January, 1972
*537
FAIRNESS AND UTILITY IN TORT THEORY
George P. Fletcher [FNa1]
Copyright © 1972 by the
Harvard Law Review Association; George P. Fletcher
Professor Fletcher challenges the
traditional account of the development of tort doctrine as a shift from an
unmoral standard of strict liability for directly causing harm to a moral standard
based on fault. He then sets out two paradigms of liability to serve as
constructs for understanding competing ideological viewpoints about the proper
role of tort sanctions. He asserts that the paradigm of reciprocity, which
looks only to the degree of risk imposed by the parties to a lawsuit on each
other, and to the existence of possible excusing conditions, provides greater
protection of individual interests than the paradigm of reasonableness, which
assigns liability instrumentally on the basis of a utilitarian calculus.
Finally, Professor Fletcher examines stylistic
differences between the two paradigms which may explain the modern preference
for the paradigm of reasonableness.
I. TWO PARADIGMS OF LIABILITY
TORT theory is suffering from declining
expectations. Commentators still chronicle cases and expound doctrine for
practitioners. But the thrust of the academic literature is to convert the tort
system into something other than a mechanism for determining the just
distribution of accident losses. Some writers seek to convert the set of
discrete litigations into a makeshift medium of accident insurance or into a
mechanism for maximizing social utility by shifting the costs of accidents (or
accident prevention) to the party to whom it represents the least disutility.
Thus the journals cultivate the idiom of cost-spreading, risk-distribution and
cost-avoidance. [FN1] Discussed less and less are *538
precisely those questions that make tort law a unique repository of intuitions
of corrective justice: What is the relevance of risk- creating conduct to the
just distribution of wealth? What is the rationale for an individual's
"right" to recover for his losses? What are the criteria for justly
singling out some people and making them, and not their neighbors, bear the
costs of accidents? These persistent normative questions are the stuff of tort
theory, but they are now too often ignored for the sake of inquiries about insurance
and the efficient allocation of resources.
The fashionable questions
of the time are instrumentalist: [FN2]
What social value does the rule of liability further in this case? Does it
advance a desirable goal, such as compensation, deterrence, risk-distribution,
or minimization of accident costs? True, within this instrumentalist framework
some writers are concerned about the goal of vindicating the community's sense
of fairness. [FN3] But this approach generally makes the issue of fairness
look like the other goals of the tort system. Any other notion of fairness--one
that is not a goal, but a non-instrumentalist reason for redistributing losses [FN4] --strikes some contemporary writers as akin *539 to
a nonrational community taboo. [FN5]
Reluctant as they are to assay issues of
fairness, tort theorists tend to regard the existing doctrinal framework of
fault and strict liability as sufficiently rich to express competing views
about fairly shifting losses. [FN6] This conceptual framework accounts for a number of
traditional beliefs about tort law history. One of these beliefs is that the
ascendancy of fault in the late nineteenth century reflected the infusion of
moral sensibility into the law of torts. [FN7] That new moral sensibility is
expressed sometimes as the principle that wrongdoers ought to pay for their
wrongs. [FN8] Another traditional view is that strict tort liability is
the analogue of strict criminal liability, and that if the latter is suspect,
so is the former. [FN9] The underlying assumption of
both these tenets is that negligence and strict
liability are antithetical rationales of liability. This assumed antithesis is
readily invoked to explain the ebbs and flows of tort liability. Strict
liability is said to have prevailed in early tort history, fault supposedly
held sway in the late nineteenth century, with strict liability now gaining
ground. [FN10]
These beliefs about tort history are
ubiquitously held, [FN11] but to varying degrees they
are all false or at best superficial. There has no doubt been a deep
ideological struggle in the tort law of the last century and a half. But, as I
shall argue, it is not the struggle between negligence and fault on the one hand,
and strict liability on the other. Rather, the confrontation is between *540
two radically different paradigms for analyzing tort liability [FN12]
--paradigms which represent a complex of views about (1) the appropriate
standard of liability, (2) the appropriate style of legal reasoning, and (3)
the relationship between the resolution of individual disputes and the
community's welfare.
These paradigms of liability cut across
traditional doctrinal lines, [FN13]
creating a deep ideological cleavage between two ways of resolving tort
disputes. The conflict is whether judges should look solely at the claims and
interests of the parties before the court, or resolve seemingly private
disputes in a way that serves the interests of the community as a whole. From
this cleavage spring divergent ways of looking at concepts like fault, rights of recovery, and excuses from liability. Do these concepts
provide a medium of doing justice between the parties, or are they a medium for
serving the interests of the community? A stand on this threshhold question
generates an interrelated set of views, including a characteristic style of
legal rhetoric. In this essay I wish to explicate these two paradigms of
liability, show their operation in the case law [FN14] and thus enrich the
conceptual tools with which we analyze tort liability and the patterns of tort
history.
Of the two paradigms, I shall call the first
the paradigm of reciprocity. According to this view, the two central issues of
tort law--whether the victim is entitled to recover and whether the defendant
ought to pay--are distinct issues, each resolvable without looking beyond the
case at hand. Whether the victim is so entitled depends exclusively on the
nature of the victim's activity when he was injured and on the risk created by
the defendant. The social costs and utility of the risk are irrelevant, as *541
is the impact of the judgment on socially desirable forms of behavior. Further,
according to this paradigm, if the victim is entitled to recover by virtue of
the risk to which he was exposed, there is an additional question of fairness
in holding the risk-creator liable for the loss. This distinct [FN15] issue of fairness is expressed by asking whetherthe
defendant's creating the relevant risk was excused on the ground, say, that the
defendant could not have known of the risk latent in his conduct. To find that
an act is excused is in effect to say that there is no
rational, fair basis for distinguishing between the party causing harm and
other people. Whether we can rationally single out the defendant as the
loss-bearer depends on our expectations of when people ought to be able to
avoid risks. As will become clear in the course of this discussion, these
expectations should not always depend upon the social utility of taking risks;
rather they should often depend on non-instrumentalist criteria for judging
when men ought to be able to avoid excessive risks of harm. For example, the
standard of uncommon "ultra-hazardous activities," introduced by the
first Restatement [FN16] is apparently a non-instrumentalist standard: one looks
only to the risk and not to its social utility to determine whether it is
ultra-hazardous. [FN17] Yet it is never made clear by the Restatement why
extra-hazardous risks warrant "strict liability" while ordinarily
hazardous risks do not.
As part of the explication of the first
paradigm of liability, I shall propose a specific standard of risk that makes
sense of the Restatement's emphasis on uncommon, extra-hazardous *542
risks, but which shows that the Restatement's theory is part of a larger
rationale of liability that cuts across negligence, intentional torts, and
numerous pockets of strict liability. The general principle expressed in all of
these situations governed by diverse doctrinal standards is that a victim has a
right to recover for injuries caused by a risk greater in degree and different
in order from those created by the victim and imposed on
the defendant--in short, for injuries resulting from nonreciprocal risks. Cases
of liability are those in which the defendant generates a disproportionate,
excessive risk of harm, relative to the victim's risk-creating activity. For
example, a pilot or an airplane owner subjects those beneath the path of flight
to nonreciprocal risks of harm. Conversely, cases of nonliability are those of
reciprocal risks, namely those in which the victim and the defendant subject
each other to roughly the same degree of risk. For example, two airplanes
flying in the same vicinity subject each other to reciprocal risks of a mid-air
collision. Of course, there are significant problems in determining when risks
are nonreciprocal, and we shall turn to these difficulties later. [FN18] For now, it is sufficient to note that the paradigm of
reciprocity represents (1) a bifurcation of the questions of who is entitled to
compensation and who ought to pay, (2) a commitment to resolving both of those
issues by looking only to the activity of the victim and the risk-creator, and
(3) a specific criterion for determining who is entitled to recover for loss,
namely all those injured by nonreciprocal risks.
