, filed a vaccine injury
petition in the United States Court of Federal Claims, alleging that Hannah suffered from on-Table
residual seizure disorder and encephalopathy injuries. A Special Master denied their claims on
various grounds, though they were awarded $126,800 in attorney's fees and costs. The Bruesewitzes
elected to reject the unfavorable judgment, and in October 2005 filed this lawsuit in Pennsylvania
state court. Their complaint alleged (as relevant here) that defective design of Lederle’s DTP
vaccine caused Hannah's disabilities, and that Lederle was subject to strict liability, and liability
for negligent design, under Pennsylvania common law.
Wyeth removed the suit to the United States District Court for the Eastern District of
Pennsylvania, which granted Wyeth summary judgment on the strict-liability and negligence
design-defect claims, holding that the Pennsylvania law providing those causes of action was
preempted by 42 U.S.C. § 300aa–22(b)(1). The United States Court of Appeals for the Third Circuit
affirmed. We granted certiorari.
II
A
We set forth again the statutory text at issue:
“No vaccine manufacturer shall be liable in a civil action for damages arising from
a vaccine-related injury or death associated with the administration of a vaccine
after October 1, 1988, if the injury or death resulted from side effects that were
unavoidable even though the vaccine was properly prepared and was accompanied
by proper directions and warnings.”
The “even though” clause clarifies the word that precedes it. It delineates the preventative
measures that a vaccine manufacturer must have taken for a side-effect to be considered
“unavoidable” under the statute. Provided that there was proper manufacture and warning, any
remaining side effects, including those resulting from design defects, are deemed to have been
unavoidable. State-law design-defect claims are therefore preempted.
If a manufacturer could be held liable for failure to use a different design, the word
“unavoidable” would do no work. A side effect of a vaccine could always have been avoidable by
use of a differently designed vaccine not containing the harmful element. The language of the
provision thus suggests that the design of the vaccine is a given, not subject to question in the tort
action. What the statute establishes as a complete defense must be unavoidability (given safe
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Witt, TRCPI 1. Introduction

manufacture and warning) with respect to the particular design. Which plainly implies that the
design itself is not open to question.
A further textual indication leads to the same conclusion. Products-liability law establishes
a classic and well known triumvirate of grounds for liability: defective manufacture, inadequate
directions or warnings, and defective design. If all three were intended to be preserved, it would be
strange to mention specifically only two, and leave the third to implication. It would have been
much easier (and much more natural) to provide that manufacturers would be liable for “defective
manufacture, defective directions or warning, and defective design.” It seems that the statute fails
to mention design-defect liability “by deliberate choice, not inadvertence.” Barnhart v. Peabody
Coal Co., 537 U.S. 149, 168 (2003). . . .
III
The structure of the NCVIA and of vaccine regulation in general reinforces what the text
of s. 300aa-22(b)(1) suggests. A vaccine’s license spells out the manufacturing method that must
be followed and the directions and warnings that must accompany the product. Manufacturers
ordinarily must obtain the Food and Drug Administration’s (FDA) approval before modifying
either. Deviations from the license thus provide objective evidence of manufacturing defects or
inadequate warnings. Further objective evidence comes from the FDA's regulations—more than 90
of them—that pervasively regulate the manufacturing process, down to the requirements for
plumbing and ventilation systems at each manufacturing facility. Material noncompliance with any
one of them, or with any other FDA regulation, could cost the manufacturer its regulatorycompliance defense.
Design defects, in contrast, do not merit a single mention in the NCVIA or the FDA's
regulations. Indeed, the FDA has never even spelled out in regulations the criteria it uses to decide
whether a vaccine is safe and effective for its intended use. And the decision is surely not an easy
one. Drug manufacturers often could trade a little less efficacy for a little more safety, but the safest
design is not always the best one. Striking the right balance between safety and efficacy is
especially difficult with respect to vaccines, which affect public as well as individual health. Yet
the Act, which in every other respect micromanages manufacturers, is silent on how to evaluate
competing designs…. The lack of guidance for design defects combined with the extensive
guidance for the two grounds of liability specifically mentioned in the Act strongly suggests that
design defects were not mentioned because they are not a basis for liability.
The mandates contained in the Act lead to the same conclusion. Design-defect torts,
broadly speaking, have two beneficial effects: (1) prompting the development of improved designs,
and (2) providing compensation for inflicted injuries. The NCVIA provides other means for
achieving both effects. . . .
[S]ilence regarding design-defect liability was not inadvertent. It instead reflects a sensible
choice to leave complex epidemiological judgments about vaccine design to the FDA and the
National Vaccine Program rather than juries.
[T]he Act's structural quid pro quo leads to the same conclusion: . . . . Taxing vaccine
manufacturers’ product to fund the compensation program, while leaving their liability for design
defect virtually unaltered, would hardly coax manufacturers back into the market. . . .
IV
Since our interpretation . . . is the only interpretation supported by the text and structure of
the NCVIA, even those of us who believe legislative history is a legitimate tool of statutory
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Witt, TRCPI 1. Introduction

interpretation have no need to resort to it. In any case, the dissent’s contention that it would
contradict our conclusion is mistaken.
The dissent’s legislative history relies on the following syllogism: A 1986 House
Committee Report states that §300aa-22(b)(1) “sets forth the principle contained in Comment k of
Section 402A of the Restatement of Torts (Second);” in 1986 comment k was “commonly
understood” to require a case-specific showing that “no feasible alternative design” existed;
Congress therefore must have intended §300aa-22(b)(1) to require that showing. . . .
Immediately after the language quoted by the dissent, the 1986 Report notes the difficulty
a jury would have in faithfully assessing whether a feasible alternative design exists when an
innocent “young child, often badly injured or killed,” is the plaintiff. Eliminating that concern is
why the 1986 Report’s authors “strongly believ[e] that Comment k is appropriate and necessary as
the policy for civil actions seeking damages in tort.” The dissent’s interpretation of §300aa22(b)(1) and its version of “the principle in Comment K” adopted by the 1986 Report leave that
concern unaddressed.
The dissent buries another unfavorable piece of legislative history. Because the 1986
Report believes that §300aa-22(b)(1) should incorporate “the principle in Comment K” and because
the Act provides a generous no-fault compensation scheme, the 1986 Report counsels injured
parties who cannot prove a manufacturing or labeling defect to “pursue recompense in the
compensation system, not the tort system.” That counsel echoes our interpretation of §300aa22(b)(1).
Not to worry, the dissent retorts, a Committee Report by a later Congress
“authoritative[ly]” vindicates its interpretation. Post-enactment legislative history (a contradiction
in terms) is not a legitimate tool of statutory interpretation. . . . Real (pre-enactment) legislative
history is persuasive to some because it is thought to shed light on what legislators understood an
ambiguous statutory text to mean when they voted to enact it into law. But post-enactment
legislative history by definition “could have had no effect on the congressional vote,” District of
Columbia v. Heller, 554 U.S. 570, 605 (2008).
. . . . Those who voted on the relevant statutory language were not necessarily the same persons
who crafted the statements in the later Committee Report; or if they were did not necessarily have
the same views at that earlier time; and no one voting at that earlier time could possibly have been
informed by those later statements. . . .
For the foregoing reasons, we hold that the National Childhood Vaccine Injury Act
preempts all design-defect claims against vaccine manufacturers brought by plaintiffs who seek
compensation for injury or death caused by vaccine side effects. . . .
Justice BREYER, concurring.
I join the Court’s judgment and opinion. . . . But the textual question considered alone is
a close one. Hence, like the dissent, I would look to other sources, including legislative history,
statutory purpose, and the views of the federal administrative agency, here supported by expert
medical opinion. Unlike the dissent, however, I believe these other sources reinforce the Court’s
conclusion.

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Witt, TRCPI 1. Introduction

I
House Committee Report No. 99–908 contains an “authoritative” account of Congress’
intent in drafting the pre-emption clause of the National Childhood Vaccine Injury Act of 1986
(NCVIA or Act). See Garcia v. United States, 469 U.S. 70, 76 (1984) (“[T]he authoritative source
for finding the Legislature’s intent lies in the Committee Reports on the bill”). That Report says
that “if” vaccine-injured persons
“cannot demonstrate under applicable law either that a vaccine was improperly
prepared or that it was accompanied by improper directions or inadequate warnings
[they] should pursue recompense in the compensation system, not the tort system.”
H.R. Rep. No. 99–908, pt. 1, p. 26 (1986), U.S. Code Cong. & Admin. News, 1986,
pp. 6344, 6365 (hereinafter H.R. Rep. or Report).
The Report lists two specific kinds of tort suits that the clause does not pre-empt (suits
based on improper manufacturing and improper labeling), while going on to state that
compensation for other tort claims, e.g., design-defect claims, lies in “the [NCVIA’s no-fault]
compensation system, not the tort system.” Ibid.
The strongest contrary argument rests upon the Report’s earlier description of the statute
as “set[ting] forth the principle contained in Comment k” (of the Restatement Second of Torts’
strict liability section, 402A) that “a vaccine manufacturer should not be liable for injuries or deaths
resulting from unavoidable side effects.” Id., at 25 (emphasis added). But . . . . nothing in the Report
suggests that the statute means the word “unavoidable” to summon up an otherwise unmentioned
third exception encompassing suits based on design defects. . . . The Report itself refers, not to
comment k ‘s details, but only to its “principle,” namely, that vaccine manufacturers should not be
held liable for unavoidable injuries. It says nothing at all about who—judge, jury, or federal safety
agency—should decide whether a safer vaccine could have been designed. . . .
II
The legislative history describes the statute more generally as trying to protect the lives of
children . . . . As the Committee Report makes clear, routine vaccination is “one of the most
spectacularly effective public health initiatives this country has ever undertaken.” H.R. Rep., at 4.
Before the development of routine whooping cough vaccination, for example, “nearly all children”
in the United States caught the disease and more than 4,000 people died annually, most of them
infants. . . . But these gains are fragile; “[t]he causative agents for these preventable childhood
illnesses are ever present in the environment, waiting for the opportunity to attack the unprotected
individual.” Hearing on S. 827 before the Senate Committee on Labor and Human Resources, 99th
Cong., 2d Sess., pt. 2, pp. 20–21 (1985) (testimony of the American Academy of Pediatrics). Even
a brief period when vaccination programs are disrupted can lead to children’s deaths. Hearings 20–
21.
In considering the NCVIA, Congress found that a sharp increase in tort suits brought
against whooping cough and other vaccine manufacturers between 1980 and 1985 had “prompted
manufacturers to question their continued participation in the vaccine market.” H.R. Rep., at 4.
Indeed, two whooping cough vaccine manufacturers withdrew from the market, and other vaccine
manufacturers, “fac[ing] great difficulty in obtaining [product liability] insurance,” told Congress
that they were considering “a similar course of action.” H.R. Rep., at 4. The Committee Report
explains that, since there were only one or two manufacturers of many childhood vaccines, “[t]he
loss of any of the existing manufacturers of childhood vaccines . . . could create a genuine public
health hazard”; it “would present the very real possibility of vaccine shortages, and, in turn,
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increasing numbers of unimmunized children, and, perhaps, a resurgence of preventable diseases.”
H.R. Rep., at 5. . . .
Given these broad general purposes, to read the pre-emption clause as preserving designdefect suits seems anomalous. The Department of Health and Human Services (HHS) decides when
a vaccine is safe enough to be licensed and which licensed vaccines, with which associated injuries,
should be placed on the Vaccine Injury Table. A special master in the Act’s compensation program
determines whether someone has suffered an injury listed on the Injury Table and, if not, whether
the vaccine nonetheless caused the injury. To allow a jury in effect to second-guess those
determinations is to substitute less expert for more expert judgment, thereby threatening
manufacturers with liability (indeed, strict liability) in instances where any conflict between experts
and nonexperts is likely to be particularly severe—instances where Congress intended the contrary.
That is because potential tort plaintiffs are unlikely to bring suit unless the specialized
compensation program has determined that they are not entitled to compensation (say, because it
concludes that the vaccine did not cause the injury). Brief for United States as Amicus Curiae 28
(“99.8% of successful Compensation Program claimants have accepted their awards, foregoing any
tort remedies against vaccine manufacturers”). . . .
The United States, reflecting the views of HHS, urges the Court to read the Act as I and
the majority would do. It notes that the compensation program’s listed vaccines have survived
rigorous administrative safety review. It says that to read the Act as permitting design-defect
lawsuits could lead to a recurrence of “exactly the crisis that precipitated the Act,” namely
withdrawals of vaccines or vaccine manufacturers from the market, “disserv[ing] the Act’s central
purposes,” and hampering the ability of the agency’s “expert regulators, in conjunction with the
medical community, [to] control the availability and withdrawal of a given vaccine.” Brief for
United States as Amicus Curiae 30, 31.
The United States is supported in this claim by leading public health organizations,
including the American Academy of Pediatrics, the American Academy of Family Physicians, the
American College of Preventive Medicine, the American Public Health Association, the American
Medical Association, the March of Dimes Foundation, the Pediatric Infectious Diseases Society,
and 15 other similar organizations. . . .
I would give significant weight to the views of HHS. The law charges HHS with
responsibility for overseeing vaccine production and safety. It is “likely to have a thorough
understanding” of the complicated and technical subject matter of immunization policy, and it is
comparatively more “qualified to comprehend the likely impact of state requirements.” Geier v.
American Honda Motor Co., Inc., 529 U.S. 861, 883 (2000). HHS’s position is particularly
persuasive here because expert public health organizations support its views and the matter
concerns a medical and scientific question of great importance: how best to save the lives of
children.
In sum, congressional reports and history, the statute’s basic purpose as revealed by that
history, and the views of the expert agency along with those of relevant medical and scientific
associations, all support the Court's conclusions. I consequently agree with the Court.
Justice SOTOMAYOR, with whom Justice GINSBURG joins, dissenting.
Vaccine manufacturers have long been subject to a legal duty, rooted in basic principles of
products liability law, to improve the designs of their vaccines in light of advances in science and
technology. Until today, that duty was enforceable through a traditional state-law tort action for
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defective design. In holding that § 22(b)(1) of the National Childhood Vaccine Injury Act of 1986
(Vaccine Act or Act) preempts all design defect claims for injuries stemming from vaccines
covered under the Act, the Court imposes its own bare policy preference over the considered
judgment of Congress. . . . Its decision leaves a regulatory vacuum in which no one ensures that
vaccine manufacturers adequately take account of scientific and technological advancements when
designing or distributing their products. . . .
Section 22 of the Vaccine Act provides “standards of responsibility” to govern civil actions
against vaccine manufacturers. Section 22(a) sets forth the “general rule” that “State law shall apply
to a civil action brought for damages for a vaccine-related injury or death.” This baseline rule that
state law applies is subject to three narrow exceptions, one of which, § 22(b)(1), is at issue in this
case. Section 22(b)(1) . . . . contains two key clauses: “if the injury or death resulted from side
effects that were unavoidable” (the “if” clause), and “even though the vaccine was properly
prepared and was accompanied by proper directions and warnings” (the “even though” clause).
Blackletter products liability law generally recognizes three different types of product
defects: design defects, manufacturing defects, and labeling defects (e.g., failure to warn). The
reference in the “even though” clause to a “properly prepared” vaccine “accompanied by proper
directions and warnings” is an obvious reference to two such defects—manufacturing and labeling
defects. The plain terms of the “even though” clause thus indicate that § 22(b)(1) applies only where
neither kind of defect is present. . . .
Given that the “even though” clause requires the absence of manufacturing and labeling
defects, the “if” clause’s reference to “side effects that were unavoidable” must refer to side effects
caused by something other than manufacturing and labeling defects. The only remaining kind of
product defect recognized under traditional products liability law is a design defect. Thus, “side
effects that were unavoidable” must refer to side effects caused by a vaccine’s design that were
“unavoidable.” Because § 22(b)(1) uses the conditional term “if,” moreover, the text plainly implies
that some side effects stemming from a vaccine’s design are “unavoidable,” while others are
avoidable. Accordingly, because the “if” clause (like the “even though” clause) sets forth a
condition to invoke § 22(b)(1)’s defense to tort liability, Congress must also have intended a
vaccine manufacturer to demonstrate in each civil action that the particular side effects of a
vaccine’s design were “unavoidable.” . . .
Indeed, when Congress intends to preempt design defect claims categorically, it does so
using categorical (e.g., “all”) and/or declarative language (e.g., “shall”), rather than a conditional
term (“if”). For example, in a related context, Congress has authorized the Secretary of Health and
Human Services to designate a vaccine designed to prevent a pandemic or epidemic as a “covered
countermeasure.” 42 U.S.C. §§ 247d–6d(b). With respect to such “covered countermeasure[s],”
Congress provided that subject to certain exceptions, “a covered person shall be immune from suit
and liability under Federal and State law with respect to all claims for loss caused by, arising out
of, relating to, or resulting from the administration to or the use by an individual of a covered
countermeasure,” § 247d–6d(a)(1) (emphasis added), including specifically claims relating to “the
design” of the countermeasure.
The plain text and structure of the Vaccine Act thus compel the conclusion that § 22(b)(1)
preempts some—but not all—design defect claims. [W]here a plaintiff has proved that she has
suffered an injury resulting from a side effect caused by a vaccine's design, a vaccine manufacturer
may invoke § 22(b)(1)'s liability exemption only if it demonstrates that the side effect stemming
from the particular vaccine’s design is “unavoidable,” and that the vaccine is otherwise free from
manufacturing and labeling defects. . . .
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If Congress intended to exempt vaccine manufacturers categorically from all design defect
liability, it more logically would have provided: “No vaccine manufacturer shall be liable in a civil
action for damages arising from a vaccine-related injury or death associated with the administration
of a vaccine after October 1, 1988, if the vaccine was properly prepared and was accompanied by
proper directions and warnings.” There would have been no need for Congress to include the
additional 13 words “the injury or death resulted from side effects that were unavoidable even
though.”
....
The majority also suggests that Congress necessarily intended to pre-empt design defect
claims since the aim of such tort suits is to promote the development of improved designs and
provide compensation for injured individuals, and the Vaccine Act “provides other means for
achieving both effects”—most notably through the no-fault compensation program and the
National Vaccine Program. But the majority’s position elides a significant difference between state
tort law and the federal regulatory scheme. Although the Vaccine Act charges the Secretary of
Health and Human Services with the obligation to “promote the development of childhood
vaccines” and “make or assure improvements in . . . vaccines, and research on vaccines,” neither
the Act nor any other provision of federal law places a legal duty on vaccine manufacturers to
improve the design of their vaccines to account for scientific and technological advances. Indeed,
the FDA does not condition approval of a vaccine on it being the most optimally designed among
reasonably available alternatives, nor does it (or any other federal entity) ensure that licensed
vaccines keep pace with technological and scientific advances. Rather, the function of ensuring that
vaccines are optimally designed in light of existing science and technology has traditionally been
left to the States through the imposition of damages for design defects. . . .
The normal competitive forces that spur innovation and improvements to existing product
lines in other markets . . . operate with less force in the vaccine market, particularly for vaccines
that have already been released and marketed to the public. Absent a clear statutory mandate to the
contrary, there is no reason to think that Congress intended in the vaccine context to eliminate the
traditional incentive and deterrence functions served by state tort liability in favor of a federal
regulatory scheme providing only carrots and no sticks.
In enacting the Vaccine Act, Congress established a carefully wrought federal scheme that
balances the competing interests of vaccine-injured persons and vaccine manufacturers. . . . Instead
of eliminating design defect liability entirely, Congress enacted numerous measures to reduce
manufacturers’ liability exposure, including a limited regulatory compliance presumption of
adequate warnings, elimination of claims based on failure to provide direct warnings to patients, a
heightened standard for punitive damages, and, of course, immunity from damages for
“unavoidable” side effects. Considered in light of the Vaccine Act as a whole, § 22(b)(1)’s
exemption from liability for unavoidably unsafe vaccines is just one part of a broader statutory
scheme that reflects Congress’ careful balance between providing adequate compensation for
vaccine-injured children and conferring substantial benefits on vaccine manufacturers to ensure a
stable and predictable childhood vaccine supply.
The majority’s decision today disturbs that careful balance based on a bare policy
preference that it is better “to leave complex epidemiological judgments about vaccine design to
the FDA and the National Vaccine Program rather than juries.” To be sure, reasonable minds can
disagree about the wisdom of having juries weigh the relative costs and benefits of a particular
vaccine design. But whatever the merits of the majority’s policy preference, the decision to bar all
design defect claims against vaccine manufacturers is one that Congress must make, not this Court.
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By construing § 22(b)(1) to preempt all design defect claims against vaccine manufacturers for
covered vaccines, the majority’s decision leaves a regulatory vacuum in which no one—neither the
FDA nor any other federal agency, nor state and federal juries—ensures that vaccine manufacturers
adequately take account of scientific and technological advancements. This concern is especially
acute with respect to vaccines that have already been released and marketed to the public.
Manufacturers, given the lack of robust competition in the vaccine market, will often have little or
no incentive to improve the designs of vaccines that are already generating significant profit
margins. Nothing in the text, structure, or legislative history remotely suggests that Congress
intended that result.
I respectfully dissent.

Notes
1. The power of the Supremacy Clause. Underlying the logic of the Bruesewitz case is the
Supremacy Clause in Article VI of the United States Constitution:
This Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the
authority of the United States, shall be the supreme law of the land; and the judges
in every state shall be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.
The Supremacy Clause gives federal law supremacy over state law, so long as the federal legal
norm in question is within the authority of the federal government.
2. Real people, real consequences. What happened to the Bruesewitzes? Your author was
unable to precisely ascertain the remainder of their story, but it is safe to say that there is no happy
ending here. Hannah Bruesewitz will need close supervision and personal care for the remainder
of her life as a result of the illness she began to suffer after receiving the DTP vaccine. And since
the Special Master denied the Bruesewitz family recovery under the Vaccine Act, their defeat in
the Supreme Court leaves them without compensation. Whenever you read a case, keep in mind
that a sad story often gives rise to the web of legal questions and principles you are expected to
discern.
3. What’s at stake? What is at issue in the choice between a federal compensation program and
suits under state law? Torts and regulation often force us to contemplate difficult choices. Some
are discrete; some are abstract. Think about the following dichotomies with the challenges and
lessons of Bruesewitz in mind:
a. Formalism versus functionalism. One of the roles of law is as a mechanism for resolving social
disagreement. Bruesewitz illustrates two different ways of going about the enterprise. One goes by
the label “formalism.” The other goes by the label “functionalism.” The former is concerned with
answering questions of legal analysis exclusively by reference to the four-corners of a legal text or
rule. The latter aims to answer such questions by taking into account the goals of the relevant legal
text or rule. Of the three opinions in Bruesewitz, which are formalist? Which are functionalist? How
can you tell?
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b. Centralization versus decentralization. In state tort suits, decisions of liability are made by juries
comprised of local people; settlement decisions are made by the parties themselves. In a regulatory
regime, those decisions are made by bureaucrats working from within a system predicated on
centralization. Does one of these two approaches -- centralization or decentralization -- make more
sense to you in the context of injuries stemming from vaccines? In general?
c. Expert versus non-expert. This dichotomy is related to the previous one. Ideally, a centralized
bureaucracy will provide the benefit of expertise. The FDA is staffed by highly trained
professionals from relevant fields; these are the people charged with creating and executing the
approval process for vaccines. Local juries, on the other hand, are not likely to possess any expertise
in medical technology or the science of vaccine development. They may also be more susceptible
to anti-vaccination propaganda, which has grown in prominence in recent years. Should expertise
be seen as a virtue in the sort of decision-making that had to be performed in Bruesewitz? Are there
situations in which you would prefer a non-expert perspective?
d. Dynamic versus static. Tort can respond quickly and flexibly to changing norms and technologies
without cumbersome administrative or legislative processes. Agencies, on the other hand, can
become bound up in complex and time-consuming processes. Private litigation can take years and
forces tremendous costs on participants. To what degree should prudential concerns such as speed
shape our preferences for one forum or another?
e. Ex-ante versus ex-post. One view of the regulatory choice sees it as a choice between ex ante
and ex post approaches. The former, which characterizes many forms of so-called “command-andcontrol” regulations, sets regulatory standards in advance and prohibits departures from its
mandate. The latter, which characterizes most tort law, allows parties to act as they see fit, so long
as they pay damages to injured victims in the event something goes awry. What are the pluses and
minuses of the two approaches? In what respects are they actually different from one another? It
may be worth thinking a good deal about these questions, since they are pervasive in this course
and indeed in the law more generally.
f. Tort versus regulation, and the goals of the law. You now have one view of how torts and
regulation relate. Which approach is better at advancing our goals? Which is better at providing
the right amount of deterrence and risk reduction? Which is better at righting wrongs? Which is
better at compensating injuries? We will grapple with these questions throughout the entire term.
4. Bruesewitz: a pediatrician’s take. In 2011, legendary pediatrician Sydney Spiesel delivered
the following account of vaccines and the Bruesewitz case, putting the case in the context of nearly
a century of vaccine history:
Hannah Bruesewitz was given her third DTP shot in 1992, when she was six
months old. Shortly following immunization, she developed a serious convulsive
disorder, experiencing about 125 seizures in the next 16 days. Her seizure disorder
has persisted (in a lessened form), and she also began to show signs of a severe
developmental delay and autism. Hearing a story like that might make you
confidently assume that Hannah’s neurological problems must have been caused
by her immunizations, but you would not necessarily be right. The signs of
developmental delay and autism are often very difficult or impossible to detect by
six months of age and lots of subsequent statistical research has never shown an
association between immunization and the development of autism. Statistics,
however, only describe groups and not individual patients and it’s possible that
there is something unique about Hannah that led to an extremely rare susceptibility.
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But the rules of the Vaccine Court require that if a problem doesn’t fit on a table
of serious side-effects known to be a risk of immunization, then a family must
demonstrate a plausible causative explanation for the side effect before damages
can be paid. Similarly, seizures did sometimes follow administration of the old
whole-cell DTP vaccine, but these were typically transient (probably related to
fever) and the immunization has not been shown to increase the risk for developing
a long-standing seizure disorder.
Her case was brought to the Vaccine Court, which ultimately rejected it because
neither a residual seizure disorder nor autistic-like developmental disorders are
listed in a table of possible injuries clearly attributable to immunization with DTP
vaccine and because the special master found no likely connection between her
illness and the immunization. Hannah’s family, clearly dissatisfied with the
outcome, wanted the case moved from the Vaccine Court to a more conventional
court where it could be tried as a civil liability case in which the injuries might be
attributed to a defect in the DTP vaccine. Their grounds for asking that the case be
taken away from the Vaccine Court is their assertion that the manufacturer could
have made a safer vaccine but chose not to (had the manufacturer done so, they
argue, Hannah’s injury might have been preventable). If her injury might have
been preventable, the argument continued, the vaccine manufacturer should not be
exempted from civil liability, so the case should be removed from the jurisdiction
(and rules) of the Vaccine Court. They argued that the company chose to stick with
an older, inherently bad technology – whole-cell DTP (not mentioned in the brief,
but a vaccine preserved with thimerosal) – compared with the newer, purer, “safer”
product, DTaP.
There is, it seems to me, a problem with this argument. Vaccines, like most
medications intended for use in children, are almost always first tested and used in
older children. Only when safety and efficacy have been clearly demonstrated in
those children is testing and permitted use extended to infants. The obvious reason
for this policy is that infants are more fragile than older kids and so testing on
babies first would be riskier. But there is also another issue that applies specifically
to vaccines: some kinds of vaccines simply don’t work if given before a child’s
immunological equipment has reached a reached a critical stage in development,
sometimes as late as two years old. In 1992, when Hannah was immunized, the
safety and efficacy for infants of DTaP, the purer, “safer” replacement product for
the whole cell vaccine she received, still hadn’t been clearly established. For that
reason, DTaP, though already licensed and available for use in older children,
wasn’t yet licensed for use in children as young as Hannah was -- that didn’t
happen until 1996. When Hannah was immunized, there were no other kinds of
DTP vaccines licensed for use in children of her age besides the one she was given.
The case is a complex one and its conclusion depended on arcane questions of law
(and, as it turns out, grammar). Does it matter that no actual alternative licensed
vaccine was available? What, exactly, was the intent of Congress when it inserted
in the law that established the Vaccine Court the provision that protected vaccine
manufacturers from suits as long as they made the vaccine properly and distributed
it with appropriate warnings? Did Congress really want the losers in Vaccine Court
decisions – there are currently 5,000 rejected claimants waiting in the wings – to
be free to sue vaccine manufacturers, anyway? (Yes, I know that technically the
argument in this case is a special one – the idea that a vaccine might be inherently
defective if a vaccine maker could possibly have chosen to produce a superior
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product – but it’s hard to believe that a similar case couldn’t be made for many
other rejected claimants.) In addition, putting the merits of this particular case aside,
does the legislation establishing and giving power to a Federal Vaccine Court
improperly and unacceptably preempt state laws which would allow civil liability
suits against vaccine manufacturers?
In any case, it is perfectly clear that if losers in Vaccine Court decisions, like
Hannah’s family, are allowed to sue anyway, or if the function of the Vaccine
Court is abolished completely on federalist grounds, childhood immunizations and
public health generally will be in big trouble. In a sense, the case that just finally
ended at the Supreme Court began in [a famous example of vaccination gone awry]
in Bundaberg[, Australia] in 1928.
Bundaberg was threatened with the possibility of a diphtheria epidemic. In
response, the Australian federal government distributed a vaccine to prevent an
outbreak but some children died or suffered injury because of the vaccine. In the
following years, and partly in consequence of what was learned at Bundaberg,
immunizations were improved and made safer. And now the question of how to
balance public health needs against the small risk inherent in immunization has
come back.
One of the hidden costs of the tragedy at Bundaberg is that it added to the fear of
immunization. That fear created a suspicion of public health in Bundaberg and
elsewhere, leading to a pattern of vaccine refusal. This anxiety was sufficiently
great that, apparently, some Bundaberg parents refused diphtheria vaccination
even in the face of epidemics. It took about 25 years (and a threatened polio
epidemic) for fears about immunization to abate. A Bundaberg historian reports a
significant number of elderly local people with the neck scars resulting from a
childhood emergency tracheostomy – surgery to cut into the windpipe and place
an artificial breathing opening to save a child from being choked to death by the
throat membrane of diphtheria. Ironically, the lessons learned from the Bundaberg
disaster are precisely the ones which later made safe vaccines which would have
protected these victims from this disease: the substitution of a toxoid vaccine for
the old TAT, better methods of bottling vaccines, the need for a preservative in
vaccines, and improvement in preservative technology.
But even in Bundaberg the fear of immunization was balanced by fear of a very
frightening disease with which almost every family had some direct experience.
For most people, seeing a case (or the aftermath) of diphtheria or tetanus or polio
or bacterial meningitis will quickly sweep away any misgivings about
immunization. Even seeing a child nearly dead of severe chickenpox or measles or
permanently deafened by mumps has a pretty powerful effect. Virtually no one –
parent, pediatrician, infectious disease specialist, immunologist – will ever
encounter a really significant reaction to a vaccine, but anyone who has seen a
victim of these vaccine-preventable diseases will remember it forever.
In a way, however, immunization is a victim of its own success. Because of the
effectiveness of vaccination these illnesses are no longer around (at least in the
developed world) to terrify and remind us, so there is no longer much
reinforcement to stimulate any impulse toward prevention.

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Sydney Spiesel, “The Bundaberg Disaster and the Supreme Court: Immunizations and its
Discontents,” Yale School of Medicine Pediatric Grand Round Lectures, September 28, 2011.
At Bundaberg, a badly preserved and contaminated vaccine with a reused needle killed
twelve children in a small Australian city within 34 hours of their immunization for diphtheria.
Spiesel describes the diphtheria vaccine at issue in the Bundaberg disaster as follows:
Diphtheria, a common – and terrifying – risk for children in 1928, is now an
extremely rare disease. It is very unlikely that you or anyone in your family or, for
that matter, anyone you have ever met has had diphtheria. It is equally unlikely
that any doctor you’ve ever encountered has seen a case of diphtheria. In the US,
one case was reported in the decade 1990-2000 and only three have been reported
since, which is fortunate, since the disease is so severe. The bacterium which
causes diphtheria releases a toxin – a poison – as it grows, most often in the back
of the throat. The toxin, which kills human cells, has a local effect – it causes the
formation of an adherent leathery membrane across the back of the throat (and
sometimes even grows down the air passages toward the lungs) that can choke a
patient to death. The toxin produced by the diphtheria germ is also carried by the
blood everywhere in the body. The late effects of the toxin are insidious. It causes
inflammation and serious damage and weakening of the heart muscle; in the old
days often leading to heart failure. The poison causes severe (but usually
reversible) damage to the nerves which control muscles, leading to profound
weakness and even paralysis.
That this dangerous disease has disappeared in the US is testimony to the power
and value of vaccination. In 1900, prior to the introduction of the vaccine and when
the US population was about a quarter of what it is now, there were about 114,000
cases of diphtheria and an estimated 23,000 deaths. Immunization is so effective
and so widespread that since 2004 not a single case of respiratory diphtheria has
been reported in the US.
Spiesel concludes that “Second only to sewage disposal and slightly above decent nutrition
but certainly well more valuable than antibiotics or CT scans, vaccines have made the most
significant contribution to the length and quality of your life and the life of everyone you love.”

