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SPRING 2003



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Tort Law (again)

Tort actions are considered private actions. But in some sense putting the matter in this way can be misleading. It is misleading because the commuinity clearly has an interest in the injuries suffered by victims and in who should bear the losses. The community does not intervene directly but it does provide a fair procedure that enables individuals to interact and defend themselves. In criminal law, however, the community will initiate an action if it believes a wrong has been committed. In tort law, if the victim does not initiate action on her own behalf, nothing happens, and she will have to bear her own loss. Tort law, too, focuses on the losses and costs. In the course of our daily life, persons inflict damage on one another. Folks suffer injury from car accidents, defective products, muggings, slanderous statements, hazardous working conditions and careless hunters, to mention just a few of the "inconveniences" of modern life. These acts cost people and someone has to bear the costs of medical expenses, pain and suffering, loss of reputation, business income, and damaged property. Tort law assumes that the perpetrator of the wrong rather than the victim ought to bear the cost of the damage. Thus tort law is an enabling mechanism for victims to shift their losses to those persons or corporations who caused their loss

The "reasonable person"

Reference has been made to the distinction between negligence and intent. In negligence, the actor does not desire to bring about the consequences which follow nor does he know that they are substantially certain to occur or believe that they will. There is merely a risk of such consequences, sufficiently great to lead a reasonable person in his position to anticipate them and guard against them. But who is this "reasonable person?" Sometimes he is described as a prudent person, sometimes as an ordinary person who exercises ordinary care and skill. The actor is required to do that which an ideal person would have done in his place with only those shortcomings and weaknesses that the community will tolerate in the circumstances. As one commentator has put it: "this excellent but odious character stands like a monument in our Courts of Justice, vainly appealing to his fellow citizens to order their lives after his own example. The courts have gone to great lengths to stress the hypothetical nature of this fellow. He is not an ordinary person in the sense that ordinary folks (like you and me) occasionally do unreasonable things from time to time: he is always up to standard. Nor is he a substitute, as it were, for a member of the jury. A juror in deciding a negligence case is not to imagine what he would have done under the circumstances. The reasonable person is rather a "personification of a community ideal of reasonable behavior, determined by the jury's social judgment."

As to his physical characteristics, the reasonable person is said to be identical with the actor. An individual who is blind or deaf cannot be made to live up to a community standard he cannot meet. An individual who is blind can be negligent by going into a situation which would require him to see. It is sometimes thought that the law of negligence places special duties on those with physical handicaps, but this is not quite right. The correct way of putting it is to say that he must take those precautions that an ordinary reasonable person would take if he were blind.

What a person needs to know

Mental deficiency in most negligence cases is no excuse. "I did not stop to think" or "I forgot to look" or "My, my, how silly of me" or "I got rattled" won't do. Again as a commentator has put it: "It may be no bad policy to hold a fool according to his folly. The harm to his neighbors is quite as great and may be greater than if he had a modicum of brains." One does need to be mentally competent, however. One of the most difficult questions in negligence cases is that of what the actor may be required to know. So far as perception is concerned, the actor must pay the sort of attention to his surrounding environment that an ordinary reasonable person would consider necessary under the circumstances. There is real difficulty with respect to the question of experience. One commentator has come to the conclusion that "there are no facts whatever which every person in the community is absolutely bound at his peril to know." But this is surely false. There are certain things that every adult person must have learned: the law of gravity, that water can drown, that inflammable objects can go up in smoke if placed near a flame, that a loose board will flip if trod on at its end, etc. The ordinary reasonable person in this sense is also a creature of his time and historical moment: he will know that a car does not handle well in deep sand; that firearms are dangerous if loaded, that worn tires can blow out, etc. "What was excusable ignorance yesterday becomes negligent ignorance today." Also it is the individual who must conform to what a reasonable person who lives in a particular community would know rather than vice versa. Thus, an old lady from the city (or a City Slicker such as the one Billy Crystal recently portrayed) who comes to a farm and does not know that a bull is a dangerous animal must conform to the standard of knowledge common to the particular community.

If an individual has in fact knowledge superior to that of ordinary folks, the law will demand of him conduct consistent with it. A vendor of fur coats who has learned that certain furs cause dermatitis must take precautions which might not be required of a consumer of furs. In the same spirit, a physician who possesses special skills must use care which is reasonable in light of his special skill and information and may be negligent where an ordinary doctor would not.

Pre-existing conditions and "Foreseeability"

Why not think of the explosion in Palsgraf on the order of Hart and Honore's "thin skull" cases? A hits B with a force that would normally only bruise a person; but, unknown to A, B has a very thin skull or is a hemophiliac; B dies. On Hart and Honore's analysis B's thin skull is treated as a "pre-existing condition." A has caused B's death on the principle, as it were that "you take your victim as you find him." What about the explosive in that package wrapped with newspaper? Why not treat it as a pre-existing condition on the assumption that one man's package is not so different than one man's skull. You cannot know in advance (could not foresse) what such a package might contain. Like the internal states of an individual, it is hard to tell what's inside from just looking. Thick or thin a fellow's skull is a fellow's skull as a package is a package.

"Negligence to" and "Foreseeability"

Cardozo seems to suggest that negligence is a relational term and that Mrs. Palsgraf must show, if she wishes to recover damages, that the conduct of the railway employees constituted a "wrong to her," to be saying that if you are negligent, you must be negligent to someone. He also introduces the notion of "reasonably foreseeable risk," and to suggest that "there was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreackage through the station." Are these considerations identical?

Individual responsibility, fairness, and efficiency

The court in Summers v. Tice decided that Simonson did not have to prove whether it was Tice's gun or Summer's gun that was the source of his injury. Part of the reason for this appears to be the court's concern that if it were to require Simonson to prove which gun was the source of his injury in a situation in which it was virtually impossible for him to do so, he (Simonson) might then be out of pocket.

Alternative Schemes to Negligence Litigation

With the increasing complexity of the society in which we live, both the courts and the principles and doctrines of tort law have been strained to the limit with negligence litigation. Why not look for an alternative to the existing regime of negligence law? We could, for instance, impse a tax on all those who act negligently, whether or not their conduct actually causes harm.

A burning question: How far can a person's liability extend?

John starts a fire in his fireplace, neglecting to put up the firescreen. He then goes to the den and turns on the television. He becomes absorbed in a particularly gripping episode of Murphy Brown, leaving the fire unattended. A spark from the fire ignites the carpet, then the draperies. Soon the whole house is abalze. John escapes in the nick of time. The fire spreads to the neighbor's house, then the entire block, then the entire town. Does it make sense to hold John responsible in tort for the destruction of an entire town?






Prepared: February 4, 2003 - 5:02:29 PM
Edited and Updated, February 5, 2003


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