The conflicting paradigm of liability--which
I shall call the paradigm of reasonableness--represents a rejection of
non-instrumentalist values and a commitment to the community's welfare as the
criterion for determining both who is entitled to receive and who ought to pay
compensation. Questions that are distinct under the paradigm of
reciprocity--namely, is the risk nonreciprocal and was
it unexcused--are collapsed in this paradigm into a single test: was the risk
unreasonable? The reasonableness of the risk thus determines both whether the
victim is entitled to compensation and whether the defendant ought to be held
liable. Reasonableness is determined by a straightforward balancing of costs
and benefits. If the risk yields a net social utility (benefit), the victim is
not entitled to recover from the risk-creator; if the risk yields a net social
disutility (cost), the victim is entitled to recover. [FN19]
The premises of this paradigm are *543 that reasonableness provides a
test of activities that ought to be encouraged and that tort judgments are an
appropriate medium for encouraging them.
The function of both of these paradigms is
to distinguish between those risks that represent a violation of individual
interests and those that are the background risks that must be borne as part of
group living. The difference between the two paradigms is captured by the test
provided by each for filtering out background risks. The paradigm of
reciprocity holds that we may be expected to bear, without indemnification,
those risks we all impose reciprocally on each other. If we all drive, we must
suffer the costs of ordinary driving. The paradigm of reasonableness, on the
other hand, holds that victims must absorb the costs of reasonable risks, for
these risks maximize the composite utility of the group, even though they may
not be mutually created background risks.
The paradigm of
reasonableness bears some resemblance to present-day negligence, but it would
be a mistake to associate the two paradigms, respectively, with strict
liability and negligence. As I shall argue, the paradigm of reciprocity cuts
across strict liability, negligence and intentional torts, and the paradigm of
reasonableness accounts for only a subset of negligence cases. A large number
of negligence cases lend themselves to analysis under both paradigms. Suppose
there is a collision between two drivers on the highway, neither of whom has
done anything out of the ordinary. Neither would be liable to the other. That
result might be explained on the ground that the risks are reciprocal; each
endangers the other as much as he is endangered. Or nonliability might be
explained on the ground that ordinary driving is a socially beneficial
activity. As my exposition develops, I will account for this overlap and
explain why some cases of negligence liability fit only under the paradigm of
reasonableness.
II. THE PARADIGM OF RECIPROCITY
A. The Victim's Right to Recover
Our first task is to demonstrate the
pervasive reliance of the common law on the paradigm of reciprocity. The area
that most consistently reveals this paradigm is the one that now most lacks
doctrinal unity--namely, the disparate pockets of
strict liability. We speak of strict liability or "liability without
fault" in cases *544 ranging from crashing airplanes [FN20] to suffering cattle to graze on another's land. [FN21] Yet
the law of torts has never recognized a general principle underlying these
atomistic pockets of liability. The Restatement's standard of ultra-hazardous
activity speaks only to a subclass of cases. In general, the diverse pockets of
strict liability represent cases in which the risk is reasonable and legally
immune to injunction. They are therefore all cases of liability without fault
in the limited sense in which fault means taking an unreasonable risk. [FN22] Beyond
these characteristics distinguishing strict liability from negligence, there is
no consensus of criteria for attaching strict liability to some risks and not
to others. [FN23]
I shall attempt to show that the paradigm of
reciprocity accounts for the typical cases of strict liability [FN24]--crashing airplanes, [FN25] damage done by wild
animals, [FN26] and the more common cases of blasting, fumigating and crop
dusting. [FN27] To do this, I shall consider in detail two leading, but
seemingly diverse instances of liability for reasonable risk- taking-- Rylands
v. Fletcher [FN28] and Vincentv. Lake Erie Transportation Co. [FN29] The
point of focusing on these two cases is to generate a foundation *545
for inducing the claim that unexcused nonreciprocity of risk is the unifying
feature of a broad spectrum of cases imposing liability under rubrics of both negligence and strict liability.
In Rylands v. Fletcher the plaintiff, a coal
mine operator, had suffered the flooding of his mine by water that the
defendant had pumped into a newly-erected reservoir on his own land. The water
broke through to an abandoned mine shaft under the defendant's land and thus
found its way to the plaintiff's adjoining mine. The engineers and contractors
were negligent in not providing stronger supports for the reservoir; yet
because they were independent contractors, the defendant was not liable for
their negligence. Though the defendant's erecting and maintaining the reservoir
was legally permissible, the Exchequer Chamber found for the plaintiff, [FN30] and the House of Lords affirmed. [FN31] Blackburn's opinion in the
Exchequer Chamber focused on the defendant's bringing on to his land, for his
own purposes, "something which, though harmless whilst it remain there,
will naturally do mischief if it escape." [FN32] Lord Cairns, writing in the
House of Lords, reasoned that the defendant's activity rendered his use of the
land "non- natural"; accordingly, "that which the Defendants
were doing they were doing at their own peril." [FN33]
Neither Blackburn's nor Cairns' account
provides an adequate rationale for liability. It may be that a body of water
will "naturally do mischief if it escapes," but so may many other
things, like water in a pipe, oil in a furnace tank, and fire in a fireplace.
It is unlikely that Blackburn would favor liability for
the harmful consequences of all these risky practices. Cairns' rationale of
non-natural use, for all its metaphysical pretensions, may be closer to the
policy issue at stake in the dispute. The fact was that the defendant sought to
use his land for a purpose at odds with the use of land then prevailing in the
community. He thereby subjected the neighboring miners to a risk to which they
were not accustomed and which they would not regard as a tolerable risk
entailed by their way of life. Creating a risk different from the prevailing
risks in the community might be what Lord Cairns had in mind in speaking of a
non-natural use of the land. A better term might have been "abnormal"
or "inappropriate" use. Indeed these are the adjectives used in the
proposed revision of the Restatement to provide a more faithful rendition of
the case law tradition of strict liability. [FN34]
*546 A seemingly unrelated example of
the same case law tradition is Vincent v. Lake Erie Transporation Co., a 1910
decision of the Minnesota Supreme Court. [FN35]
The dispute arose from a ship captain's keeping his vessel lashed to the
plaintiff's dock during a two-day storm when it would have been unreasonable,
indeed foolhardy, for him to set out to sea. The storm battered the ship
against the dock, causing damages assessed at five hundred dollars. The court
affirmed a judgment for the plaintiff even though a prior case had recognized a
ship captain's right to take shelter from a storm by mooring his vessel to
another's dock, even without consent. [FN36] The court's
opinion conceded that keeping the ship at dockside was justified and
reasonable, yet it characterized the defendant's damaging the dock as
"prudently and advisedly [availing]" himself of the plaintiff's
property. [FN37] Because the incident
impressed the court as an implicit transfer of wealth, the defendant was bound
to rectify the transfer by compensating the dock owner for his loss. [FN38]
The rationales of Rylands and Vincent are
obviously not interchangeable. Building a reservoir is not availing oneself of
a neighbor's property. And mooring a ship to a wharf is not an abnormal or
"non-natural" use of either the ship or the wharf. Yet by stripping
the two cases of their rhetoric and by focusing on the risks each defendant
took, one can bring the two cases within the same general principle. The
critical feature of both cases 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.
