We impose negligence when there is a precaution we want people to take

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Formative Cases:

  1. Thorn’s Case: D held liable in trespass when he attempted to collect

    1. However unclear whether or not the case adopted strict liability or negligence

      1. On one hand, we are concerned with the ability of the owner to extort favorable terms from the neighbor who has lost his thorns (Choke’s concern); hence Choke’s note that the “best efforts” of D ought to be considered

        1. Millen v. Fandrye, 79 Eng. Rep. 1259 (K.B 1626). Defendant’s sheep dog chased plaintiff’s trespassing sheep not only off defendant’s land but beyond. Defendant not liable as he made his best effort to recall the dog after the lawful act of chasing off the sheep.

      2. On the other hand, this is not an instance of necessity in which normal laws of property ought to be suspended (falling of Thorns is not quite an act of God)

        1. The Tithe Case, Y.B. Trin., 21 Hen. 7, f. 26, 27, 28, pl. 5 (1506). Defendant removed plaintiff’s crops to a barn to protect those crops from destruction by animals (owned by a third party) on behalf of the plaintiff. Defendant did not have leave to do this, and the crops subsequently died in the barn. Defendant was civilly liable, under the theory that if the crops had been destroyed in the field, the plaintiff would have had recourse against the third party owner.

        2. Exposes the limits of necessity in terms of suspending property rights: you can act this way on behalf of your own property but not that of others

          1. RPD: Very consistent with necessity/duty to rescue in general

  2. Weaver v. Ward. Court allows the defense of “involuntary accident” to a prima facie case of trespass.

    1. Rooted in common law rule that: “no man shall be excused of trespass except it may be judged utterly without his fault.”

    2. See also Smith v. Stone, 82 Eng. Rep. 533 (K.B. 1647)

      1. Defendant was dropped on plaintiff’s property by a group of third parties. Court found that the trespass was not committed by the defendant but by the third parties who could be found liable. Compulsion by third parties shifts liabilities to the third parties.

      2. Gilbert v. Stone, 82 Eng. Rep. 539 (K.B. 1647)

        1. Plaintiff brought an action of trespass against Stone and for taking a horse. Stone claimed he did this out of fear for his life which was threatened by third parties. Defendant is liable, may not steal or trespass on another as the plaintiff can have no remedy from the party that threatened (after all, it’s not a tortuous act)

          1. RPD: Interesting application here: the liability can’t be shifted to a third party so the defendant holds the liability

          2. RPD: There is no direct causal chain from the plaintiff to third parties in the eyes of the law (as the threats could not be actionable by the defendant against the third parties) so the liability remains

          3. Seems liability is a zero sum game.

      3. Butigan v. Yellow Cab Co., 320 P.2d 500 (Cal. 1958). Ordinary negligence principles govern unintended acts. “Inevitable accidents” are essentially and only Acts of God

        1. Court noted that this defense was the result of the strict liability regime which required that the only defense was that D prove the injury was the result of an “inevitable accident.”

        2. The court basically throws out the defense of “inevitable accident” which was the direct result of the sort of standards the lower court in Kendall attempted to enforce upon the defendant (i.e., that the burden of proof was on the defendant to show that he had used extraordinary care). In its place, ordinary negligence principles were held to govern so that “the defendant under a general denial may show any circumstance which militates against his negligence or its causal effect.”

The Forms of Action

  1. Trespass and Case

    1. Trespass: An action brought for immediate harm to your person or property

      1. Holmes: “All actions of trespass are for consequences of acts, not for the acts themselves.”

      2. Epstein: Trespass is the direct application of force causing harm to a person or property

      3. Scott v. Shepard.

        1. Nares, J. adopts the idea that trespass lies for all harm, direct or consequential, when the D’s action is unlawful by statute, including on that declares the throwing of a lighted squib

        2. Opposed by Blackstone, J. who felt that an action in trespass only lies against the person who immediately threw the squib

          1. Epstein: The problem with Blackstone’s soccer ball analogy is that when the object comes to a position of apparent safety than liability ceases.