B. Principles and Institutions
The point of Bruesewitz is that American law has a deep toolbox when it comes to regulating risks.
To be sure, each of the tools has flaws. But there is a wide array of regulatory and administrative
options. In the United States, state and federal agencies regulate occupational hazards, consumer
risks, medical care standards, highway safety, and much more. State legislatures and the U.S.
Congress have enacted legislation setting standards and guiding conduct.
In the background -- and often surging to the fore -- is the common law of torts. But what
exactly is the law of torts?
Tort law is the common law of civil wrongs not arising out of contract. Torts books often
start with a definition because tort law can seem strange and unfamiliar to the 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,
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“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 courtappointed 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 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
16

Witt, TRCPI 1. Introduction

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 above ninetyfive 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 socioregulatory 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
17

Witt, TRCPI 1. Introduction

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 cuttingedge 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 central features of our
vast and multifarious legal system.
Here, then, is one theory of this book: understanding the characteristic features of American
tort law and its regulatory alternatives 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.
****
One distinctive feature of tort law is that it is one of the great lenders in the legal
marketplace. When state legislatures and the federal Congress enact statutes, and when courts
interpret those statutes, they regularly borrow from the basic doctrines of the law of torts. Tort
jurists have been dealing with basic problems like reasonableness, proof, and causation for
centuries. As a result, tort doctrine has built up a deep well of principles for guiding the resolution
of many of the kinds of complex questions that inevitably arise in modern regulatory fields ranging
from antitrust law to consumer protection law to labor law and much more.
18

Witt, TRCPI 1. Introduction

In this book, we will follow tort principles into one field in particular. The federal law of
employment discrimination has become perhaps the most important body of employment law in
the United States. At the very least, in the early 21st century it is one of the most frequently invoked
bodies of employment and labor law. Again and again, the law of employment discrimination has
turned to tort doctrine to work out basic questions, ranging from what counts as harassment, to how
to prove liability, to what kinds of cause and effect are required to make out a valid claim.
Sometimes tort principles have seemed apt for resolving discrimination claims. And sometimes
they have seemed poorly matched. Either way, the law of torts has supplied litigants, judges, and
commentators with a set of off-the-rack doctrines and a reservoir of theoretical debates.
In what follows, we will move through the law of torts, paying special attention at times to
overlap between the law of torts and the regulatory state. We’ll think about the significance of
statutes and regulations for tort suits, and the significance of tort suits for statutes and regulation.
At moments, entire chapters will follow tort principles into the law of employment discrimination.
These chapters – three in this first edition of the book – are called “modules.” Readers interested
only in the study of the law of torts could safely skip them, though they might be better advised to
read the parallel book, Witt & Tani, Torts: Cases, Principles, and Institutions (4th ed. 2019), which
contains much of the same material on torts but without the additional emphasis on regulation and
employment discrimination statutes.
****
This may seem all quite complicated, to be sure! Thankfully, we can begin to think in these ways
by exploring one of the field’s simplest and best-known cases, a case that began as a classroom
interaction between two boys in nineteenth-century Wisconsin.

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Witt, TRCPI 2. Battery

CHAPTER 2. THE TORT OF BATTERY
A. Simple Cases and Complex Systems
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, 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.”]
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Witt, TRCPI 2. Battery

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 playgrounds. 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.]
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Witt, TRCPI 2. Battery

[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,
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
22

Witt, TRCPI 2. Battery

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 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,
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Witt, TRCPI 2. Battery

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
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/QE5CLPNS. 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:

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Witt, TRCPI 2. Battery

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

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
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.
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Witt, TRCPI 2. Battery

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.

26

Witt, TRCPI 2. Battery

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

27

2010

Witt, TRCPI 2. Battery

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.

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.

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Witt, TRCPI 2. Battery

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.
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 party-driven,
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?

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Witt, TRCPI 2. Battery

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, TRCPI 2. Battery

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

31

Witt, TRCPI 2. Battery

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.

32

Witt, TRCPI 2. Battery

Age-adjusted Death Rates for Unintentional Injuries and Motor-vehiclerelated 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.

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
33

Witt, TRCPI 2. Battery

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.
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
34

Witt, TRCPI 2. Battery

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?

B. Intent and Corrective Justice in the Battery Cause of Action
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.)
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.
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Witt, TRCPI 2. Battery

...
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
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
36

Witt, TRCPI 2. Battery

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. 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
37

Witt, TRCPI 2. Battery

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 plaintiff-employee, 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.
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.
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Witt, TRCPI 2. Battery

It is true that the ability to distinguish intentional from unintentional action is a
foundational skill that emerges early in development. Chimpanzees, orangutans, and eight-monthold 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 outcome-based
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 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
39

Witt, TRCPI 2. Battery

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.
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
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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.
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.

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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 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
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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? 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
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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
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
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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/468P-3X9J; 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
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 meetand-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. 34-201600200075), 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
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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 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
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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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Witt, TRCPI 2. Battery

FIGURE 1: 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 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
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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).
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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Witt, TRCPI 3. Intentional Torts Against Property

CHAPTER 3. INTENTIONALLY INFLICTED PHYSICAL HARMS
The previous 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 [RaleighDurham], 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
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.
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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.).
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
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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, 26061 (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.
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.

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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
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.
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[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 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
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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 . .
..
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.
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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 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
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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 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
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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.
. . .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. ThriftyTel, 54 Cal. Rptr. 2d at 473.

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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 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 self-help 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.
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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 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
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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 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.
...
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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.

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
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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?

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).

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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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 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.

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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 assize-time, I would not take such
language from you.’” (In response to this “provocation,” the 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
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hearing, Daniel admitted swearing, but denied making a threat. Daniel was at his friend’s house
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
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 non-binary 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
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.
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...

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 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.

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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 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.

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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
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.
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. . . . 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 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
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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
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
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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.”]
...
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
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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 66364. 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:
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. . . . 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.
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
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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
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 WellBeing in the United States: A Snapshot of the Field, 6 AM. J. SOC. 196 (2014).
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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 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
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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
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?

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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 selfdefense 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, 563-64 (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?
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.
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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-on-white 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?

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
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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.
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. . . .
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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; 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 pea-fowl
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?
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Witt, TRCPI 3. Intentional Torts Against Property

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 property-owners
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 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?

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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 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 carryout 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. . . .
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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. . . .
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
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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:
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
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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?

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.
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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
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?
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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 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).
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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
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-inhand 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:

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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.
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.

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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)
_____________________________________
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).
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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).
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
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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
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.

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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 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
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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.
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
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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 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.

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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 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
demonstrates the distinctiveness of the wrong of trespass to land. Vincent, we
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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
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
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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.
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
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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 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).
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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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8. The economic view of Vincent (IV): critique.

Credit: Twitter Meme by Isabel Echarte, @IsabelEcharte, July 15, 2019.

We will have occasion to pursue the subject of law and economics in tort law in future
chapters. For now, consider what about the analyses offered by Calabresi, Coase, and others might
lead an academic meme designer such as the sly and brilliant Echarte to level this critique?

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CHAPTER 4. STRICT LIABILITY AND NEGLIGENCE: HISTORY
AND INTRODUCTION
In chapters two and three of this book, we have studied 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 conduct but out of unintentional conduct. These are
unintentionally inflicted harms. From one point of view, they are accidents. But if a defendant
does not intend an injury, ought the defendant be obligated to compensate the injured person in
some way? Some jurists have answered no, or rarely. Others have answered in the affirmative, or
at least sometimes. If compensation is sometimes appropriate, then 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. Negligence
Despite a smattering of older cases, the modern law of unintentional torts is relatively 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 arose out of a very simple story about two dogs, two men, and one stick.
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.
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
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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,
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.
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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, 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.

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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).
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
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(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 lawyer-economists 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 policy-makers 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 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
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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 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.
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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 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.
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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
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
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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 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
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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
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
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
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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.
[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. . . .

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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 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. . . .

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. . . [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
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.
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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.

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
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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?
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
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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.

Note
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
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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. . . .
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:
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[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 mid-1880s 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.
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 . . . .
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[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 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
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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
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. . . .

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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
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.
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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 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 27475 (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
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administered, 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).
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 no-fault 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 5. THE REASONABLE PERSON
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 5, 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. 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
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.
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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 . . . . 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,
*

[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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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.
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
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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?
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.

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B. 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. . . .’”
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.

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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
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.

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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
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. . . .
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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.
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
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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
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?

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C. 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 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
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. . . .

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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.

Notes
1. Headnotes: a cautionary tale. If you read this case in a West reporter, or on Westlaw, 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
...

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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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.
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
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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 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:
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(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 tort-feasor 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 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.

D. 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
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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
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 pre-existing
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,
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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 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
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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 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 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’
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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:
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?

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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 this author
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
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 strictliability-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
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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?

E. 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 20-25 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 plaintiff-victim 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,
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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 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).

F. Unreasonable Gender Identities?
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. Instead, human beings come embodied in what often seems like an infinite variety of
particularities. We 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.
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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 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?

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CHAPTER 6. ANTIDISCRIMINATION LAW MODULE #1 -REASONABLENESS IN HARASSMENT CASES
Tort law today generally does not typically make reasonableness determinations turn on
the sex or gender of the actor, at least not explicitly. One body of caselaw where this debate has
resurfaced is in judicial interpretations of Title VII of the Civil Rights Act of 1964, which prohibits
employment discrimination on the basis of race, color, religion, sex, or national origin. 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:
Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991)
BEEZER, Circuit Judge:
Kerry Ellison appeals the district court’s order granting summary judgment to the Secretary
of the Treasury on her sexual harassment action brought under Title VII of the Civil Rights Act of
1964. 42 U.S.C. § 2000e (1982). This appeal presents two important issues: (1) what test should be
applied to determine whether conduct is sufficiently severe or pervasive to alter the conditions of
employment and create a hostile working environment, and (2) what remedial actions can shield
employers from liability for sexual harassment by co-workers. The district court held that Ellison
did not state a prima facie case of hostile environment sexual harassment. We reverse and remand.
...
Kerry Ellison worked as a revenue agent for the Internal Revenue Service in San Mateo,
California. During her initial training in 1984 she met Sterling Gray, another trainee, who was also
assigned to the San Mateo office. The two co-workers never became friends, and they did not work
closely together.
Gray’s desk was twenty feet from Ellison’s desk, two rows behind and one row over.
Revenue agents in the San Mateo office often went to lunch in groups. In June of 1986 when no
one else was in the office, Gray asked Ellison to lunch. She accepted. Gray had to pick up his son’s
forgotten lunch, so they stopped by Gray’s house. He gave Ellison a tour of his house.
Ellison alleges that after the June lunch Gray started to pester her with unnecessary
questions and hang around her desk. On October 9, 1986, Gray asked Ellison out for a drink after
work. She declined, but she suggested that they have lunch the following week. She did not want
to have lunch alone with him, and she tried to stay away from the office during lunch time. One
day during the following week, Gray uncharacteristically dressed in a three-piece suit and asked
Ellison out for lunch. Again, she did not accept.
On October 22, 1986 Gray handed Ellison a note he wrote on a telephone message slip
which read:
I cried over you last night and I’m totally drained today. I have never been in such
constant term oil (sic). Thank you for talking with me. I could not stand to feel
your hatred for another day.
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When Ellison realized that Gray wrote the note, she became shocked and frightened and
left the room. Gray followed her into the hallway and demanded that she talk to him, but she left
the building.
Ellison later showed the note to Bonnie Miller, who supervised both Ellison and Gray.
Miller said “this is sexual harassment.” Ellison asked Miller not to do anything about it. She wanted
to try to handle it herself. Ellison asked a male co-worker to talk to Gray, to tell him that she was
not interested in him and to leave her alone. The next day, Thursday, Gray called in sick.
Ellison did not work on Friday, and on the following Monday, she started four weeks of
training in St. Louis, Missouri. Gray mailed her a card and a typed, single-spaced, three-page letter.
She describes this letter as “twenty times, a hundred times weirder” than the prior note. Gray wrote,
in part:
I know that you are worth knowing with or without sex.... Leaving aside the hassles
and disasters of recent weeks. I have enjoyed you so much over these past few
months. Watching you. Experiencing you from O so far away. Admiring your style
and elan. . . . Don’t you think it odd that two people who have never even talked
together, alone, are striking off such intense sparks . . . I will [write] another letter
in the near future.
Explaining her reaction, Ellison stated: “I just thought he was crazy. I thought he was nuts.
I didn't know what he would do next. I was frightened.”
[While Ellison was still in Missouri, Miller arranged for Gray to be transferred to the IRS’s San
Francisco office. Gray protested the transfer through the union grievance procedure, and several
months later, he transferred back to the San Mateo office on the condition that he not bother Ellison.
But Ellison was, in her words, “frantic,” all the more so when Gray sought out joint counseling for
the two of them in the San Mateo office and wrote Ellison further letters maintaining the idea that
they had some kind of relationship. Ellison filed a formal complaint alleging sexual harassment on
January 30, 1987 with the IRS. The Treasury Department rejected Ellison’s complaint because on
the grounds that “the complaint did not describe a pattern or practice of sexual harassment covered
by the EEOC regulations. On appeal, the EEOC affirmed the Treasury Department’s decision on
the theory that the agency had taken adequate action to prevent the repetition of Gray’s conduct.]
Ellison filed a complaint in September of 1987 in federal district court. The court granted
the government’s motion for summary judgment on the ground that Ellison had failed to state a
prima facie case of sexual harassment due to a hostile working environment. Ellison appeals.
....
[W]e believe that Gray’s conduct was sufficiently severe and pervasive to alter the
conditions of Ellison’s employment and create an abusive working environment. . . .
[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.

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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 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 sexblind 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.”

9

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).
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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Note
In 1993, 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 “[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 sex 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). An
opinion by Judge Richard Paez brings the issue into the open:

McGinest v. GTE Serv. Corp., 360 F.3d 1103 (9th Cir. 2004)
PAEZ, Circuit Judge:
George McGinest, an African-American employee of GTE Service Corporation (“GTE”),
sued GTE under Title VII for creation of a racially hostile work environment, failure to promote
due to racial discrimination, and failure to promote due to retaliation. McGinest claims that GTE
created a racially hostile work environment based both upon its perpetration of and its failure to
adequately respond to a large number of incidents that occurred over a fifteen year period. In
support of his hostile work environment claim, McGinest alleges that he was placed in dangerous
working conditions because of his race, prevented from collecting bonus pay available to nonAfrican American coworkers, forced to endure racial taunts and insults by supervisors and
coworkers, and subjected to racist graffiti in GTE’s bathrooms and on switch boxes. Additionally,
McGinest claims that he was denied a promotion in late 1998 due to his race and in retaliation for
filing an EEOC complaint; GTE responds that it was unable to promote him due to a hiring freeze.
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The district court granted summary judgment to GTE. The court found that the incidents comprising
the hostile work environment claim were sporadic, and for the most part adequately remedied.
Moreover, it found that McGinest was unable to produce sufficient evidence that GTE’s stated
reason for failing to promote him was a pretext.
We reverse the district court’s dismissal of the hostile environment . . . claim[]. The district
court resolved numerous factual questions in favor of GTE, failed to distinguish between
supervisors and coworkers in evaluating GTE’s liability, and did not consider fully the cumulative
impact of the events that occurred. Because McGinest has established genuine material issues of
fact regarding his hostile work environment claim, . . . [this] claim[] must be remanded.
....
Under Title VII of the Civil Rights Act of 1964, it is “an unlawful employment practice for
an employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race.” 42 U.S.C. § 2000e–
2(a)(1) (2003). This prohibition encompasses the creation of a hostile work environment, which
violates Title VII’s guarantee of “the right to work in an environment free from discriminatory
intimidation, ridicule, and insult.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986).
“Courts have long recognized that a workplace in which racial hostility is pervasive constitutes a
form of discrimination.” Woods v. Graphic Communications, 925 F.2d 1195, 1200 (9th Cir. 1991).
In order to survive summary judgment, McGinest must show the existence of a genuine
factual dispute as to 1) whether a reasonable African-American man would find the workplace so
objectively and subjectively racially hostile as to create an abusive working environment; and 2)
whether GTE failed to take adequate remedial and disciplinary action.
....
A plaintiff must show that the work environment was both subjectively and objectively
hostile. Nichols, 256 F.3d at 871–72. Subjective hostility is clearly established in the instant case
through McGinest’s unrebutted testimony and his complaints to supervisors and to the EEOC. Id.
at 873.
In evaluating the objective hostility of a work environment, the factors to be considered
include the “frequency of discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.” Nichols, 256 F.3d at 872 (quoting Harris v. Forklift Sys., 510 U.S.
at 23, 114 S.Ct. 367). “The required level of severity or seriousness varies inversely with the
pervasiveness or frequency of the conduct.” Id. (internal quotation marks omitted). Considering the
facts in the light most favorable to McGinest, it is clear that the incidents described are sufficient
to survive a motion for summary judgment. According to McGinest, he was involved in a serious
automobile accident because, due to his race, both his supervisor and garage personnel were
unwilling to ensure that his vehicle received necessary maintenance. He was forced to work in
dangerous situations and barraged with insults and abuse by, among others, Supervisor Noson.
Over a two-year period, he was prevented from collecting overtime pay that he worked.
McGinest’s ability to perform his job was directly affected by the refusal of his coworkers to work
under his direction on occasion.
Additionally, McGinest was subjected to extreme racial insults, as well as more subtle taunts, by
supervisors and coworkers. Racist graffiti such as “n****r” and “white is right” regularly appeared
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in the bathroom and on equipment, and on one occasion a management-level employee called
McGinest “stupid n****r” to his face. Although it is clear that “[n]ot every insult or harassing
comment will constitute a hostile work environment,” “[r]epeated derogatory or humiliating
statements ... can constitute a hostile work environment.” Ray v. Henderson, 217 F.3d 1234, 1245
(9th Cir. 2000).
In evaluating the significance of the statements in question, we consider the objective
hostility of the workplace from the perspective of the plaintiff. Nichols, 256 F.3d at 872; Ellison v.
Brady, 924 F.2d 872, 878–79 (9th Cir. 1991). In Ellison, in the context of sexual harassment, we
evaluated objective hostility from the perspective of a reasonable woman. As the Supreme Court
has noted, “Hostile work environment claims based on racial harassment are reviewed under the
same standard as those based on sexual harassment.” Nat'l R.R. Passenger Corp. v. Morgan, 536
U.S. at 116 n. 10. We now state explicitly what was clear from our holding in Ellison, that
allegations of a racially hostile workplace must be assessed from the perspective of a reasonable
person belonging to the racial or ethnic group of the plaintiff.8
In Ellison we noted that “[a] complete understanding of the victim’s view requires, among
other things, an analysis of the different perspectives of men and women.” 924 F.2d at 878. We
explained:
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 conduct in a vacuum without a
full appreciation of the social setting or the underlying threat of violence that a
woman may perceive.
Id. at 879 (citations omitted). Our analysis of the importance of interpreting gender discrimination
from the perspective of a reasonable woman reverberates powerfully in the context of racial
harassment.
Racially motivated comments or actions may appear innocent or only mildly offensive to
one who is not a member of the targeted group, but in reality be intolerably abusive or threatening
when understood from the perspective of a plaintiff who is a member of the targeted group. “The
omnipresence of race-based attitudes and experiences in the lives of black Americans [may cause]
even nonviolent events to be interpreted as degrading, threatening, and offensive.” Harris v. Int'l
Paper Co., 765 F. Supp. 1509, 1516 (D. Me. 1991) (noting that “instances of racial violence or
threatened violence which might appear to white observers as mere ‘pranks’ are, to black observers,
evidence of threatening, pervasive attitudes”) . . . . By considering both the existence and the
severity of discrimination from the perspective of a reasonable person of the plaintiff’s race, we
8

Following the Supreme Court's decision in Harris v. Forklift Systems, which referred to “an environment
that a reasonable person would find hostile or abusive,” 510 U.S. at 21, a number of courts refused to apply
a reasonable person standard based on the perspective of a person sharing the characteristics of the plaintiff.
See, e.g., Gillming v. Simmons Indus., 91 F.3d 1168, 1172 (8th Cir. 1996); Watkins v. Bowden, 105 F.3d
1344, 1355–56 (11th Cir. 1997). However, in Oncale v. Sundowner Offshore Services, the Supreme Court
recharacterized the Harris statement, making it clear that it is proper to use an individualized standard based
upon the characteristics of the plaintiff. 523 U.S. 75, 78 (1998) (“We have emphasized, moreover, that the
objective severity of harassment should be judged from the perspective of a reasonable person in the
plaintiff’s position, considering ‘all the circumstances.’”).

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recognize forms of discrimination that are real and hurtful, and yet may be overlooked if considered
solely from the perspective of an adjudicator belonging to a different group than the plaintiff.
....
For purposes of [defeating defendant’s motion for] summary judgment, McGinest persuasively
demonstrates that he was subjected to a hostile work environment.

Note
The Second Circuit, by contrast with the Ninth, 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 sex
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 N. & 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 asked
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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 Identity-Protective Cognition: Explaining the
White Male Effect on Risk Perception, 4 J. EMPIRICAL LEGAL STUDIES 465 (2007).
With all this in mind, do you think explicit incorporation of sex, race, or religion into the
reasonable person standard would be a reform worth pursuing? Would trying such things reify
inaccurate assumptions and status-based stereotypes about people with particular identities? Or
would such an effort offer valuable recognition to real differences in the social experiences of
actually existing men and women? Does intersectionality pose a challenge to any such effort?
Alternatively, is it even possible to operationalize an ideal type that is un-gendered? Un-raced?

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CHAPTER 7. THE NEGLIGENCE STANDARD
A. 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 cost-benefit
reasoning at all.

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.
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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.
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
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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
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
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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
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?

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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
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
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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.

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.

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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 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
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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:

Table 1: The Negligence Analysis
Burden of the
Probability of
Expected
precaution (B) harm absent the damages in the
precaution (P)
event harm
occurs (L)
Scenario 1:
Expensive
15
10%
100
Precaution
Scenario 2:
Inexpensive
5
10%
100
Precaution

Not negligent
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.

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Table 2. To Build or Not to Build (under a Negligence Regime)

(B)

(P)

(L)

Court
Determination in
event of injury

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

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 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
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

Scenario 1

15

10%

100

D pays

Not build

Scenario 2

5

10%

100

D pays

Yes build

NEGLIGENCE

STRICT
LIABILITY

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.

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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
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
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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
Thompson’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.

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.
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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?

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
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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).

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”:

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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 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
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that might otherwise escape private and public attention. Thus understood, costbenefit 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
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
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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).

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 crossovers 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
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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
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
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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.
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. Page, J., 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 fit 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”:
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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
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
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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. . . .
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
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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). The literature indicates that tort law affects
Cesarian section rates, though not in the way conventional wisdom imagines. C-section rates are
not higher today because of tort liability; to the contrary, reform laws decreasing likely tort damages
awards actually increase the rate of caesarian sections, apparently because the prospect of tort
damages has the effect of holding c-section rates down. Janet Currie & W. Bentley MacLeod, First
Do No Harm? Tort Reform and Birth Outcomes, 123 Q. J. ECON. 795 (2008).
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
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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).
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
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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 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. . . .”

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To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews
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
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. Claims 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 cost-benefit
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, leftturns, 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 repeat-play claims agents
and defense lawyers can look less like tort law in the courts than like the public bureaucratic
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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
vice-president 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?

B. 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 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).
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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
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.
...
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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.
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,”
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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 one 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 Spring field,
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.
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 twentyfive 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.
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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.” . .
.
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
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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 jury-friendly,
standard-like Pokora doctrine instead of a more judge-friendly, rule-like Goodman doctrine?
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).
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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
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
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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 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 costbenefit 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).

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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 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).
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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 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 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).

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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.

C. Custom
1. The Basic Rule—and Its Functions
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932)
[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.”]
HAND, J. 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 . . . .

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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
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.

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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 Montrose 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?
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 (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
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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).
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
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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 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 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 &
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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] 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.”
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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 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).
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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 have 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 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.
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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 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 has “declined 6.1% from
1991 to 2004.” The total number of payments has declined 35.6% over the same period. Fewer
Lawsuits and More Doctors: The Myths of Washington State’s Medical Malpractice “Crisis,”
PUB. CITIZEN (Sept. 2005), https://www.citizen.org/documents/WashMedMal.pdf. And the
declines seem to be continuing. In Oklahoma, for example, the number of malpractice judgments
is “at the lowest level of the decade.” 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

Data obtained from Wayne Green, State Malpractice Judgments Down 28 Percent Since 2009,
TULSA WORLD, July 31, 2012, available at https://perma.cc/46N4-4TCV
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 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.

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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.
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 priority in closeddoor 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 affect rates
of births by cesarean section. Sabrina Safrin, The C-Section Epidemic: What’s Tort Reform Got to
Do with It?, 2018 U. ILL. L. REV. 747 (2018). 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% of these injuries could be prevented with better
monitoring and equipment).
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D. Statutes and Regulations
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
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

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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 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.
...
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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.

Note
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
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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
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
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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.
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
1. 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?
2. 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?
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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 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.
3. 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?
4. 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 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
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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):

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
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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 1993-1994
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
. . . 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;
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“(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 N.Y.2d, 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 N.Y.2d, 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
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.

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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 A.D.2d 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 A.D.2d, 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 1993-1994
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.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Bennett v. Hardy, 113 Wash.2d 912 (1990)
BRACHTENBACH, J.
Plaintiffs allege age discrimination by their employer but cannot bring a cause of action
against him under RCW Ch. 49.60, the state Law Against Discrimination, because he employs
fewer than eight employees and thus is not within that statute’s definition of employer. The issue
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presented is whether we should imply a cause of action under a separate statute, RCW 49.44.090,
which makes age discrimination an unfair employment practice but does not create a remedy.
. . . . The trial court granted defendant’s motion for summary judgment and dismissed plaintiffs’
claims. . . . We reverse the trial court’s dismissal of plaintiffs’ action and remand for trial.
The plaintiffs, Laura Bennett and Wanda Bowden, are twin sisters who were employed as
dental hygienists for defendant’s predecessor and kept on by defendant when he purchased that
dental practice in the late 1970’s. Following several years of employment for defendant, plaintiffs
allege that statements and conduct of defendant began to single them out, treating them differently
from other employees, and in general creating an age-hostile work environment.
Included in plaintiffs’ response to defendant’s summary judgment motion are allegations
that Dr. Hardy suggested to one of the plaintiffs on at least one occasion that she might be suffering
from Alzheimer’s disease, that Dr. Hardy suggested that perhaps the plaintiffs were too old to be
trained in new techniques, and that Dr. Hardy called the cleaning compound used by plaintiffs
“witches brew.” Plaintiffs also allege that Dr. Hardy interfered with their work productivity by
delaying seeing their patients and diverting their patients to other employees, and by refusing to
replace their outdated equipment while doing so for other employees. Plaintiffs further allege that
Dr. Hardy created a stressful work environment by making offensive comments, including telling
plaintiffs that they should “go dance naked in the window.” In July 1985 defendant terminated
plaintiff Bowden who was then 60 years old. Following her sister’s discharge plaintiff Bennett
contends that Dr. Hardy continued to sustain the hostile work environment. Plaintiffs hired an
attorney who informed Dr. Hardy that his discharge of Ms. Bowden constituted age discrimination
and wrongful discharge, and that any further action taken against Ms. Bennett would be considered
retaliatory. In March 1986 defendant terminated plaintiff Bennett who was then 61 years old.
Plaintiffs allege that their terminations from defendant’s employ were based upon their age
as well as in retaliation for plaintiff Bennett’s resistance to defendants’ discriminatory practices.
On defendant’s motion for summary judgment, the trial court concluded that no statutory cause of
action for age discrimination existed because RCW Ch. 49.60, Washington’s Law Against
Discrimination, applied only to firms employing eight or more persons. Because there existed no
factual dispute that during the period of defendant’s allegedly discriminatory practices he had never
employed eight or more individuals, the trial court granted defendant’s motion for summary
judgment, dismissing plaintiffs’ statutory age discrimination claims . . . .
I. Implied Cause of Action Under RCW 49.44.090
RCW 49.44.090 makes it an unfair employment practice
[f]or an employer . . ., because an individual is between the ages of forty and seventy, to
refuse to hire or employ or license or to bar or to terminate from employment such
individual, or to discriminate against such individual in promotion, compensation or in
terms, conditions or privileges of employment. . . .
RCW Ch. 49.44 is silent regarding remedies against an employer engaged in this “unfair practice”;
the chapter also does not define “employer.”
“It has long been recognized that a legislative enactment may be the foundation of a right of action.”
McNeal v. Allen, 95 Wash.2d 265, 274 (1980) (Brachtenbach, J., dissenting). Further,
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we can assume that the legislature is aware of the doctrine of implied statutory causes of
action and also assume that the legislature would not enact a remedial statute granting
rights to an identifiable class without enabling members of that class to enforce those rights.
Without an implicit creation of a remedy, the statute is meaningless.
McNeal, at 277 (Brachtenbach, J., dissenting).
And as a majority of this court has stated, when a “statute . . . [has] provided a right of
recovery, it is incumbent upon the court to devise a remedy. See 2A C. Sands, Sutherland’s Statutes
and Statutory Construction § 55.03 (4th ed. 1973).” State v. Manuel, 94 Wash.2d 695, 699 (1980).
The Restatement of Torts recognizes the implied right of action:
When a legislative provision protects a class of persons by proscribing or requiring certain
conduct but does not provide a civil remedy for the violation, the court may, if it determines
that the remedy is appropriate in furtherance of the purpose of the legislation and needed
to assure the effectiveness of the provision, accord to an injured member of the class a right
of action, using a suitable existing tort action or a new cause of action analogous to an
existing tort action.
Restatement (Second) of Torts § 874A (1979).
....
Plaintiffs, employees who were aged 60 and 61 at the time of their discharges, are clearly
part of the class of persons entitled to the protection of RCW 49.44.090. The statute creates a right
on the part of employees within the protected class to be free from age discrimination by their
employers but does not indicate explicitly an intent to create a remedy. However, as noted above,
we may rely on the assumption that the Legislature would not enact a statute granting rights to an
identifiable class without enabling members of that class to enforce those rights. Moreover, the
purpose of this legislation is obviously to confront the problem of age discrimination by employers,
and according a private right of action to persons within the protected class is consistent with this
underlying legislative purpose.
Therefore, we hold that because RCW 49.44.090 makes it an unfair employment practice
to discriminate against an employee who is between the ages of 40 and 70 based upon her age, but
provides no express method of redress against an employer who has engaged in such an unfair
practice, there is an implied right of action for plaintiffs alleging violations of that statute.
....
Based on the foregoing analysis, we reverse the trial court’s grant of defendants’ motion
for summary judgment and remand this case for trial.

Notes
1. Minimum number of employees. The Supreme Court of Washington went on to rule that
RCW 49.44.090 did not implicitly adopt RCW 49.60’s exemption of employers with fewer than
eight employees. Was this the right ruling? Consider that this interpretation strips 49.60’s
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minimum requirement of any effect; private individuals can sue employers with fewer than eight
employees for age discrimination. Is it possible that Washington’s legislators included the
requirement of eight in RCW 49.60 and not in RCW 49.44.090 for a reason?
2. Rights and private causes of action. Not all rights are accompanied by private causes of
action. Legislatures can codify rights in statutes—to be free from discrimination or protected from
pollution, for example—while neglecting to specify whether private parties can sue on the basis of
those statutes. Courts are then left to determine whether individuals can or cannot maintain a private
cause of action. In a classic article, Richard B. Stewart and Cass R. Sunstein outline three rationales
for judicial creation of private causes of action, citing the advancement of public values, the
correction of market failures, and the security of entitlement. In their view, whether or not a statute
authorizes (or should be found to authorize) a private cause of action turns on considerations about
the match or mismatch between the particular project of a given statute and the effects of a private
cause of action. See Richard B. Stewart & Cass R. Sunstein, Public Programs and Private Rights,
95 HARV. L. REV. 1193 (1982). Which of the three rationales, if any, warrants an implied private
right of action against the employer in Bennett? Does the Stewart and Sunstein framework resolve
the question of private causes of action, or merely provide a framework for resolving it? If the
latter, then what does resolve the question?
3. 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. Remember that in Martin v. Herzog, a lack of statutorily mandated lights
constituted negligence per se. The statute was not the basis of the lawsuit, as was the case in Uhr
and Bennett; rather, the statute was invoked by the defendant to establish that the decedent driver’s
conduct had been unreasonable.
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 plaintifs 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
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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).
The distinction between these two kinds of analyses – negligence per se and implied private
causes of action -- is also drawn out in Perry v. S.N., 973 S.W.2d 301 (Tex. 1998), a child abuse
case which considered whether a mandatory reporting statute can be interpreted both as creating a
private cause of action and as establishing a standard of negligence. Although mandatory reporting
statutes have created privately enforceable duties in other jurisdictions, see, e.g., Radke v. County
of Freeborn, 694 N.W.2d 788 (Minn. 2005), the Texas Supreme Court interpreted the Texas statute
as neither creating a private cause of action, nor setting a standard for negligence per se. The
defendants were therefore released from tort liability. They were, however, imprisoned for 21 years
for crimes related to sexual and satanic child abuse before being declared innocent of all charges
in 2017. See Aimée Lutkin, Couple Wrongfully Imprisoned for 21 Years for Alleged Satanic Abuse
Awarded $3.4 Million, JEZEBEL (August 23, 2017), https://jezebel.com/couple-wrongfullyimprisoned-for-21-years-for-alleged-s-1798355498. Is there any good reason to insulate
defendants from tort liability when they are subject to stiff criminal penalties?
4. Private enforcement and public enforcement. When should legislatures authorize private
enforcement of legislation? 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 actor(s) 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 be severely limited. Consider, for example, using private
enforcement to police safety regulations in a nuclear power plant. Similarly, if the regulated actor(s)
presents 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).
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
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piggyback on regulatory action that 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 democratically-accountable 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 sometimes assert that courts and juries may
be less vulnerable than legislatures and regulators to capture by tyrannical majorities. This idea
famously appears in United States v. Carolene Prod. Co., 304 U.S. 144, 153 n. 4 (1938), a New
Deal case that expanded Congress’s power under the Commerce Clause while suggesting a “more
searching judicial inquiry” when “prejudice against discrete and insular minorities . . . curtail[s] the
operation of those political processes ordinarily to be relied upon to protect minorities.”
A further consideration is that judges and juries are often more flexible in their ability to
compensate than the bureaucracy; they continuously update their damages evaluations while the
bureaucratic system may become ossified and rigid. 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 Restatement approach. Section 874 of the Second Restatement, cited in Bennett v.
Hardy, 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: LIAB. FOR
PHYS. AND EMOT. HARM §14, cmt. b. 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: LIAB. FOR PHYS. AND EMOT. HARM §38, cmt.
A; see also id. at §38, cmt. d.