Without the factor of nonreciprocal
risk-creation, both cases would have been decided differently. Suppose that
Rylands had built his reservoir in textile country, where there were numerous
mills, dams, and reservoirs, or suppose that two sailors secured their ships in
rough weather to a single buoy. In these situations each party would subject
the other to a risk, respectively, of *547 inundation and abrasion.
Where the risks are reciprocal among the relevant parties, as they would be in
these variations of Rylands and Vincent, a rule of
strict liability does no more than substitute one form of risk for another--the
risk of liability for the risk of personal loss. [FN39] Accordingly, it would make
little sense to extend strict liability to cases of reciprocal risk-taking,
unless one reasoned that in the short run some individuals might suffer more
than others and that these losses should be shifted to other members of the
community. [FN40]
Expressing the standard of strict liability
as unexcused, nonreciprocal risk- taking provides an account not only of the
Rylands and Vincent decisions, but of strict liability in general. It is
apparent, for example, that the uncommon, ultra-hazardous activities pinpointed
by the Restatement are readily subsumed under the rationale of nonreciprocal
risk-taking. If uncommon activities are those with few participants, they are
likely to be activities generating nonreciprocal risks. Similarly, dangerous
activities like blasting, fumigating, and crop dusting stand out as distinct,
nonreciprocal risks in the community. They represent threats of harm that
exceed the level of risk to which all members of the community contribute in
roughly equal shares.
The rationale of nonreciprocal risk-taking
accounts as well for pockets of strict liability outside the coverage of the
Restatement's sections on extra- hazardous activities. For example, an
individual is strictly liable for damage done by a wild animal in his charge,
but not for damage committed by his domesticated pet. [FN41]
Most people have pets, children, or friends whose presence
*548 creates some risk to neighbors and their property. These are risks
that offset each other; they are, as a class, reciprocal risks. Yet bringing an
unruly horse into the city goes beyond the accepted and shared level of risks
in having pets, children, and friends in one's household. If the defendant
creates a risk that exceeds those to which he is reciprocally subject, it seems
fair to hold him liable for the results of his aberrant indulgence. Similarly,
according to the latest version of the Restatement, airplane owners and pilots
are strictly liable for ground damage, but not for mid-air collisions. [FN42] Risk
of ground damage is nonreciprocal; homeowners do not create risks to airplanes
flying overhead. The risks of mid- air collisions, on the other hand, are
generated reciprocally by all those who fly the air lanes. Accordingly, the
threshold of liability for damage resulting from mid-air collisions is higher
than mere involvement in the activity of flying. To be liable for collision
damage to another flyer, the pilot must fly negligently or the owner must
maintain the plane negligently; they must generate abnormal risks of collision
to the other planes aflight.
Negligently and intentionally caused harm
also lend themselves to analysis as nonreciprocal risks. As a general matter,
principles of negligence liability apply in the context of activities, like
motoring and sporting ventures, in which the participants all normally create
and expose themselves to the same order of risk. [FN43]
These are all pockets of reciprocal risk- taking.
Sometimes the risks are grave, as among motorists; sometimes they are minimal,
as among ballplayers. Whatever the magnitude of risk, each participant
contributes as much to the community of risk as he suffers from exposure to
other participants. To establish liability for harm resulting from these
activities, one must show that the harm derives from a specific risk
negligently engendered in the course of the activity. Yet a negligent risk, an
"unreasonable" risk, is but one that unduly exceeds the bounds of
reciprocity. Thus, negligently created risks are nonreciprocal relative to the
risks generated by the drivers and ballplayers who engage in the same activity
in the customary way.
If a victim also creates a risk that unduly
exceeds the reciprocal norm, we say that he is contributorily negligent and
deny *549 recovery. [FN44] The paradigm of
reciprocity accounts for the denial of recovery when the victim imposes
excessive risks on the defendant, for the effect of contributory negligence is
to render the risks again reciprocal, and the defendant's risk- taking does not
subject the victim to a relative deprivation of security. [FN45]
Thus, both strict liability and negligence
express the rationale of liability for unexcused, nonreciprocal risk-taking.
The only difference is that reciprocity in strict liability cases is analyzed
relative to the background of innocuous risks in the community, while
reciprocity in the types of negligence cases discussed
above is measured against the background of risk generated in specific
activities like motoring and skiing. To clarify the kinship of negligence to
strict liability, one should distinguish between two different levels of
risk-creation, each level associated with a defined community of risks. Keeping
domestic pets is a reciprocal risk relative to the community as a whole;
driving is a reciprocal risk relative to the community of those driving
normally; and driving negligently might be reciprocal relative to the even
narrower community of those driving negligently. The paradigm of reciprocity
holds that in all communities of reciprocal risks, those who cause damage ought
not to be held liable. [FN46]
*550 To complete our account of the
paradigm of reciprocity, we should turn to one of its primary expressions:
intentional torts, particularly the torts of battery and assault. Several
features of the landlord's behavior in Carnes v. Thompson [FN47] in lunging at the plaintiff and her husband with a pair of
pliers make it stand out from any of the risks that the plaintiff might then
have been creating in return. An intentional assault or battery represents a
rapid acceleration of risk, directed at a specific victim. These features
readily distinguish the intentional blow from the background of risk.
Perceiving intentional blows as a form of nonreciprocal risk helps us understand
why the defendant's malice or animosity toward the victim eventually became
unnecessary to ground intentional torts. [FN48] The nonreciprocity of risk, and the deprivation of security it represents,
render irrelevant the attitudes of the risk-creator. [FN49]
All of these manifestations of the paradigm
of reciprocity-- strict liability, negligence and intentional battery--express
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, [FN50] 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 *551 of risk injures someone subject to
more than his fair share of risk. [FN51]
B. Excusing Nonreciprocal Risks
If the victim's injury
results from a nonreciprocal risk of harm, the paradigm of reciprocity tells us
that the victim is entitled to compensation. Should not the defendant then be
under a duty to pay? Not always. For the paradigm also holds that nonreciprocal
risk-creation may sometimes be excused, and we must inquire further, into the
fairness of requiring the defendant to render compensation. We must determine
whether there may be factors in a particular situation which would excuse this
defendant from paying compensation.
Though the King's Bench favored liability in
its 1616 decision of Weaver v. Ward, [FN52]
it digressed to list some hypothetical examples where directly causing harm
would be excused and therefore exempt from liability. One kind of excuse would
be the defendant being physically compelled to act, as if someone took his hand
and struck a third person. [FN53] Another kind would be the defendant's accidentally causing
harm, as when the plaintiff suddenly appeared in the path of his musket fire. [FN54] The
rationale for denying liability in these cases, as the court put it, is that
the defendant acted "utterly without ... fault." [FN55]
If a man trespasses against another, why
should it matter whether he acts with "fault" or not? What the King's
Bench must have been saying is that if a man injures another without fault on
his part, there is no rational and fair basis for charging the costs of the
accident to him rather than to an arbitrary third
person. The inquiry about fault and excusability is an inquiry about rationally
singling out the party immediately causing harm as the bearer of liability.
Absent an excuse, the trespassory, risk-creating act provides a sufficient
basis for imputing liability. Finding that the act is excused, however, is
tantamount to perceiving *552 that the act is not a factor fairly
distinguishing the trespassing party from all other possible candidates for
liability.
It is important to note that the inquiry
whether the act sets the actor apart and makes him a fit candidate for
liability was originally a non- instrumentalist inquiry. The King's Bench in
1616 did not ask: what good will follow from holding that physical compulsion
and unavoidable accident constitute good excuses? [FN56]
The question was rather: How should we perceive an act done under compulsion?