            1. One way to think about it; as long as the last thrower (Willis) did not increase the risk to Scott from that that Willis was himself exposed, then Willis shouldn’t be liable

          2. Levmore: Blackstone’s theory works to deter the immediate act.

            1. The first person on whom the squib landed lets his shop burn rather than risking further liability

            2. He has immediate recourse to Shepard

      4. Guille v. Swann. Balloon landed on plaintiff’s field, causing damages. The pilot, in a precarious position, called to a workman in Swan’s field for help in a voice that was heard by the crowd assembled on the property line. Some 200 people charged over and tore up more of the plaintiff’s land

        1. Appellant Guille claimed that he could only be responsible for the damages he had directly cause

        2. The defendant created the situation without using due care, he is entirely liable

        3. Appellate court ruled that though balloon flying is a legal act, if the descent of a balloon would ordinarily attract a crowd, then the appellant “ought to have forseen, and must be responsible for” all of the ensuing damages

    2. Trespass on the Case/ “Case”: Action brought for damages to person or property resulting from a trespass not directly but later; allowed for recovery from these later damages. Not a trespass in the immediate sense. Fee shifting arose in actions of trespass on the case

  2. The Breakdown of the Forms.

    1. Plaintiffs obviously faced a “shell game” in terms of deciding what form action to bring

      1. E.g., if P is run down by a carriage owned by D, trespass or case?

        1. If carriage driven by servant, trespass is inappropriate in an action against the master. McManus v. Crickett, 102 Eng, Rep. 580 (K.B. 1800). The master did not apply direct and immediate force to the P

        2. However, P runs the risk of nonsuit if D had actually driven the coach

      2. Also, P could not sue D and his master in the same writ

    2. Statutory reform was introduced in England in 1852

    3. Prior to 1852, Plaintiff was also allowed to join claims against Master and Servant in trespass

    4. The foundational shift, however, occurred in 1833. Williams v. Holland (1833). P could sue in case, no matter whether the harm was immediate or consequential, as long as the P could show that the harm occurred as a result of D’s negligence.

      1. Trespass was still available for all immediate harms

      2. Only trespass was available for in cases of willful and immediate harm

      3. Harms directly and negligently caused lay in trespass

        1. P would prefer trespass, since he could then join the Master and Servant

Strict Liability and Negligence in the Last Half of the Nineteenth Century

  1. Negligence is the dominant standard

  2. Brown v. Kendall. If the plaintiff was harmed by the unintentional and legal act of the defendant, the plaintiff must demonstrate that the defendant acted without reasonable care.

    1. Brown v. Kendall is the standard for P’s making a case of assault under a negligence regime.

    2. P is required to either demonstrate:

      1. Unlawful intent

      2. Want of due care if P cannot prove unlawful intent

        1. Due care a function of circumstance

        2. Due care defined as “that kind and degree of care, which prudent and cautious men would use, such as is required by the exigency of the case.”

    3. Epstein: Condition of assumption of risk in Brown v. Kendall: the plaintiff was doing something to benefit himself when he joined the activity (he traded more risk for more satisfaction); spectator assumption of risk.

  3. But see Rylands v. Fletcher. Landowner is strictly liable to adjacent landowners when he brings onto his land an unnatural, artificial device that causes something to excape form the land and harms another’s land or chattles

    1. In the lower court, Bramwell, B., held that an action in trespass would lie

      1. Whether or not the defendant’s act was lawful was irrelevant. The D became strictly liable when the water passed onto P’s land

      2. “Therefore, on the plain ground tha the defendants have caused water to flow into the plaintiff’s mines which but for their, the defendant’s acts act would not have gone their, this action [in trespass] is maintainable. . . . [T]he defendants’ innocence, whatever may be its moral bearing on the case, is immaterial in point of law.

      3. But see Martin, B.

        1. Claimed that trespass did not lie since the D’s act was lawful

        2. He attempts to distinguish the Ds act from normal activities in which strict liability applies:

          1. Fires

          2. Baileees

          3. “[T]o hold the defendant liable without negligence would be to constitute him an insurer, which, in my opinion, would be contrary to legal analogy and principle.”