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4. Implied Private Causes of Action in Federal Statutes
A line of cases at the federal level has dealt with this same issue: when does a statute
contain an implied private cause of action?
J. I. Case Co. v. Borak, 377 U.S. 426 (1964)
Mr. Justice CLARK delivered the opinion of the Court.
This is a civil action brought by respondent, a stockholder of petitioner J. I. Case Company,
charging deprivation of the pre-emptive rights of respondent and other shareholders by reason by
a merger between Case and the American Tractor Corporation. It is alleged that the merger was
effected through the circulation of a false and misleading proxy statement by those proposing the
merger. The complaint was in two counts, the first based on diversity and claiming a breach of the
directors’ fiduciary duty to the stockholders. The second count alleged a violation of § 14(a) of the
Securities Exchange Act of 1934 with reference to the proxy solicitation material. . . . We consider
only the question of whether § 27 of the Act authorizes a federal cause of action for rescission or
damages to a corporate stockholder with respect to a consummated merger which was authorized
pursuant to the use of a proxy statement alleged to contain false and misleading statements violative
of § 14(a) of the Act. . . .
I.
. . . . The District Court ruled that the Wisconsin security for expenses statute did not apply
to Count 2 since it arose under federal law. However, the court found that its jurisdiction was
limited to declaratory relief in a private, as opposed to a government, suit alleging violation of §
14(a) of the Act. Since the additional equitable relief and damages prayed for by the respondent
would, therefore, be available only under state law, it ruled those claims subject to the security for
expenses statute. After setting the amount of security at $75,000 and upon the representation of
counsel that the security would not be posted, the court dismissed the complaint, save that portion
of Count 2 seeking a declaration that the proxy solicitation material was false and misleading and
that the proxies and, hence, the merger were void.
II.
It appears clear that private parties have a right under § 27 to bring suit for violation of §
14(a) of the Act. Indeed, this section specifically grants the appropriate District Courts jurisdiction
over “all suits in equity and actions at law brought to enforce any liability or duty created” under
the Act. The petitioners make no concessions, however, emphasizing that Congress made no
specific reference to a private right of action in § 14(a). . . .
III.
....
The purpose of § 14(a) is to prevent management or others from obtaining authorization
for corporate action by means of deceptive or inadequate disclosure in proxy solicitation. The
section stemmed from the congressional belief that “[f]air corporate suffrage is an important right
that should attach to every equity security bought on a public exchange.” H.R.Rep. No. 1383, 73d
Cong., 2d Sess., 13. It was intended to “control the conditions under which proxies may be solicited
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with a view to preventing the recurrence of abuses which . . . [had] frustrated the free exercise of
the voting rights of stockholders.” Id., at 14. “Too often proxies are solicited without explanation
to the stockholder of the real nature of the questions for which authority to cast his vote is sought.”
S.Rep.No.792, 73d Cong., 2d Sess., 12. These broad remedial purposes are evidenced in the
language of the section which makes it “unlawful for any person . . . to solicit or to permit the use
of his name to solicit any proxy or consent or authorization in respect of any security . . . registered
on any national securities exchange in contravention of such rules and regulations as the
Commission may prescribe as necessary or appropriate in the public interest or for the protection
of investors.” (Italics supplied.) While this language makes no specific reference to a private right
of action, among its chief purposes is “the protection of investors,” which certainly implies the
availability of judicial relief where necessary to achieve that result.
....
We, therefore, believe that under the circumstances here it is the duty of the courts to be
alert to provide such remedies as are necessary to make effective the congressional purpose. As
was said in Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 176 (1942):
“When a federal statute condemns an act as unlawful, the extent and nature of the legal
consequences of the condemnation, though left by the statute to judicial determination, are
nevertheless federal questions, the answers to which are to be derived from the statute and
the federal policy which it has adopted.”
It is for the federal courts “to adjust their remedies so as to grant the necessary relief” where
federally secured rights are invaded. “And it is also well settled that where legal rights have been
invaded, and a federal statute provides for a general right to sue for such invasion, federal courts
may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684
(1946). Section 27 grants the District Courts jurisdiction “of all suits in equity and actions at law
brought to enforce any liability or duty created by this title . . . .” In passing on almost identical
language found in the Securities Act of 1933, the Court found the words entirely sufficient to
fashion a remedy to rescind a fraudulent sale, secure restitution and even to enforce the right to
restitution against a third party holding assets of the vendor. Deckert v. Independence Shares Corp.,
311 U.S. 282 (1940). This significant language was used:
“The power to enforce implies the power to make effective the right of recovery afforded
by the Act. And the power to make the right of recovery effective implies the power to
utilize any of the procedures or actions normally available to the litigant according to the
exigencies of the particular case.” At 288 of 311 U.S.
Nor do we find merit in the contention that such remedies are limited to prospective relief.
This was the position taken in Dann v. Studebaker-Packard Corp., 6 Cir. [(1961)], where it was
held that the “preponderance of questions of state law which would have to be interpreted and
applied in order to grant the relief sought. . . . is so great that the federal question involved . . . is
really negligible in comparison.” At 214. But we believe that the overriding federal law applicable
here would, where the facts required, control the appropriateness of redress despite the provisions
of state corporation law, for it “is not uncommon for federal courts to fashion federal law where
federal rights are concerned.” Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448,
457 (1957). In addition, the fact that questions of state law must be decided does not change the
character of the right; it remains federal. As Chief Justice Marshall said in Osborn v. Bank of United
States, 9 Wheat. 738 (1824):
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“If this were sufficient to withdraw a case from the jurisdiction of the federal Courts, almost
every case, although involving the construction of a law, would be withdrawn . . . .” At
819–820 of 9 Wheat.
Moreover, if federal jurisdiction were limited to the granting of declaratory relief, victims of
deceptive proxy statements would be obliged to go into state courts for remedial relief. And if the
law of the State happened to attach no responsibility to the use of misleading proxy statements, the
whole purpose of the section might be frustrated. Furthermore, the hurdles that the victim might
face . . . might well prove insuperable to effective relief.
IV.
Our finding that federal courts have the power to grant all necessary remedial relief is not
to be construed as any indication of what we believe to be the necessary and appropriate relief in
this case. We are concerned here only with a determination that federal jurisdiction for this purpose
does exist. Whatever remedy is necessary must await the trial on the merits.

Notes
1. Establishing federal question jurisdiction. In Borak, the Supreme Court found an implied
cause of action not in order to provide an immediate resolution to the dispute but in order to
establish federal jurisdiction over the case. Implied private causes of action, a matter of minor
importance in prior centuries, had gained procedural significance due to the unusual trappings of
American federalism. Since the establishment of federal question jurisdiction in 1875, parties have
been able to access federal courts when the case arises out of federal law. See 28 U.S.C. § 1331.
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) (a personal injury case 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). Borak exemplifies that trend.
A turning point in implied cause of action cases began with Cort v. Ash, 422 U.S. 66 (1975).
Cort established a four-factor test for determining whether a federal statute implied a private cause
of action: (1) is the plaintiff a member of the class that the statute was meant to benefit, (2) are
there indications of legislative intent, (3) would an implied cause of action be consistent with the
underlying purpose of the statute, and (4) is this an area traditionally of state or of federal concern.
The first three factors were adopted and continue to be used by many state courts.
In subsequent years, the Supreme Court recharacterized Cort’s four factors in such a way
as to make them less hospitable to implied private causes of action. In Touche Ross & Co. v.
Redington, 442 U.S. 560 (1979) and Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11
(1979), the Court gave a privileged place to the second Cort factor, basing these decisions on
whether or not Congress intended to create a private cause of action.
The Court continued on this path in Alexander v. Sandoval, 532 U.S. 275 (2001).
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Alexander v. Sandoval, 532 U.S. 275 (2001)
Justice SCALIA delivered the opinion of the Court.
This case presents the question whether private individuals may sue to enforce disparateimpact regulations promulgated under Title VI of the Civil Rights Act of 1964.
I
The Alabama Department of Public Safety (Department), of which petitioner James
Alexander is the director, accepted grants of financial assistance from the United States Department
of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions
of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U.S.C. § 2000d et seq.
Section 601 of that Title provides that no person shall, “on the ground of race, color, or national
origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity” covered by Title VI. 42 U.S.C. § 2000d. Section 602 authorizes
federal agencies “to effectuate the provisions of [§ 601] . . . by issuing rules, regulations, or orders
of general applicability,” 42 U.S.C. § 2000d–1, and the DOJ in an exercise of this authority
promulgated a regulation forbidding funding recipients to “utilize criteria or methods of
administration which have the effect of subjecting individuals to discrimination because of their
race, color, or national origin . . . .” 28 CFR § 42.104(b)(2) (2000).
The State of Alabama amended its Constitution in 1990 to declare English “the official
language of the state of Alabama.” Amdt. 509. Pursuant to this provision and, petitioners have
argued, to advance public safety, the Department decided to administer state driver’s license
examinations only in English. Respondent Sandoval, as representative of a class, brought suit in
the United States District Court for the Middle District of Alabama to enjoin the English-only
policy, arguing that it violated the DOJ regulation because it had the effect of subjecting nonEnglish speakers to discrimination based on their national origin. The District Court agreed. It
enjoined the policy and ordered the Department to accommodate non-English speakers. Petitioners
appealed to the Court of Appeals for the Eleventh Circuit, which affirmed. Both courts rejected
petitioners’ argument that Title VI did not provide respondents a cause of action to enforce the
regulation.
....
II
. . . . Like substantive federal law itself, private rights of action to enforce federal law must
be created by Congress. Touche Ross & Co. v. Redington, 442 U.S. 560, 578 (1979) (remedies
available are those “that Congress enacted into law”). The judicial task is to interpret the statute
Congress has passed to determine whether it displays an intent to create not just a private right but
also a private remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15 (1979).
Statutory intent on this latter point is determinative. See, e.g., Virginia Bankshares, Inc. v.
Sandberg, 501 U.S. 1083, 1102 (1991); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.
804, 812, n. 9 (1986) (collecting cases). Without it, a cause of action does not exist and courts may
not create one, no matter how desirable that might be as a policy matter, or how compatible with
the statute. See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 145, 148 (1985);
Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 23; Touche Ross & Co. v. Redington,
supra, at 575–576. “Raising up causes of action where a statute has not created them may be a
proper function for common-law courts, but not for federal tribunals.” Lampf, Pleva, Lipkind,
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Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (SCALIA, J., concurring in part and
concurring in judgment).
Respondents would have us revert in this case to the understanding of private causes of
action that held sway 40 years ago when Title VI was enacted. That understanding is captured by
the Court’s statement in J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), that “it is the duty of the
courts to be alert to provide such remedies as are necessary to make effective the congressional
purpose” expressed by a statute. We abandoned that understanding in Cort v. Ash, 422 U.S. 66, 78
(1975)—which itself interpreted a statute enacted under the ancien regime—and have not returned
to it since. Not even when interpreting the same Securities Exchange Act of 1934 that was at issue
in Borak have we applied Borak’s method for discerning and defining causes of action. See Central
Bank of Denver, N.A. v. First Interstate Bank of Denver, N. A., [511 U.S. 164, 188 (1994)]; Musick,
Peeler & Garrett v. Employers Ins. of Wausau, 508 U.S. 286, 291–293 (1993); Virginia
Bankshares, Inc. v. Sandberg, supra, at 1102–1103; Touche Ross & Co. v. Redington, supra, at
576–578. Having sworn off the habit of venturing beyond Congress’s intent, we will not accept
respondents’ invitation to have one last drink.
Nor do we agree with the Government that our cases interpreting statutes enacted prior to
Cort v. Ash have given “dispositive weight” to the “expectations” that the enacting Congress had
formed “in light of the ‘contemporary legal context.’” . . . We have never accorded dispositive
weight to context shorn of text. In determining whether statutes create private rights of action, as
in interpreting statutes generally, see Blatchford v. Native Village of Noatak, 501 U.S. 775, 784
(1991), legal context matters only to the extent it clarifies text.
We therefore begin (and find that we can end) our search for Congress’s intent with the
text and structure of Title VI. Section 602 authorizes federal agencies “to effectuate the provisions
of [§ 601] . . . by issuing rules, regulations, or orders of general applicability.” 42 U.S.C. § 2000d–
1. . . . Far from displaying congressional intent to create new rights, § 602 limits agencies to
“effectuat[ing]” rights already created by § 601. And the focus of § 602 is twice removed from the
individuals who will ultimately benefit from Title VI’s protection. Statutes that focus on the person
regulated rather than the individuals protected create “no implication of an intent to confer rights
on a particular class of persons.” California v. Sierra Club, 451 U.S. 287, 294 (1981). Section 602
is yet a step further removed: It focuses neither on the individuals protected nor even on the funding
recipients being regulated, but on the agencies that will do the regulating. Like the statute found
not to create a right of action in Universities Research Assn., Inc. v. Coutu, 450 U.S. 754 (1981), §
602 is “phrased as a directive to federal agencies engaged in the distribution of public funds,” id.,
at 772. When this is true, “[t]here [is] far less reason to infer a private remedy in favor of individual
persons,” Cannon v. University of Chicago, [441 U.S. 667, 690–691 (1979)]. So far as we can tell,
this authorizing portion of § 602 reveals no congressional intent to create a private right of action.
Nor do the methods that § 602 goes on to provide for enforcing its authorized regulations
manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602
empowers agencies to enforce their regulations either by terminating funding to the “particular
program, or part thereof,” that has violated the regulation or “by any other means authorized by
law,” 42 U.S.C. § 2000d–1. No enforcement action may be taken, however, “until the department
or agency concerned has advised the appropriate person or persons of the failure to comply with
the requirement and has determined that compliance cannot be secured by voluntary means.” Ibid.
And every agency enforcement action is subject to judicial review. § 2000d–2. If an agency
attempts to terminate program funding, still more restrictions apply. The agency head must “file
with the committees of the House and Senate having legislative jurisdiction over the program or
activity involved a full written report of the circumstances and the grounds for such action.” §
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2000d–1. And the termination of funding does not “become effective until thirty days have elapsed
after the filing of such report.” Ibid. Whatever these elaborate restrictions on agency enforcement
may imply for the private enforcement of rights created outside of § 602, they tend to contradict a
congressional intent to create privately enforceable rights through § 602 itself. The express
provision of one method of enforcing a substantive rule suggests that Congress intended to preclude
others. See, e.g., Karahalios v. Federal Employees, 489 U.S. 527, 533 (1989); Northwest Airlines,
Inc. v. Transport Workers, 451 U.S. 77, 93–94 (1981); Transamerica Mortgage Advisors, Inc. v.
Lewis, 444 U.S., at 19–20. Sometimes the suggestion is so strong that it precludes a finding of
congressional intent to create a private right of action, even though other aspects of the statute (such
as language making the would-be plaintiff “a member of the class for whose benefit the statute was
enacted”) suggest the contrary. Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S., at 145; see
id., at 146–147. And as our Rev. Stat. § 1979, 42 U.S.C. § 1983, cases show, some remedial
schemes foreclose a private cause of action to enforce even those statutes that admittedly create
substantive private rights. See, e.g., Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U.S. 1, 19–20 (1981). In the present case, the claim of exclusivity for the
express remedial scheme does not even have to overcome such obstacles. The question whether §
602’s remedial scheme can overbear other evidence of congressional intent is simply not presented,
since we have found no evidence anywhere in the text to suggest that Congress intended to create
a private right to enforce regulations promulgated under § 602.
....
Neither as originally enacted nor as later amended does Title VI display an intent to create
a freestanding private right of action to enforce regulations promulgated under § 602. We therefore
hold that no such right of action exists. . . .
The judgment of the Court of Appeals is reversed.
It is so ordered.
Justice STEVENS, with whom Justice SOUTER, Justice GINSBURG, and Justice BREYER join,
dissenting.
. . . . According to [the majority’s] analysis, the recognition of an implied right of action
when the text and structure of the statute do not absolutely compel such a conclusion is an act of
judicial self-indulgence. As much as we would like to help those disadvantaged by discrimination,
we must resist the temptation to pour ourselves “one last drink.” To do otherwise would be to
“ventur[e] beyond Congress’s intent.”
Overwrought imagery aside, it is the majority’s approach that blinds itself to congressional
intent. While it remains true that, if Congress intends a private right of action to support statutory
rights, “the far better course is for it to specify as much when it creates those rights,” Cannon, 441
U.S. at 717, its failure to do so does not absolve us of the responsibility to endeavor to discern its
intent. In a series of cases since Cort v. Ash, we have laid out rules and developed strategies for this
task.
The very existence of these rules and strategies assumes that we will sometimes find
manifestations of an implicit intent to create such a right. Our decision in Cannon [holding that
Title IX of the Education Amendments of 1972 authorized private causes of action for damages]
represents one such occasion. As the Cannon opinion iterated and reiterated, the question whether
the plaintiff had a right of action that could be asserted in federal court was a “question of statutory
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construction,” 441 U.S. at 688, not a question of policy for the Court to decide. Applying the Cort
v. Ash factors, we examined the nature of the rights at issue, the text and structure of the statute,
and the relevant legislative history. Our conclusion was that Congress unmistakably intended a
private right of action to enforce both Title IX and Title VI. Our reasoning—and, as I have
demonstrated, our holding—was equally applicable to intentional discrimination and disparateimpact claims.
Underlying today’s opinion is the conviction that Cannon must be cabined because it
exemplifies an “expansive rights-creating approach.” Franklin v. Gwinnett County Public Schools,
503 U.S. 60, 77 (1992) (SCALIA, J., concurring in judgment). But, as I have taken pains to explain,
it was Congress, not the Court, that created the cause of action, and it was the Congress that later
ratified the Cannon holding in 1986 and again in 1988.
In order to impose its own preferences as to the availability of judicial remedies, the Court
today adopts a methodology that blinds itself to important evidence of congressional intent. . . .
Similarly, if the majority is genuinely committed to deciphering congressional intent, its
unwillingness to even consider evidence as to the context in which Congress legislated is
perplexing. Congress does not legislate in a vacuum. As the respondents and the Government
suggest, and as we have held several times, the objective manifestations of congressional intent to
create a private right of action must be measured in light of the enacting Congress’ expectations as
to how the judiciary might evaluate the question. See Thompson v. Thompson, 484 U.S. 174 (1988);
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 378–379 (1982); Cannon,
441 U.S., at 698–699.
At the time Congress was considering Title VI, it was normal practice for the courts to infer
that Congress intended a private right of action whenever it passed a statute designed to protect a
particular class that did not contain enforcement mechanisms which would be thwarted by a private
remedy. See Merrill Lynch, 456 U.S., at 374–375 (discussing this history). Indeed, the very year
Congress adopted Title VI, this Court specifically stated that “it is the duty of the courts to be alert
to provide such remedies as are necessary to make effective the congressional purpose.” J.I. Case
Co. v. Borak, 377 U.S. 426, 433 (1964). Assuming, as we must, that Congress was fully informed
as to the state of the law, the contemporary context presents important evidence as to Congress’
intent—evidence the majority declines to consider.
....
I respectfully dissent.

Notes
1. After Sandoval. The immediate impact of Sandoval’s limiting of Title VI has been felt in
areas as far-flung as environmental advocacy. See Lisa S. Core, Alexander v. Sandoval: Why A
Supreme Court Case About Driver’s Licenses Matters to Environmental Justice Advocates, 30 B.C.
ENVTL. AFF. L. REV. 191 (2002). The Sandoval Court’s emphasis on textual support for
congressional intent has also restricted federal courts’ ability to find implied private causes of
action in other statutes. See Bradford C. Mank, Legal Context: Reading Statutes in Light of
Prevailing Legal Precedent, ARIZ. ST. L.J. 816, 856–66 (2002).

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2. Separation of powers. The Sandoval opinion elaborates on an idea Justice Scalia had
previously expressed in Thompson v. Thompson of “the necessity of an actual congressional intent
to create a private right of action.” 484 U.S. 174, 188 (1988) (Scalia, J., concurring). In both
opinions, Scalia’s concern lies not with the policy objectives of the statutes but with the role of the
federal judiciary in U.S. democracy more generally. He regards federal judicial creation of private
causes of action as unconstitutional because in so doing the courts assume a legislative function,
which goes against the separation of powers. Viewed in this light, any federal court’s finding of
implied causes of action without evidence of legislative intent is unconstitutional—“no matter how
desirable that might be as a policy matter, or how compatible with the statute.” Sandoval, 532 U.S.
at 287.
3. Common-law exception. Justice Scalia did not reject all judicial findings of implied causes
of action. He allowed that this “may be a proper function for common-law courts, but not for federal
tribunals.” Alexander v. Sandoval, 532 U.S. 275, 287 (2001) (quoting Lampf, Pleva, Lipkind,
Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 365 (1991) (SCALIA, J., concurring in part and
concurring in judgment)). By “common-law courts,” Scalia presumably meant state courts of
general jurisdiction. His point here is that the federal Constitution constrains the ability of federal
courts, but not state courts, to make substantive law. Does this contention create divergent
approaches for the interpretation of federal and state statutes for purposes of identifying a private
cause of action?
4. Legislating for Litigation. A recent study of federal regulatory legislation reveals that
Congress writes statutory provisions for private causes of action with greater specificity than it does
for bureaucratic or hybrid implementation regimes. See Sean Farhang, Legislating for Litigation:
Delegation, Public Policy, and Democracy, 106 CAL. L. REV. 1529, 1574–75 (2018). To illustrate
his point, Farhang considers the varied implementation schemes contained in the Civil Rights Act
of 1964, including lawsuits by the Attorney General (Title I), rulemaking and sanctions by agencies
(Title VI), and lawsuits by both the Attorney General and private individuals (Title VII). He
compares the specificity of Title VII’s litigation provision, which allows for private causes of action,
with the specificity of the Civil Rights Act’s other provisions to demonstrate Congress’ heightened
attentiveness when elaborating private causes of action. Farhang argues that Congress legislates in
this manner due to its awareness of the judiciary’s relative lack of resources for policymaking and
of its relative unaccountability to political processes.
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).

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5. Implied Private Causes of Action in the Federal Constitution
In addition to state and federal statutes, some constitutional provisions have been held to
imply private causes of action for damages. 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.
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971)
Mr. Justice BRENNAN delivered the opinion of the Court.
The Fourth Amendment provides that:
‘The right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated. . . .’
. . . . This case has its origin in an arrest and search carried out on the morning of November
26, 1965. Petitioner’s complaint alleged that on that day respondents, agents of the Federal Bureau
of Narcotics acting under claim of federal authority, entered his apartment and arrested him for
alleged narcotics violations. The agents manacled petitioner in front of his wife and children, and
threatened to arrest the entire family. They searched the apartment from stem to stern. Thereafter,
petitioner was taken to the federal courthouse in Brooklyn, where he was interrogated, booked, and
subjected to a visual strip search.
On July 7, 1967, petitioner brought suit in Federal District Court. In addition to the
allegations above, his complaint asserted that the arrest and search were effected without a warrant,
and that unreasonable force was employed in making the arrest; fairly read, it alleges as well that
the arrest was made without probable cause. Petitioner claimed to have suffered great humiliation,
embarrassment, and mental suffering as a result of the agents’ unlawful conduct, and sought
$15,000 damages from each of them. The District Court, on respondents’ motion, dismissed the
complaint on the ground, inter alia, that it failed to state a cause of action. The Court of Appeals,
one judge concurring specially, affirmed on that basis. We granted certiorari. We reverse.
I
. . . . [T]he Fourth Amendment operates as a limitation upon the exercise of federal power
regardless of whether the State in whose jurisdiction that power is exercised would prohibit or
penalize the identical act if engaged in by a private citizen. It guarantees to citizens of the United
States the absolute right to be free from unreasonable searches and seizures carried out by virtue of
federal authority. And ‘where federally protected rights have been invaded, it has been the rule
from the beginning that courts will be alert to adjust their remedies so as to grant the necessary
relief.’ Bell v. Hood, 327 U.S. [678, 684 (1946)].
. . . . That damages may be obtained for injuries consequent upon a violation of the Fourth
Amendment by federal officials should hardly seem a surprising proposition. Historically, damages
have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon
v. Condon, 286 U.S. 73 (1932); Nixon v. Herndon, 273 U.S. 536, 540 (1927); Swafford v.
Templeton, 185 U.S. 487 (1902); Wiley v. Sinkler, 179 U.S. 58 (1900); J. Landynski, Search and
Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the
Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of
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Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. PA. L. REV. 1, 8—
33 (1968); cf. West v. Cabell, 153 U.S. 78 (1894); Lammon v. Feusier, 111 U.S. 17 (1884). Of
course, the Fourth Amendment does not in so many words provide for its enforcement by an award
of money damages for the consequences of its violation. But ‘it is . . . well settled that where legal
rights have been invaded, and a federal statute provides for a general right to sue for such invasion,
federal courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327
U.S., at 684. The present case involves no special factors counseling hesitation in the absence of
affirmative action by Congress. We are not dealing with a question of ‘federal fiscal policy,’ as in
United States v. Standard Oil Co., 332 U.S. 301, 311 (1947). In that case we refused to infer from
the Government-soldier relationship that the United States could recover damages from one who
negligently injured a soldier and thereby caused the Government to pay his medical expenses and
lose his services during the course of his hospitalization. Noting that Congress was normally quite
solicitous where the federal purse was involved, we pointed out that ‘the United States (was) the
party plaintiff to the suit. And the United States has power at any time to create the liability.’ Id.,
at 316; see United States v. Gilman, 347 U.S. 507 (1954). Nor are we asked in this case to impose
liability upon a congressional employee for actions contrary to no constitutional prohibition, but
merely said to be in excess of the authority delegated to him by the Congress. Wheeldin v. Wheeler,
373 U.S. 647 (1963). Finally, we cannot accept respondents’ formulation of the question as whether
the availability of money damages is necessary to enforce the Fourth Amendment. For we have
here no explicit congressional declaration that persons injured by a federal officer’s violation of the
Fourth Amendment may not recover money damages from the agents, but must instead be remitted
to another remedy, equally effective in the view of Congress. The question is merely whether
petitioner, if he can demonstrate an injury consequent upon the violation by federal agents of his
Fourth Amendment rights, is entitled to redress his injury through a particular remedial mechanism
normally available in the federal courts. Cf. J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964);
Jacobs v. United States, 290 U.S. 13, 16 (1933). ‘The very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the laws, whenever he receives an injury.’
Marbury v. Madison, 1 Cranch 137, 163 (1803). Having concluded that petitioner’s complaint
states a cause of action under the Fourth Amendment, we hold that petitioner is entitled to recover
money damages for any injuries he has suffered as a result of the agents’ violation of the
Amendment.
....
Judgment reversed and case remanded.
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017)
Justice KENNEDY delivered the opinion of the Court.
After the September 11 terrorist attacks in this country, and in response to the deaths,
destruction, and dangers they caused, the United States Government ordered hundreds of illegal
aliens to be taken into custody and held. Pending a determination whether a particular detainee had
connections to terrorism, the custody, under harsh conditions to be described, continued. In many
instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens
who had been detained filed suit, leading to the cases now before the Court.
. . . . Seeking to invoke the Court’s decision in Bivens, respondents brought four claims
under the Constitution itself. First, respondents alleged that petitioners detained them in harsh
pretrial conditions for a punitive purpose, in violation of the substantive due process component of
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the Fifth Amendment. Second, respondents alleged that petitioners detained them in harsh
conditions because of their actual or apparent race, religion, or national origin, in violation of the
equal protection component of the Fifth Amendment. Third, respondents alleged that the Wardens
subjected them to punitive strip searches unrelated to any legitimate penological interest, in
violation of the Fourth Amendment and the substantive due process component of the Fifth
Amendment. Fourth, respondents alleged that the Wardens knowingly allowed the guards to abuse
respondents, in violation of the substantive due process component of the Fifth Amendment.
....
When a party seeks to assert an implied cause of action under the Constitution itself, just
as when a party seeks to assert an implied cause of action under a federal statute, separation-ofpowers principles are or should be central to the analysis. The question is “who should decide”
whether to provide for a damages remedy, Congress or the courts? Bush [v. Lucas], 462 U.S. [367,
380 (1983)].
The answer most often will be Congress. When an issue “‘involves a host of considerations
that must be weighed and appraised,’” it should be committed to “‘those who write the laws’” rather
than “‘those who interpret them.’” Ibid. (quoting United States v. Gilman, 347 U.S. 507, 512–513
(1954)). In most instances, the Court’s precedents now instruct, the Legislature is in the better
position to consider if “‘the public interest would be served’” by imposing a “‘new substantive
legal liability.’” Schweiker [v. Chilicky, 487 U.S. 412, 426–427 (1988)] (quoting Bush, supra, at
390). As a result, the Court has urged “caution” before “extending Bivens remedies into any new
context.” [Correctional Services Corp. v.] Malesko, [534 U.S. 61, 74 (2001)]. The Court’s
precedents now make clear that a Bivens remedy will not be available if there are “‘special factors
counselling hesitation in the absence of affirmative action by Congress.’” Carlson [v. Green], 446
U.S. [14, 18 (1980)] (quoting Bivens [v. Six Unknown Fed. Narcotics Agents], 403 U.S. [388, 396
(1971)]).
This Court has not defined the phrase “special factors counselling hesitation.” The
necessary inference, though, is that the inquiry must concentrate on whether the Judiciary is well
suited, absent congressional action or instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed. Thus, to be a “special factor counselling hesitation,” a factor
must cause a court to hesitate before answering that question in the affirmative.
....
With respect to the claims against the Executive Officials, it must be noted that a Bivens
action is not “a proper vehicle for altering an entity’s policy.” Malesko, supra, at 74. Furthermore,
a Bivens claim is brought against the individual official for his or her own acts, not the acts of
others. “The purpose of Bivens is to deter the officer.” [FDIC v.] Meyer, 510 U.S. [471, 485 (1994)].
Bivens is not designed to hold officers responsible for acts of their subordinates. See [Ashcroft v.]
Iqbal, 556 U.S. [662, 676 (2009)] (“Government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior”).
Even if the action is confined to the conduct of a particular Executive Officer in a discrete
instance, these claims would call into question the formulation and implementation of a general
policy. This, in turn, would necessarily require inquiry and discovery into the whole course of the
discussions and deliberations that led to the policies and governmental acts being challenged. These
consequences counsel against allowing a Bivens action against the Executive Officials, for the
burden and demand of litigation might well prevent them—or, to be more precise, future officials
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like them—from devoting the time and effort required for the proper discharge of their duties. See
Cheney v. United States Dist. Court for D. C., 542 U.S. 367, 382 (2004) (noting “the paramount
necessity of protecting the Executive Branch from vexatious litigation that might distract it from
the energetic performance of its constitutional duties”).
A closely related problem, as just noted, is that the discovery and litigation process would
either border upon or directly implicate the discussion and deliberations that led to the formation
of the policy in question. See Federal Open Market Comm. v. Merrill, 443 U.S. 340, 360 (1979)
(noting that disclosure of Executive Branch documents “could inhibit the free flow of advice,
including analysis, reports, and expression of opinion within an agency”). Allowing a damages suit
in this context, or in a like context in other circumstances, would require courts to interfere in an
intrusive way with sensitive functions of the Executive Branch. See Clinton v. Jones, 520 U.S. 681,
701 (1997) (recognizing that “‘[e]ven when a branch does not arrogate power to itself ... the
separation-of-powers doctrine requires that a branch not impair another in the performance of its
constitutional duties’” (quoting Loving v. United States, 517 U.S. 748, 757 (1996))). These
considerations also counsel against allowing a damages claim to proceed against the Executive
Officials. See Cheney, supra, at 385 (noting that “special considerations control” when a case
implicates “the Executive Branch’s interests in maintaining the autonomy of its office and
safeguarding the confidentiality of its communications”).
In addition to this special factor . . . . respondents’ detention policy claims challenge more
than standard “law enforcement operations.” United States v. Verdugo–Urquidez, 494 U.S. 259,
273 (1990). They challenge as well major elements of the Government’s whole response to the
September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national
security. . . .
The factors discussed above all suggest that Congress’ failure to provide a damages remedy
might be more than mere oversight, and that congressional silence might be more than
“inadvertent.” Schweiker, 487 U.S., at 423. This possibility counsels hesitation “in the absence of
affirmative action by Congress.” Bivens, 403 U.S., at 396.
Furthermore, in any inquiry respecting the likely or probable intent of Congress, the silence
of Congress is relevant; and here that silence is telling. In the almost 16 years since September 11,
the Federal Government’s responses to that terrorist attack have been well documented.
Congressional interest has been “frequent and intense,” Schweiker, supra, at 425, and some of that
interest has been directed to the conditions of confinement at issue here. . . . Nevertheless, “[a]t no
point did Congress choose to extend to any person the kind of remedies that respondents seek in
this lawsuit.” Schweiker, 487 U.S., at 426.
....
It is of central importance, too, that this is not a case like Bivens . . . in which “it is damages
or nothing.” Bivens, supra, at 410 (Harlan, J., concurring in judgment). . . . Respondents . . .
challenge large-scale policy decisions concerning the conditions of confinement imposed on
hundreds of prisoners. To address those kinds of decisions, detainees may seek injunctive relief. . .
.
The judgment of the Court of Appeals is reversed.