Is it the same as no act at all? Or does it set the actor off from his fellow
men? Thus, excusing is not an assessment of consequences, but a perception of
moral equivalence. It is a judgment that an act causing harm ought to be
treated as no act at all.
The hypotheticals of Weaver v. Ward
correspond to the Aristotelian excusing categories of compulsion and
unavoidable ignorance. [FN57] Each of these has spawned a
line of cases denying liability in cases of inordinate risk-creation. The
excuse of compulsion has found expression in the emergency doctrine, which
excuses excessive risks created in cases in which the defendant is caught in an
unexpected, personally dangerous situation. [FN58] In
Cordas v. Peerless Transportation Co., [FN59] for example, it was thought
excusable for a cab driver to jump from his moving cab in order to escape from
a threatening gunman on the running board. In view of the crowd of pedestrians
nearby, the driver clearly took a risk that generated a net danger to human
life. It was thus an unreasonable, excessive, and unjustified risk. Yet the
overwhelmingly coercive circumstances meant that he, personally, was excused
from fleeing the moving cab. [FN60] An example *553 of unavoidable ignorance excusing
risk- creation is Smith v. Lampe, [FN61] in which the defendant honked his horn in an effort to
warn a tug that seemed to be heading toward shore in a dense fog. As it
happened, the honking coincided with a signal that the tug captain expected
would assist him in making port. Accordingly the captain steered his tug toward
the honking rather than away from it. That the defendant did not know of the
prearranged signal excused his contributing to the tug's going aground. Under
the facts of the case, the honking surely created an unreasonable risk of harm.
If instantaneous injunctions were possible, one would no doubt wish to enjoin
the honking as an excessive, illegal risk. Yet the defendant's ignorance of
that risk was also excusable. Under the circumstances he could not fairly have
been expected to inform himself of all possible interpretations of honking in a
dense fog.
As expanded in these cases, the excuses of
compulsion and unavoidable ignorance added dimension to
the hypotheticals put in Weaver v. Ward. In Cordas and Smith we have to ask:
What can we fairly expect of the defendant under the circumstances? Can we ask
of a man that he remain in a car with a gun pointed at him? Can we require that
a man inform himself of all local customs before honking his horn? Thus the
question of rationally singling out a party to bear liability becomes a
question of what we can fairly demand of an individual under unusual
circumstances. Assessing the excusability of ignorance or of yielding to
compulsion can be an instrumentalist inquiry. As we increase or decrease our
demands, we accordingly stimulate future behavior. Thus, setting the level of
excusability could function as a level of social control. Yet one can also
think of excuses as expressions of compassion for human failings in times of
stress--expressions that are thought proper regardless of the impact on other
potential risk-creators.
Despite this tension between thinking of
excusing conditions in an instrumentalist or non-instrumentalist way, we can
formulate two significant claims about the role of excuses in cases decided
under the paradigm of reciprocity. First, excusing the risk-creator does not,
in principle, undercut the victim's right to recover. In most cases, it is
operationally irrelevant to posit a right to recovery when the victim cannot in
fact recover from the excused risk-creator. Yet it may be important to
distinguish between victims of reciprocal, background risks and victims of *554
nonreciprocal risks. The latter class of victims--those
who have been deprived of their equal share of security from risk-- might have
a claim of priority in a social insurance scheme. Further, for a variety of
reasons, one might wish in certain classes of cases to deny the availability of
particular excuses, such as insanity in general or immaturity for teenage
drivers. [FN62] Insanity has always been a
disfavored excuse; even the King's Bench in Weaver v. Ward rejected lunacy as a
defense. [FN63] However, it is important to perceive that to reject the
excuse is not to provide a rationale for recovery. It is not being injured by
an insane man that grounds a right to recovery, but being injured by a
nonreciprocal risk--as in every other case applying the paradigm of
reciprocity. Rejecting the excuse merely permits the independently established,
but previously unenforceable right to prevail.
Secondly, an even more significant claim is
that these excuses--compulsion and unavoidable ignorance--are available in all
cases in which the right to recovery springs from being subjected to a
nonreciprocal risk of harm. We have already pointed out the applicability of
these excuses in negligence cases like Cordas and Smith v. Lampe. What is
surprising is to find them applicable in cases of strict liability as well;
strict liability is usually thought of as an area where courts are insensitive
to questions of fairness to defendants. Admittedly, the excuses of compulsion
and unavoidable ignorance do not often arise in strict liability cases, for men
who engage in activities like blasting, fumigating, and
crop dusting typically do so voluntarily and with knowledge of the risks
characteristic of the activity. Yet there have been cases in which strict
liability for keeping a vicious dog was denied on the ground that the defendant
did not know, and had no reason to know, that his pet was dangerous. [FN64] And doctrines of proximate cause provide a rubric for
considering the excuse of unavoidable ignorance under another name. [FN65] In
Madsen v. East Jordan *555 Irrigation Co., [FN66] for example, the
defendant's blasting operations frightened the mother mink on the plaintiff's
farm, causing them to kill 230 of their offspring. The Utah Supreme Court
affirmed a demurrer to the complaint. In the court's judgment, the reaction of
the mother mink "was not within the realm of matters to be
anticipated." [FN67] This
is precisely the factual judgment that would warrant saying that the company's
ignorance of this possible result was excused, [FN68] yet the rubric of proximate
cause provided a doctrinally acceptable heading for dismissing the complaint. [FN69]
It is hard to find a case of strict
liability raising the issue of compulsion as an excuse. Yet if a pilot could
flee a dangerous situation only by taking off in his plane, as the cab driver
in Cordas escaped danger by leaping from his moving cab, would there be
rational grounds for distinguishing damage caused by the airplane crash from
damage caused by Cordas' cab? One would think not. Both are cases of
nonreciprocal risk-taking, and both are cases in which
unusual circumstances render it unfair to expect the defendant to avoid the
risk he creates.
The analysis of excuses in cases of strict
liability would apply as well in cases of intentional torts. Yet there are some
intentional torts, like trespass to land, where the excuse of unavoidable
ignorance is unavailable. [FN70] Where the tort
fulfills subsidiary noncompensatory purposes, such as testing the title to
land, these divergent purposes might render excuses unavailable. [FN71] *556 Where
compensation is the primary issue, however, one may fairly conclude that the
basic excuses acknowledged in Weaver v. Ward-- compulsion and unavoidable
ignorance--transcend doctrinal barriers and apply in all cases of nonreciprocal
risk-taking.
Recognizing the pervasiveness of
nonreciprocity as a standard of liability, as limited by the availability of
excuses, should provide a new perspective on tort doctrine and demonstrate that
strict liability and negligence as applied in the cases discussed above are not
contrary theories of liability. Rather, strict liability and negligence appear
to be complementary expressions of the same paradigm of liability.
III. THE PARADIGM OF REASONABLENESS
Until the mid-nineteenth century, the
paradigm of reciprocity dominated the law of personal injury. It accounted for
cases of strict liability and of intentional torts and
for the distinction implicit in the common law writ system between background
risks and risks directly violating the interests of others. [FN72] In the course of the nineteenth century, however, the
concepts underlying the paradigm of reciprocity gradually assumed new contours.
A new paradigm emerged, which challenged all traditional ideas of tort theory.
The new paradigm challenged the assumption that the issue of liability could be
decided on grounds of fairness to both victim and defendant without considering
the impact of the decisions on the society at large. It further challenged the
assumption that the victim's right to recovery was distinguishable from the
defendant's duty to pay. In short, the new paradigm of reasonableness
represented a new style of thinking about tort disputes.