          4. RPD: Of course, Martin is wrong.

    2. Upper Court distinguishes the accident in terms of Case and Trespass:

      1. Negligence generally applies when harms are indirect (Case) or there is assumed risk on the part of the plaintiff (accidents on road or sea, collisions)

      2. Strict liability applies in cases of fire and loose cattle

    3. Owner of a mine may do with it what he will up to the boundaries of his mine

      1. Smith v. Kenrick; owner of a coal mine was not committing trespass when he worked out his mine and water naturally flowed into and obstructed the mine of another

      2. Baird v. Williams; owner of a coal was liable when he pumped water in to help clear the mine and this obstructed the plaintiff’s mine

    4. Cairns, C.J. decides the case on the basis of strict liability in the following manner:

      1. The harm was consequential of the D’s act

      2. Strict liability applies (evidence of negligence not required)

      3. Defendants, then, improve their own land at their peril

      4. Cranworth, L., supporting Cairns also notes the strong presumption of Sic utere tuo ut alienum non laedas

    5. Holmes on Rylands: “[A]s there is a limit to the nicety of an inquiry which is possible in a trial, it may be considered that the safest way to secure care is to throw the risk upon the person who decides what precautions shall be taken.” The Common Law 117 (1881)

    6. But see: Turner v. Big Lake Oil Co. 96 W.S.2d 221 (Tex. 1936). Texas court rejects Rylands on the basis that the use of cisterns is in fact a “natural” use of land given the arid conditions of that state. (RPD: Does this really reject Rylands?)

      1. Turner Also the strong suggestion that perhaps the liability for damages in such an instance would be better addressed through statute or injunction?

  4. Strict liability regime of Rylands did not make much headway in the U.S.

    1. Brown v. Collins. The standard of strict liability unfairly punishes those who would attempt “to rise above a condition of barbarism.” Therefore, the common law will only test responsibility on the basis of “the propriety of their living in the social state, and the relative and qualified character of the rights incident to that state”

      1. Facts:

        1. Plaintiff owned a stone post with a street lamp. Defendant was waiting by a railroad crossing near the lamp with his horse-drawn wagon

        2. The horses were scared by the railroad engine and bolted, causing the defendant to hit the post.

        3. D did not cause the horse to so move

    2. But See also, Losee v. Buchanan, 51 N.Y. 483 (1873). Plaintiff sued for damages that resulted when defendant’s boiler, operated with due care, exploded and was projected into her premises. Court held for the defendant on the basis that D was non-negligently (explicitly taking issue with Rylands)

  5. Strict liability and statute

    1. Powell v. Fall. A person who uses a dangerous machine, even in a manner according to statute, is liable when the machine causes damages to other parties

      1. He benefits when the machine operates correctly

      2. The public should not pay when the machine operates incorrectly

      3. If the gains don’t cover the damage then the machine is a nuisance and the machine should be banned

  6. O.W. Holmes rejects strict liability in The Common Law (1881)

    1. “Would make a defendant responsible for all damage, however remote, of which his act could be called the cause”

    2. A strict liability regime would be to turn the state into a “mutual insurance company against accidents, and distribute the burden of its citizens’ mishaps among all its members.”

Modern Strict Liability and Negligence

  1. Bolton v. Stone: Standard of care is that of a reasonable man

    1. Plaintiff’s prima facie case of “he hit me” refuted by due care shown by D

    2. See also Rinaldo v. McGovern, 587 N.E.2d 264 (N.Y. 1991). Defendant sliced a golf ball that shattered plaintiff’s windshield as she was driving along a public street. Court ruled for defendant. The presence of risk does not establish tort liability in and of itself without the failure to take reasonable steps, where possible, to minimize the chance of harm.