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Notes
1. After Bivens. The Court expanded Bivens liability to violations of the Fifth Amendment,
see Davis v. Passman, 442 U.S. 228 (1979), and the Eighth Amendment, see Carlson v. Green, 446
U.S. 14 (1980). But Bivens-style implied constitutional causes of action reached their high-water
mark with Carlson. As in the implied statutory causes of action cases, the Court has been much
more reluctant in recent decades to find implied private actions in the Constitution; the justices
have not extended liability to new defendants or new constitutional claims since 1980.
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.
2. National security. The “special factors” test for Bivens claims is not an enumerated list of
exceptions. Instead, this test substitutes generally for the idea that courts should weigh various
concerns against the possible benefits of a private cause of action for damages arising under the
Constitution. The special factor of national security considered in Ziglar originated in the circuit
courts in the aftermath of 9/11, when the courts worried that Bivens claims might hinder the
executive’s counter-terrorism capabilities. See Rasul v. Myers, 563 F.3d 527, 532 (D.C. Cir. 2009);
Arar v. Ashcroft, 585 F.3d 559, 573 (2d Cir. 2009). Stephen I. Vladeck criticizes these decisions
for incorporating national security considerations not only through case-by-case analysis of
whether judicial deference might be wise but also at the threshold question of whether there is a
private cause of action at all. The New National Security Canon, 61 AM. U. L. REV. 1295, 1313
(2012). This arguably undue emphasis on national security has effectively barred Bivens claims,
especially now that the Supreme Court has spoken on the issue. See Amanda McGlaun, Meshal v.
Higgenbotham: Has National Security Killed Bivens?, 25 TUL. J. INT’L & COMP. L. 481 (2017);
Peter Margulies, Curbing Remedies for Official Wrongs: The Need for Bivens Suits in National
Security Cases, 68 CASE W. RES. L. REV. 1153 (2018).
3. Separation of powers. In the Bivens line of cases, dissenting opinions by Justices Burger
and Rehnquist raised the same concerns as Justice Scalia did in the majority opinion of Sandoval,
arguing that separation of powers requires Congress to enact statutes in order for the federal
judiciary to award damages. See, e.g., Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 411–12 (1971) (BURGER, J., dissenting). (arguing the Court should
“preserve the important values of the doctrine of separation powers . . . by recommending a solution
to the Congress” instead of finding a private cause of action). Susan Bandes interrogates this
application of the separation of powers doctrine, contending that “the separation of powers
principles upon which the Bivens critics seek to rely instead support the need for the Bivens remedy.”
Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 294 (1995). How
might the ability of courts to adjudicate private causes of actions for damages arising under the
Constitution uphold democratic principles such as the separation of powers?

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E. 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 WalMart 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 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.

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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 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.

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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 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 decisionmaking 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?
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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 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
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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
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
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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 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.

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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 GrajalesRomero, 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

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.”
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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 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.
As we shall see in Chapter 8, the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792
(1973) 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 proffered reason was a pretext, regardless
whether or not the plaintiff has also proven by a preponderance that the real reason was unlawful
discrimination. Such a plaintiff would be automatically entitled to summary judgment if after
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discovery no reasonable jury could find from the evidence in the record that the employer’s
proffered 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
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.
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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
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. . . .

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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.
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
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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
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
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(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.
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

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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 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.
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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 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
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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 fortytwo 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.
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)
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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)
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?

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Witt, TRCPI 8. Antidiscrimination Module 2

CHAPTER 8. ANTIDISCRIMINATION LAW MODULE #2 –
PROVING DISCRIMINATION
Recall our discussion of employment discrimination from the first antidiscrimination module in
Chapter 6. There we saw some of the ways Title VII of the Civil Rights Act of 1964 borrows tort
law principles of reasonableness for purposes of animating the law of workplace harassment. The
law of employment discrimination does much the same with the difficult problem of proving
negligence.

A. Disparate Treatment
The first set of proof problems under Title VII involve allegations of illegal disparate treatment.
How does one smoke out the real discriminatory reason for a disputed employment action? The
stakes are often large in American employment law, because the background rule that employees
are at-will employees. Liable to being fired, demoted, or denied a promotion on any but for a narrow
set of grounds laid out in federal and state anti-discrimination law. Here the law borrows from and
adapts tort law’s old res ipsa loquitor doctrine. The key early case is McDonnell Douglas Corp v.
Green.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
Mr. Justice POWELL delivered the opinion for a unanimous Court.
The case before us raises significant questions as to the proper order and nature of proof in
actions under Title VII of the Civil Rights Act of 1964.
Petitioner, McDonnell Douglas Corp., is an aerospace and aircraft manufacturer
headquartered in St. Louis, Missouri, where it employs over 30,000 people. Respondent, a black
citizen of St. Louis, worked for petitioner as a mechanic and laboratory technician from 1956 until
August 28, 19641 when he was laid off in the course of a general reduction in petitioner’s work
force.
Respondent, a long-time activist in the civil rights movement, protested vigorously that his
discharge and the general hiring practices of petitioner were racially motivated. As part of this
protest, respondent and other members of the Congress on Racial Equality illegally stalled their
cars on the main roads leading to petitioner’s plant for the purpose of blocking access to it at the
time of the morning shift change. The District Judge described the plan for, and respondent's
participation in, the ‘stall-in’ as follows:
(F)ive teams, each consisting of four cars would ‘tie up’ five main access roads
into McDonnell at the time of the morning rush hour. The drivers of the cars were
instructed to line up next to each other completely blocking the intersections or
roads. The drivers were also instructed to stop their cars, turn off the engines, pull
1 His employment during these years was continuous except for 21 months of service in the military.

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the emergency brake, raise all windows, lock the doors, and remain in their cars
until the police arrived. The plan was to have the cars remain in position for one
hour.
Acting under the “stall in” plan, plaintiff (respondent in the present action) drove
his car onto Brown Road, a McDonnell access road, at approximately 7:00 a.m., at
the start of the morning rush hour. Plaintiff was aware of the traffic problems that
would result. He stopped his car with the intent to block traffic. The police arrived
shortly and requested plaintiff to move his car. He refused to move his car
voluntarily. Plaintiff's car was towed away by the police, and he was arrested for
obstructing traffic. Plaintiff pleaded guilty to the charge of obstructing traffic and
was fined.
On July 2, 1965, a “lock-in” took place wherein a chain and padlock were placed on the front door
of a building to prevent the occupants, certain of petitioner’s employees, from leaving. Though
respondent apparently knew beforehand of the “lock-in,” the full extent of his involvement remains
uncertain.
Some three weeks following the “lock-in,” on July 25, 1965, petitioner publicly advertised
for qualified mechanics, respondent’s trade, and respondent promptly applied for re-employment.
Petitioner turned down respondent, basing its rejection on respondent's participation in the “stallin” and “lock-in.” Shortly thereafter, respondent filed a formal complaint with the Equal
Employment Opportunity Commission, claiming that petitioner had refused to rehire him because
of his race and persistent involvement in the civil rights movement, in violation of §§ 703(a)(1) and
704(a) of the Civil Rights Act of 1964.4 The former section generally prohibits racial
discrimination in any employment decision while the latter forbids discrimination against
applicants or employees for attempting to protest or correct allegedly discriminatory conditions of
employment.
The Commission made no finding on respondent's allegation of racial bias under §
703(a)(1), but it did find reasonable cause to believe petitioner had violated § 704(a) by refusing to
rehire respondent because of his civil rights activity. After the Commission unsuccessfully
attempted to conciliate the dispute, it advised respondent in March 1968, of his right to institute a
civil action in federal court within 30 days.

4

Section 703(a)(1) of the Civil Rights Act of 1964 in pertinent part provides:
It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin . . . .

Section 704(a) of the Civil Rights Act of 1964 in pertinent part provides:
It shall be an unlawful employment practice for an employer to discriminate against any of
his employees or applicants for employment . . . because he has opposed any practice made
an unlawful employment practice by this subchapter . . . .

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On April 15, 1968, respondent brought the present action, claiming initially a violation of
§ 704(a) and, in an amended complaint, a violation of § 703(a)(1) as well.5 The District Court
dismissed the latter claim of racial discrimination in petitioner’s hiring procedures on the ground
that the Commission had failed to make a determination of reasonable cause to believe that a
violation of that section had been committed. The District Court also found that petitioner’s refusal
to rehire respondent was based solely on his participation in the illegal demonstrations and not on
his legitimate civil rights activities. The court concluded that nothing in Title VII or § 704 protected
“such activity as employed by the plaintiff in the ‘stall in’ and ‘lock in’ demonstrations.”
On appeal, the Eighth Circuit affirmed that unlawful protests were not protected activities
under § 704(a), but reversed the dismissal of respondent’s § 703(a)(1) claim relating to racially
discriminatory hiring practices, holding that a prior Commission determination of reasonable cause
was not a jurisdictional prerequisite to raising a claim under that section in federal court. The court
ordered the case remanded for trial of respondent's claim under § 703(a)(1).
. . . . In order to clarify the standards governing the disposition of an action challenging employment
discrimination, we granted certiorari.
I
We agree with the Court of Appeals that absence of a Commission finding of reasonable
cause cannot bar suit under an appropriate section of Title VII and that the District Judge erred in
dismissing respondent’s claim of racial discrimination under § 703(a)(1). Respondent satisfied the
jurisdictional prerequisites to a federal action (i) by filing timely charges of employment
discrimination with the Commission and (ii) by receiving and acting upon the Commission's
statutory notice of the right to sue, 42 U.S.C. §§ 2000e—5(a) and 2000e—5(e). The Act does not
restrict a complainant’s right to sue to those charges as to which the Commission has made findings
of reasonable cause, and we will not engraft on the statute a requirement which may inhibit the
review of claims of employment discrimination in the federal courts. The Commission itself does
not consider the absence of a ‘reasonable cause’ determination as providing employer immunity
from similar charges in a federal court . . . .
II
The critical issue before us concerns the order and allocation of proof in a private, nonclass action challenging employment discrimination. The language of Title VII makes plain the
purpose of Congress to assure equality of employment opportunities and to eliminate those
discriminatory practices and devices which have fostered racially stratified job environments to the
disadvantage of minority citizens. As noted in Griggs [v. Duke Power Co., 401 U.S. 424 (1971)]:
Congress did not intend by Title VII, however, to guarantee a job to every person
regardless of qualifications. In short, the Act does not command that any person
be hired simply because he was formerly the subject of discrimination, or because
he is a member of a minority group. Discriminatory preference for any group,
minority or majority, is precisely and only what Congress has proscribed. What is
5

Respondent also contested the legality of his 1964 discharge by petitioner, but both courts held this claim
barred by the statute of limitations. Respondent does not challenge those rulings here.

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required by Congress is the removal of artificial, arbitrary, and unnecessary
barriers to employment when the barriers operate invidiously to discriminate on
the basis of racial or other impermissible classification.
There are societal as well as personal interests on both sides of this equation. The broad,
overriding interest, shared by employer, employee, and consumer, is efficient and trustworthy
workmanship assured through fair and racially neutral employment and personnel decisions. In the
implementation of such decisions, it is abundantly clear that Title VII tolerates no racial
discrimination, subtle or otherwise.
In this case respondent, the complainant below, charges that he was denied employment
“because of his involvement in civil rights activities” and “because of his race and color.” Petitioner
denied discrimination of any kind, asserting that its failure to re-employ respondent was based upon
and justified by his participation in the unlawful conduct against it. Thus, the issue at the trial on
remand is framed by those opposing factual contentions. . . .
The complainant in a Title VII trial must carry the initial burden under the statute of
establishing a prima facie case of racial discrimination. This may be done by showing (i) that he
belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer
was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his
rejection, the position remained open and the employer continued to seek applicants from persons
of complainant's qualifications.13 In the instant case, we agree with the Court of Appeals that
respondent proved a prima facie case. Petitioner sought mechanics, respondent’s trade, and
continued to do so after respondent’s rejection. Petitioner, moreover, does not dispute respondent’s
qualifications and acknowledges that his past work performance in petitioner’s employ was
“satisfactory.”
The burden then must shift to the employer to articulate some legitimate, nondiscriminatory
reason for the employee's rejection. We need not attempt in the instant case to detail every matter
which fairly could be recognized as a reasonable basis for a refusal to hire. Here petitioner has
assigned respondent’s participation in unlawful conduct against it as the cause for his rejection. We
think that this suffices to discharge petitioner’s burden of proof at this stage and to meet
respondent’s prima facie case of discrimination.
The Court of Appeals intimated, however, that petitioner’s stated reason for refusing to
rehire respondent was a “subjective” rather than objective criterion which “carr[ies] little weight in
rebutting charges of discrimination.” . . . [W]e think the court below seriously underestimated the
rebuttal weight to which petitioner’s reasons were entitled. Respondent admittedly had taken part
in a carefully planned ‘stall-in,’ designed to tie up access to and egress from petitioner's plant at a
peak traffic hour. Nothing in Title VII compels an employer to absolve and rehire one who has
engaged in such deliberate, unlawful activity against it. . . .
Petitioner’s reason for rejection thus suffices to meet the prima facie case, but the inquiry
must not end here. While Title VII does not, without more, compel rehiring of respondent, neither
does it permit petitioner to use respondent’s conduct as a pretext for the sort of discrimination
prohibited by § 703(a)(1). On remand, respondent must, as the Court of Appeals recognized, be
13

The facts necessarily will vary in Title VII cases, and the specification above of the prima facie proof
required from respondent is not necessarily applicable in every respect to differing factual situations.

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afforded a fair opportunity to show that petitioner’s stated reason for respondent’s rejection was in
fact pretext. Especially relevant to such a showing would be evidence that white employees
involved in acts against petitioner of comparable seriousness to the “stall-in” were nevertheless
retained or rehired. Petitioner may justifiably refuse to rehire one who was engaged in unlawful,
disruptive acts against it, but only if this criterion is applied alike to members of all races.
Other evidence that may be relevant to any showing of pretext includes facts as to the
petitioner's treatment of respondent during his prior term of employment; petitioner’s reaction, if
any, to respondent's legitimate civil rights activities; and petitioner’s general policy and practice
with respect to minority employment. On the latter point, statistics as to petitioner’s employment
policy and practice may be helpful to a determination of whether petitioner’s refusal to rehire
respondent in this case conformed to a general pattern of discrimination against blacks.19 In short,
on the retrial respondent must be given a full and fair opportunity to demonstrate by competent
evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially
discriminatory decision.
The court below appeared to rely upon Griggs v. Duke Power Co., supra, in which the
Court stated: “If an employment practice which operates to exclude Negroes cannot be shown to
be related to job performance, the practice is prohibited.” But Griggs differs from the instant case
in important respects. It dealt with standardized testing devices which, however neutral on their
face, operated to exclude many blacks who were capable of performing effectively in the desired
positions. Griggs was rightly concerned that childhood deficiencies in the education and
background of minority citizens, resulting from forces beyond their control, not be allowed to work
a cumulative and invidious burden on such citizens for the remainder of their lives. Respondent,
however, appears in different clothing. He had engaged in a seriously disruptive act against the
very one from whom he now seeks employment. And petitioner does not seek his exclusion on the
basis of a testing device which overstates what is necessary for competent performance, or through
some sweeping disqualification of all those with any past record of unlawful behavior, however
remote, insubstantial, or unrelated to applicant's personal qualifications as an employee. Petitioner
assertedly rejected respondent for unlawful conduct against it and, in the absence of proof of pretext
or discriminatory application of such a reason, this cannot be thought the kind of ‘artificial,
arbitrary, and unnecessary barriers to employment’ which the Court found to be the intention of
Congress to remove. . . .
The cause is hereby remanded to the District Court for reconsideration in accordance with
this opinion.

19

The District Court may, for example, determine, after reasonable discovery that “the (racial) composition
of defendant’s labor force is itself reflective of restrictive or exclusionary practices.” See Blumrosen,
[Strangers in Paradise: Griggs v. Duke Power Co., and the Concept of Employment Discrimination, 71
MICH. L. REV. 59] at 92 [(1972)]. We caution that such general determinations, while helpful, may not be in
and of themselves controlling as to an individualized hiring decision, particularly in the presence of an
otherwise justifiable reason for refusing to rehire.

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Note
Res ipsa for discrimination? McDonnell Douglas offers a version of the res ipsa doctrine
for employment discrimination in the sense that it allows the plaintiff to present a stylized story
that creates an obligation (or at least an opportunity) for the defendant to come forward with
information about the events in question.
If McDonnell Douglas is a variation of res ipsa, however, what should be the significance
of successfully making out a prima facie case? Should it function simply as a guide for the value
of certain kinds of contextual evidence? Or should it do more? In the 1990s, the federal courts of
appeals and the U.S. Supreme Court waded into controversy over the significance of making out a
prima facie case of discrimination.
St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993)
Justice SCALIA delivered the opinion of the Court.
We granted certiorari to determine whether, in a suit against an employer alleging
intentional racial discrimination in violation of § 703(a)(1) of Title VII of the Civil Rights Act of
1964 the trier of fact’s rejection of the employer’s asserted reasons for its actions mandates a finding
for the plaintiff.
I
Petitioner St. Mary’s Honor Center (St. Mary’s) is a halfway house operated by the
Missouri Department of Corrections and Human Resources (MDCHR). Respondent Melvin Hicks,
a black man, was hired as a correctional officer at St. Mary's in August 1978 and was promoted to
shift commander, one of six supervisory positions, in February 1980.
In 1983 MDCHR conducted an investigation of the administration of St. Mary’s, which
resulted in extensive supervisory changes in January 1984. Respondent retained his position, but
John Powell became the new chief of custody (respondent’s immediate supervisor) and petitioner
Steve Long the new superintendent. Prior to these personnel changes respondent had enjoyed a
satisfactory employment record, but soon thereafter became the subject of repeated, and
increasingly severe, disciplinary actions. He was suspended for five days for violations of
institutional rules by his subordinates on March 3, 1984. He received a letter of reprimand for
alleged failure to conduct an adequate investigation of a brawl between inmates that occurred
during his shift on March 21. He was later demoted from shift commander to correctional officer
for his failure to ensure that his subordinates entered their use of a St. Mary’s vehicle into the
official log book on March 19, 1984. Finally, on June 7, 1984, he was discharged for threatening
Powell during an exchange of heated words on April 19.
Respondent brought this suit in the United States District Court for the Eastern District of
Missouri, alleging that petitioner St. Mary’s violated § 703(a)(1). After a full bench trial, the
District Court found for petitioners. The United States Court of Appeals for the Eighth Circuit
reversed and remanded and we granted certiorari.

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II
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides in relevant part:
It shall be an unlawful employment practice for an employer—
(1) ... to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race. . . .
With the goal of “progressively ... sharpen[ing] the inquiry into the elusive factual question of
intentional discrimination,” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n. 8
(1981), our opinion in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), established an
allocation of the burden of production and an order for the presentation of proof in Title VII
discriminatory-treatment cases. The plaintiff in such a case, we said, must first establish, by a
preponderance of the evidence, a “prima facie” case of racial discrimination. Petitioners do not
challenge the District Court’s finding that respondent satisfied the minimal requirements of such a
prima facie case . . . by proving (1) that he is black, (2) that he was qualified for the position of
shift commander, (3) that he was demoted from that position and ultimately discharged, and (4)
that the position remained open and was ultimately filled by a white man.
Under the McDonnell Douglas scheme, “[e]stablishment of the prima facie case in effect
creates a presumption that the employer unlawfully discriminated against the employee.” Burdine,
supra, at 254. To establish a “presumption” is to say that a finding of the predicate fact (here, the
prima facie case) produces “a required conclusion in the absence of explanation” (here, the finding
of unlawful discrimination). 1 D. Louisell & C. Mueller, Federal Evidence § 67, p. 536 (1977).
Thus, the McDonnell Douglas presumption places upon the defendant the burden of producing an
explanation to rebut the prima facie case—i.e., the burden of “producing evidence” that the adverse
employment actions were taken “for a legitimate, nondiscriminatory reason.” Burdine, 450 U.S., at
254. “[T]he defendant must clearly set forth, through the introduction of admissible evidence,”
reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful
discrimination was not the cause of the employment action. Id., at 254-255, and n. 8. It is important
to note, however, that although the McDonnell Douglas presumption shifts the burden of
production to the defendant, “[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the plaintiff.” 450 U.S., at
253. . . .
Respondent does not challenge the District Court’s finding that petitioners sustained their
burden of production by introducing evidence of two legitimate, nondiscriminatory reasons for
their actions: the severity and the accumulation of rules violations committed by respondent. Our
cases make clear that at that point the shifted burden of production became irrelevant: “If the
defendant carries this burden of production, the presumption raised by the prima facie case is
rebutted,” Burdine, 450 U.S., at 255, and “drops from the case,” id., at 255, n. 10. The plaintiff then
has “the full and fair opportunity to demonstrate,” through presentation of his own case and through
cross-examination of the defendant’s witnesses, “that the proffered reason was not the true reason
for the employment decision,” id., at 256, and that race was. He retains that “ultimate burden of
persuading the [trier of fact] that [he] has been the victim of intentional discrimination.” Ibid.
The District Court, acting as trier of fact in this bench trial, found that the reasons
petitioners gave were not the real reasons for respondent's demotion and discharge. It found that
respondent was the only supervisor disciplined for violations committed by his subordinates; that
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similar and even more serious violations committed by respondent's co-workers were either
disregarded or treated more leniently; and that Powell manufactured the final verbal confrontation
in order to provoke respondent into threatening him. It nonetheless held that respondent had failed
to carry his ultimate burden of proving that his race was the determining factor in petitioners’
decision first to demote and then to dismiss him.2 In short, the District Court concluded that
“although [respondent] has proven the existence of a crusade to terminate him, he has not proven
that the crusade was racially rather than personally motivated.”
The Court of Appeals set this determination aside on the ground that “[o]nce [respondent]
proved all of [petitioners’] proffered reasons for the adverse employment actions to be pretextual,
[respondent] was entitled to judgment as a matter of law.” The Court of Appeals reasoned:
Because all of defendants’ proffered reasons were discredited, defendants were in
a position of having offered no legitimate reason for their actions. In other words,
defendants were in no better position than if they had remained silent, offering no
rebuttal to an established inference that they had unlawfully discriminated against
plaintiff on the basis of his race.” Ibid.
That is not so. By producing evidence (whether ultimately persuasive or not) of nondiscriminatory
reasons, petitioners sustained their burden of production, and thus placed themselves in a “better
position than if they had remained silent.”
In the nature of things, the determination that a defendant has met its burden of production
(and has thus rebutted any legal presumption of intentional discrimination) can involve no
credibility assessment. For the burden-of-production determination necessarily precedes the
credibility-assessment stage. At the close of the defendant’s case, the court is asked to decide
whether an issue of fact remains for the trier of fact to determine. None does if, on the evidence
presented, (1) any rational person would have to find the existence of facts constituting a prima
facie case, and (2) the defendant has failed to meet its burden of production—i.e., has failed to
introduce evidence which, taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action. In that event, the court must award judgment to
the plaintiff as a matter of law . . . . If the defendant has failed to sustain its burden but reasonable
minds could differ as to whether a preponderance of the evidence establishes the facts of a prima
facie case, then a question of fact does remain, which the trier of fact will be called upon to answer.
If, on the other hand, the defendant has succeeded in carrying its burden of production, the
McDonnell Douglas framework—with its presumptions and burdens—is no longer relevant. To
resurrect it later, after the trier of fact has determined that what was “produced” to meet the burden
of production is not credible, flies in the face of our holding in Burdine that to rebut the presumption
“[t]he defendant need not persuade the court that it was actually motivated by the proffered
reasons.” 450 U.S. at 254. The presumption, having fulfilled its role of forcing the defendant to
come forward with some response, simply drops out of the picture. Id. at 255. The defendant’s
“production” (whatever its persuasive effect) having been made, the trier of fact proceeds to decide
the ultimate question: whether plaintiff has proven “that the defendant intentionally discriminated
against [him]” because of his race, id., at 253. The factfinder’s disbelief of the reasons put forward
by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may,
2

Various considerations led it to this conclusion, including the fact that two blacks sat on the disciplinary
review board that recommended disciplining respondent, that respondent's black subordinates who actually
committed the violations were not disciplined, and that “the number of black employees at St. Mary’s
remained constant.”

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together with the elements of the prima facie case, suffice to show intentional discrimination. Thus,
rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact
of intentional discrimination, and the Court of Appeals was correct when it noted that, upon such
rejection, “[n]o additional proof of discrimination is required.” But the Court of Appeals’ holding
that rejection of the defendant’s proffered reasons compels judgment for the plaintiff disregards the
fundamental principle . . . that a presumption does not shift the burden of proof, and ignores our
repeated admonition that the Title VII plaintiff at all times bears the “ultimate burden of
persuasion.”
....
IV
. . . . What appears to trouble the dissent more than anything is that, in its view, our rule is adopted
“for the benefit of employers who have been found to have given false evidence in a court of law,”
whom we “favo[r]” by “exempting them from responsibility for lies.” [O]ur rule in no way gives
special favor to those employers whose evidence is disbelieved. But initially we must point out that
there is no justification for assuming (as the dissent repeatedly does) that those employers whose
evidence is disbelieved are perjurers and liars. Even if these were typically cases in which an
individual defendant’s sworn assertion regarding a physical occurrence was pitted against an
individual plaintiff’s sworn assertion regarding the same physical occurrence, surely it would be
imprudent to call the party whose assertion is (by a mere preponderance of the evidence)
disbelieved, a perjurer and a liar. And in these Title VII cases, the defendant is ordinarily not an
individual but a company, which must rely upon the statement of an employee—often a relatively
low-level employee—as to the central fact; and that central fact is not a physical occurrence, but
rather that employee's state of mind. To say that the company which in good faith introduces such
testimony, or even the testifying employee himself, becomes a liar and a perjurer when the
testimony is not believed, is nothing short of absurd.
Undoubtedly some employers (or at least their employees) will be lying. But even if we
could readily identify these perjurers, what an extraordinary notion, that we “exempt them from
responsibility for their lies” unless we enter Title VII judgments for the plaintiffs! Title VII is not
a cause of action for perjury; we have other civil and criminal remedies for that.
....
We reaffirm today what we said in [United States Postal Service v. Aikens, 460 U.S. 711,
716 (1983)]:
[T]he question facing triers of fact in discrimination cases is both sensitive and
difficult. The prohibitions against discrimination contained in the Civil Rights Act
of 1964 reflect an important national policy. There will seldom be ‘eyewitness'
testimony as to the employer's mental processes. But none of this means that trial
courts or reviewing courts should treat discrimination differently from other
ultimate questions of fact. Nor should they make their inquiry even more difficult
by applying legal rules which were devised to govern ‘the basic allocation of
burdens and order of presentation of proof,’ Burdine, 450 U.S., at 252, in deciding
this ultimate question.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion.
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Justice SOUTER, with whom Justice WHITE, Justice BLACKMUN, and Justice STEVENS join,
dissenting.
Twenty years ago, in McDonnell Douglas Corp. v. Green, this Court unanimously
prescribed a “sensible, orderly way to evaluate the evidence” in a Title VII disparate-treatment
case, giving both plaintiff and defendant fair opportunities to litigate “in light of common
experience as it bears on the critical question of discrimination.” We have repeatedly reaffirmed
and refined the McDonnell Douglas framework . . . . But today, after two decades of stable law in
this Court . . . the Court abandons this practical framework together with its central purpose, which
is “to sharpen the inquiry into the elusive factual question of intentional discrimination.” Ignoring
language to the contrary in both McDonnell Douglas and Burdine, the Court holds that, once a Title
VII plaintiff succeeds in showing at trial that the defendant has come forward with pretextual
reasons for its actions in response to a prima facie showing of discrimination, the factfinder still
may proceed to roam the record, searching for some nondiscriminatory explanation that the
defendant has not raised and that the plaintiff has had no fair opportunity to disprove. Because the
majority departs from settled precedent in substituting a scheme of proof for disparate-treatment
actions that promises to be unfair and unworkable, I respectfully dissent.
The McDonnell Douglas framework that the Court inexplicably casts aside today was
summarized neatly in Burdine:
“First, the plaintiff has the burden of proving by the preponderance of the evidence a prima
facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the
burden shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the
employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the
defendant were not its true reasons, but were a pretext for discrimination.” 450 U.S., at 252–253
(citations and internal quotation marks omitted).
We adopted this three-step process to implement, in an orderly fashion, “[t]he language of
Title VII,” which “makes plain the purpose of Congress to assure equality of employment
opportunities and to eliminate those discriminatory practices and devices which have fostered
racially stratified job environments to the disadvantage of minority citizens.” 411 U.S., at 800.
Because “Title VII tolerates no racial discrimination, subtle or otherwise,” id., at 801, we devised
a framework that would allow both plaintiffs and the courts to deal effectively with employment
discrimination revealed only through circumstantial evidence. See Aikens, supra, at 716 (“There
will seldom be ‘eyewitness' testimony as to the employer's mental processes”). This framework has
gained wide acceptance . . . . Given our assumption that “people do not act in a totally arbitrary
manner, without any underlying reasons, especially in a business setting,” we have explained that
a prima facie case implies discrimination “because we presume [the employer’s] acts, if otherwise
unexplained, are more likely than not based on the consideration of impermissible factors.” Furnco,
438 U.S., at 577.
Under McDonnell Douglas and Burdine, however, proof of a prima facie case not only
raises an inference of discrimination; in the absence of further evidence, it also creates a mandatory
presumption in favor of the plaintiff. Although the employer bears no trial burden at all until the
plaintiff proves his prima facie case, once the plaintiff does so the employer must either respond or
lose. As we made clear in Burdine, “[I]f the employer is silent in the face of the presumption, the
court must enter judgment for the plaintiff.” Id., at 254. Thus, if the employer remains silent
because it acted for a reason it is too embarrassed to reveal, or for a reason it fails to discover, the
plaintiff is entitled to judgment under Burdine.
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Obviously, it would be unfair to bar an employer from coming forward at this stage with a
nondiscriminatory explanation for its actions, since the lack of an open position and the plaintiff’s
lack of qualifications do not exhaust the set of nondiscriminatory reasons that might explain an
adverse personnel decision. If the trier of fact could not consider other explanations, employers’
autonomy would be curtailed far beyond what is needed to rectify the discrimination identified by
Congress. Cf. Furnco, supra, at 577–578 (Title VII “does not impose a duty to adopt a hiring
procedure that maximizes hiring of minority employees”). On the other hand, it would be equally
unfair and utterly impractical to saddle the victims of discrimination with the burden of either
producing direct evidence of discriminatory intent or eliminating the entire universe of possible
nondiscriminatory reasons for a personnel decision. The Court in McDonnell Douglas reconciled
these competing interests in a very sensible way by requiring the employer to “articulate,” through
the introduction of admissible evidence, one or more “legitimate, nondiscriminatory reason[s]” for
its actions. Proof of a prima facie case thus serves as a catalyst obligating the employer to step
forward with an explanation for its actions. St. Mary’s, in this case, used this opportunity to provide
two reasons for its treatment of Hicks: the severity and accumulation of rule infractions he had
allegedly committed.
The Court emphasizes that the employer's obligation at this stage is only a burden of
production . . . . This much is certainly true, but the obligation also serves an important function
neglected by the majority, in requiring the employer “to frame the factual issue with sufficient
clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.” 450 U.S.,
at 255-256. The employer, in other words, has a “burden of production” that gives it the right to
choose the scope of the factual issues to be resolved by the factfinder. But investing the employer
with this choice has no point unless the scope it chooses binds the employer as well as the plaintiff.
Nor does it make sense to tell the employer, as this Court has done, that its explanation of legitimate
reasons “must be clear and reasonably specific,” if the factfinder can rely on a reason not clearly
articulated, or on one not articulated at all, to rule in favor of the employer.
....
The majority's scheme greatly disfavors Title VII plaintiffs without the good luck to have
direct evidence of discriminatory intent. The Court repeats the truism that the plaintiff has the
“ultimate burden” of proving discrimination, without ever facing the practical question of how the
plaintiff without such direct evidence can meet this burden. Burdine provides the answer, telling us
that such a plaintiff may succeed in meeting his ultimate burden of proving discrimination
“indirectly by showing that the employer’s proffered explanation is unworthy of credence.” 450
U.S., at 256. The possibility of some practical procedure for addressing what Burdine calls indirect
proof is crucial to the success of most Title VII claims, for the simple reason that employers who
discriminate are not likely to announce their discriminatory motive. And yet, under the majority's
scheme, a victim of discrimination lacking direct evidence will now be saddled with the tremendous
disadvantage of having to confront, not the defined task of proving the employer’s stated reasons
to be false, but the amorphous requirement of disproving all possible nondiscriminatory reasons
that a factfinder might find lurking in the record. . . .
....
There is simply no justification for favoring these employers by exempting them from
responsibility for lies. It may indeed be true that such employers have nondiscriminatory reasons
for their actions, but ones so shameful that they wish to conceal them. One can understand human
frailty and the natural desire to conceal it, however, without finding in it a justification to dispense
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with an orderly procedure for getting at “the elusive factual question of intentional discrimination.”
Burdine, 450 U.S., at 255, n. 8, 101 S.Ct., at 1094, n. 8.
With no justification in the employer’s favor, the consequences to actual and potential Title
VII litigants stand out sharply. To the extent that workers like Melvin Hicks decide not to sue, given
the uncertainties they would face under the majority’s scheme, the legislative purpose in adopting
Title VII will be frustrated. To the extent such workers nevertheless decide to press forward, the
result will likely be wasted time, effort, and money for all concerned. . . .
The enhancement of a Title VII plaintiff’s burden wrought by the Court's opinion is
exemplified in this case. Melvin Hicks was denied any opportunity, much less a full and fair one,
to demonstrate that the supposedly nondiscriminatory explanation for his demotion and
termination, the personal animosity of his immediate supervisor, was unworthy of credence. In fact,
the District Court did not find that personal animosity (which it failed to recognize might be racially
motivated) was the true reason for the actions St. Mary’s took; it adduced this reason simply as a
possibility in explaining that Hicks had failed to prove “that the crusade [to terminate him] was
racially rather than personally motivated.” It is hardly surprising that Hicks failed to prove anything
about this supposed personal crusade, since St. Mary’s never articulated such an explanation for
Hicks’s discharge, and since the person who allegedly conducted this crusade denied at trial any
personal difficulties between himself and Hicks. . . . [T]he majority provides Hicks with no
opportunity to produce evidence showing that the District Court’s hypothesized explanation, first
articulated six months after trial, is unworthy of credence. Whether Melvin Hicks wins or loses on
remand, many plaintiffs in a like position will surely lose under the scheme adopted by the Court
today, unless they possess both prescience and resources beyond what this Court has previously
required Title VII litigants to employ.
Because I see no reason why Title VII interpretation should be driven by concern for
employers who are too ashamed to be honest in court, at the expense of victims of discrimination
who do not happen to have direct evidence of discriminatory intent, I respectfully dissent.