The core of this revolutionary change was a
shift in the meaning of the word
"fault." At its origins in the common law of torts, the
concept of fault served to unify the medley of excuses available to defendants
who would otherwise be liable in trespass for directly causing harm. [FN73] As the new paradigm emerged, fault came to be an inquiry
about the context and the *557 reasonableness of the defendant's
risk-creating conduct. [FN74] Recasting fault from an inquiry about excuses into an
inquiry about the reasonableness of risk-taking laid the foundation for the new
paradigm of liability. It provided the medium for tying the determination of
liability to maximization of social utility, and it led to the conceptual
connection between the issue of fault and the victim's
right to recover. The essence of the shift is that the claim of faultlessness
ceased being an excuse and became a justification. The significance of this
transformation is difficult to appreciate today, for the concepts of excuse and
justification have themselves become obscure in our moral and legal thinking. [FN75] To
clarify the conceptual metamorphosis of the fault concept, I must pause to
explicate the difference between justifying and excusing conduct.
*558 The difference between justifying
and excusing conditions is most readily seen in the case of intentional
conduct, particularly intentional crimes. Typical cases of justified
intentional conduct are self-defense [FN76] and the use of force to
effect an arrest. [FN77] These justificatory claims assess the reasonableness of
using force under the circumstances. The questions asked in seeking to justify
an intentional battery as self-defense relate to the social costs and the
social benefits of using force and to the wrongfulness of the initial
aggressor's conduct in attacking the defendant. The resolution of this
cost-benefit analysis speaks to the legal permissibility and sometimes to the
commendability of the act of using force under the circumstances. Excuses, in
contrast, focus not on the costs and benefits of the act, but on the degree of
the actor's choice in engaging in it. Insanity and duress are raised as excuses
even to concededly wrongful acts. [FN78] To resolve a claim of insanity, we are led to inquire
about the actor's personality, his capacities under
stress and the pressures under which he was acting. Finding that the actor is
excused by reason of insanity is not to say that the act was right or even
permissible, but merely that the actor's freedom of choice was so impaired that
he cannot be held accountable for his wrongful deed.
Justifying and excusing claims bear
different relationships to the rule of liability. To justify conduct is to say
that in the future, conduct under similar circumstances will not be regarded as
wrongful or illegal. Excusing conduct, however, leaves intact the imperative
not to engage in the excused act. Acquitting a *559 man by reason of
insanity does not change the norm prohibiting murder. Rather, it represents a
judgment that a particular person, acting under particular pressures at a
particular time, cannot be held accountable for violating that norm. The
difference between changing the rule and finding in a particular case that it
does not apply is best captured by asking whether in finding for the defendant
the court recognizes a right to engage in the activity. To justify conduct as
self-defense is to recognize a right to use force, but to excuse homicide under
duress is not to acknowledge a right to kill. It is rather to recognize that an
actor cannot be fairly blamed for having succumbed to pressures requiring him
to kill. [FN79]
The distinction between justifying and
excusing conduct applies with equal coherence in analyzing risk-creating
behavior. Questions about the excusability of
risk-creation focus on the actor's personal circumstances and his capacity to
avoid the risk. Could he have resisted the intimidations of a gunman in his
car? Could he have found out about the risks latent in his conduct? Questions
about justification, on the other hand, look solely to the risk, abstracted
from the personality of the risk-creator. What are the benefits of the risk?
What are the costs? Does the risk maximize utility? As the inquiry shifts from
excusing to justifying risks, the actor and his traits become irrelevant. At
the level of justification, the only relevant question is whether the risk, on
balance, is socially desirable. Excusing a risk, as a personal judgment about
the actor, leaves the right of the victim intact; but justifying a risk
recognizes the defendant's right to run that risk vis-a-vis the victim. If the
risk is justified in this sense, the victim could hardly have a claim against
the risk-creator. The right of the risk-creator supplants the right of the
victim to recover. [FN80]
That the fault requirement shifted its
orientation from excusing *560 to justifying risks had the following
consequences: (1) fault became a judgment about the risk, rather than about the
responsibility of the individual who created the risk; (2) fault was no longer
a question of fairness to the individual, but an inquiry about the relative
costs and benefits of particular risks; (3) fault became a condition for
recognizing the right of the victim to recover. These three postures of the
fault requirement diverged radically from the paradigm
of reciprocity. Together, they provided the foundation for the paradigm of
reasonableness, a way of thinking that was to become a powerful ideological
force in tort thinking of the late nineteenth and twentieth centuries. [FN81]
The reasonable man became a central,
almostindispensable figure in the paradigm of reasonableness. [FN82] By asking what a reasonable man would do under the
circumstances, judges could assay the issues both of justifying and excusing
risks. Reasonable men, presumably, seek to maximize utility; therefore, to ask
what a reasonable man would do is to inquire into the justifiability of the
risk. [FN83] If the risk-running might be excused, say by reason of the
emergency doctrine or a particular defect like blindness or immaturity, the
jury instruction might specify the excusing condition as one of the
"circumstances" under which the conduct of the reasonable man is to
be assessed. If the court wished to include or exclude a teenage driver's
immaturity as a possible excusing condition, it could define the relevant
"circumstances" accordingly. [FN84] Because the "reasonable
man" test so adeptly encompasses both issues of justification and excuse,
it is not surprising that the paradigm of reasonableness has led to the
blurring of that distinction in tort theory. [FN85]
*561 No single appellate decision
ushered in the paradigm of reasonableness. It derived from a variety of
sources. [FN86] If there was a pivotal case, however, it was Brown v. Kendall, [FN87]
decided by the Massachusetts Supreme Judicial Court in 1850. The facts of the
case were well- suited to blurring the distinction between excusing the
defendant's ignorance and assessing the utility of the risk that he took. In an
effort to separate two fighting dogs, Kendall began beating them with a stick.
Brown was standing nearby, which Kendall presumably knew; and both he and Brown
moved about with the fighting dogs. At one point, when he had just backed up to
a position in front of Brown, Kendall raised his stick, hitting Brown in the
eye and causing serious injury. Brown sought to recover on the writ of
trespass, whereby traditionally a plaintiff could establish a prima facie case
simply by proving that his injuries were the direct result of the defendant's
act--a relationship which clearly existed in the case.