      1. Epstein hates this case

  2. Hammontree v. Jenner. Court refuses to allow recovery on a theory of strict liability when D, an epileptic who was taking meds and had not suffered an attack in years, suffered a seizure and crashed through the P’s shop

    1. Normally you are strictly liable if a pre-existing condition causes an injury in a highway case

    2. RPD: Note the similarity here b/t Bolton and Hammontree; the courts are gradually reducing the ability of Ps to recover for these freakish injuries

    3. Compare to Breunig

    4. See also Schmidt v. Mahoney, 659 N.W.2d 552 (Iowa 2003). Doctor not liable when epileptic who he recommended for license hit someone.

      1. Epileptic hit a person. Court refused to hold a doctor liable who had failed to inform his patient of the dangers caused by her seizure disorder and affirmatively answered that she could drive safely and provided favorable documentation to the Iowa DMV helping the driver get license. Court felt that affixing liability to a doctor in this manner would make physicians prone to “overly restrictive” judgments rather than judgments in the patient’s best interest.



    1. Neligence: Want of ordinary care

    2. Legal negligence: Want of ordinary care that results in civil liabiliy

The Reasonable Person

  1. Vaughn v. Menlove. Standard of care is that observed by a man of ordinary prudence.

    1. Facts

    2. Defendant Menlove, a neighbor, had placed certain buildings near the plaintiff’s cottages. Defendant also placed a hay stack on his own property near the cottages. For a period of five weeks prior to the event in question, defendant was informed of the probability that the hay would catch fire. Defendant replied that he would “chance it”. His stock (livestock?) was insured

  1. Guest statutes. Guest statutes were used up through the 1970s to impose a low standard of care (“gross negligence”) upon drivers for passengers in their car. Conway v. O’Brien, 312 U.S. 492 (1941). Supreme Court overturned the Appellate Court’s decision to set aside the jury verdict. (The Appellate Court had felt that the jury would not be able to distinguish the correct standard required). Subsequently challenged in California in Brown v. Merlo, 506 P.2d 212 (Cal. 1973)

    1. Conway v. O’Brien, 111 F.2d 611 (2d Cir. 1940). Guest statutes: Appellate court held for defendant on the basis that a driver had a lower standard of care for a guest in his car. Reversed and remanded by the Supreme Court (61 S. Ct. 634 (1941)) on the basis that a jury could have found gross negligence; the USC did not overturn the theory of gross negligence per se, but such a reversal clearly demonstrates their view that it is a meaningless distinction

  2. Standard of care for different ages/skill levels

    1. Roberts v. Ring. In considering the contributory negligence of a 7-year old boy, the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity.

        1. Dicta: “It would be different if he had caused injury to another. In such a case he could not take advantage of his age or infirmities”

      1. Defendant was required to use reasonable care which he failed to do

        1. Court took into account that he failed to slow down quick enough while traveling at 5mph and hit the kid

      2. Facts. Defendant Ring was a 77-year old man, hard of hearing and in poor eyesight. Plaintiff was a 7-year old boy. Plaintiff was either walking across the street or riding on the back of a buggy directly in front of the defendant. As plaintiff passed in front of defendant’s automobile, he was struck and injured

    2. But see Daniels v. Evans: A minor operating a motor vehicle, whether automobile or a motorcycle, must be judged by the same standard of care as an adult. Minor is held to same standard of the reasonable adult whether he is a child or an adult

      1. Adopted the Second Restatement § 283A “When a minor engages in such activities as the operation of an automobile or similar power driven device, he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and it thenceforth held to the same standard as all other persons”

      2. Epstein: It makes sense to hold younger people to this higher standard since they are generally less risk averse than older folks

        1. The problem, for Epstein, is that the court makes the distinction between “adult” and “child like” activities (which b/c’s very difficult to sort out)

        2. RPD: See Daniels v. Evans brief for list of cases on this subject

    3. Breunig v. American Family Insurance Co., Person who believed she spoke with God on a regular basis liable when, under a delusion, she believed her car was flying and instead she caused a car accident.

      1. Court based its ruling on the fact that this was a pre-existing condition which the driver (a Mrs. Veith) knew or had reason to believe might cause such an accident

      2. RPD: Can distinguish, then, from Hammontree.

      3. See also Jankee v. Clark County, 612 N.W.2d 297 (Wis. 2000)

        1. Court refused to hold institution liable when it had not restrained the plaintiff, a lunatic patient, and he injured himself while falling. Court followed Bruening by applying the objective standard of care to the plaintiff (i.e., plaintiff should have known better).