Note
St. Mary’s Honor Center v. Hicks did not, as it turns, out, bring closure to the McDonnell
Douglas controversy. In 2000, the Supreme Court came back to the issue in Reeves v. Sanderson
Plumbing Products.

Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000)
Justice O’CONNOR delivered the opinion of the Court.
This case concerns the kind and amount of evidence necessary to sustain a jury’s verdict
that an employer unlawfully discriminated on the basis of age. Specifically, we must resolve
whether a defendant is entitled to judgment as a matter of law when the plaintiff’s case consists
exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to
disbelieve the defendant’s legitimate, nondiscriminatory explanation for its action. We must also
decide whether the employer was entitled to judgment as a matter of law under the particular
circumstances presented here.
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I
In October 1995, petitioner Roger Reeves was 57 years old and had spent 40 years in the
employ of respondent, Sanderson Plumbing Products, Inc., a manufacturer of toilet seats and
covers. Petitioner worked in a department known as the “Hinge Room,” where he supervised the
“regular line.” Joe Oswalt, in his mid-thirties, supervised the Hinge Room’s “special line,” and
Russell Caldwell, the manager of the Hinge Room and age 45, supervised both petitioner and
Oswalt. Petitioner's responsibilities included recording the attendance and hours of those under his
supervision, and reviewing a weekly report that listed the hours worked by each employee.
In the summer of 1995, Caldwell informed Powe Chesnut, the director of manufacturing
and the husband of company president Sandra Sanderson, that “production was down” in the Hinge
Room because employees were often absent and were “coming in late and leaving early.” Because
the monthly attendance reports did not indicate a problem, Chesnut ordered an audit of the Hinge
Room’s timesheets for July, August, and September of that year. According to Chesnut’s
testimony, that investigation revealed “numerous timekeeping errors and misrepresentations on the
part of Caldwell, Reeves, and Oswalt.” Following the audit, Chesnut, along with Dana Jester, vice
president of human resources, and Tom Whitaker, vice president of operations, recommended to
company president Sanderson that petitioner and Caldwell be fired. In October 1995, Sanderson
followed the recommendation and discharged both petitioner and Caldwell.
In June 1996, petitioner filed suit in the United States District Court for the Northern
District of Mississippi, contending that he had been fired because of his age in violation of the Age
Discrimination in Employment Act of 1967 (ADEA). At trial, respondent contended that it had
fired petitioner due to his failure to maintain accurate attendance records, while petitioner attempted
to demonstrate that respondent’s explanation was pretext for age discrimination.
Petitioner introduced evidence that he had accurately recorded the attendance and hours of the
employees under his supervision, and that Chesnut, whom Oswalt described as wielding “absolute
power” within the company had demonstrated age-based animus in his dealings with petitioner.
[After trial,] the jury returned a verdict in favor of petitioner, awarding him $35,000 in
compensatory damages . . . . The District Court denied respondent’s motions [for a new trial].
The Court of Appeals for the Fifth Circuit reversed, holding that petitioner had not
introduced sufficient evidence to sustain the jury's finding of unlawful discrimination. After noting
respondent’s proffered justification for petitioner’s discharge, the court acknowledged that
petitioner “very well may” have offered sufficient evidence for “a reasonable jury [to] have found
that [respondent’s] explanation for its employment decision was pretextual.” The court explained,
however, that this was “not dispositive” of the ultimate issue—namely, “whether Reeves presented
sufficient evidence that his age motivated [respondent’s] employment decision.” [T]he court noted
that Chesnut’s age-based comments “were not made in the direct context of Reeves’s termination”;
there was no allegation that the two other individuals who had recommended that petitioner be fired
(Jester and Whitaker) were motivated by age; two of the decisionmakers involved in petitioner’s
discharge (Jester and Sanderson) were over the age of 50; all three of the Hinge Room supervisors
were accused of inaccurate recordkeeping; and several of respondent’s management positions were
filled by persons over age 50 when petitioner was fired. On this basis, the court concluded that
petitioner had not introduced sufficient evidence for a rational jury to conclude that he had been
discharged because of his age.
We granted certiorari to resolve a conflict among the Courts of Appeals as to whether a
plaintiff’s prima facie case of discrimination . . . combined with sufficient evidence for a reasonable
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factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to
sustain a finding of liability for intentional discrimination.
II
Under the ADEA, it is “unlawful for an employer . . . to fail or refuse to hire or to discharge
any individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s age.” . . . Recognizing
that “the question facing triers of fact in discrimination cases is both sensitive and difficult,” and
that “[t]here will seldom be ‘eyewitness’ testimony as to the employer’s mental processes,” U.S.
Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 716 (1983), the Courts of Appeals,
including the Fifth Circuit in this case, have employed some variant of the framework articulated
in McDonnell Douglas to analyze ADEA claims that are based principally on circumstantial
evidence. . . . Because the parties do not dispute the issue, we shall assume, arguendo, that the
McDonnell Douglas framework is fully applicable here. . . .
In this case, the evidence supporting respondent’s explanation for petitioner’s discharge
consisted primarily of testimony by Chesnut and Sanderson and documentation of petitioner’s
alleged “shoddy record keeping.” Chesnut testified that a 1993 audit of Hinge Room operations
revealed “a very lax assembly line” where employees were not adhering to general work rules. As
a result of that audit, petitioner was placed on 90 days’ probation for unsatisfactory performance.
In 1995, Chesnut ordered another investigation of the Hinge Room, which, according to his
testimony, revealed that petitioner was not correctly recording the absences and hours of
employees. Respondent introduced summaries of that investigation documenting several
attendance violations by 12 employees under petitioner’s supervision, and noting that each should
have been disciplined in some manner. Chesnut testified that this failure to discipline absent and
late employees is “extremely important when you are dealing with a union” because uneven
enforcement across departments would keep the company “in grievance and arbitration cases,
which are costly, all the time.” He and Sanderson also stated that petitioner's errors, by failing to
adjust for hours not worked, cost the company overpaid wages. Sanderson testified that she
accepted the recommendation to discharge petitioner because he had “intentionally falsif[ied]
company pay records.”
Petitioner, however, made a substantial showing that respondent’s explanation was false.
First, petitioner offered evidence that he had properly maintained the attendance records. Most of
the timekeeping errors cited by respondent involved employees who were not marked late but who
were recorded as having arrived at the plant at 7 a.m. for the 7 a.m. shift. Respondent contended
that employees arriving at 7 a.m. could not have been at their workstations by 7 a.m., and therefore
must have been late. But both petitioner and Oswalt testified that the company's automated
timeclock often failed to scan employees’ timecards, so that the timesheets would not record any
time of arrival. On these occasions, petitioner and Oswalt would visually check the workstations
and record whether the employees were present at the start of the shift. They stated that if an
employee arrived promptly but the timesheet contained no time of arrival, they would reconcile the
two by marking “7 a.m.” as the employee's arrival time, even if the employee actually arrived at
the plant earlier. Ibid. On cross-examination, Chesnut acknowledged that the timeclock sometimes
malfunctioned, and that if “people were there at their work station[s]” at the start of the shift, the
supervisor “would write in seven o’clock.” Petitioner also testified that when employees arrived
before or stayed after their shifts, he would assign them additional work so they would not be
overpaid.
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Petitioner similarly cast doubt on whether he was responsible for any failure to discipline
late and absent employees. Petitioner testified that his job only included reviewing the daily and
weekly attendance reports, and that disciplinary writeups were based on the monthly reports, which
were reviewed by Caldwell. Sanderson admitted that Caldwell, and not petitioner, was responsible
for citing employees for violations of the company’s attendance policy. Further, Chesnut conceded
that there had never been a union grievance or employee complaint arising from petitioner's
recordkeeping, and that the company had never calculated the amount of overpayments allegedly
attributable to petitioner’s errors. Petitioner also testified that, on the day he was fired, Chesnut
said that his discharge was due to his failure to report as absent one employee, Gina Mae Coley, on
two days in September 1995. But petitioner explained that he had spent those days in the hospital,
and that Caldwell was therefore responsible for any overpayment of Coley. Finally, petitioner
stated that on previous occasions that employees were paid for hours they had not worked, the
company had simply adjusted those employees’ next paychecks to correct the errors.
Based on this evidence, the Court of Appeals concluded that petitioner “very well may be
correct” that “a reasonable jury could have found that [respondent's] explanation for its employment
decision was pretextual.” Nonetheless, the court held that this showing, standing alone, was
insufficient to sustain the jury's finding of liability: “We must, as an essential final step, determine
whether Reeves presented sufficient evidence that his age motivated [respondent's] employment
decision.” And in making this determination, the Court of Appeals ignored the evidence supporting
petitioner's prima facie case and challenging respondent's explanation for its decision. The court
confined its review of evidence favoring petitioner to that evidence showing that Chesnut had
directed derogatory, age-based comments at petitioner, and that Chesnut had singled out petitioner
for harsher treatment than younger employees. It is therefore apparent that the court believed that
only this additional evidence of discrimination was relevant to whether the jury’s verdict should
stand. . . .
In so reasoning, the Court of Appeals misconceived the evidentiary burden borne by
plaintiffs who attempt to prove intentional discrimination through indirect evidence. This much is
evident from our decision in St. Mary’s Honor Center, [supra]. There we held that the factfinder’s
rejection of the employer’s legitimate, nondiscriminatory reason for its action does not compel
judgment for the plaintiff. . . . [H]owever, we reasoned that it is permissible for the trier of fact to
infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Specifically,
we stated:
The factfinder's disbelief of the reasons put forward by the defendant (particularly
if disbelief is accompanied by a suspicion of mendacity) may, together with the
elements of the prima facie case, suffice to show intentional discrimination. Thus,
rejection of the defendant’s proffered reasons will permit the trier of fact to infer
the ultimate fact of intentional discrimination.” Id., at 511.
Proof that the defendant’s explanation is unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it may be quite persuasive. . . .
This is not to say that such a showing by the plaintiff will always be adequate to sustain a
jury’s finding of liability. Certainly there will be instances where, although the plaintiff has
established a prima facie case and set forth sufficient evidence to reject the defendant's explanation,
no rational factfinder could conclude that the action was discriminatory. For instance, an employer
would be entitled to judgment as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff created only a weak issue
of fact as to whether the employer’s reason was untrue and there was abundant and uncontroverted
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independent evidence that no discrimination had occurred. See Fisher v. Vassar College, 114 F.3d
[1332, 1338 (2nd Cir. 1997)] (“[I]f the circumstances show that the defendant gave the false
explanation to conceal something other than discrimination, the inference of discrimination will be
weak or nonexistent”). . . .
III
The remaining question is whether, despite the Court of Appeals’ misconception of
petitioner's evidentiary burden, respondent was nonetheless entitled to judgment as a matter of law.
Applying this standard here, it is apparent that respondent was not entitled to judgment as
a matter of law. In this case, in addition to establishing a prima facie case of discrimination and
creating a jury issue as to the falsity of the employer’s explanation, petitioner introduced additional
evidence that Chesnut was motivated by age-based animus and was principally responsible for
petitioner’s firing. . . .
The District Court was therefore correct to submit the case to the jury, and the Court of Appeals
erred in overturning its verdict.
For these reasons, the judgment of the Court of Appeals is reversed.

Justice GINSBURG, concurring.
The Court today holds that an employment discrimination plaintiff may survive judgment
as a matter of law by submitting two categories of evidence: first, evidence establishing a “prima
facie case” . . . and second, evidence from which a rational factfinder could conclude that the
employer’s proffered explanation for its actions was false. Because the Court of Appeals in this
case plainly, and erroneously, required the plaintiff to offer some evidence beyond those two
categories, no broader holding is necessary to support reversal. . . .

Notes
1. A defeat for antidiscrimination? Some antidiscrimination law scholars objected to the
St. Mary’s Honor Center v. Hicks and Reeves decisions on the ground that they undermined the
power of antidiscrimination law. “[I]n Hicks,” charged Professor Jerome McCristal Culp, “the
Court has again made the point that Title VII should not be too effective or reach too much of the
real discrimination.” Jerome McCristal Culp, Jr., The Michael Jackson Pill, 92 MICH. L. REV.
2613, 2621-22 (1994). Why would this be so, given that both Hicks and Reeves defend the idea
that a plaintiff proving discrimination to a jury ought to win?
2. The end of McDonnell-Douglas? What is left of McDonnell Douglas after St. Mary’s
and Reeves? Professor Deborah Malamud’s classic critique contends that “McDonnell DouglasBurdine is reduced to nothing but an empty ritual.” Deborah C. Malamud, The Last Minuet:
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Disparate Treatment After Hicks, 93 MICH. L. REV. 2229, 2324 (1995). Does the tort theory of res
ipsa loquitor do more or less than the McDonnell Douglas arrangement?
Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit in Chicago has
recently proposed getting rid of the McDonnell Douglas framework altogether:
Perhaps McDonnell Douglas was necessary nearly 40 years ago, when Title VII
litigation was still relatively new in the federal courts. By now, however, as this
case well illustrates, the various tests that we insist lawyers use have lost their
utility. Courts manage tort litigation every day without the ins and outs of these
methods of proof, and I see no reason why employment discrimination litigation
(including cases alleging retaliation) could not be handled in the same
straightforward way. In order to defeat summary judgment, the plaintiff one way
or the other must present evidence showing that she is in a class protected by the
statute, that she suffered the requisite adverse action (depending on her theory),
and that a rational jury could conclude that the employer took that adverse action
on account of her protected class, not for any non-invidious reason. Put differently,
it seems to me that the time has come to collapse all these tests into one. We have
already done so, when it comes to the trial stage of a case.
Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012) (Wood, J., concurring).
3. An alternative vision of antidiscrimination law. Justice Souter’s dissent in Hicks
presented an alternative approach to employment discrimination cases in which plaintiffs would be
able to win damages without proving that their employer had discriminated against them. What
might make Souter’s approach appealing?
Consider the view of Judge Jon O. Newman, then Chief Judge of the U.S. Court of Appeals
for the Second Circuit in 1997, when his Circuit tried to resolve the issue in an unusual en banc
hearing:
The reason for permitting an inference of discrimination from a finding of pretext
is evident. In the context of Title VII lawsuits, the likely motivation for a
defendant, called upon in court to proffer an explanation for its adverse
employment action, to proffer a pretextual explanation is to hide the true
explanation of discrimination. At least, this is generally so in the absence of some
plausible explanation for the pretextual proffer. As we have previously observed,
“Resort to a pretextual explanation is, like flight from the scene of a crime,
evidence indicating consciousness of guilt, which is, of course, evidence of illegal
conduct.”
Fisher v. Vassar College, 114 F.3d 1332, 1379 (Newman, C.J., dissenting).
Fisher involved a suit arising out of the denial of tenure to Cynthia Fisher, who had been
an assistant professor of biology at Vassar in the 1980s. Judge Guido Calabresi put his own gloss
on the burden shifting arrangement:
There are situations in which it makes sense to force the defendant to explain itself
and its actions, once a plaintiff has shown facts which, though too weak to
demonstrate more probably than not that the defendant should be liable, are
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nevertheless sufficiently linked to possible wrongdoing by the defendant to justify
an explanation. In the end, whether one says that such a showing by the plaintiff
gives rise to an inference, a temporary presumption, or a prima facie case (or, for
that matter, Thucydides or Mustard Plaster) is relatively unimportant. What counts
is that we not let verbal confusions keep us from the result that Title VII—as long
interpreted by the courts—seeks to achieve: that the plaintiff can force an
explanation out of the defendant with relative ease, but that the defendant can only
be held liable (once an answer is given) when a finding of discrimination is truly
supported by the facts. The majority stays true to that course, and I therefore join
it in this respect.
Fisher v. Vassar College, 114 F.3d at 1357–58 (Calabresi, J., concurring in part and dissenting in
part). Does the information-forcing dimension of Calabresi’s approach to Fisher survive the
Supreme Court’s decision in Reeves, which was decided three years later?

B. Proof and Disparate Impact
Title VII prohibits employment discrimination based on race, color, religion, sex and national
origin – but what does that mean in practice?
In the early years of the Civil Rights Act, lower courts ruled that there was no violation of
Title VII unless an employer treated employees disparately on the basis of their race. However, in
1971, at the urging of the Nixon administration, and in accordance with the guidelines of the Equal
Employment Opportunity Commission (EEOC), the Supreme Court decided that a neutral
employment policy with a “disparate impact” on people in a protected classification could also
violate Title VII. The precise meaning of this ruling, which came in the case of Griggs v. Duke
Power Co., has been contested for a half-century. All agree that its meaning was substantially
reshaped in the 1989 case Wards Cove Packing Co. v. Atonio. The decision in Wards Cove was
made in the same term in which the Court issued a major decision rejecting an affirmative action
program as unconstitutional under the Equal Protection Case. See City of Richmond v. J.A. Croson
Co., 488 U.S. 469 (1989).
In 1991, Congress responded to Wards Cove by amending the Civil Rights Act and
codifying the disparate impact standard. The two key cases and the 1991 statutory amendments
follow.
1. Griggs v. Duke Power Co., 401 U.S. 424 (1971)
BURGER, Chief Justice:
.
We granted the writ in this case to resolve the question whether an employer is prohibited by the
Civil Rights Act of 1964, Title VII, from requiring a high school education or passing of a
standardized general intelligence test as a condition of employment in or transfer to jobs when (a)
neither standard is shown to be significantly related to successful job performance, (b) both
requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and
(c) the jobs in question formerly had been filled only by white employees as part of a longstanding
practice of giving preference to whites.
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[T]his proceeding was brought [in the U.S. District Court for the Middle District of North Carolina]
by a group of incumbent Negro employees against Duke Power Company. All the petitioners are
employed at the Company’s Dan River Steam Station, a power generating facility located at Draper,
North Carolina. At the time this action was instituted, the Company had 95 employees at the Dan
River Station, 14 of whom were Negroes; 13 of these are petitioners here.
The District Court found that prior to July 2, 1965, the effective date of the Civil Rights
Act of 1964, the Company openly discriminated on the basis of race in the hiring and assigning of
employees at its Dan River plant. The plant was organized into five operating departments: (1)
Labor, (2) Coal Handling, (3) Operations, (4) Maintenance, and (5) Laboratory and Test. Negroes
were employed only in the Labor Department where the highest paying jobs paid less than the
lowest paying jobs in the other four ‘operating’ departments in which only whites were employed.
Promotions were normally made within each department on the basis of job seniority. Transferees
into a department usually began in the lowest position.
In 1955 the Company instituted a policy of requiring a high school education for initial
assignment to any department except Labor, and for transfer from the Coal Handling to any ‘inside’
department (Operations, Maintenance, or Laboratory). When the Company abandoned its policy of
restricting Negroes to the Labor Department in 1965, completion of high school also was made a
prerequisite to transfer from Labor to any other department. From the time the high school
requirement was instituted to the time of trial, however, white employees hired before the time of
the high school education requirement continued to perform satisfactorily and achieve promotions
in the ‘operating’ departments. Findings on this score are not challenged.
The Company added a further requirement for new employees on July 2, 1965, the date on
which Title VII became effective. To qualify for placement in any but the Labor Department it
become necessary to register satisfactory scores on two professionally prepared aptitude tests, as
well as to have a high school education. Completion of high school alone continued to render
employees eligible for transfer to the four desirable departments from which Negroes had been
excluded if the incumbent had been employed prior to the time of the new requirement. . . .
The District Court had found that while the Company previously followed a policy of overt
racial discrimination in a period prior to the Act, such conduct had ceased. The District Court also
concluded that Title VII was intended to be prospective only and, consequently, the impact of prior
inequities was beyond the reach of corrective action authorized by the Act.
The Court of Appeals [for the Fourth Circuit] was confronted with a question of first
impression, as are we, concerning the meaning of Title VII. After careful analysis a majority of that
court concluded that a subjective test of the employer’s intent should govern, particularly in a close
case, and that in this case there was no showing of a discriminatory purpose in the adoption of the
diploma and test requirements. On this basis, the Court of Appeals concluded there was no violation
of the Act.
The Court of Appeals reversed the District Court in part, rejecting the holding that residual
discrimination arising from prior employment practices was insulated from remedial action. The
Court of Appeals noted, however, that the District Court was correct in its conclusion that there
was no showing of a racial purpose or invidious intent in the adoption of the high school diploma
requirement or general intelligence test and that these standards had been applied fairly to whites
and Negroes alike. It held that, in the absence of a discriminatory purpose, use of such requirements
was permitted by the Act. In so doing, the Court of Appeals rejected the claim that because these
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two requirements operated to render ineligible a markedly disproportionate number of Negroes,
they were unlawful under Title VII unless shown to be job related. We granted the writ on these
claims.

The objective of Congress in the enactment of Title VII is plain from the language
of the statute. It was to achieve equality of employment opportunities and remove barriers
that have operated in the past to favor an identifiable group of white employees over other
employees. Under the Act, practices, procedures, or tests neutral on their face, and even
neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo
of prior discriminatory employment practices.
The Court of Appeals’ opinion, and the partial dissent, agreed that, on the record in
the present case, “whites register far better on the Company’s alternative requirements”
than Negroes. This consequence would appear to be directly traceable to race. Basic
intelligence must have the means of articulation to manifest itself fairly in a testing process.
Because they are Negroes, petitioners have long received inferior education in segregated
schools . . . . There, because of the inferior education received by Negroes in North
Carolina, this Court barred the institution of a literacy test for voter registration on the
ground that the test would abridge the right to vote indirectly on account of race. Congress
did not intend by Title VII, however, to guarantee a job to every person regardless of
qualifications. In short, the Act does not command that any person be hired simply because
he was formerly the subject of discrimination, or because he is a member of a minority
group. Discriminatory preference for any group, minority or majority, is precisely and only
what Congress has proscribed. What is required by Congress is the removal of artificial,
arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to
discriminate on the basis of racial or other impermissible classification.
Congress has now provided that tests or criteria for employment or promotion may
not provide equality of opportunity merely in the sense of the fabled offer of milk to the
stork and the fox. On the contrary, Congress has now required that the posture and
condition of the job-seeker be taken into account. It has -- to resort again to the fable -provided that the vessel in which the milk is proffered be one all seekers can use. The Act
proscribes not only overt discrimination but also practices that are fair in form, but
discriminatory in operation. The touchstone is business necessity. If an employment
practice which operates to exclude Negroes cannot be shown to be related to job
performance, the practice is prohibited.
On the record before us, neither the high school completion requirement nor the
general intelligence test is shown to bear a demonstrable relationship to successful
performance of the jobs for which it was used. Both were adopted, as the Court of Appeals
noted, without meaningful study of their relationship to job-performance ability. Rather, a
vice president of the Company testified, the requirements were instituted on the Company’s
judgment that they generally would improve the overall quality of the work force.
The evidence, however, shows that employees who have not completed high school
or taken the tests have continued to perform satisfactorily and make progress in
departments for which the high school and test criteria are now used….
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The Court of Appeals held that the Company had adopted the diploma and test
requirements without any “intention to discriminate against Negro employees.” 420 F.2d,
at 1232. We do not suggest that either the District Court or the Court of Appeals erred in
examining the employer’s intent; but good intent or absence of discriminatory intent does
not redeem employment procedures or testing mechanisms that operate as “built-in
headwinds” for minority groups and are unrelated to measuring job capability.
The Company’s lack of discriminatory intent is suggested by special efforts to help
the undereducated employees through Company financing of two-thirds the cost of tuition
for high school training. But Congress directed the thrust of the Act to the consequences of
employment practices, not simply the motivation. More than that, Congress has placed on
the employer the burden of showing that any given requirement must have a manifest
relationship to the employment in question.
The facts of this case demonstrate the inadequacy of broad and general testing
devices as well as the infirmity of using diplomas or degrees as fixed measures of capability.
History is filled with examples of men and women who rendered highly effective
performance without the conventional badges of accomplishment in terms of certificates,
diplomas, or degrees. Diplomas and tests are useful servants, but Congress has mandated
the commonsense proposition that they are not to become masters of reality.
Notes
1. Administrative deference. Note that the unanimous Court in Griggs (absent Justice William
Brennan, who took no part in the case) refers to the guidelines of the EEOC as entitled to great
deference: “The Equal Employment Opportunity Commission, having enforcement responsibility,
has issued guidelines interpreting § 703(h) to permit only the use of job-related tests. The
administrative interpretation of the Act by the enforcing agency is entitled to great deference. . . .
Since the Act and its legislative history support the Commission’s construction, this affords good
reason to treat the guidelines as expressing the will of Congress.” Id. at 433-34.
2. What is the standard for business necessity? The courts at all levels accepted the finding that
the aptitude tests in general – one of general intelligence, one of mechanical knowledge – were
reputable. In light of this, and the vice president’s view that their use would improve the general
quality of the workforce, what more is needed to prove their impact on job performance? In passing,
the Court noted that the Company could have argued (though the Court doubted it would prevail)
that the tests bore on the candidate’s likelihood to be promoted to higher positions in the company.
If that is true, is that a legitimate business need? What magnitude of demonstrable performance
improvement from the filtering mechanism should be required?
3. How irrelevant is intent? Is Griggs a case about the disparate impact of neutral standards?
Or about the purposeful use of neutral standards to treat people differently on the basis of their
race? The Court noted that the Company only began to require high school diplomas and aptitude
tests after the Civil Rights Act went into effect. Do you think the Court would have decided
differently, had those requirements been instated in 1955, the same year high school became
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required for the higher paid departments (in which only whites were employed, thus filtering out
less educated whites)? What if anything does Griggs say about a non-bad-faith neutral standard
that disparately impacts job applicants on the basis of race?

4. Does Griggs require quotas? Critics charged that Griggs, combined with the subsequent
decision in Albemarle Paper Company v. Moody, 422 U.S. 405 (1975) (considering the showing
an employer must make to establish that employee selection tests are sufficiently job-related to
withstand attack under Title VII), effectively led to the death of employee-selection tests through
overly strict adherence to unrealistic EEOC standards. Others charged that Griggs and Albemarle
Paper required companies to adopt quotas to avoid costly litigation. See James G. Johnson,
Albermarle Paper Company v. Moody: The Aftermath of Griggs and the Death of Employee
Testing, 27 Hastings L.J. 1239 (1976).
5. Modern “headwinds?” One context for the Company’s decision was the explosion of the
social sciences and psychology-inflected industrial organization in the 1960s. Does the ostensible
meritocracy of the late twentieth and early twenty-first century erect its own headwinds? Are entry
requirements for modern jobs and schools a way of compounding the results of past discrimination?
Should the Griggs principle be understood to rule out the widespread use of preferences or proxies?
What about a magazine or publisher that strongly prefers résumés listing Ivies or élite liberal arts
colleges, rather than selecting employees or interns based on a standard, blindly-graded writing
assignment? What if the blind-graded writing assignment produced a disparate impact along lines
of race or some other prohibited Civil Rights Act classification?
6. Griggs Power provided that plaintiffs have established a prima facie case of an employment
practice with a disparate impact, employers have the burden of proving the practice’s business
necessity. But how does one make a prima facie case? The Court took up this question in Wards
Cove Packing Co.:
2. Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989)
WHITE, Justice:
I
The claims before us are disparate-impact claims, involving the employment practices of
petitioners, two companies that operate salmon canneries in remote and widely separated areas of
Alaska. . . . [B]ecause the canneries are located in remote regions, all workers are housed at the
canneries and have their meals in company-owned mess halls.
Jobs at the canneries are of two general types: “cannery jobs” on the cannery line, which
are unskilled positions; and “noncannery jobs,” which fall into a variety of classifications. Most
noncannery jobs are classified as skilled positions. Cannery jobs are filled predominantly by
nonwhites: Filipinos and Alaska Natives. The Filipinos are hired through, and dispatched by, Local
37 of the International Longshoremen’s and Warehousemen’s Union pursuant to a hiring hall
agreement with the local. The Alaska Natives primarily reside in villages near the remote cannery
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locations. Noncannery jobs are filled with predominantly white workers, who are hired during the
winter months from the companies’ offices in Washington and Oregon. Virtually all of the
noncannery jobs pay more than cannery positions. The predominantly white noncannery workers
and the predominantly nonwhite cannery employees live in separate dormitories and eat in separate
mess halls.
In 1974, respondents, a class of nonwhite cannery workers who were (or had been)
employed at the canneries, brought this Title VII action against petitioners. Respondents alleged
that a variety of petitioners’ hiring/promotion practices—e.g., nepotism, a rehire preference, a lack
of objective hiring criteria, separate hiring channels, a practice of not promoting from within—
were responsible for the racial stratification of the work force and had denied them and other
nonwhites employment as noncannery workers on the basis of race. Respondents also complained
of petitioners’ racially segregated housing and dining facilities. All of respondents’ claims were
advanced under both the disparate-treatment and disparate-impact theories of Title VII liability.
[After a bench trial,] the District Court . . . rejected all of respondents’ disparate-treatment
claims. It also rejected the disparate-impact challenges involving the subjective employment
criteria used by petitioners to fill these noncannery positions, on the ground that those criteria were
not subject to attack under a disparate-impact theory. Petitioners’ “objective” employment practices
(e.g., an English language requirement, alleged nepotism in hiring, failure to post noncannery
openings, the rehire preference, etc.) were found to be subject to challenge under the disparateimpact theory, but these claims were rejected for failure of proof. Judgment was entered for
petitioners.
On appeal, a panel of the Ninth Circuit affirmed, but that decision was vacated when the Court of
Appeals agreed to hear the case en banc . . . . [T]he Court of Appeals held . . . that disparate-impact
analysis could be applied to subjective hiring practices. The Ninth Circuit also concluded that in
such a case, “[o]nce the plaintiff class has shown disparate impact caused by specific, identifiable
employment practices or criteria, the burden shifts to the employer” to “prov[e the] business
necessity” of the challenged practice. . . .
On remand, the [Ninth Circuit] panel . . . held that respondents had made out a prima facie case of
disparate impact in hiring for both skilled and unskilled noncannery positions. The panel remanded
the case for further proceedings, instructing the District Court that it was the employer’s burden to
prove that any disparate impact caused by its hiring and employment practices was justified by
business necessity. Neither the en banc court nor the panel disturbed the District Court’s rejection
of the disparate-treatment claims.
[W]e granted certiorari for the purpose of addressing . . . the proper application of Title
VII’s disparate-impact theory of liability.
II
In holding that respondents had made out a prima facie case of disparate impact, the Court
of Appeals relied solely on respondents' statistics showing a high percentage of nonwhite workers
in the cannery jobs and a low percentage of such workers in the noncannery positions. Although
statistical proof can alone make out a prima facie case, the Court of Appeals’ ruling here
misapprehends our precedents and the purposes of Title VII, and we therefore reverse.
“There can be no doubt,” . . . “that the . . . comparison . . . fundamentally misconceived the
role of statistics in employment discrimination cases.” The “proper comparison [is] between the
racial composition of [the at-issue jobs] and the racial composition of the qualified ... population in
the relevant labor market.” [citation omitted] It is such a comparison—between the racial
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composition of the qualified persons in the labor market and the persons holding at-issue jobs—
that generally forms the proper basis for the initial inquiry in a disparate-impact case. . . .
It is clear to us that the Court of Appeals’ acceptance of the comparison between the racial
composition of the cannery work force and that of the noncannery work force, as probative of a
prima facie case of disparate impact in the selection of the latter group of workers, was flawed for
several reasons. Most obviously, with respect to the skilled noncannery jobs at issue here, the
cannery work force in no way reflected “the pool of qualified job applicants” or the
“qualified population in the labor force.” Measuring alleged discrimination in the selection of
accountants, managers, boat captains, electricians, doctors, and engineers -- and the long list of
other “skilled” noncannery positions found to exist by the District Court -- by comparing the
number of nonwhites occupying these jobs to the number of nonwhites filling cannery worker
positions is nonsensical. If the absence of minorities holding such skilled positions is due to a dearth
of qualified nonwhite applicants (for reasons that are not petitioners’ fault), petitioners’ selection
methods or employment practices cannot be said to have had a “disparate impact” on nonwhites.
One example illustrates why this must be so. Respondents’ own statistics concerning the
noncannery work force at one of the canneries at issue here indicate that approximately 17% of the
new hires for medical jobs, and 15% of the new hires for officer worker positions, were nonwhite.
If it were the case that less than 15 to 17% of the applicants for these jobs were nonwhite and that
nonwhites made up a lower percentage of the relevant qualified labor market, it is hard to see how
respondents, without more, would have made out a prima facie case of disparate impact. Yet, under
the Court of Appeals’ theory, simply because nonwhites comprise 52% of the cannery workers at
the cannery in question, respondents would be successful in establishing a prima facie case of racial
discrimination under Title VII.
Such a result cannot be squared with our cases or with the goals behind the statute. The
Court of Appeals’ theory, at the very least, would mean that any employer who had a segment of
his work force that was -- for some reason -- racially imbalanced, could be haled into court and
forced to engage in the expensive and time-consuming task of defending the “business necessity”
of the methods used to select the other members of his work force. The only practicable option for
many employers would be to adopt racial quotas, insuring that no portion of their work forces
deviated in racial composition from the other portions thereof; this is a result that Congress
expressly rejected in drafting Title VII. . . .
III
Since the statistical disparity relied on by the Court of Appeals did not suffice to make out
a prima facie case, any inquiry by us into whether the specific challenged employment practices of
petitioners caused that disparity is pretermitted, as is any inquiry into whether the disparate impact
that any employment practice may have had was justified by business considerations. . . .
If, on remand, respondents meet the proof burdens outlined above, and establish a prima
facie case of disparate impact with respect to any of petitioners’ employment practices, the case
will shift to any business justification petitioners offer for their use of these practices. This phase
of the disparate-impact case contains two components: first, a consideration of the justifications an
employer offers for his use of these practices; and second, the availability of alternative practices
to achieve the same business ends, with less racial impact. We consider these two components in
turn.