In order for the defendant to invoke the
defense of inevitable accident, he would have had to show that he neither knew
nor could have been expected to know Brown's whereabouts at the *562
moment he last raised the stick. Thus, to argue that he should be excused on
the ground of ignorance, he would have had to show that the situation was such
that it was expectable and blameless for him not to inform himself better of
Brown's position before the fateful blow. But an inquiry about the
acceptability of the defendant's ignorance as an excuse leads to a broader
assessment of the defendant's conduct in putting himself in a position where he
unwittingly created a risk of harm to Brown. There is
an important difference between (1) looking at the narrower context to
determine whether at the moment of heightened risk--when Kendall raised the
stick--his ignorance was excusable and (2) broadening the context and thereby
leveling the risk by shifting the inquiry from the moment of the stick-raising
to the general activity of separating the dogs. Observing that distinction was
essential to retaining faultlessness as a question of excusing, rather than
justifying trespassory conduct. Yet it was a distinction that had lost its
conceptual force. The trial judge and Chief Justice Shaw, writing for the
Supreme Judicial Court, agreed that the defense of inevitable accident went to
the adequacy of the defendant's care under the circumstances. [FN88] But the two judges disagreed on the conceptual status of
the issue of the required care. The trial judge, in line with several centuries
of case authority, saw the issue as an exception to liability, to be proven by
the defendant. [FN89] Shaw converted the issue of
the defendant's failure to exercise ordinary care into a new premise of
liability, to be proven by the plaintiff, thus signaling and end to direct
causation as a rationale for prima facie liability. [FN90]
Admittedly, Brown v. Kendall could be read
as a revision of the standard for excusing unwitting risk-creation: instead of
extraordinary care, ordinary care should suffice to admit ignorance as an
excuse; and it should be up to the plaintiff to prove the issue. Though the
case might have yielded this minor modification of the
law, Chief Justice Shaw's opinion created possibilities for an entirely new and
powerful use of the fault standard, and the judges and writers of the late
nineteenth and early twentieth centuries responded sympathetically. [FN91]
*563 Shaw's revision of tort doctrine
made its impact in cases in which the issue was not one of excusing inadvertent
risk-creation, but one of justifying risks of harm that were voluntarily and
knowingly generated. Consider the following cases of risk-creation: (1) the
defendant operates a streetcar, knowing that the trains occasionally jump the
tracks; [FN92] (2) the defendant police
officer shoots at a fleeing felon, knowing that he thereby risks hitting a
bystander; [FN93] (3) the defendant undertakes to float logs downriver to a mill,
knowing that flooding might occur which could injure crops downstream. [FN94] All of
these victims could receive compensation for their injuries under the paradigm
of reciprocity, as incorporated in the doctrine of trespassory liability; the
defendant or his employees directly and without excuse caused the harm in each
case. Yet as Brown v. Kendall was received into the tort law, the threshold of
liability became whether, under all the circumstances, the defendant acted with
ordinary, prudent care. But more importantly, the test of ordinary care
transcended its origins as a standard for determining the acceptability of
ignorance as an excuse, and became a rationale for determining when individuals
could knowingly and voluntarily create risks without
responsibility for the harm they might cause. The test for justifying risks
became a straightforward utilitarian comparison of the benefits and costs of
the defendant's risk-creating activity. [FN95] The assumption emerged that
reasonable men do what *564 is justified by a utilitarian calculus, that
justified activity is lawful, and that lawful activities should be exempt from
tort liability.
In the cases mentioned above, the arguments
are readily at hand for maximizing utility by optimizing accidents: (1) the
expense of providing rails to prevent streetcars from leaving the tracks would
require a substantial increase in streetcar fares--it is better that occasional
accidents occur; (2) capturing fleeing felons is sufficiently important to
warrant a few risks to onlookers; (3) transporting logs sufficiently furthers
the social good to justify some risks to farmers. More generally, if promoting
the general welfare is the criterion of rights and duties of compensation, then
a few individuals must suffer. One might fairly wonder, however, why streetcar
passengers, law enforcement, and the lumber industry should prosper at the
expense of innocent victims.
IV. UTILITY AND THE INTERESTS OF THE INDIVIDUAL
The accepted reading of tort history is that
the rise of the fault standard in the nineteenth century manifested a newly
found sensitivity to the morality of legal rules. James
Barr Ames captured orthodox sentiments with his conclusion that "[t]he
ethicalstandard of reasonable conduct has replaced the unmoral standard of
acting at one's peril." [FN96]
This reading of the case law development finds its source in Holmes' dichotomy
between acting at one's peril and liability based on fault. [FN97] The
assumption of Holmes' influential analysis is that there are only two doctrinal
possibilities: the fault standard, particularly as expressed in Brown v.
Kendall, [FN98] and strict or absolute liability. The latter is dubbed
unmoral; therefore, the only option open to morally sensitive theorists would
appear to be liability for fault alone.
The mistake in this reading of legal history
is the unanalyzed assumption that every departure from the fault standard
partakes of the strict liability expressed in the maxim "a man acts at his
peril." There are in fact at least four distinct points on the continuum
from strict liability to the limitation on liability introduced by Brown v.
Kendall. In resolving a routine trespass dispute for bodily injury, a common
law court might, among other things:
(1) reject the relevance of excuses in
principle and rule for the plaintiff;
*565 (2) recognize the principle of
excusing trespassory conduct, but find under the facts of the case that the
defendant's conduct was unexcused;
(3) find that the defendant's conduct was
excused and therefore exempt from liability;
(4) recognize reasonableness as a
justification for directly causing harm to another.
If the maxim "acting at one's
peril" connotes a standard that is "unmoral"--a standard that is
insensitive to the fairness of imposing liability--then the charge properly
attaches only to the first of the above four categories. It is only in this
situation that authoring harm is conclusive on liability. Yet there are few, if
any, unequivocal examples of this form of decision in the common law tradition.
[FN99] After Weaver v. Ward, [FN100] one can hardly speak of
the common law courts maintaining, as a principle, that excusing conditions are
irrelevant to liability. [FN101]
Cases of the second type did abound at the time
of Holmes' writing. [FN102] They represent victories
for injured plaintiffs, but they affirm, at least implicitly, the traditional
requirement that the act directly causing harm be unexcused. Yet Holmes treats
these cases as instances of absolute liability, of "acting at one's
peril." [FN103] In so doing, he ignores the distinction between rejecting *566
excuses in principle (type one) and rejecting an alleged excuse on the facts of
the case (type two). There is an obvious difference between finding for the
plaintiff regardless of fault and finding for the plaintiff because the
defendant fails to convince the trier of fact that he acted "utterly
without fault." By ignoring this difference, as well
as the distinction between denying fault by claiming an excuse and urging
reasonableness as a justification, Holmes could generate a dichotomy that made
Brown v. Kendall seem like an admirable infusion of ethical sensitivity into
tort doctrine.
But the issue in the nineteenth century was
not the choice between strict liability on the one hand and liability based on
fault on the other. Nor was it a simplistic choice between an
"unmoral" standard and an ethical one. Rather, the question of the
time was the shape that the fault standard would take. Should the absence of
fault function as an excuse within a paradigm of reciprocity? Or should it
function as a standard for exempting from liability risks that maximize
utility? That was the moral and policy question that underlay the nineteenth
century revolution in tort thinking. The question posed by the conflict of
paradigms was whether traditional notions of individual autonomy would survive
increasing concern for the public welfare. If the courts of the time had
clearly perceived and stated the issue, they would have been shaken by its
proportions.
The same fundamental conflict between the
public interest and individual autonomy arose even more sharply in criminal
cases that reached the courts in the late nineteenth century. The public
interest found expression in tort disputes by decisions protecting activities
thought to be socially useful, and in criminal cases by decisions designed to
deter activities thought to be socially pernicious.
Just as one goal of social policy might require some innocent accident
plaintiffs to suffer their injuries without compensation, the other might
require some morally innocent defendants to suffer criminal sanctions. Indeed,
both matters received decisive judicial action in the same decade. Shortly
before Chief Justice Shaw laid the groundwork in Brown v. Kendall [FN104] for exempting socially useful risks from tort liability, [FN105] he expressed the same
preference for group welfare over individual autonomy in criminal cases. In
Commonwealth v. Mash [FN106] he *567 generated a rationale for a bigamy
conviction against a woman who sincerely regarded her absent husband as dead.
Shaw tacitly conceded that Mrs. Mash was not blameworthy for entering into the
second marriage. [FN107] Yet that mattered little, he argued, for preventing bigamy
was "essential to the peace of families and the good order of
society...." [FN108] Thus, in Shaw's mind, the social interest in deterring
bigamy justified convicting a morally innocent woman. [FN109] Shaw's decision in Mash
was of the same ideological frame as his rewriting of tort doctrine in Brown v.