        2. Court noted that to affix liability would be to incentivize the institutions to overly restrict/imprison their patients which is arguably counter to society’s best interest

        3. RPD: similar to Long’s argument (p. 157) for reduced standards of negligence towards both plaintiff’s and defendants. Create a more beneficial social outcome.

    4. The blind plaintiff. Fletcher v. City of Aberdeen. Municipality has a duty of care to blind plaintiff if it knows or should know that its streets will be used by such an individual

      1. Facts. Fletcher, a legally blind man, fell into a hole dug by the municipality as part of a road construction project. The hole was marked out and P would have seen it had he been of sight

      2. Court held that the city, knowing that blind people will use the sidewalks/parking spots as a thoroughfare is required to exercise a standard of care commensurate to that fact.

      3. Epstein: If you invite the variation on the norm (letting blind people walk the street) than you assume liability/standard of care for that variation

      4. See also:

        1. “Public throughfares are for the beggars on his crutches as well as the millionaire in his limousine” (Weinstein v. Wheeler)

        2. Robinson v. Pioche Bayerque & Co. 5 Cal. 460 (1855). Drunk fell in an uncovered hole dug into the sidewalk. “A drunken man is as much entitled to a safe street as a sober one.”

Calculus of Risk

Epstein: What about the calculus of risk? The following two propositions are true: (1) Dealing with a necessity or non-necessity situation, negligence assumes cost-justified precautions (publicly monitored); (2) Strict liability is privately monitored

  1. Blyth v. Birmingham Water Works. D not liable when its water pipe burst in a freak winter storm based on the precautions actually taken by the defendant and the sheer improbability of the occurrence. The water works had no ongoing duty to maintain the water works against such an improbability

    1. Epstein: This is the rule for liability.

    2. Epstein: Court gets it wrong. Court argues that you should only assume a normal winter in designing the system. But that’s absurd, you should build a system it based on long-term based on the extremes of natural variation (5 9’s level of care)

    3. Note: In a context of negligence and assumption of risk, you have to balance interests There are two different kinds of interests you can balance:

      1. Monetary costs v. probability and severity of the accident

        1. It is very hard for companies to win on this defense (think Corvair)

      2. Alternative risks

        1. “If I did that, something worse could have happened”

        2. This is generally preferential for corporate defendants

  2. RPD: View Eckert as suspending the normal rules by which risk is calculated (as opposed to Blyth)

  3. Eckert v. Long Island R.R. 43 N.Y. 502. When a person exposes himself to harm for the purpose of saving human life it is not negligent unless done in such a way as to be reckless.

    1. Majority opinion held that it was irrelevant whether or not the child was actually in danger; it only mattered that the plaintiff reasonably thought the child was in danger

      1. The contra argument, of course, is volenti non fit injuria.

      2. This is an assumption of risk argument (and hence contributory negligence)

    2. Can’t really use an expected value calculation in this case, because the chance that the child was on the wrong track implies that, if the child was on the wrong track than the plaintiff’s act had zero utility (probability of saving a life was zero)

      1. So the opinion lowers the standard or due care. Given the emergency situation the court, the court condones the “rash” nature of the act because the act wasn’t “rash” given the circumstances of the circumstance (i.e., the rescuer’s act was not reckless)

      2. In this view, the expected value might have been negative, but this is irrelevant given the standard applied by the Eckert court

      3. RPD: Seems to make sense; how do you require a person in such an emergency to make an expected value probability

  4. Osborne v. Montgomery.

    1. Facts. D pulled along side parked cars. Stopped, opened his car door. P riding his bike hit the car door as it opened and was injured.