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(1)
Though we have phrased the query differently in different cases, it is generally well
established that at the justification stage of such a disparate-impact case, the dispositive issue is
whether a challenged practice serves, in a significant way, the legitimate employment goals of the
employer. The touchstone of this inquiry is a reasoned review of the employer’s justification for
his use of the challenged practice. A mere insubstantial justification in this regard will not suffice,
because such a low standard of review would permit discrimination to be practiced through the use
of spurious, seemingly neutral employment practices. At the same time, though, there is no
requirement that the challenged practice be “essential” or “indispensable” to the employer’s
business for it to pass muster: this degree of scrutiny would be almost impossible for most
employers to meet, and would result in a host of evils we have identified above.
In this phase, the employer carries the burden of producing evidence of a business
justification for his employment practice. The burden of persuasion, however, remains with the
disparate-impact plaintiff. To the extent that the Ninth Circuit held otherwise in its en banc decision
in this case, or in the panel’s decision on remand -- suggesting that the persuasion burden should
shift to petitioners once respondents established a prima facie case of disparate impact -- its
decisions were erroneous. “[T]he ultimate burden of proving that discrimination against a protected
group has been caused by a specific employment practice remains with the plaintiff at all
times.” Watson [v. Fort Worth Bank & Trust, 487 U.S.] at 997 (O’Connor, J.) (emphasis added).
This rule conforms with the usual method for allocating persuasion and production burdens in the
federal courts, and more specifically, it conforms to the rule in disparate-treatment cases that the
plaintiff bears the burden of disproving an employer’s assertion that the adverse employment action
or practice was based solely on a legitimate neutral consideration. . . . The persuasion burden here
must remain with the plaintiff, for it is he who must prove that it was “because of such individual’s
race, color,” etc., that he was denied a desired employment opportunity.
(2)
Finally, if on remand the case reaches this point, and respondents cannot persuade the trier
of fact on the question of petitioners’ business necessity defense, respondents may still be able to
prevail. To do so, respondents will have to persuade the factfinder that “other tests or selection
devices, without a similarly undesirable racial effect, would also serve the employer’s legitimate
[hiring] interest[s]”; by so demonstrating, respondents would prove that “[petitioners were] using
[their] tests merely as a ‘pretext’ for discrimination.” Albemarle Paper Co., supra, at 425. If
respondents, having established a prima facie case, come forward with alternatives to petitioners’
hiring practices that reduce the racially disparate impact of practices currently being used, and
petitioners refuse to adopt these alternatives, such a refusal would belie a claim by petitioners that
their incumbent practices are being employed for nondiscriminatory reasons.
Of course, any alternative practices which respondents offer up in this respect must be
equally effective as petitioners’ chosen hiring procedures in achieving petitioners’ legitimate
employment goals. Moreover, “[ f]actors such as the cost or other burdens of proposed alternative
selection devices are relevant in determining whether they would be equally as effective as the
challenged practice in serving the employer’s legitimate business goals.” Watson, supra, at
998 (O’Connor, J.). . . .

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IV
For the reasons given above, the judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings consistent with this opinion.
It is so ordered.
[Justice BLACKMUN, dissenting:]
I fully concur in Justice Stevens’ analysis of this case. Today a bare majority of the Court
takes three major strides backwards in the battle against race discrimination. It reaches out to make
last Term’s plurality opinion in Watson v. Fort Worth Bank & Trust, 487 U.S. 977 (1988), the law,
thereby upsetting the longstanding distribution of burdens of proof in Title VII disparate-impact
cases. It bars the use of internal work force comparisons in the making of a prima facie case of
discrimination, even where the structure of the industry in question renders any other statistical
comparison meaningless. And it requires practice-by-practice statistical proof of causation, even
where, as here, such proof would be impossible.
The harshness of these results is well demonstrated by the facts of this case. The salmon
industry as described by this record takes us back to a kind of overt and institutionalized
discrimination we have not dealt with in years: a total residential and work environment organized
on principles of racial stratification and segregation, which, as Justice Stevens points out, resembles
a plantation economy. Post, at 664, n. 4. This industry long has been characterized by a taste for
discrimination of the old-fashioned sort: a preference for hiring nonwhites to fill its lowest level
positions, on the condition that they stay there. The majority’s legal rulings essentially immunize
these practices from attack under a Title VII disparate-impact analysis.
Sadly, this comes as no surprise. One wonders whether the majority still believes that race
discrimination -- or, more accurately, race discrimination against nonwhites -- is a problem in our
society, or even remembers that it ever was. Cf. Richmond v. J. A. Croson Co., 488 U.S. 469 (1989).
[Justice STEVENS, dissenting:]
Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of
1964 prohibits employment practices that have discriminatory effects as well as those that are
intended to discriminate. Griggs v. Duke Power Co., 401 U.S. 424 (1971). Federal courts and
agencies consistently have enforced that interpretation, thus promoting our national goal of
eliminating barriers that define economic opportunity not by aptitude and ability but by race, color,
national origin, and other traits that are easily identified but utterly irrelevant to one’s qualification
for a particular job. Regrettably, the Court retreats from these efforts in its review of an
interlocutory judgment respecting the “peculiar facts” of this lawsuit. Turning a blind eye to the
meaning and purpose of Title VII, the majority’s opinion perfunctorily rejects a longstanding rule
of law and underestimates the probative value of evidence of a racially stratified work force. I
cannot join this latest sojourn into judicial activism.

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I
....
The opinion in Griggs made it clear that a neutral practice that operates to exclude
minorities is nevertheless lawful if it serves a valid business purpose. “The touchstone is business
necessity,” the Court stressed. Id., at 431. Because “Congress directed the thrust of the Act to
the consequences of employment practices, not simply the motivation[,] . . . Congress has placed
on the employer the burden of showing that any given requirement must have a manifest
relationship to the employment in question.” Id., at 432 (emphasis in original). Congress has
declined to act -- as the Court now sees fit -- to limit the reach of this “disparate-impact” theory,
see Teamsters v. United States, 431 U.S. 324, 335, n. 15 (1977); indeed it has extended its
application. This approval lends added force to the Griggs holding. . . .
Decisions of this Court and other federal courts repeatedly have recognized that while the
employer’s burden in a disparate-treatment case is simply one of coming forward with evidence of
legitimate business purpose, its burden in a disparate-impact case is proof of an affirmative defense
of business necessity. Although the majority’s opinion blurs that distinction, thoughtful reflection
on common-law pleading principles clarifies the fundamental differences between the two types of
“burdens of proof.” In the ordinary civil trial, the plaintiff bears the burden of persuading the trier
of fact that the defendant has harmed her. See, e. g., 2 Restatement (Second) of Torts §§ 328 A,
433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff’s efforts both by
confronting plaintiff’s evidence during her case in chief and by submitting countervailing evidence
during its own case. But if the plaintiff proves the existence of the harmful act, the defendant can
escape liability only by persuading the factfinder that the act was justified or excusable. See, e. g.,
Restatement §§ 454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense.
Although the burdens of producing evidence regarding the existence of harm or excuse thus shift
between the plaintiff and the defendant, the burden of proving either proposition remains
throughout on the party asserting it.
In a disparate-treatment case there is no “discrimination” within the meaning of Title VII
unless the employer intentionally treated the employee unfairly because of race. Therefore, the
employee retains the burden of proving the existence of intent at all times. If there is direct
evidence of intent, the employee may have little difficulty persuading the factfinder that
discrimination has occurred. But in the likelier event that intent has to be established by inference,
the employee may resort to the McDonnell/Burdine inquiry. In either instance, the employer may
undermine the employee’s evidence but has no independent burden of persuasion.
In contrast, intent plays no role in the disparate-impact inquiry. The question, rather, is
whether an employment practice has a significant, adverse effect on an identifiable class of workers
-- regardless of the cause or motive for the practice. The employer may attempt to contradict the
factual basis for this effect; that is, to prevent the employee from establishing a prima facie case.
But when an employer is faced with sufficient proof of disparate impact, its only recourse is to
justify the practice by explaining why it is necessary to the operation of business. Such a
justification is a classic example of an affirmative defense.
....

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III
The majority’s opinion begins with recognition of the settled rule that that “a facially
neutral employment practice may be deemed violative of Title VII without evidence of the
employer’s subjective intent to discriminate that is required in a ‘disparate-treatment’ case.” Ante,
at 645-646. It then departs from the body of law engendered by this disparate impact theory,
reformulating the order of proof and the weight of the parties’ burdens. Why the Court undertakes
these unwise changes in elementary and eminently fair rules is a mystery to me.
I respectfully dissent.

Notes
1. Partisan controversy. Linda Greenhouse of the New York Times reported at the time of the
Wards Cove decision that “the Supreme Court’s 5-to-4 decision in a major employment
discrimination case on Monday has dispelled much of any remaining doubt about whether former
President Ronald Reagan accomplished his goal of moving the Court in a more conservative
direction on civil rights.” Linda Greenhouse, Job Ruling Makes It Clear: Court Has Shifted Right,
NEW YORK TIMES (June 7, 1989). President Reagan’s Solicitor General, Charles Fried, by contrast,
praised the decision for halting plaintiffs’ lawyers and some judges from using a “sensible rule
[Griggs] to threaten employers with crushing liability if they used entirely reasonable employment
qualifications.” Charles Fried, Wall Street Journal, June 16, 1989, 6:3.
2. The narrowing of anti-discrimination law. In the same term as Wards Cove, the Supreme
court decided City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), a landmark case which
invalidated a minority set-aside program in Richmond, Virginia, giving preference to minorityowned businesses in the awarding of municipal contracts. Holding that the program violated the
Equal Protection Clause, the court found there was not a compelling state interest in apportioning
the contracts on the basis of race, and that the county had not shown that other remedial measures
would have failed. Justices Marshall, Brennan, and Blackmun dissented.
3. Judicial activism or judicial economy? The majority in Wards Cove worried that the Griggs
standard would lead to excessively costly litigation, as almost all employers are liable to be haled
into court and forced to prove the business necessity of their hiring practices. The Court contended
that liberal discovery standards would nevertheless make truly meritorious claims viable. Is this
the right view?

3. The Civil Rights Act of 1991.
In the Civil Rights Act of 1991, Congress addressed several employment discrimination
cases in which the Supreme Court had adopted interpretations of Title VII that were unfriendly for
plaintiffs. Of particular interest to us here, in 1989 the Supreme Court revisited the Wards Cove.
The law’s relevant final text, which emerged from complicated negotiations between Senator John

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C. Danforth, a Republican from Missouri, and C. Boyden Gray, the White House counsel for
George H.W. Bush, appears as follows:
Section 105. Burden of Proof in Disparate Impact Cases, 105 Stat. 1074-75 (Nov. 21, 1991),
codified at
(a) Section 703 of the Civil Rights Act of 1964 . . . is amended by adding at the end the
following new subsection:
“(k)(1)(A) An unlawful employment practice based on disparate impact is established
under this title only if—
“(i) a complaining party demonstrates that a respondent uses a particular employment
practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin
and the respondent fails to demonstrate that the challenged practice is job related for the position
in question and consistent with business necessity; or
“(ii) the complaining party makes the demonstration described in subparagraph (C) with
respect to an alternative employment practice and the respondent refuses to adopt such alternative
employment practice.
“(B)(i) With respect to demonstrating that a particular employment practice causes a
disparate impact as described in subparagraph (A)(i), the complaining party shall demonstrate that
each particular challenged employment practice causes a disparate impact, except that if the
complaining party can demonstrate to the court that the elements of a respondent's decisionmaking
process are not capable of separation for analysis, the decisionmaking process may be analyzed as
one employment practice.
“(ii) If the respondent demonstrates that a specific employment practice does not cause the
disparate impact, the respondent shall not be required to demonstrate that such practice is required
by business necessity.
“(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the
law as it existed on June 4, 1989, with respect to the concept of ‘alternative employment practice.’
. . .”

Notes
1. Important drafting details. The date referenced in the last quoted subsection had a specific
purpose: Wards Cove was decided on June 5, 1989. The word “demonstrates” was defined in the
1991 Act for purposes of section 703(k)(1)(A)(i) as meaning “meets the burdens of production and
persuasion.” 42 U.S.C. 2000e-(m).
2. Legislative history for disparate impact. The 1991 legislation included an unusual provision
asserting that “No statements other than the interpretive memorandum appearing at Vol. 137
Congressional Record S 15276 (daily ed. Oct. 25, 1991) shall be considered legislative history of,
or relied upon in any way as legislative history in construing or applying, any provision of this Act
that relates to Wards Cove—Business necessity/ cumulation/alternative business practice.” 105
Stat. at 1075. The interpretive memorandum, introduced by Senator John Danforth, is set out in
full here:
Mr. DANFORTH. Mr. President, I ask unanimous consent that the attached
interpretive memorandum be printed in the RECORD. There being no
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objection, the memorandum was ordered to be printed in the RECORD, as
follows: . . . .
The final compromise on S. 1745 agreed to by several Senate
sponsors, including Senators DANFORTH, KENNEDY, and DOLE, and the
Administration states that with respect to Wards Cove-Business
necessity/cumulation/ alternative business practice-the exclusive legislative
history is as follows:
The terms "business necessity" and "job related" are intended to
reflect the concepts enunciated by the Supreme Court in Griggs v. Duke
Power Co.. 401 U.S. 424 (1971), and in the other Supreme Court decisions
prior to Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989).
When a decision-making process includes particular, functionallyintegrated practices which are components of the same criterion, standard,
method of administration, or test, such as . . . height and weight requirements
designed to measure strength . . . , the particular, functionally-integrated
practices may be analyzed as one employment practice.
137 Cong. Rec. 15276 (daily ed., Oct 25, 1991).
3. What do the 1991 Act disparate impact revisions mean? Professor Michael Zimmer offered
one especially crisp account of the meaning of the 1991 amendments for disparate impact claims.
In Zimmer’s view,
Section 703(k)(1)(A)(ii) creates a new cause of action separate from the
group disparate impact action created in subsection (i). . . . In [Albemarle
Paper Co. v. Moody], the United States Supreme Court created a threestep process to litigate disparate impact cases: (1) in his or her prima
facie case, the plaintiff was required to prove that an employer's practice
had a disparate impact on members of groups protected by Title VII; (2)
the defendant could rebut the plaintiff's prima facie case by proving the
challenged employment practice was job related and consistent with
business necessity; (3) and further, even if the defendant succeeded in its
rebuttal, the plaintiff could prevail on surrebuttal by proving pretext,
meaning the defendant could have used other practices with less
discriminatory impact that also served its legitimate interest.
Michael Zimmer, Individual Disparate Impact Law, 30 LOY. U. CHI. L.J. 473, 477
(1999). Professor Zimmer observes that “[m]ost attempts to construe the new
section 703(k)(1)(A) deal with the impact of its language on this preexisting
Albemarle Paper three-step process.” But in his view,
it is clear that section 703(k)(1)(A) creates two new disparate impact
causes of action out of the three steps that were formally one cause of
action under Albemarle Paper. The first cause of action, a group
disparate impact action, arises under subsection (i) using the first two
steps of the Albemarle Paper process. Under this action, the plaintiff has
the burden of showing that an employer's practice had an adverse impact
and that the defendant failed to meet its burden to rebut this claim with
proof that the practice served a business necessity. Subsection (ii) creates
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a second cause of action, the individual disparate impact action, based
on the third pretext step of the Albemarle Paper approach.
Section 703(k)(1)(A) subsection (i) sets forth the first cause of action,
which includes two steps marked below by the imposed brackets:
An unlawful employment practice based on disparate impact is
established under this subchapter only if--(i) [1] a complaining
party demonstrates that a respondent uses a particular employment
practice that causes a disparate impact on the basis of race, color,
religion, sex, or national origin and [2] the respondent fails to
demonstrate that the challenged practice is job related for the
position in question and consistent with business necessity . . . .
The word “demonstrates,” used twice in section 703(k)(1)(A)(i), is
defined in new section 701(m) as “meets the burdens of production and
persuasion.” Taken together, these two steps clearly state that subsection
(i) creates a cause of action for group disparate action much like the first
two steps of the Albemarle Paper process--the plaintiff wins if he proves
that the employer's practice had a disparate impact and the employer fails
to justify the practice. Subsection (i), however, does not include the third
pretext element of the Albemarle Paper process.
Joined to the opening phrase of section 703(k)(1)(A), subsection (ii)
establishes individual disparate impact liability independent of the
subsection (i) group disparate impact action:
An unlawful employment practice based on disparate impact is
established under this subchapter only if--(i) . . .; or (ii) the
complaining party makes the demonstration described in
subparagraph (C) with respect to an alternative employment
practice and the respondent refuses to adopt such alternative
employment practice.
Because Congress joined the two subsections with the word “or,” it
clearly intended to make subsections (i) and (ii) complete and
independent causes of action. . . .
Id. at 478-79. Subsection (ii) in the 1991 amendments, Zimmer contends,
“remakes disparate impact law into a strange, new two-step process with the
plaintiff first proving the employer's practice adversely affected a group protected
by Title VII and second proving that an alternative existed that the employer
refused to use.” Id. at 481.
Is Zimmer correct? What exactly is at stake in the distinctions among the Wards Cove
approach and the 1991 Act approach?

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CHAPTER 9. 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.

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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:
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
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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 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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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
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
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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
County, 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 County, 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, cutand-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”:
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
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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. . . .
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
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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.”
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
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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 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
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.).)
6a
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.]

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...
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. . . .
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
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.’

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negligence is no defense to an action based upon a claim of willful misconduct . . ., and this is the
present rule in California. As 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 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
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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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 a 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
fact finder 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 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 10-90?
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?
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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 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
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that the contributory negligence principle remained the valid standard in Maryland negligence cases
and that “any change in the established doctrine [was for] 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’
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.”

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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.
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
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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
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. § 257.710e.

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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 seatbelt. 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 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
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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.
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
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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.
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
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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 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
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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.
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 firm-specific
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
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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
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
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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.
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.

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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 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).
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
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bat anywhere on the premises during a professional baseball game.” N.J. STAT. ANN. § 2A53A46 (2006).
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. . . .
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
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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.
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:
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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 (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. 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 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 (2002).
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
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“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 a different kind of debate. Few
jurists, if any, think that enforcing an express agreement to assume some risk is incoherent as a
conceptual matter. But there is sharp disagreement over whether enforcing such agreements and
allowing the law of contracts to displace the law of torts is a good idea. 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 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.

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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 Univ. of Cal., 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 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.
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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.

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.
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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, Tunkl, 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.
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
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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 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 (Fl. 2016).

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6. Waivers in popular culture. Don’t miss Donald Glover’s Saturday Night Live send-up of modern
waiver practice. Begin at the 1:05 mark. https://www.youtube.com/watch?v=6F8mJZkP-Hg

Waivers in Modern Life: One Professor’s Waivers
Reviewing the following waivers (some of which reflect the author’s own sadly tame 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
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, 48 P.3d 1229 (Colo. 2002),
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. “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 10. 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 contributory 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.”]

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MCKENNA, J.
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 well-managed
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 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 neighboring lands by building
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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. [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
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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 (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 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
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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 (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
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).

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In clarifying their understanding 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 RR. 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 . . .
[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,

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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 loss-spreading,
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 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, 929 F.2d
1094 (5th Cir. 1991), 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.”
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 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.

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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 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.
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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 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,
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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 one-third 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.
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):

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G. E. Harmon, Seasonal Distribution of Typhoid Fever—Southern and Northern States, 20 AM J.
PUBLIC 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.
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).
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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.
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.
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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. . . .
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. . . .
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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 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,”
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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 Morning Sickness: A Canadian Follow-up of
an American Tragedy, 9 REPROD. TOXICOLOGY 1, 2-3 (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 appear to have had 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
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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 (1993). So-called “Daubert hearings,” as these pretrial 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 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. Agent Orange was an herbicide used by the U.S. military 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
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significantly lower doses of Bisphenol A show that Bisphenol A may have harmful effects in infants.
U.S. FOOD AND DRUG ADMINISTRATION, 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, Ct. Attorney Gen. Office, Attorney
Gen. Announces Baby Bottle Makers Agree to Stop Using BPA; Calls for 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 multi-district 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].

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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. .
. . 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. . . .

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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
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 longterm 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
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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.
...
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
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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 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 (SJC) adopted a different view of what
the lost chance doctrine means. According to the SJC, 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
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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 lowered standard to get past summary judgment in loss-ofchance cases, but the plaintiff still must prove to the jury that it was more 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
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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?
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 non-parties
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” 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
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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 1960’s, 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
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.

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Note
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.
[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).) . . .
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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 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
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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
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.

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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
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
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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 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
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.”
30
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.

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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 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
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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 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.
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[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 Industries Association, 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 bioavailability than average would have caused less damage than its
market share would indicate.
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 “comingled 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. . . .
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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 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 Products Liability Litigation, 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 products theory. See In re MTBE Products Liability Litigation, 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 Products Corp., 493 F.2d 1076, 1094 (5th Cir.
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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
Laboratories, 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
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) (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?

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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
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. Environmental Law
In United States v. NCR Corp, 688 F.3d 833 (7th Cir. 2012), the Environmental Protection
Agency (EPA) required NCR Corp., 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 7th 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.
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
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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?

3. 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?

4. 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
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
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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 11. ANTIDISCRIMINATION LAW MODULE #3 -CAUSATION AND DISCRIMINATION CLAIMS

A. The Mixed Motive Problem
Courts also face complex causation questions in employment discrimination cases. The classic
problem of multiple sufficient causes arose in the case of Price Waterhouse v. Hopkins:

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)
Justice BRENNAN announced the judgment of the Court and delivered an opinion, in which Justice
MARSHALL, Justice BLACKMUN, and Justice STEVENS join.
Ann Hopkins was a senior manager in an office of Price Waterhouse when she was
proposed for partnership in 1982. She was neither offered nor denied admission to the partnership;
instead, her candidacy was held for reconsideration the following year. When the partners in her
office later refused to repropose her for partnership, she sued Price Waterhouse under Title VII of
the Civil Rights Act of 1964, charging that the firm had discriminated against her on the basis of
sex in its decisions regarding partnership. Judge Gesell in the Federal District Court for the District
of Columbia ruled in her favor on the question of liability, and the Court of Appeals for the District
of Columbia Circuit affirmed. We granted certiorari to resolve a conflict among the Courts of
Appeals concerning the respective burdens of proof of a defendant and plaintiff in a suit under Title
VII when it has been shown that an employment decision resulted from a mixture of legitimate and
illegitimate motives.

I
At Price Waterhouse, a nationwide professional accounting partnership, a senior manager
becomes a candidate for partnership when the partners in her local office submit her name as a
candidate. . . . [T]he firm’s Admissions Committee makes a recommendation to the Policy Board.
This recommendation will be either that the firm accept the candidate for partnership, put her
application on “hold,” or deny her the promotion outright. The Policy Board then decides whether
to submit the candidate’s name to the entire partnership for a vote, to “hold” her candidacy, or to
reject her. . . .
Ann Hopkins had worked at Price Waterhouse’s Office of Government Services in
Washington, D.C., for five years when the partners in that office proposed her as a candidate for
partnership. Of the 662 partners at the firm at that time, 7 were women. Of the 88 persons proposed
for partnership that year, only 1—Hopkins—was a woman. Forty-seven of these candidates were
admitted to the partnership, 21 were rejected, and 20—including Hopkins—were “held” for

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reconsideration the following year.1 Thirteen of the 32 partners who had submitted comments on
Hopkins supported her bid for partnership. Three partners recommended that her candidacy be
placed on hold, eight stated that they did not have an informed opinion about her, and eight
recommended that she be denied partnership.
In a jointly prepared statement supporting her candidacy, the partners in Hopkins’ office
showcased her successful 2–year effort to secure a $25 million contract with the Department of
State, labeling it “an outstanding performance” and one that Hopkins carried out “virtually at the
partner level.” Despite Price Waterhouse’s attempt at trial to minimize her contribution to this
project, Judge Gesell specifically found that Hopkins had “played a key role in Price Waterhouse’s
successful effort to win a multi-million dollar contract with the Department of State.” Indeed, he
went on, “[n]one of the other partnership candidates at Price Waterhouse that year had a comparable
record in terms of successfully securing major contracts for the partnership.”
The partners in Hopkins’ office praised her character as well as her accomplishments,
describing her in their joint statement as “an outstanding professional” who had a “deft touch,” a
“strong character, independence and integrity.” Clients appear to have agreed with these
assessments. At trial, one official from the State Department described her as “extremely
competent, intelligent,” “strong and forthright, very productive, energetic and creative.” . . .
Evaluations such as these led Judge Gesell to conclude that Hopkins “had no difficulty dealing with
clients and her clients appear to have been very pleased with her work” and that she “was generally
viewed as a highly competent project leader who worked long hours, pushed vigorously to meet
deadlines and demanded much from the multidisciplinary staffs with which she worked.”
On too many occasions, however, Hopkins’ aggressiveness apparently spilled over into
abrasiveness. Staff members seem to have borne the brunt of Hopkins’ brusqueness. Long before
her bid for partnership, partners evaluating her work had counseled her to improve her relations
with staff members. Although later evaluations indicate an improvement, Hopkins’ perceived
shortcomings in this important area eventually doomed her bid for partnership. Virtually all of the
partners’ negative remarks about Hopkins—even those of partners supporting her—had to do with
her “interpersonal skills.” Both “[s]upporters and opponents of her candidacy,” stressed Judge
Gesell, “indicated that she was sometimes overly aggressive, unduly harsh, difficult to work with
and impatient with staff.”
There were clear signs, though, that some of the partners reacted negatively to Hopkins’
personality because she was a woman. One partner described her as “macho”; another suggested
that she “overcompensated for being a woman”; a third advised her to take “a course at charm
school.” Several partners criticized her use of profanity; in response, one partner suggested that
those partners objected to her swearing only “because it’s a lady using foul language.” Another
supporter explained that Hopkins “ha[d] matured from a tough-talking somewhat masculine hardnosed mgr to an authoritative, formidable, but much more appealing lady ptr candidate.” But it was
the man who, as Judge Gesell found, bore responsibility for explaining to Hopkins the reasons for
the Policy Board’s decision to place her candidacy on hold who delivered the coup de grace: in
order to improve her chances for partnership, Thomas Beyer advised, Hopkins should “walk more
femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and
wear jewelry.” . . .
Judge Gesell found that Price Waterhouse legitimately emphasized interpersonal skills in
1

Before the time for reconsideration came, two of the partners in Hopkins’ office withdrew their support for
her, and the office informed her that she would not be reconsidered for partnership. . . .

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its partnership decisions, and also found that the firm had not fabricated its complaints about
Hopkins’ interpersonal skills as a pretext for discrimination. Moreover, he concluded, the firm did
not give decisive emphasis to such traits only because Hopkins was a woman; although there were
male candidates who lacked these skills but who were admitted to partnership, the judge found that
these candidates possessed other, positive traits that Hopkins lacked.
The judge went on to decide, however, that some of the partners’ remarks about Hopkins
stemmed from an impermissibly cabined view of the proper behavior of women, and that Price
Waterhouse had done nothing to disavow reliance on such comments. He held that Price
Waterhouse had unlawfully discriminated against Hopkins on the basis of sex by consciously
giving credence and effect to partners’ comments that resulted from sex stereotyping. Noting that
Price Waterhouse could avoid equitable relief by proving by clear and convincing evidence that it
would have placed Hopkins’ candidacy on hold even absent this discrimination, the judge decided
that the firm had not carried this heavy burden.
The Court of Appeals affirmed the District Court’s ultimate conclusion, but departed from
its analysis in one particular: it held that even if a plaintiff proves that discrimination played a role
in an employment decision, the defendant will not be found liable if it proves, by clear and
convincing evidence, that it would have made the same decision in the absence of discrimination.
. . . We decide today that the Court of Appeals had the better approach, but that both courts erred
in requiring the employer to make its proof by clear and convincing evidence.

II
....
A
In passing Title VII, Congress made the simple but momentous announcement that sex,
race, religion, and national origin are not relevant to the selection, evaluation, or compensation of
employees.3 Yet, the statute does not purport to limit the other qualities and characteristics that
employers may take into account in making employment decisions. The converse, therefore, of “for
cause” legislation, Title VII eliminates certain bases for distinguishing among employees while
otherwise preserving employers’ freedom of choice. This balance between employee rights and
employer prerogatives turns out to be decisive in the case before us.
Congress’ intent to forbid employers to take gender into account in making employment
decisions appears on the face of the statute. In now-familiar language, the statute forbids an
employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate with
respect to his compensation, terms, conditions, or privileges of employment,” or to “limit,
segregate, or classify his employees or applicants for employment in any way which would deprive
or tend to deprive any individual of employment opportunities or otherwise adversely affect his
status as an employee, because of such individual’s ... sex.”5 We take these words to mean that
gender must be irrelevant to employment decisions. To construe the words “because of” as
3

We disregard, for purposes of this discussion, the special context of affirmative action.
In this Court, Hopkins for the first time argues that Price Waterhouse violated § 703(a)(2) when it subjected
her to a biased decisionmaking process that “tended to deprive” a woman of partnership on the basis of her
sex. Since Hopkins did not make this argument below, we do not address it.
5

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colloquial shorthand for “but-for causation,” as does Price Waterhouse, is to misunderstand them.
But-for causation is a hypothetical construct. In determining whether a particular factor
was a but-for cause of a given event, we begin by assuming that that factor was present at the time
of the event, and then ask whether, even if that factor had been absent, the event nevertheless would
have transpired in the same way. The present, active tense of the operative verbs of § 703(a)(1) (“to
fail or refuse”), in contrast, turns our attention to the actual moment of the event in question, the
adverse employment decision. The critical inquiry, the one commanded by the words of §
703(a)(1), is whether gender was a factor in the employment decision at the moment it was made.
Moreover, since we know that the words “because of” do not mean “solely because of,”7 we also
know that Title VII meant to condemn even those decisions based on a mixture of legitimate and
illegitimate considerations. When, therefore, an employer considers both gender and legitimate
factors at the time of making a decision, that decision was “because of” sex and the other, legitimate
considerations—even if we may say later, in the context of litigation, that the decision would have
been the same if gender had not been taken into account.
To attribute this meaning to the words “because of” does not, as the dissent asserts, divest
them of causal significance. A simple example illustrates the point. Suppose two physical forces
act upon and move an object, and suppose that either force acting alone would have moved the
object. As the dissent would have it, neither physical force was a “cause” of the motion unless we
can show that but for one or both of them, the object would not have moved; apparently both forces
were simply “in the air” unless we can identify at least one of them as a but-for cause of the object’s
movement. Events that are causally overdetermined, in other words, may not have any “cause” at
all. This cannot be so.
We need not leave our common sense at the doorstep when we interpret a statute. It is
difficult for us to imagine that, in the simple words “because of,” Congress meant to obligate a
plaintiff to identify the precise causal role played by legitimate and illegitimate motivations in the
employment decision she challenges. We conclude, instead, that Congress meant to obligate her to
prove that the employer relied upon sex-based considerations in coming to its decision. . . .
To say that an employer may not take gender into account is not, however, the end of the
matter, for that describes only one aspect of Title VII. The other important aspect of the statute is
its preservation of an employer’s remaining freedom of choice. We conclude that the preservation
of this freedom means that an employer shall not be liable if it can prove that, even if it had not
taken gender into account, it would have come to the same decision regarding a particular person.
The statute’s maintenance of employer prerogatives is evident from the statute itself and from its
history, both in Congress and in this Court. . . .
. . . . The intent to drive employers to focus on qualifications rather than on race, religion, sex, or
national origin is the theme of a good deal of the statute’s legislative history. An interpretive
memorandum entered into the Congressional Record by Senators Case and Clark, co-managers of
the bill in the Senate, is representative of this general theme.8 According to their memorandum,
Title VII “expressly protects the employer’s right to insist that any prospective applicant, Negro or
white, must meet the applicable job qualifications. Indeed, the very purpose of Title VII is to

7

Congress specifically rejected an amendment that would have placed the word “solely” in front of the words
“because of.” 110 Cong. Rec. 2728, 13837 (1964).
8
We have in the past acknowledged the authoritativeness of this interpretive memorandum, written by the
two bipartisan “captains” of Title VII.