Kendall. If a judge is inclined to sacrifice morally innocent offenders for the
sake of social control, he is also likely to require the victims of socially
useful activities to bear their injuries without compensation. [FN110] It
is not at all surprising, then, that the rise of strict liability in criminal
cases parallels the emergence of the paradigm of reasonableness in the law of
negligent torts. [FN111] If it is unorthodox to equate strict liability in criminal
cases with a species of negligence in tort disputes, it is only because we are
the victims of the labels we use. If we shift our focus from the magic of legal
rubrics to the policy struggle underlying tort and criminal liability, then it
is quite clear that the appropriate analogy is between strict criminal
liability and the limitation imposed by the rule of reasonableness in tort
doctrine.
*568 Not surprisingly, then, the
contemporary arguments against the utilitarianism expressed in strict criminal
liability [FN112] yield a critique of the
rule of reasonableness in tort doctrine. As applied in assessing strict
criminal liability, the utilitarian calculus treats the liberty of the morally
innocent individual as an interest to be measured against the social interest
in deterring criminal conduct; it is a matter of judgment whether to favor the
interests of the individual or the interests of society. But there are some
sacrifices of individual liberty that persons cannot be expected to make for
the welfare of their neighbors. In criminal cases, the claim of those opposing
strict liability is that no man should be forced to suffer a condemnatory
sanction just because his conduct happens to cause harm or happens to
contravene a statute. Something more is required to warrant singling out a
particular defendant and subjecting him to sanctions in the interest of
deterring would-be offenders. There must be a rationale for overcoming his prima facie right to be left alone. That
rationale is provided in the contemporary critical literature by the insistence
that only culpable offenders be subject to sanctions designed to deter others. [FN113]
Culpability serves as a standard of moral forfeiture. [FN114] It provides a standard
for assessing when, by virtue of his illegal conduct, the defendant should be
treated as having forfeited his freedom from sanctions.
Just as an individual cannot be expected to
suffer criminal sanctions for the sake of the common good, he cannot fairly be
expected to suffer other deprivations in the name of a utilitarian calculus.
His life, bodily integrity, reputation, privacy, liberty and property--all are
interests that might claim insulation from deprivations designed to further
other interests. Insulation might take the form of criminal or injunctive
prohibitions against conduct causing undesired deprivations. But criminal and
injunctive sanctions are questionable where the activity is reasonable in the
sense that it maximizes utility and thus serves the interests of the community
as a whole. Protecting the autonomy of the individual does not require that the
community forego activities that serve its interests. In the case of socially
useful activities, then, insulation can take the form of damage awards shifting
the cost of the deprivation from the individual to the agency unexcusably *569
causing it. The burden should fall on the wealth-shifting mechanism of the tort
system to insulate individual interests against community demands. By providing
compensation for injuries exacted in the public interest,
the tort system can protect individual autonomy by taxing, but not prohibiting,
socially useful activities. [FN115]
V. THE INTERPLAY OF SUBSTANCE AND STYLE
The conflict between the paradigm of
reasonableness and the paradigm of reciprocity is, in the end, a struggle
between two strategies for justifying the distribution of burdens in a legal
system. The strategy of utility proceeds on the assumption that burdens are
fairly imposed if the distribution optimizes the interests of the community as
a whole. The paradigm of reciprocity, on the other hand, is based on a strategy
of waiver. It takes as its starting point the personal rights of individuals in
society to enjoy roughly the same degree of security, and appeals to the
conduct of the victims themselves to determine the scope of the right to equal
security. By interpreting the risk-creating activities of the defendant and of
the victim as reciprocal and thus offsetting, courts may tie the denial of
liability to the victim to his own waiver of a degree of security in favor of
the pursuit of an activity of higher risk.
These two paradigms, and their accompanying
strategies for distributing burdens, overlap in every case in which an activity
endangers outsiders not participating in the creation of the risk. Where the
courts deny liability, say, for leaving a golf club
where a child might pick it up and swing it, [FN116]
they must decide whether to appeal either to the paradigm of reciprocity and
argue that the risk is an ordinary, reciprocal risk of group living, or to the
paradigm of reasonableness and argue that the activity is socially beneficent
and warrants encouragement. They must decide, in short, whether to focus on the
parties and their relationship or on the society and its needs. In these cases
where the paradigms overlap, both ways of thinking may yield the same result.
Yet the rhetoric of these decisions creates a pattern that influences reasoning
in cases in which the paradigms diverge.
The major divergence is the set of cases in
which a socially useful activity imposes nonreciprocal risks on those around
it. *570 These are the cases of motoring, airplane overflights, air
pollution, oil spillage, sonic booms--in short, the recurrent threats of modern
life. [FN117] In resolving conflict
between those who benefit from these activities and those who suffer from them,
the courts must decide how much weight to give to the net social value of the
activity. In Boomer v. Atlantic Cement Co., [FN118] the New York Court of
Appeals reflected the paradigm of reciprocity by defining the issue of holding
a cement company liable for air pollution as a question of the "rights of
the parties," [FN119] rather than the "promotion of the general public
welfare." [FN120] Similarly, in its recent debate over the liability of
airplane owners and operators for damage to ground structures, the American Law
Institute faced the same conflict. It too opted for the
paradigm of reciprocity. [FN121]
A variation on this conflict of paradigms
emerges when a bystander, injured by a motorist, sues the manufacturer of the
vehicle on the theory that a defect in the vehicle caused the accident. In
these cases, the ultimate issue is whether the motoring public as a whole
should pay a higher price for automobiles in order to compensate manufacturers
for their liability costs to pedestrians. The rationale for putting the costs
on the motoring public is that motoring, as a whole, imposes a nonreciprocal
risk on pedestrians and other bystanders. In addressing itself to this issue in
Elmore v. American Motors Corp., [FN122]
the California Supreme Court stressed the inability of bystanders to protect
themselves against the risk of defective automobiles. Though it grouped
pedestrians together with other drivers in extending strict products liability,
the Elmore opinion appears to be more oriented to questions of risk and of who
subjects whom to an excessive risk than it is to the reasonableness and utility
of motoring. *571 Thus, this opinion, too, hints at a reawakening of
sensitivity to the paradigm of reciprocity.
On the whole, however, the paradigm of
reasonableness still holds sway over the thinking of American courts. The
reasonable man is too popular a figure to be abandoned. The use of litigation
to pursue social goals is well entrenched. Yet the appeal to the paradigm might
well be more one of style than of substance.
In assessing the reasonableness of risks,
lawyers ask many seemingly precise questions: What are the consequences of the
risk, its social costs and social benefits? What specific risks are included in
the "ambit of the risk"? One can speak of formulae, like the Learned
Hand formula, [FN123] and argue in detail about
questions of costs, benefits and trade-offs. This style of thinking is
attractive to the legal mind. Its tracings in proximate cause cases are the
formulae for defining the scope of the risk. Thus Palsgraf enthrones the
"eye of reasonable vigilance" to rule over "the orbit of the
duty." [FN124] And the standard of
"foreseeability" has become the dominant test of proximate cause. [FN125]
With close examination one sees that these formulae are merely tautological
constructs designed to support an aura of utilitarian precision. Only if remote
consequences are defined out of existence can one total up the benefits and the
costs of all (known) consequences. The test of "foreseeability"
permits balancing by restrictively defining the contours of the scales.
Unforeseeable risks cannot be counted as part of the costs and benefits of the
risk; for, after all, they are unforeseeable and therefore unknowable. [FN126]
There may be much work to be done in explaining why this composite mode of
thought--the idiom of balancing, orbits of risk and foreseeability--has
captured the contemporary legal mind. But there is little doubt that it has,
and this fashionable style of thought buttresses the
substantive claims of the paradigm of reasonableness.