    2. D appealed on the basis of a jury instruction that read: “By ordinary care is meant that degree of care which is the great mass of mankind, or the type of that mass, the ordinarily prudent man, exercised under like or similar circumstances”

    3. Court reversed and remanded on the question of damages noting that the standard of care instructed to the jury must take into account the specific circumstances at the time of the accident

  5. Cooley v. Public Service Co. D power company not liable when the uninsulated power wires it maintained above telephone wires caused a freak injury in plaintiff during a storm

    1. Defendant power company had no duty because such a duty would create substantial and direct risks to third parties in exchange for minimizing a remote risk to the plaintiff

    2. Note the court’s treatment of “activity level.” That is, the court does not rule on whether the Power Co.’s decision to place the wires above ground was or was not a good idea. It simply focuses on the standard of care required once that decision had been made.

    3. RPD: The ultra-sensitive plaintiff. Compare to Rogers v. Elliott, 15 N.E. 768 (Mass. 1888) (Nuisance, below)

  6. Carroll Towing Co. Cost-justified standard of care in relation to the risk.

    1. Liability determined by the probability of damage (P) times the extent of Loss (L) versus the burden created to prevent that risk (B)

      1. If P x L > B = No liability

      2. If P x L < B = Liability

    2. See also, Halek v. U.S., 178 F.3d 481 (7th Cir. 1999) (Posner, J.). Plaintiff, an elevator experienced repairman, lost his balance, tripped, and got his hand caught at the nip point of a pulley system that was guarded by an immovable cage that the Navy had left open on one side. Plaintiff could have turned off the system but did not b/c of anticipated short period of exposure.

      1. Posner applied the Hand formula

      2. Given the “trivial” cost of making the machinery safe and the “non-trivial probability” of someone getting caught in the machinery and the “gravity” of the injury that could be sustained, the defendant was liable.

  7. Sudden Emergency Doctrine: A rule of law which states that a person confronted with a sudden and unexpected perils, not resulting from that person’s own negligence, is not expected to exercise the same judgment and prudence the law requires of a person in calmer and more deliberate moments

    1. Disapproved of Lyons v. Midnight Sun Trans. Serv. Co. since a negligence standard must necessarily take into account all the specific factors of the case

    2. RPD: Compare to Osborne v. Montgomery.

  8. Utmost care standard: Common carrier “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. 465 P.2d 72 (1970)

    1. However, a “common carrier” is not an insurer of its passenger’s safety, Lopez v. Southern Cal. Rapid Transit Dist., 710 P.2d 907 (1985)

    2. Andrews v. United Airlines. United failed to demonstrated that United had done everything permitted by technology and dictated by prudence to protect its passengers from the sort of injury suffered by plaintiff such that it was entitled to judgement as a matter of law

      1. A bag had fallen and injured P while she was getting off the plane.

    3. Kelley v. Manhattan Ry., 20 N.E. 383 (N.Y. 1889)

      1. Court denied plaintiff’s claim for damages based on “utmost care” requirement when he slipped on the stairs outside the station. Court held that “utmost care” was limited to those activities specific the carrier’s role as such. (implicit is the idea that greater risk requires greater care)

      2. Epstein: This standard was appropriate in the 19th Century when the RRs were:

        1. Basic monopoly (lack of options for the passenger; Railroad being what he had in mind)

        2. Exclusive control over the passenger at the time

        3. Clearly this does not apply to Andrews, this is an alternative hazard that shouldn’t be under the “common carrier” standard, but the Appellate messes this up.

      3. Note: The original application of strict liability to common carriers was originally only applied to freight, though it was slowly applied to harms to people (esp. as regards NY railroads)

    4. Bethel v. New York City Transit Authority, 703 N.E.2d 1214 (N.Y. 1998)

      1. Overturned Kelley.

      2. Regarding a plaintiff who was injured when a movable bus seat collapsed when she tried to sit down. Technological progress had made the “utmost care” requirement obsolete as the nature of public transportation was no longer so dangerous per se that it automatically required such a standard of care given the passenger’s total dependence upon the carrier for safety precautions.

      3. Case was a recognition that the Hand formula should account for increased risks caused by common carrier situations

    5. RPD: Be careful not to confused “utmost care” with strict liability for carriers (which only applies to freight/cargo per Levmore).

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