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promote hiring on the basis of job qualifications, rather than on the basis of race or color.” 110
Cong. Rec. 7247 (1964). . . .
The central point is this: while an employer may not take gender into account in making
an employment decision . . . it is free to decide against a woman for other reasons. We think these
principles require that, once a plaintiff in a Title VII case shows that gender played a motivating
part in an employment decision, the defendant may avoid a finding of liability10 only by proving
that it would have made the same decision even if it had not allowed gender to play such a role.
This balance of burdens is the direct result of Title VII’s balance of rights.
....

III
The courts below held that an employer who has allowed a discriminatory impulse to play
a motivating part in an employment decision must prove by clear and convincing evidence that it
would have made the same decision in the absence of discrimination. We are persuaded that the
better rule is that the employer must make this showing by a preponderance of the evidence.
Conventional rules of civil litigation generally apply in Title VII cases, and one of these
rules is that parties to civil litigation need only prove their case by a preponderance of the evidence.
...
Because the courts below erred by deciding that the defendant must make this proof by
clear and convincing evidence, we reverse the Court of Appeals’ judgment against Price
Waterhouse on liability and remand the case to that court for further proceedings.
It is so ordered.
Justice WHITE, concurring in the judgment.
It is not necessary to get into semantic discussions on whether the [correct] approach is
“but-for” causation in another guise or creates an affirmative defense on the part of the employer
to see its clear application to the issues before us in this case. [T]he District Court found that the
employer was motivated by both legitimate and illegitimate factors. And here . . . Hopkins was not
10

Hopkins argues that once she made this showing, she was entitled to a finding that Price Waterhouse had
discriminated against her on the basis of sex; as a consequence, she says, the partnership’s proof could only
limit the relief she received. She relies on Title VII’s § 706(g), which permits a court to award affirmative
relief when it finds that an employer “has intentionally engaged in or is intentionally engaging in an unlawful
employment practice,” and yet forbids a court to order reinstatement of, or backpay to, “an individual ... if
such individual was refused ... employment or advancement or was suspended or discharged for any reason
other than discrimination on account of race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–5(g)
(emphasis added). We do not take this provision to mean that a court inevitably can find a violation of the
statute without having considered whether the employment decision would have been the same absent the
impermissible motive. That would be to interpret § 706(g)—a provision defining remedies—to influence the
substantive commands of the statute. We think that this provision merely limits courts’ authority to award
affirmative relief in those circumstances in which a violation of the statute is not dependent upon the effect
of the employer’s discriminatory practices on a particular employee, as in pattern-or-practice suits and class
actions.

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required to prove that the illegitimate factor was the only, principal, or true reason for petitioner’s
action. Rather, as Justice O’CONNOR states, her burden was to show that the unlawful motive was
a substantial factor in the adverse employment action. . . .
In mixed-motives cases . . . there is no one “true” motive behind the decision. Instead, the
decision is a result of multiple factors, at least one of which is legitimate. . . .
With respect to the employer’s burden . . . the plurality seems to require, at least in most
cases, that the employer submit objective evidence that the same result would have occurred absent
the unlawful motivation. In my view, however, there is no special requirement that the employer
carry its burden by objective evidence. In a mixed-motives case, where the legitimate motive found
would have been ample grounds for the action taken, and the employer credibly testifies that the
action would have been taken for the legitimate reasons alone, this should be ample proof. This
would even more plainly be the case where the employer denies any illegitimate motive in the first
place but the court finds that illegitimate, as well as legitimate, factors motivated the adverse
action.*
Justice O’CONNOR, concurring in the judgment.
I agree with the plurality that, on the facts presented in this case, the burden of persuasion
should shift to the employer to demonstrate by a preponderance of the evidence that it would have
reached the same decision concerning Ann Hopkins’ candidacy absent consideration of her gender.
I further agree that this burden shift is properly part of the liability phase of the litigation [rather
than the remedy phase of the litigation]. I thus concur in the judgment of the Court. My
disagreement stems from the plurality’s conclusions concerning the substantive requirement of
causation under the statute and its broad statements regarding the applicability of the allocation of
the burden of proof applied in this case. . . . I write separately to explain why I believe such a
departure from the McDonnell Douglas standard is justified in the circumstances presented by this
and like cases, and to express my views as to when and how the strong medicine of requiring the
employer to bear the burden of persuasion on the issue of causation should be administered.

I
Title VII provides in pertinent part: “It shall be an unlawful employment practice for an
employer ... to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e–2(a) (emphasis added). The legislative history of Title VII bears out what its plain
language suggests: a substantive violation of the statute only occurs when consideration of an
illegitimate criterion is the “but-for” cause of an adverse employment action. The legislative history
makes it clear that Congress was attempting to eradicate discriminatory actions in the employment
setting, not mere discriminatory thoughts. Critics of the bill that became Title VII labeled it a
“thought control bill,” and argued that it created a “punishable crime that does not require an illegal
external act as a basis for judgment.” 100 Cong. Rec. 7254 (1964) (remarks of Sen. Ervin). Senator
Case, whose views the plurality finds so persuasive elsewhere, responded:

*

I agree with the plurality that if the employer carries this burden, there has been no violation of Title VII.

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The man must do or fail to do something in regard to employment. There must be
some specific external act, more than a mental act. Only if he does the act because
of the grounds stated in the bill would there be any legal consequences. (Ibid.)
Thus, I disagree with the plurality’s dictum that the words “because of” do not mean “butfor” causation; manifestly they do. . . . The question for decision in this case is what allocation of
the burden of persuasion on the issue of causation best conforms with the intent of Congress and
the purposes behind Title VII.
[I]n the area of tort liability, from whence the dissent’s “but-for” standard of causation is
derived, the law has long recognized that in certain “civil cases” leaving the burden of persuasion
on the plaintiff to prove “but-for” causation would be both unfair and destructive of the deterrent
purposes embodied in the concept of duty of care. Thus, in multiple causation cases, where a breach
of duty has been established, the common law of torts has long shifted the burden of proof to
multiple defendants to prove that their negligent actions were not the “but-for” cause of the
plaintiff’s injury. See, e.g., Summers v. Tice, 199 P.2d 1, 3-4 (Cal. 1948). The same rule has been
applied where the effect of a defendant’s tortious conduct combines with a force of unknown or
innocent origin to produce the harm to the plaintiff. See Kingston v. Chicago & N. W. R. Co., 211
N.W. 913, 915 (Wis. 1927) (“Granting that the union of that fire [caused by defendant’s negligence]
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 ... the fire set by him was not the proximate cause of
the damage.”) . . .
While requiring that the plaintiff in a tort suit or a Title VII action prove that the defendant’s
“breach of duty” was the “but-for” cause of an injury does not generally hamper effective
enforcement of the policies behind those causes of action,
at other times the [but-for] test demands the impossible. It challenges the
imagination of the trier to probe into a purely fanciful and unknowable state of
affairs. He is invited to make an estimate concerning facts that concededly never
existed. The very uncertainty as to what might have happened opens the door wide
for conjecture. But when conjecture is demanded it can be given a direction that is
consistent with the policy considerations that underlie the controversy. (Malone,
Ruminations on Cause–In–Fact, 9 Stan. L. Rev. 60, 67 (1956)).
Like the common law of torts, the statutory employment “tort” created by Title VII has two
basic purposes. The first is to deter conduct which has been identified as contrary to public policy
and harmful to society as a whole. As we have noted in the past, the award of backpay to a Title
VII plaintiff provides “the spur or catalyst which causes employers and unions to self-examine and
to self-evaluate their employment practices and to endeavor to eliminate, so far as possible, the last
vestiges” of discrimination in employment. The second goal of Title VII is “to make persons whole
for injuries suffered on account of unlawful employment discrimination.”
Both these goals are reflected in the elements of a disparate treatment action. There is no
doubt that Congress considered reliance on gender or race in making employment decisions an evil
in itself. . . . Reliance on such factors is exactly what the threat of Title VII liability was meant to
deter. While the main concern of the statute was with employment opportunity, Congress was
certainly not blind to the stigmatic harm which comes from being evaluated by a process which
treats one as an inferior by reason of one’s race or sex. . . . At the same time, Congress clearly
conditioned legal liability on a determination that the consideration of an illegitimate factor caused
a tangible employment injury of some kind.
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Where an individual disparate treatment plaintiff has shown by a preponderance of the
evidence that an illegitimate criterion was a substantial factor in an adverse employment decision,
the deterrent purpose of the statute has clearly been triggered. More importantly, as an evidentiary
matter, a reasonable factfinder could conclude that absent further explanation, the employer’s
discriminatory motivation “caused” the employment decision. The employer has not yet been
shown to be a violator, but neither is it entitled to the same presumption of good faith concerning
its employment decisions which is accorded employers facing only circumstantial evidence of
discrimination. Both the policies behind the statute, and the evidentiary principles developed in the
analogous area of causation in the law of torts, suggest that at this point the employer may be
required to convince the factfinder that, despite the smoke, there is no fire.
....
The individual members of a class action disparate treatment case stand in much the same
position as Ann Hopkins here. There has been a strong showing that the employer has done exactly
what Title VII forbids, but the connection between the employer’s illegitimate motivation and any
injury to the individual plaintiff is unclear. . . .
[T]he evidentiary framework I propose should be available to all disparate treatment
plaintiffs where an illegitimate consideration played a substantial role in an adverse employment
decision. . . .
In this case, I agree with the plurality that petitioner should be called upon to show that the
outcome would have been the same if respondent’s professional merit had been its only concern. .
..

Justice KENNEDY, with whom the Chief Justice and Justice SCALIA join, dissenting. . . .

I
The plurality describes this as a case about the standard of causation under Title VII, but I
respectfully suggest that the description is misleading. Much of the plurality’s rhetoric is spent
denouncing a “but-for” standard of causation. The theory of Title VII liability the plurality adopts,
however, essentially incorporates the but-for standard. The importance of today’s decision is not
the standard of causation it employs, but its shift to the defendant of the burden of proof. The
plurality’s causation analysis is misdirected, for it is clear that, whoever bears the burden of proof
on the issue, Title VII liability requires a finding of but-for causation.
The words of Title VII are not obscure. The part of the statute relevant to this case provides:
“It shall be an unlawful employment practice for an employer—
“(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such individual’s race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1) (emphasis added).
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By any normal understanding, the phrase “because of” conveys the idea that the motive in
question made a difference to the outcome. We use the words this way in everyday speech. And
assuming, as the plurality does, that we ought to consider the interpretive memorandum prepared
by the statute’s drafters, we find that this is what the words meant to them as well. “To discriminate
is to make a distinction, to make a difference in treatment or favor.” 110 Cong. Rec. 7213 (1964).
Congress could not have chosen a clearer way to indicate that proof of liability under Title VII
requires a showing that race, color, religion, sex, or national origin caused the decision at issue.
Our decisions confirm that Title VII is not concerned with the mere presence of
impermissible motives; it is directed to employment decisions that result from those motives. . . .
If a motive is not a but-for cause of an event, then by definition it did not make a difference
to the outcome. The event would have occurred just the same without it. . . . Any standard less
than but-for . . . simply represents a decision to impose liability without causation. . . .
One of the principal reasons the plurality decision may sow confusion is that it claims Title
VII liability is unrelated to but-for causation, yet it adopts a but-for standard once it has placed the
burden of proof as to causation upon the employer. This approach conflates the question whether
causation must be shown with the question of how it is to be shown. . . .
No one contends . . . that sex must be the sole cause of a decision before there is a Title VII
violation. . . Discrimination need not be the sole cause in order for liability to arise, but merely a
necessary element of the set of factors that caused the decision, i.e., a but-for cause. . . . The plurality
seems to say that since we know the words “because of” do not mean “solely because of,” they
must not mean “because of” at all. This does not follow, as a matter of either semantics or logic. .
..
The plurality attempts to reconcile its internal inconsistency on the causation issue by
describing the employer’s showing as an “affirmative defense.” This is nothing more than a label .
. . . [T]he import of today’s decision is not that Title VII liability can arise without but-for
causation, but that in certain cases it is not the plaintiff who must prove the presence of causation,
but the defendant who must prove its absence. . . .
The language of Title VII and our well-considered precedents require this plaintiff to
establish that the decision to place her candidacy on hold was made “because of” sex. Here the
District Court found that the “comments of the individual partners and the expert evidence of Dr.
Fiske do not prove an intentional discriminatory motive or purpose,” and that “[b]ecause plaintiff
has considerable problems dealing with staff and peers, the Court cannot say that she would have
been elected to partnership if the Policy Board’s decision had not been tainted by sexually based
evaluations.” Hopkins thus failed to meet the requisite standard of proof after a full trial. I would
remand the case for entry of judgment in favor of Price Waterhouse.

Notes
1. Distinguishing and preserving McDonnell Douglas-Burdine Burden Shifting. The
plurality opinion in Hopkins contends that there is no tension between the causation theory it
proposes and the burden shifting arrangement of the McDonnell Douglas sequence that we read
about in an earlier module on employment discrimination. In the view of the plurality, McDonnell
Douglas-Burdine cases arise when the parties dispute which one of two or more factors was a
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necessary cause of the adverse employment decision in question. The approach in Hopkins, by
contrast, arises when there are multiple sufficient causes, only one of which is impermissible under
the statute:
Our holding casts no shadow on Burdine, in which we decided that, even after a
plaintiff has made out a prima facie case of discrimination under Title VII, the
burden of persuasion does not shift to the employer to show that its stated
legitimate reason for the employment decision was the true reason. . . . Where a
decision was the product of a mixture of legitimate and illegitimate motives,
however, it simply makes no sense to ask whether the legitimate reason was “the
‘true reason’ ” (Brief for Petitioner 20 (emphasis added)) for the decision—which
is the question asked by Burdine. Oblivious to this last point, the dissent would
insist that Burdine’s framework perform work that it was never intended to
perform. It would require a plaintiff who challenges an adverse employment
decision in which both legitimate and illegitimate considerations played a part to
pretend that the decision, in fact, stemmed from a single source—for the premise
of Burdine is that either a legitimate or an illegitimate set of considerations led to
the challenged decision. . . .
Is the plurality’s distinction sound? The dissenters were not so certain.
2. The 1991 Civil Rights Act. In Hopkins, a clear majority of the Court (the plurality of
four, plus justices O’Connor and White) ruled that a plaintiff loses where the employer-defendant
is able to show that the adverse employment action would have happened regardless of
discrimination.
Two years later, Congress enacted the Civil Rights Act of 1991, which amended Title VII
and overruled the Hopkins holding as to causation in Title VII employment discrimination cases
based on race, color, religion, sex, or national origin. The 1991 amendments added Section 703(m)
to Title VII:
Except as otherwise provided in this subchapter, an unlawful employment practice
is established when the complaining party demonstrates that race, color, religion,
sex, or national origin was a motivating factor for any employment practice, even
though other factors also motivated the practice.
42 U.S.C.A. § 2000e-2(m). After the 1991 Act, a plaintiff can establish liability without also
establishing but-for causation. But the 1991 Act did not completely undo the significance of butfor causation in Title VII cases. To the contrary, the 1991 amendments altered the remedies
available to plaintiffs in cases where the adverse employment action would have happened
regardless of the illegitimate motive. The 1991 amendments provided that
On a claim in which an individual proves a violation under section 703(m) and a
respondent demonstrates that the respondent would have taken the same action in
the absence of the impermissible motivating factor, the court-(i) may grant declaratory relief, injunctive relief (except as provided in clause (ii)),
and attorney’s fees and costs demonstrated to be directly attributable only to the
pursuit of a claim under section 703(m); and
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(ii) shall not award damages or issue an order requiring any admission,
reinstatement, hiring, promotion, or [back pay].
42 U.S.C.A. § 2000e-5(g)(2)(B). After the 1991 Act, 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. But Congress limited damages for plaintiffs who cannot prove that discrimination was a
necessary or but-for cause of the adverse employment action in question. Such plaintiffs are
eligible only for a declaratory judgment, attorney’s fees, and certain types of injunctive relief.
What is a “motivating factor” if it is not a necessary factor? Is a motivating factor the same
as a causal link in the law of tort causation? What about “substantial factor” from the tort doctrine?
See Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in
Disparate Treatment Law, 94 GEO. L.J. 489 (2006); Brian S. Clarke, A Better Route through the
Swamp: Causal Coherence in Disparate Treatment Doctrine, 65 RUTGERS L. REV. 723 (2013).
3. Age discrimination and the causation puzzle. Congress’s 1991 amendments notably
left out certain forms of employment discrimination claims from its Section 703(m) provision on
motivating factors. In Gross v. FBL Financial Services, the Court declined to extend either the
logic of the Hopkins plurality or of the Civil Rights Act of 1991 to age discrimination claims. In
Gross, the financial services firm FBL demoted 54-year-old plaintiff Jack Gross and reassigned
some of his duties to 40-year-old Lisa Kneeskern. Justice Thomas wrote an opinion for a bare
majority of the Court ruling that age discrimination claimants must prove that age discrimination
was a necessary cause of the adverse employment decision:
Our inquiry therefore must focus on the text of the ADEA to decide whether it
authorizes a mixed-motives age discrimination claim. It does not. “Statutory
construction must begin with the language employed by Congress and the
assumption that the ordinary meaning of that language accurately expresses the
legislative purpose.” Engine Mfrs. Assn. v. South Coast Air Quality Management
Dist., 541 U.S. 246, 252 (2004) (internal quotation marks omitted). The ADEA
provides, in relevant part, that “[i]t shall be unlawful for an employer ... to fail or
refuse to hire or to discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1) (emphasis
added).
The words “because of” mean “by reason of: on account of.” 1 Webster's Third
New International Dictionary 194 (1966); see also 1 Oxford English Dictionary
746 (1933) (defining “because of” to mean “By reason of, on account of ” (italics
in original)); The Random House Dictionary of the English Language 132 (1966)
(defining “because” to mean “by reason; on account”). Thus, the ordinary meaning
of the ADEA’s requirement that an employer took adverse action “because of” age
is that age was the “reason” that the employer decided to act. See Hazen Paper Co.
v. Biggins, 507 U.S. 604, 610 (1993) (explaining that the claim “cannot succeed
unless the employee’s protected trait actually played a role in [the employer’s
decisionmaking] process and had a determinative influence on the outcome ”
(emphasis added)). To establish a disparate-treatment claim under the plain
language of the ADEA, therefore, a plaintiff must prove that age was the “but-for”
cause of the employer’s adverse decision. . . . [Cf.] W. Keeton, D. Dobbs, R.
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Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984) (“An
act or omission is not regarded as a cause of an event if the particular event would
have occurred without it”).
It follows, then, that under § 623(a)(1), the plaintiff retains the burden of
persuasion to establish that age was the “but-for” cause of the employer's adverse
action.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-77 (2009).
Justice Stevens dissented. Joined by justices Souter, Ginsburg, and Breyer, Justice Stevens
contended that the majority ought to have adopted the plurality and concurring approach in
Hopkins, which rejected the traditional but-for test of tort law. Justice Stevens’s dissent charged
that:
The “but-for” causation standard endorsed by the Court today was advanced in
Justice Kennedy’s dissenting opinion in Price Waterhouse v. Hopkins, a case
construing identical language in Title VII of the Civil Rights Act of 1964. Not only
did the Court reject the but-for standard in that case, but so too did Congress when
it amended Title VII in 1991. Given this unambiguous history, it is particularly
inappropriate for the Court, on its own initiative, to adopt an interpretation of the
causation requirement in the ADEA that differs from the established reading of
Title VII.
Gross, 557 U.S. at 180-81 (Stevens, J., dissenting).
In University of Texas Southwestern Medical Center v. Nassar, excerpted below, the Court
also insisted on but-for causation in sex- or race-based retaliation claims, which arise when an
employee alleges that an employer has retaliated against an employee for raising a race or gender
discrimination claim.
Univ. of Tex. Southwestern Med. Ctr. v. Nassar, 570 U.S. 338 (2013)
Justice KENNEDY delivered the opinion of the Court.
When the law grants persons the right to compensation for injury from wrongful conduct,
there must be some demonstrated connection, some link, between the injury sustained and the
wrong alleged. The requisite relation between prohibited conduct and compensable injury is
governed by the principles of causation, a subject most often arising in elaborating the law of torts.
This case requires the Court to define those rules in the context of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., which provides remedies to employees for injuries related to
discriminatory conduct and associated wrongs by employers.
An employee who alleges status-based discrimination under Title VII need not show that
the causal link between injury and wrong is so close that the injury would not have occurred but
for the act. So-called but-for causation is not the test. It suffices instead to show that the motive to
discriminate was one of the employer’s motives, even if the employer also had other, lawful
motives that were causative in the employer’s decision. This principle is the result of an earlier case
from this Court, Price Waterhouse v. Hopkins, and an ensuing statutory amendment by Congress
that codified in part and abrogated in part the holding in Price Waterhouse, see [42 U.S.C. §§
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2000e-2(m), 2000e-5(g)(2)(B). The question the Court must answer here is whether that lessened
causation standard is applicable to claims of unlawful employer retaliation under § 2000e-3(a).*
Although the Court has not addressed the question of the causation showing required to
establish liability for a Title VII retaliation claim, it has addressed the issue of causation in general
in a case involving employer discrimination under a separate but related statute, the Age
Discrimination in Employment Act of 1967 (ADEA). In Gross [v. FBL Financial Services], the
Court concluded that the ADEA requires proof that the prohibited criterion was the but-for cause
of the prohibited conduct. The holding and analysis of that decision are instructive here.
I
Petitioner, the University of Texas Southwestern Medical Center (University), is an
academic institution within the University of Texas system. The University specializes in medical
education for aspiring physicians, health professionals, and scientists. Over the years, the
University has affiliated itself with a number of healthcare facilities including, as relevant in this
case, Parkland Memorial Hospital (Hospital). As provided in its affiliation agreement with the
University, the Hospital permits the University’s students to gain clinical experience working in its
facilities. The agreement also requires the Hospital to offer empty staff physician posts to the
University’s faculty members, and, accordingly, most of the staff physician positions at the
Hospital are filled by those faculty members.
Respondent is a medical doctor of Middle Eastern descent who specializes in internal
medicine and infectious diseases. In 1995, he was hired to work both as a member of the
University’s faculty and a staff physician at the Hospital. He left both positions in 1998 for
additional medical education and then returned in 2001 as an assistant professor at the University
and, once again, as a physician at the Hospital.
In 2004, Dr. Beth Levine was hired as the University’s Chief of Infectious Disease
Medicine. In that position Levine became respondent’s ultimate (though not direct) superior.
Respondent alleged that Levine was biased against him on account of his religion and ethnic
heritage, a bias manifested by undeserved scrutiny of his billing practices and productivity, as well
as comments that “‘Middle Easterners are lazy.’” On different occasions during his employment,
respondent met with Dr. Gregory Fitz, the University’s Chair of Internal Medicine and Levine’s
supervisor, to complain about Levine’s alleged harassment. Despite obtaining a promotion with
Levine’s assistance in 2006, respondent continued to believe that she was biased against him. So
he tried to arrange to continue working at the Hospital without also being on the University’s
faculty. After preliminary negotiations with the Hospital suggested this might be possible,
respondent resigned his teaching post in July 2006 and sent a letter to Dr. Fitz (among others), in
which he stated that the reason for his departure was harassment by Levine. That harassment, he
asserted, “‘stems from . . . religious, racial and cultural bias against Arabs and Muslims.’” After
reading that letter, Dr. Fitz expressed consternation at respondent’s accusations, saying that Levine
had been “publicly humiliated by th[e] letter” and that it was “very important that she be publicly
exonerated.”
*

[Section 2000e-3 makes it unlawful for an employer to “discriminate against any individual . . . because he
has opposed any practice made an unlawful employment practice by [Title VII] or because he has made a
charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under
[Title VII].” 42 U.S.C.A. § 2000e-3 (West).]

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Meanwhile, the Hospital had offered respondent a job as a staff physician, as it had
indicated it would. On learning of that offer, Dr. Fitz protested to the Hospital, asserting that the
offer was inconsistent with the affiliation agreement’s requirement that all staff physicians also be
members of the University faculty. The Hospital then withdrew its offer.
After exhausting his administrative remedies, respondent filed this Title VII suit in the
United States District Court for the Northern District of Texas. He alleged two discrete violations
of Title VII. . . . Respondent alleged that Dr. Levine’s racially and religiously motivated harassment
had resulted in his constructive discharge from the University [and] that Dr. Fitz’s efforts to prevent
the Hospital from hiring him were in retaliation for complaining about Dr. Levine’s harassment.
The jury found for respondent on both claims. It awarded him over $400,000 in backpay and more
than $3 million in compensatory damages. The District Court later reduced the compensatory
damages award to $300,000. . . .
II
A
This case requires the Court to define the proper standard of causation for Title VII
retaliation claims. Causation in fact—i.e., proof that the defendant’s conduct did in fact cause the
plaintiff’s injury—is a standard requirement of any tort claim, see Restatement of Torts § 9 (1934)
(definition of “legal cause”); § 431, Comment a (same); § 279, and Comment c (intentional
infliction of physical harm); § 280 (other intentional torts); § 281(c) (negligence). This includes
federal statutory claims of workplace discrimination.
In the usual course, this standard requires the plaintiff to show “that the harm would not
have occurred” in the absence of—that is, but for—the defendant’s conduct. Restatement of Torts
§ 431, Comment a (negligence); § 432(1), and Comment a (same); see § 279, and Comment c
(intentional infliction of bodily harm); § 280 (other intentional torts); Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 27, and Comment b (2010) (noting the existence of
an exception for cases where an injured party can prove the existence of multiple, independently
sufficient factual causes, but observing that “cases invoking the concept are rare”). See also
Restatement (Second) of Torts § 432(1) (1963 and 1964) (negligence claims); § 870, Comment l
(intentional injury to another); cf. § 435a, and Comment a (legal cause for intentional harm). It is
thus textbook tort law that an action “is not regarded as a cause of an event if the particular event
would have occurred without it.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton
on Law of Torts 265 (5th ed. 1984). This, then, is the background against which Congress legislated
in enacting Title VII, and these are the default rules it is presumed to have incorporated, absent an
indication to the contrary in the statute itself. . . .
III
A
. . . Title VII’s antiretaliation provision . . . states, in relevant part:
It shall be an unlawful employment practice for an employer to discriminate
against any of his employees ... because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter. [42 U.S.C.A. § 2000e-3]
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This enactment, like the statute at issue in Gross, makes it unlawful for an employer to take
adverse employment action against an employee “because” of certain criteria. Given the lack of
any meaningful textual difference between the text in this statute and the one in Gross, the proper
conclusion here, as in Gross, is that Title VII retaliation claims require proof that the desire to
retaliate was the but-for cause of the challenged employment action.
The principal counterargument offered by respondent and the United States relies on their
different understanding of the motivating-factor section, which—on its face—applies only to status
discrimination, discrimination on the basis of race, color, religion, sex, and national origin. In
substance, they contend that: (1) retaliation is defined by the statute to be an unlawful employment
practice; (2) § 2000e-2(m) allows unlawful employment practices to be proved based on a showing
that race, color, religion, sex, or national origin was a motivating factor for—and not necessarily
the but-for factor in—the challenged employment action; and (3) the Court has, as a matter of
course, held that “retaliation for complaining about race discrimination is ‘discrimination based on
race.’” Brief for United States as Amicus Curiae 14; see id., at 11–14; Brief for Respondent 16–
19.
[T]his reading . . . . is inconsistent with the provision’s plain language. It must be
acknowledged that because Title VII defines “unlawful employment practice” to include
retaliation, the question presented by this case would be different if § 2000e-2(m) extended its
coverage to all unlawful employment practices. As actually written, however, the text of the
motivating-factor provision, while it begins by referring to “unlawful employment practices,” then
proceeds to address only five of the seven prohibited discriminatory actions—actions based on the
employee’s status, i.e., race, color, religion, sex, and national origin. This indicates Congress’ intent
to confine that provision’s coverage to only those types of employment practices. The text of §
2000e-2(m) says nothing about retaliation claims. Given this clear language, it would be improper
to conclude that what Congress omitted from the statute is nevertheless within its scope. . . .
B
The proper interpretation and implementation of § 2000e–3(a) and its causation standard
have central importance to the fair and responsible allocation of resources in the judicial and
litigation systems. This is of particular significance because claims of retaliation are being made
with ever-increasing frequency. The number of these claims filed with the Equal Employment
Opportunity Commission (EEOC) has nearly doubled in the past 15 years—from just over 16,000
in 1997 to over 31,000 in 2012. EEOC, Charge Statistics FY 1997 Through FY 2012,
http://www.eeoc. gov/eeoc/statistics/enforcement/charges.cfm (as visited June 20, 2013, and
available in Clerk of Court's case file). Indeed, the number of retaliation claims filed with the EEOC
has now outstripped those for every type of status-based discrimination except race. See ibid.
In addition lessening the causation standard could also contribute to the filing of frivolous claims,
which would siphon resources from efforts by employer, administrative agencies, and courts to
combat workplace harassment. Consider in this regard the case of an employee who knows that he
or she is about to be fired for poor performance, given a lower pay grade, or even just transferred
to a different assignment or location. To forestall that lawful action, he or she might be tempted to
make an unfounded charge of racial, sexual, or religious discrimination; then, when the unrelated
employment action comes, the employee could allege that it is retaliation. If respondent were to
prevail in his argument here, that claim could be established by a lessened causation standard, all
in order to prevent the undesired change in employment circumstances. Even if the employer could
escape judgment after trial, the lessened causation standard would make it far more difficult to
dismiss dubious claims at the summary judgment stage. . . .
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IV
Respondent and the Government also argue that applying the motivating-factor provision’s
lessened causation standard to retaliation claims would be consistent with longstanding agency
views, contained in a guidance manual published by the EEOC. It urges that those views are entitled
to deference under this Court’s decision in Skidmore v. Swift & Co., 323 U.S. 134 (1944). The
weight of deference afforded to agency interpretations under Skidmore depends upon “the
thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier
and later pronouncements, and all those factors which give it power to persuade.” 323 U.S., at 140.
According to the manual in question, the causation element of a retaliation claim is satisfied
if “there is credible direct evidence that retaliation was a motive for the challenged action,”
regardless of whether there is also “[e]vidence as to [a] legitimate motive.” 2 EEOC Compliance
Manual § 8–II(E)(1), pp. 614:0007–614:0008 (Mar. 2003). After noting a division of authority as
to whether motivating-factor or but-for causation should apply to retaliation claims, the manual
offers two rationales in support of adopting the former standard. The first is that “[c]ourts have long
held that the evidentiary framework for proving [status-based] discrimination . . . also applies to
claims of discrimination based on retaliation.” Id., at 614:0008, n. 45. Second, the manual states
that “an interpretation . . . that permits proven retaliation to go unpunished undermines the purpose
of the anti-retaliation provisions of maintaining unfettered access to the statutory remedial
mechanism.” Ibid.
These explanations lack the persuasive force that is a necessary precondition to deference
under Skidmore. As to the first rationale, while the settled judicial construction of a particular
statute is of course relevant in ascertaining statutory meaning, the manual’s discussion fails to
address the particular interplay among the status-based discrimination provision, the antiretaliation
provision, and the motivating-factor provision. . . . The manual’s failure to address the specific
provisions of this statutory scheme, coupled with the generic nature of its discussion of the
causation standards for status-based discrimination and retaliation claims, call the manual’s
conclusions into serious question.
The manual’s second argument is unpersuasive, too; for its reasoning is circular. It asserts the
lessened causation standard is necessary in order to prevent “proven retaliation” from “go[ing]
unpunished.” 2 EEOC Compliance Manual § 8–II(E)(1), at 614:0008, n. 45. Yet this assumes the
answer to the central question at issue here, which is what causal relationship must be shown in
order to prove retaliation. . . .
V
....
The judgment of the Court of Appeals for the Fifth Circuit is vacated, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.

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Justice GINSBURG, with whom Justice BREYER, Justice SOTOMAYOR, and Justice KAGAN join,
dissenting.
. . . . [T]he ban on discrimination and the ban on retaliation against a discrimination complainant
have traveled together: Title VII plaintiffs often raise the two provisions in tandem. Today’s
decision, however, drives a wedge between the twin safeguards in so-called “mixed-motive” cases.
To establish discrimination, all agree, the complaining party need show only that race, color,
religion, sex, or national origin was “a motivating factor” in an employer’s adverse action; an
employer’s proof that “other factors also motivated the [action]” will not defeat the discrimination
claim. But a retaliation claim, the Court insists, must meet a stricter standard: The claim will fail
unless the complainant shows “but-for” causation, i.e., that the employer would not have taken the
adverse employment action but for a design to retaliate.
In so reining in retaliation claims, the Court misapprehends what our decisions teach:
Retaliation for complaining about discrimination is tightly bonded to the core prohibition and
cannot be disassociated from it. Indeed, this Court has explained again and again that “retaliation
in response to a complaint about [proscribed] discrimination is discrimination” on the basis of the
characteristic Congress sought to immunize against adverse employment action. . . .
....
There is scant reason to think that, despite Congress’ aim to “restore and strengthen ... laws
that ban discrimination in employment,” House Report Part II, at 2, Congress meant to exclude
retaliation claims from the newly enacted “motivating factor” provision. Section 2000e–2(m)
provides that an “unlawful employment practice is established” when the plaintiff shows that a
protected characteristic was a factor driving “any employment practice.” Title VII, in § 2000e–3(a),
explicitly denominates retaliation, like status-based discrimination, an “unlawful employment
practice.” Because “any employment practice” necessarily encompasses practices prohibited under
§ 2000e–3(a), § 2000e–2(m), by its plain terms, covers retaliation.
Notably, when it enacted § 2000e–2(m), Congress did not tie the new provision specifically
to §§ 2000e–2(a)–(d), which proscribe discrimination “because of” race, color, religion, gender, or
national origin. Rather, Congress added an entirely new provision to codify the causation standard,
one encompassing “any employment practice.” § 2000e–2(m).
....
From the inception of § 2000e–2(m), the agency entrusted with interpretation of Title VII
and superintendence of the Act’s administration, the EEOC, see § 2000e–5, has understood the
provision to cover retaliation claims. . . .
The position set out in the EEOC’s guidance and compliance manual merits respect. If the
breadth of § 2000e–2(m) can be deemed ambiguous (although I believe its meaning is plain), the
provision should be construed to accord with the EEOC’s well-reasoned and longstanding
guidance. . . .

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VI
A
The Court’s assertion that the but-for cause requirement it adopts necessarily follows from
§ 2000e–3(a)’s use of the word “because” fails to convince. Contrary to the Court’s suggestion, the
word “because” does not inevitably demand but-for causation to the exclusion of all other causation
formulations. When more than one factor contributes to a plaintiff’s injury, but-for causation is
problematic. See, e.g., 1 Restatement (Third) of Torts § 27, Comment a, p. 385 (2005) (noting near
universal agreement that the but-for standard is inappropriate when multiple sufficient causes exist)
(hereinafter Restatement Third); Restatement of Torts § 9, Comment b, p. 18 (1934) (legal cause
is a cause that is a “substantial factor in bringing about the harm”).
When an event is “overdetermined,” i.e., when two forces create an injury each alone would
be sufficient to cause, modern tort law permits the plaintiff to prevail upon showing that either
sufficient condition created the harm. Restatement Third § 27, at 376–377. In contrast, under the
Court’s approach (which it erroneously calls “textbook tort law”), a Title VII plaintiff alleging
retaliation cannot establish liability if her firing was prompted by both legitimate and illegitimate
factors.
Today’s opinion rehashes arguments rightly rejected in Price Waterhouse. Concurring in
the judgment in that case, Justice O’Connor recognized the disconnect between the standard the
dissent advocated, which would have imposed on the plaintiff the burden of showing but-for
causation, and the common-law doctrines on which the dissent relied. As Justice O’Connor
explained:
[I]n the area of tort liability, from whence the dissent’s ‘but-for’ standard of
causation is derived, ... the law has long recognized that in certain ‘civil cases’
leaving the burden of persuasion on the plaintiff to prove ‘but-for’ causation would
be both unfair and destructive of the deterrent purposes embodied in the concept
of duty of care. Thus, in multiple causation cases, where a breach of duty has been
established, the common law of torts has long shifted the burden of proof to ...
defendants to prove that their negligent actions were not the ‘but-for’ cause of the
plaintiff’s injury.
[Price Waterhouse v. Hopkins] (concurring in judgment) (citing Summers v. Tice).
Justice Brennan’s plurality opinion was even less solicitous of the dissent’s approach. Noting that,
under the standard embraced by the dissent in Price Waterhouse, neither of two sufficient forces
would constitute cause even if either one alone would have led to the injury, the plurality remarked:
“We need not leave our common sense at the doorstep when we interpret a statute.”

B
As the plurality and concurring opinions in Price Waterhouse indicate, a strict but-for test
is particularly ill suited to employment discrimination cases. Even if the test is appropriate in some
tort contexts, “it is an entirely different matter to determine a ‘but-for’ relation when . . .
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consider[ing], not physical forces, but the mind-related characteristics that constitute motive.”
Gross, 557 U.S. at 190 (Breyer, J., dissenting). When assessing an employer’s multiple motives,
“to apply ‘but-for’ causation is to engage in a hypothetical inquiry about what would have happened
if the employer’s thoughts and other circumstances had been different.” Id. at 191.
This point, lost on the Court, was not lost on Congress. When Title VII was enacted,
Congress considered and rejected an amendment that would have placed the word “solely” before
“because of [the complainant’s] race, color, religion, sex, or national origin.” See 110 Cong. Rec.
2728, 13837–13838 (1964). Senator Case, a prime sponsor of Title VII, commented that a “sole
cause” standard would render the Act “totally nugatory.” Id., at 13837. Life does not shape up that
way, the Senator suggested, commenting “[i]f anyone ever had an action that was motivated by a
single cause, he is a different kind of animal from any I know of.” Ibid.

Notes
1. A policy behind deviating from but-for causation? 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?
2. Affirmative action university litigation and the cause-in-fact problem. A different causation
issue arises in constitutional antidiscrimination law involving claims arising under the Equal
Protection Clause of the Fourteenth Amendment. In particular, causation questions have arisen for
equal protection claims challenging state-run affirmative action programs. Should plaintiffs have
to show that the challenged affirmative action program caused their exclusion from the state benefit
in question?
This causation question arose in Northeastern Florida Chapter of Associated General
Contractors of America v. City of Jacksonville, decided by the U.S. Supreme Court in 1993. In
Associated General Contractors, the plaintiff association challenged a minority preference
program in the awarding of city contracts. Justice Thomas, writing for the Court’s majority, held
that the contractors’ association had constitutional standing to sue even though it hadn’t shown
that any of its members would have received a contract absent the minority preference:
In Turner v. Fouche, 396 U.S. 346 (1970), a Georgia law limiting school board
membership to property owners was challenged on equal protection grounds. We
held that a plaintiff who did not own property had standing to challenge the law,
and although we did not say so explicitly, our holding did not depend upon an
allegation that he would have been appointed to the board but for the property
requirement. All that was necessary was that the plaintiff wished to be considered
for the position.
We confronted a similar issue in Clements v. Fashing, 457 U.S. 957 (1982). There,
a number of officeholders claimed that their equal protection rights were violated
by the “automatic resignation” provision of the Texas Constitution, which requires
the immediate resignation of some (but not all) state officeholders upon their
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announcement of a candidacy for another office. Noting that the plaintiffs had
alleged that they would have announced their candidacy were it not for the
consequences of doing so, we rejected the claim that the dispute was “merely
hypothetical,” and that the allegations were insufficient to create an “actual case
or controversy.” Citing Turner v. Fouche, we emphasized that the plaintiffs’ injury
was the “obstacle to [their] candidacy,” 457 U.S., at 962; we did not require any
allegation that the plaintiffs would actually have been elected but for the
prohibition.
The decision that is most closely analogous to this case, however, is Regents of
Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), where a twice-rejected white male
applicant claimed that a medical school’s admissions program, which reserved 16
of the 100 places in the entering class for minority applicants, was inconsistent
with the Equal Protection Clause. Addressing the argument that the applicant
lacked standing to challenge the program, Justice Powell concluded that the
“constitutional requirements of Art. III” had been satisfied, because the requisite
“injury” was the medical school’s “decision not to permit Bakke to compete for all
100 places in the class, simply because of his race.” Id., at 281, n. 14 (emphasis
added) (principal opinion). Thus, “even if Bakke had been unable to prove that he
would have been admitted in the absence of the special program, it would not
follow that he lacked standing.” Id., at 280–281, n. 14 (emphasis added). . . .
Singly and collectively, these cases stand for the following proposition: When the
government erects a barrier that makes it more difficult for members of one group
to obtain a benefit than it is for members of another group, a member of the former
group seeking to challenge the barrier need not allege that he would have obtained
the benefit but for the barrier in order to establish standing. The “injury in fact” in
an equal protection case of this variety is the denial of equal treatment resulting
from the imposition of the barrier, not the ultimate inability to obtain the benefit.
And in the context of a challenge to a set-aside program, the “injury in fact” is the
inability to compete on an equal footing in the bidding process, not the loss of a
contract. To establish standing, therefore, a party challenging a set-aside program
like Jacksonville’s need only demonstrate that it is able and ready to bid on
contracts and that a discriminatory policy prevents it from doing so on an equal
basis.
Ne. Fla. Chapter of Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 66466 (1993). The Court explained in a footnote that “[i]t follows from our definition of ‘injury in
fact’ that petitioner has sufficiently alleged both that the city’s ordinance is the ‘cause’ of its injury
and that a judicial decree directing the city to discontinue its program would ‘redress’ the injury.”
Associated Gen. Contractors, 508 U.S. at 666 n.5.
Are affirmative action cases like this one analogous to the lost chance cases in the law of
medical malpractice? Recall that in tort causation, courts have been exceedingly reluctant to extend
lost chance logic outside the medical malpractice area. Why is it appropriate to the affirmative
action context? If the lost chance theory is appropriate to constitutional equal protection cases,
why not adopt in all mixed-motive cases under Title VII and related employment discrimination
statutes?

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3. The causation question arose in civil rights actions once again in Comcast v. National
Association of African American-Owned Media (NAAAOM), 140 S. Ct. 1009 (2020). The Comcast
case arose not under the Civil Rights Act of 1964, but under a Reconstruction statute: the Civil
Rights Act of 1866, which guarantees all persons “the same right to make and enforce contracts
. . . as is enjoyed by white citizens.” 42 U.S.C. § 1981. The question presented was whether a
defendant motivated in part by the plaintiff’s race nonetheless violates the statute even though the
defendant had additional sufficient non-discriminatory reasons for not entering into the contract at
issue.
Comcast v. National Association of African American-Owned Media, 140 S. Ct. 1009 (2020)
Justice GORSUCH delivered the opinion of the Court.
Few legal principles are better established than the rule requiring a plaintiff to establish
causation. In the law of torts, this usually means a plaintiff must first plead and then prove that its
injury would not have occurred “but for” the defendant’s unlawful conduct. The plaintiffs before
us suggest that 42 U.S.C. 1981 departs from this traditional arrangement. But looking to this
particular statute’s text and history, we see no evidence of an exception.
I
This case began after negotiations between two media companies failed. African-American
entrepreneur Byron Allen owns Entertainment Studios Network (ESN), the operator of seven
television networks—Justice Central.TV, Comedy.TV, ES.TV, Pets.TV, Recipe.TV,
MyDestination.TV, and Cars.TV. For years, ESN sought to have Comcast, one of the nation’s
largest cable television conglomerates, carry its channels. But Comcast refused, citing lack of
demand for ESN’s programming, bandwidth constraints, and its preference for news and sports
programming that ESN didn’t offer.
. . . . ESN sued. Seeking billions in damages, the company alleged that Comcast systematically
disfavored “100% African American-owned media companies.” ESN didn’t dispute that, during
negotiations, Comcast had offered legitimate business reasons for refusing to carry its channels. . .
. The district court . . . . concluded [that] ESN’s efforts fell short of plausibly showing that, but for
racial animus, Comcast would have contracted with ESN. After three rounds of pleadings, motions,
and dismissals, the district court decided that further amendments would prove futile and entered a
final judgment for Comcast.
The Ninth Circuit reversed. As that court saw it, the district court used the wrong causation
standard when assessing ESN’s pleadings. A 1981 plaintiff doesn’t have to point to facts plausibly
showing that racial animus was a “but for” cause of the defendant’s conduct. Instead, the Ninth
Circuit held, a plaintiff must only plead facts plausibly showing that race played “some role” in the
defendant’s decisionmaking process. [U]nder this more forgiving causation standard, the court
continued, ESN had pleaded a viable claim.
. . . . [T]he Seventh Circuit has held that “to be actionable, racial prejudice must be a but-for cause
. . . of the refusal to transact.” Bachman v. St. Monica’s Congregation, 902 F.2d 1259, 1262-63 (7th
Cir. 1990). To resolve the disagreement among the circuits over 1981’s causation requirement, we
agreed to hear this case.

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II
It is “textbook tort law” that a plaintiff seeking redress for a defendant’s legal wrong
typically must prove but-for causation. Under this standard, a plaintiff must demonstrate that, but
for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and
simple “but for” common law causation test, we have held, supplies the “default” or “background”
rule against which Congress is normally presumed to have legislated when creating its own new
causes of action. That includes when it comes to federal antidiscrimination laws like 1981. See
[Nassar and Gross]. . . .
ESN . . . seems to argue that a 1981 plaintiff only bears the burden of showing that race
was a “motivating factor” in the defendant’s challenged decision, not a but-for cause of its injury.
At other [times], ESN appears to concede that a 1981 plaintiff does have to prove but-for causation
at trial, but contends the rules should be different at the pleading stage. According to this version
of ESN’s argument, a plaintiff should be able to overcome at least a motion to dismiss if it can
allege facts plausibly showing that race was a “motivating factor” in the defendant’s decision. . . .
A
[C]lues from the statute’s text, its history, and our precedent persuade us that 1981 follows
the general rule. . . .
Congress passed the Civil Rights Act of 1866 in the aftermath of the Civil War to vindicate
the rights of former slaves. Section 1 of that statute included the language found codified today in
1981(a), promising that “[a]ll persons ... shall have the same right ... to make and enforce contracts,
to sue, be parties, [and] give evidence ... as is enjoyed by white citizens.” 42 U.S.C. 1981, Civil
Rights Act of 1866, 14 Stat. 27.
While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee
that each person is entitled to the “same right ... as is enjoyed by white citizens” directs our attention
to the counterfactual—what would have happened if the plaintiff had been white? This focus fits
naturally with the ordinary rule that a plaintiff must prove but-for causation. If the defendant would
have responded the same way to the plaintiff even if he had been white, an ordinary speaker of
English would say that the plaintiff received the “same” legally protected right as a white person.
Conversely, if the defendant would have responded differently but for the plaintiff ’s race, it follows
that the plaintiff has not received the same right as a white person. Nor does anything in the statute
signal that this test should change its stripes (only) in the face of a motion to dismiss.
The larger structure and history of the Civil Rights Act of 1866 provide further clues.
Nothing in the Act specifically authorizes private lawsuits to enforce the right to contract. Instead,
this Court created a judicially implied private right of action, definitively doing so for the first time
in 1975. . . .
Though Congress did not adopt a private enforcement mechanism for violations of 1981,
it did establish criminal sanctions in a neighboring section. That provision permitted the
prosecution of anyone who “depriv[es]” a person of “any right” protected by the substantive
provisions of the Civil Rights Act of 1866 “on account of ” that person’s prior “condition of
slavery” or “by reason of ” that person’s “color or race.” § 2, 14 Stat. 27. To prove a violation, then,
the government had to show that the defendant’s challenged actions were taken “ ‘on account of’ ”
or “ ‘by reason of ’ ” race—terms we have often held indicate a but-for causation requirement.
[citing Gross]. . . . In light of the causation standard Congress specified for the cause of action it
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expressly endorsed, it would be more than a little incongruous for us to employ the laxer rules ESN
proposes for this Court’s judicially implied cause of action.
[W]e generally presume that Congress legislates against the backdrop of the common law.
The Civil Rights Act of 1866 made this background presumption explicit, providing that “in all
cases where [the laws of the United States] are not adapted to the object [of carrying the statute into
effect] the common law . . . shall . . . govern said courts in the trial and disposition of such cause.”
§ 3, 14 Stat. 27. And, while there were exceptions, the common law in 1866 often treated a showing
of but-for causation as a prerequisite to a tort suit.
This Court’s precedents confirm all that the statute’s language and history indicate. When
it first inferred a private cause of action under1981, this Court described it as “afford[ing] a federal
remedy against discrimination ... on the basis of race,” language (again) strongly suggestive of a
but-for causation standard. Later, the Court explained that 1981 was “designed to eradicate blatant
deprivations of civil rights,” such as where “a private offeror refuse[d] to extend to [an AfricanAmerican], . . . because he is [an African-American], the same opportunity to enter into contracts
as he extends to white offerees.” Once more, the Court spoke of 1981 using language—because
of—often associated with but-for causation. . . .
This Court’s treatment of a neighboring provision, § 1982, supplies a final telling piece of
evidence. . . . Section 1982 guarantees all citizens “the same right ... as is enjoyed by white citizens
. . . to inherit, purchase, lease, sell, hold, and convey real and personal property.” And this Court
has repeatedly held that a claim arises under 1982 when a citizen is not allowed “to acquire property
. . . because of color.” Buchanan v. Warley, 245 U.S. 60, 78-79 (1917) [ ]. If a 1982 plaintiff must
show the defendant’s challenged conduct was “because of ” race, it is unclear how we might
demand less from a 1981 plaintiff. Certainly ESN offers no compelling reason to read two such
similar statutes so differently.
B
. . . ESN . . . asks us to draw on, and then innovate with, the “motivating factor” causation
test found in Title VII of the Civil Rights Act of 1964. . . .
This Court first adopted Title VII’s motivating factor test in Price Waterhouse v. Hopkins.
There, a plurality and two Justices concurring in the judgment held that a Title VII plaintiff doesn’t
have to prove but-for causation; instead, it’s enough to show that discrimination was a motivating
factor in the defendant’s decision. Once a plaintiff meets this lesser standard, the plurality
continued, the defendant may defeat liability by establishing that it would have made the same
decision even if it had not taken the plaintiff ’s race (or other protected trait) into account. In
essence, Price Waterhouse took the burden of proving but-for causation from the plaintiff and
handed it to the defendant as an affirmative defense.
But this arrangement didn’t last long. Congress soon displaced Price Waterhouse in favor
of its own version of the motivating factor test. In the Civil Rights Act of 1991, Congress provided
that a Title VII plaintiff who shows that discrimination was even a motivating factor in the
defendant’s challenged employment decision is entitled to declaratory and injunctive relief. A
defendant may still invoke lack of but-for causation as an affirmative defense, but only to stave off
damages and reinstatement, not liability in general.
[I]t’s hard to see what any of it might tell us about 1981. . . . [W]e have two statutes with
two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same
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causation standard. Worse yet, ESN’s fallback position—that we should borrow the motivating
factor concept only at the pleadings stage—is foreign even to Title VII practice. To accept ESN’s
invitation to consult, tinker with, and then engraft a test from a modern statute onto an old one
would thus require more than a little judicial adventurism, and look a good deal more like amending
a law than interpreting one.
What’s more, it’s not as if Congress forgot about 1981 when it adopted the Civil Rights
Act of 1991. At the same time that it added the motivating factor test to Title VII, Congress also
amended 1981. But nowhere in its amendments . . . did Congress so much as whisper about
motivating factors. . . . .
Still, ESN tries to salvage something from the 1991 law. It reminds us that one of the
amendments to 1981 defined the term “make and enforce contracts” to include “making,
performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” . . . . By using this particular word
[“making.”], ESN says, Congress clarified that 1981(a) guarantees not only the right to equivalent
contractual outcomes (a contract with the same final terms), but also the right to an equivalent
contracting process (no extra hurdles on the road to securing that contract). And, ESN continues,
if the statute addresses the whole contracting process, not just its outcome, a motivating factor
causation test fits more logically than the traditional but-for test.
Comcast and the government disagree. As they see it, the Civil Rights Act of 1866
unambiguously protected only outcomes—the right to contract, sue, be a party, and give evidence.
...
Of course, Congress could write an employment discrimination statute to protect only
outcomes or to provide broader protection. But, for our purposes today, none of this matters. The
difficulty with ESN’s argument lies in its mistaken premise that a process-oriented right necessarily
pairs with a motivating factor causal standard. The inverse argument—that an outcome-oriented
right implies a but-for causation standard—is just as flawed. Either causal standard could
conceivably apply regardless of the legal right 1981 protects. We need not and do not take any
position on whether 1981 as amended protects only outcomes or protects processes too, a question
not passed on below or raised in the petition for certiorari. Our point is simply that a 1981 plaintiff
first must show that he was deprived of the protected right and then establish causation—and that
these two steps are analytically distinct.*
....

III
All the traditional tools of statutory interpretation persuade us that 1981 follows the usual
rules, not any exception. To prevail, a plaintiff must initially plead and ultimately prove that, but
for race, it would not have suffered the loss of a legally protected right. We do not, however, pass
on whether ESN’s operative amended complaint “contain[s] sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’” under the but-for causation standard.
Iqbal, 556 U.S. at 678-79. The Ninth Circuit has yet to consider that question because it assessed
ESN’s pleadings under a different and mistaken test. To allow that court the chance to determine
the sufficiency of ESN’s pleadings under the correct legal rule in the first instance, we vacate the
*

The concurrence proceeds to offer a view on the nature of the right, while correctly noting that the Court
reserves the question for another day.

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judgment of the court of appeals and remand the case for further proceedings consistent with this
opinion.
It is so ordered.

Justice GINSBURG, concurring in part and concurring in the judgment.
I join the Court’s opinion requiring a plaintiff who sues under 42 U.S.C. 1981 to plead and
prove race was a but-for cause of her injury.** . . .
Under Comcast’s view, 1981 countenances racial discrimination so long as it occurs in
advance of the final contract-formation decision. Thus, a lender would not violate 1981 by requiring
prospective borrowers to provide one reference letter if they are white and five if they are black.
Nor would an employer violate 1981 by reimbursing expenses for white interviewees but requiring
black applicants to pay their own way. The employer could even “refus[e] to consider applications”
from black applicants at all. Brief for United States as Amicus Curiae 21.
That view cannot be squared with the statute. An equal “right . . . to make . . . contracts” is
an empty promise without equal opportunities to present or receive offers and negotiate over terms.
A plaintiff hindered from enjoying those opportunities may be unable effectively to form a contract,
and a defendant able to impair those opportunities can avoid contracting without refusing a contract
outright. . . .
[T]he language of the statute covers the entirety of the contracting process. The statute
defines “make and enforce contracts” to “includ[e] the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the
contractual relationship.” . . . In line with the rest of the definition, the word “making” is most
sensibly read to capture the entire process by which the contract is formed.
Comcast’s freeze-frame approach to 1981 invites the Court to repeat an error it has
committed before. In 1989, the Court “rea[d] 1981 not as a general proscription of racial
discrimination in all aspects of contract relations, but as limited to” certain narrow “enumerated
rights.” Patterson v. McLean Credit Union, 491 U.S. 164, 181 (1989). According to Patterson, the
right to “make” a contract “extend[ed] only to the formation of a contract,” and the right to
“enforce” it encompassed only “access to legal process.” The Court thus declined to apply 1981 to
“postformation conduct,” concluding that an employee had no recourse to 1981 for racial
harassment occurring after the employment contract’s formation.
Congress promptly repudiated that interpretation. In 1991, . . . Congress enacted the
expansive definition of “make and enforce contracts” now contained in 1981(b). Postformation
racial harassment violates 1981, the amendment clarifies, because the right to “make and enforce”
a contract includes the manner in which the contract is carried out. So too the manner in which the
contract is made.

** I have previously explained that a strict but-for causation standard is ill suited to discrimination cases and

inconsistent with tort principles. I recognize, however, that our precedent now establishes this form of
causation as a “default rul[e]” in the present context. [citing Nassar]. . . .

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The complaint before us contains allegations of racial harassment during contract
formation. In their negotiations, Entertainment Studios alleges, Comcast required of Entertainment
Studios a series of tasks that served no purpose and on which Entertainment Studios “waste[d]
hundreds of thousands of dollars.” App. to Pet. for Cert. 49a–50a. The Court holds today that
Entertainment Studios must plead and prove that race was the but-for cause of its injury—in other
words, that Comcast would have acted differently if Entertainment Studios were not AfricanAmerican owned. But if race indeed accounts for Comcast’s conduct, Comcast should not escape
liability for injuries inflicted during the contract-formation process. The Court has reserved that
issue for consideration on remand, enabling me to join its opinion.

Notes
1. Textbook tort law? The majority opinion contends that the common law of tort “typically”
adopts a but-for standard. But not always. In an amicus brief before the Court, two tort scholars
contended that the common law of tort, properly understood, departs from the but-for standard
when the moral logic of the relevant cause of action so warrants. The common law of tort, for
example, offered a cause of action for depriving a person of a vote, even though his preferred
candidate won. Ashby v. White, 92 Eng., Rep. 126 (K.B. 1703). Courts allowed liability for
alteration of stream beds and disturbance of water sources even without a showing that the tortious
conduct had caused damage to the plaintiff. E.g., Parker v. Griswold, 17 Conn. 288, 302 (1845).
Trespass to real property, as we saw early in this book, required no showing that the defendant had
caused damages to the plaintiff. Dougherty v. Stepp, 18 N.C. 371 (1835). And as we saw in the
previous chapter, the common law of negligence sometimes altered the but-for test when the
occasion seemed to so require, as in lost chance cases, market share cases, and multiple-sufficientcause cases. Arguably the common law courts have often allowed cases to go to juries when the
plaintiff could not plausibly prove but-for causation by a preponderance of the evidence. Recall,
for example, the typhoid fever case of Stubbs v. City of Rochester, 124 N.E. 137 (N.Y. 1919).
None of this is to say that the causation test should be one way or the other in the Section 1981
context. But the tort scholars amicus brief contended that courts have always made decisions about
causation by reference to the merits of the competing approaches for the particular social situation
at issue. Causation standards are about value judgments. The Court ignored the torts scholars
amicus. Sigh. But does Justice Gorsuch have anything to say about which causation standard is
most appropriate to the context of discrimination in contracting? See Brief of Torts Scholars as
Amici Curiae in Support of Respondent, Comcast Corp. v. National Association of African
American-Owned Media, No. 18-1171 (October Term 2019).
2. Contract formation versus the negotiation process. Justice Ginsburg’s concurring opinion
raises the prospect that the plaintiff in Comcast may be able to win if it can show that it was treated
differently in the negotiation process because of race. Is Justice Ginsburg proposing something
analogous to the “lost chance” strategy in medical malpractice cases? As we saw in the previous
chapter, those cases solved difficult but-for causation questions by reframing the substance of the
entitlement being protected.
3. Cause or substance? In practice, will there be a difference between a motivating factor
causation test tied to outcomes and contract formations, on the one hand, and a but-for test tied to
the negotiation process, on the other? Is causation separable from the substantive merits of the
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doctrines to which it is attached? One implication of this reasoning, which is apparent from Justice
Ginsburg’s opinion, is that the plaintiff in the Comcast case still has a path to victory.

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Witt, TRCPI 12. Proximate Cause

CHAPTER 12. PROXIMATE (“LEGAL”) CAUSE
“If I am to feel guilt, then surely it is for something that I should not have done,
when I knew I shouldn’t do it, and when that something harmed others. But even
then, how can I be responsible for all the consequences?”
–Zia Haider Rahman, In the Light of What We Know: A Novel 38 (2014)

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.

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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?
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 twentyfourth 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 infrequent, 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
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a fire originated, to indemnify him instead, would be to award a punishment quite 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 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
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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 suggest
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
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
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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. . . .
The judgment is affirmed.

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Note
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, or no injury at all, if he had not had an unusually thin skull or an unusually
weak heart.
...
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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?
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?
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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?
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.]
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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 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
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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?

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.
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Witt, TRCPI 12. Proximate Cause

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. 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. . . .

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[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 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. . . .
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Accordingly, their Lordships will humbly advise Her Majesty that the appeal and the crossappeal 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 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).

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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).
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
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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.
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? . . .
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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 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).

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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:
Brauer 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. . . .
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

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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
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 perjoratively
termed “Bealism.” The “Bealist,” Frank objected,
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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, allthings-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
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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.
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.
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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 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
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?
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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
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. . . .

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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
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
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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
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, all-thingsconsidered 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
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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 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:

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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 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. The
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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 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.

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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 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.
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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. . . .
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
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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.
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.
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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 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.

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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 sixtyfour 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.
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.

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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. 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.

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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 caseby-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]:
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
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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 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.
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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 downriver, 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 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 ice-ridden 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.”

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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.
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.
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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 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.
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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
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 down-river.” 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
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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
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
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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 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,”
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. . . .
6
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.

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“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
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
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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).
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 13. 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. . . .
Siegrist contends that he is not liable for failure to obtain medical assistance for Farwell
because he had no duty to do so.
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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 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.

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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 selfprotection. 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 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.
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
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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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
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?

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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 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).
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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. . . .
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,
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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.
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.
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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).
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
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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 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
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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
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 non-emergency
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,
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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.
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.

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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 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 University,
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
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(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
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
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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
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
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.
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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
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.” . . .
...
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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 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.

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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 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
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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
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.

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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 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-and-Obvious
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).
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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).
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.
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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 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
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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.
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.
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The Law Division granted the defendant’s motion for summary judgment on the second . .
. 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 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
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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 v. Davies,
86 A.2d 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);
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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 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
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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. . . .
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. . . .
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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.
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.
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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.
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
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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 (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?
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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:
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
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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 asbestosrelated 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 asbestosrelated 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 . . . 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
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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
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.
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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.]

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.

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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 substance-exposurerelated 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 statutorilymandated 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.
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
lump-sum 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).

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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 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?

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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 civilization, rather than the individual plaintiff.
John Goldberg & Benjamin Zipursky, The Moral of MacPherson 146 U. PA. L. REV. 1733, 181011 (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).

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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 longstanding 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?

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
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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.
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
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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.
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.
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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
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).
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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 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. . . .

476

Witt, TRCPI 13. Duty Problem

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 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.

477

Witt, TRCPI 13. Duty Problem

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
. . . 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.
...

478

Witt, TRCPI 13. Duty Problem

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.
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 intercom-automatic
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 upto-date methods may be equally or even more effective.
...

479

Witt, TRCPI 13. Duty Problem

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.

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
480

Witt, TRCPI 13. Duty Problem

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 outof-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 concluding that the duty applies does not constitute an automatic, broadbased 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. StopN-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.

481

Witt, TRCPI 13. Duty Problem

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,
presumably Brown, told him alcoholic beverages were available if he wanted them. Mike Bosley,
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
guest with the knowledge that person intends to drive a vehicle while in an intoxicated state fails
to act with reasonable care. . . .
482

Witt, TRCPI 13. Duty Problem

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. . . .
[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. . . .
483

Witt, TRCPI 13. Duty Problem

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
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 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.
484

Witt, TRCPI 13. Duty Problem

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. . . .
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
485

Witt, TRCPI 13. Duty Problem

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. . . .
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.

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Witt, TRCPI 13. Duty Problem

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. 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 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).
4. 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
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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 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 that 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).
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Witt, TRCPI 13. Duty Problem

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 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
[Judge Hellerstein first addressed the claims by New York ground victims against the aviation
defendants.] “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. . . .

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Witt, TRCPI 13. Duty Problem

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:
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 linedrawing 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
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.

490

Witt, TRCPI 13. Duty Problem

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 insurer-like
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
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 . . . .

491

Witt, TRCPI 13. Duty Problem

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
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).
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Witt, TRCPI 13. Duty Problem

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).
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.
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Witt, TRCPI 13. Duty Problem

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 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, 722-26; 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.
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Witt, TRCPI 13. Duty Problem

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
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 cross-claims
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 regularly 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 courts’ denial of
recovery for purely economic losses occasioned by a defendant’s negligence. These concerns
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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
consequences of his negligence, including the economic loss of a particularly foreseeable plaintiff,
is dispositive of the issues of duty and fault.

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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 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

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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
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
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 . . . .
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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.
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
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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 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.

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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 merchantneighbors 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).
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 plaintiff-purchaser had
contract rights or tort rights? Tort damages remedies often include consequential damages such as
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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
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:

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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.
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
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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 husband-wife 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.
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

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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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.
Courts have been considerable 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, nowestranged 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

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).

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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
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.

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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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
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
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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.
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).

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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.
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 employeeversus-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.

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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.
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:
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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.
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.”
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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.”
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
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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 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 safety-related
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
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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.
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
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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).
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.
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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 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.
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. .
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. . 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 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
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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 onehalf 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 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
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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.
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.
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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.
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
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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
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.

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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. 25 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 . . . 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).

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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 lowlevel 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
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.
524

Witt, TRCPI 13. Duty Problem

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).

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
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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.” . . .
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 . . .
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

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Witt, TRCPI 13. Duty Problem

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 litigation-and 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 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. . . .
knowingly or recklessly creates or maintains a condition which endangers the safety or
health of a considerable number of persons. . . .

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Witt, TRCPI 13. Duty Problem

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 noncombat 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 “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
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Witt, TRCPI 13. Duty Problem

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.

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, TRCPI 14. Modern Non-Fault Liability

CHAPTER 14. 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 nonfault 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 non-fault
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.

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Witt, TRCPI 14. Modern Non-Fault Liability

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.
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 the burden on

6

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

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Witt, TRCPI 14. Modern Non-Fault Liability

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 numerous to warrant
citation. Once all this is granted, it is immaterial that Lane’s precise action was not to be foreseen.
...
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. & Economics 1 (1960), this would seem unlikely to
occur in real life.

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Witt, TRCPI 14. Modern Non-Fault Liability

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.
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
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Witt, TRCPI 14. Modern Non-Fault Liability

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. 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).

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5. Vicarious liability in sexual abuse cases. Professor Martha Chamallas argues that courts
apply the doctrine of vicarious liability inconsistently in sex 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 nonsexual, 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 sex 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.

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
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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 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.

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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, 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
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.
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Witt, TRCPI 14. Modern Non-Fault Liability

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
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.
Affirmed.

Note
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
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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.
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.

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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.
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
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Witt, TRCPI 14. Modern Non-Fault Liability

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 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.
...

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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 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
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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 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.

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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 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,
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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 thenstate 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.
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.
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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 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,
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