The paradigm of reciprocity, on the other
hand, for all its substantive and moral appeal, puts questions that are hardly *572
likely to engage the contemporary legal mind: When is a risk so excessive that
it counts as a nonreciprocal risk? When are two risks of the same category and
thus reciprocally offsetting? It is easy to assert that risks of owning a dog
offset those of barbecuing in one's backyard, but what if the matter should be disputed?
There are at least two kinds of difficulties that arise in assessing the
relationship among risks. The first is that of protecting minorities. Does
everyone have to engage in crop dusting for the risk to be reciprocal, or just
half the community? A tempting solution to the problem is to say that as to
someone not engaged in the activity, the risks are per se nonreciprocal. But
the gains of this simplifying stroke are undercut by the assumption necessarily
implicit in the concept of reciprocity that risks are fungible with others of
the same "kind." Yet how does one determine when risks are
counterpoised as species of the same genus? If one man owns a dog, and his
neighbor a cat, the risks presumably offset each other. But if one man drives a
car, and the other rides a bicycle? Or if one plays baseball in the street and
the other hunts quail in the woods behind his house? No two people do exactly
the same things. To classify risks as reciprocal risks, one must perceive their
unifying features. Thus, risks of owning domestic animals may be thought to be
of the same kind. And, theoretically, one might argue
with equal vigor that all sporting activities requiring the projection of
objects through the air create risks of the same order, whether the objects be
baseballs, arrows, or bullets. Determining the appropriate level of abstraction
is patently a matter of judgment; yet the judgments require use of metaphors
and images--a way of thinking that hardly commends itself as precise and scientific.
In proximate cause disputes the analogue to
this style of thinking is the now rejected emphasis on the directness and
immediacy of causal links, as well expressed in the Polemis case [FN127] and Judge Andrews' dissent in Palsgraf. [FN128] As
Hart and Honore have recognized, [FN129] we rely on causal imagery in solving problems of causal
connection in ordinary, nonlegal discourse. Why, then, does the standard of
"direct causation" strike many today as arbitrary and irrational? [FN130] Why
does metaphoric thinking command so little respect among lawyers? [FN131] Why
not agree *573 with Judge Andrews that the issue of proximate cause is
akin to assessing when a stream merges with waters of another source? [FN132]
Metaphors and causal imagery may represent a
mode of thought that appears insufficiently rational in an era dominated by
technological processes. Yet why should the rhetoric of reasonableness and
foreseeability appeal to lawyers as a more scientific or precise way of
thinking? The answer might lie in the scientific image associated with passing
through several stages of argument before reaching a
conclusion. The paradigm of reasonableness requires several stages of analysis:
defining the risk, assessing its consequences, balancing costs and benefits.
The paradigm of reciprocity requires a single conclusion, based on perceptions
of similarities, of excessiveness, and of directness. If an argument requires
several steps, it basks in the respectability of precision and rationality. Yet
associating rationality with multistaged argumentation may be but a spectacular
lawyerly fallacy--akin to the social scientists' fallacy of misplaced
concreteness (thinking that numbers make a claim more accurate).
Whether or not multistaged argumentation is
more rational than a perception of directness or excessiveness, one cannot but
be impressed with the interplay of substantive and stylistic criteria in the
conflict between the two paradigms of tort liability. Protecting innocent
victims from socially useful risks is one issue. The relative rationality of
defining risks and balancing consequences is quite another. That there are
these two levels of tension helps explain the ongoing vitality of both paradigms
of tort liability.
The courts face the choice. Should they
surrender the individual to the demands of maximizing utility? Or should they
continue to protect individual interests in the face of community needs? To do
the latter, courts and lawyers may well have to perceive the link between
achieving their substantive goals and explicating their value choices in a
simpler, sometimes metaphoric style of reasoning.
[FNa1]. Professor of Law,
University of California at Los Angeles. B.A. University of California at
Berkeley, 1960; J.D. University of Chicago, 1964; M. Comp. L. University of
Chicago, 1965.
[FN1]. The leading work is G.
CALABRESI, THE COSTS OF ACCIDENTS (1970)
[[[hereinafter cited as CALABRESI]. See also A. EHRENZWEIG, NEGLIGENCE
WITHOUT FAULT (1951), reprinted in 54 Calif. L. Rev. 1422 (1966); J. Fleming,
The Law of Torts 9-14 (3d ed. 1965); Calabresi, The
Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv.
L. Rev. 713 (1965); Calabresi, Does the Fault
System Optimally Control Primary Accident Costs?, 33 Law & Contemp. Prob.
429 (1968); Calabresi, Some Thoughts on Risk Distribution and the Law of Torts,
70 Yale L.J. 499 (1961); Keeton, Conditional
Fault in the Law of Torts, 72 Harv. L. Rev. 401 (1959); Morris, Hazardous Enterprises and Risk Bearing Capacity,
61 Yale L.J. 1172 (1952).
[FN2]. For a discussion of
instrumentalism in legal reasoning, see Dworkin, Morality and the Law, N.Y. REV. BOOKS, May 22, 1969, at 29.
[FN3]. See CALABRESI 291-308; 2 F.
HARPER & F. JAMES, THE LAW OF TORTS 743
(1956) [hereinafter cited as HARPER & JAMES] ("[The law of
torts] must satisfy the ethical or moral sense of the
community, its feeling of what is fair and just."). Professors Keeton and
O'Connell discuss the obligations of motorists without converting the issue
into a question of community expectations. R. KEETON & J. O'CONNELL, BASIC
PROTECTION FOR THE TRAFFIC VICTIM 256-72 (1965).
[FN4]. This bias toward converting
values which are ends in themselves into instrumentalist goals is well
illustrated by the history of the exclusionary rule in search and seizure
cases. The leading modern decisions establishing the exclusionary rule relied
on two prominent rationales for the rule: (1) the imperative of judicial
integrity, and (2) the desirability of deterring unconstitutional police
behavior. See
Mapp v. Ohio, 367 U.S. 643, 659 (1961); Elkins
v. United States, 364 U.S. 206, 222 (1960).
Preserving judicial integrity is a non-instrumentalist value--like retribution,
fairness, and justice. One preserves judicial integrity not because it will
produce good in the future but because it is "imperative"--it is in
the nature of the judicial process--to do so. This is not the kind of value
with which most writers in recent years could feel comfortable. As a result,
the literature tended to tie the exclusionary rule almost exclusively to the
goal of deterring improper police behavior. See Allen, Due Process and State
Criminal Procedures: Another Look, 48 NW. U.L. REV. 16, 34 (1953); LaFave &
Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law
Enforcement Decisions, 63 MICH. L. REV. 987, 1002-03
(1965); Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. CHI.
L. REV. 665, 668-71 (1970). The implication of tying the exclusionary rule to
the goal of deterrence is that if suppressing evidence does not in fact deter
the police-- and there is reason to believe that it does not, see L. TIFFANY,
D. MCINTYRE, JR. & D. ROTENBERG, DETECTION OF CRIME 101, 183-99
(1967)--then the entire justification for the rule collapses. See the
portentous dissent of Chief Justice Burger in Bivens
v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 411
(1971).
The distinctive characteristic of non-instrumentalist
claims is that their validity does not depend on the consequences of the
court's decision. Whether a court protects judicial integrity or achieves a
fair result turns on an assessment of the facts of the dispute, not on a
correct prediction of what may follow.
[FN5]. Calabresi's analysis is
instructive. He reasons that the issue of fairness must involve "moral
attitudes," CALABRESI 294, and then considers the taboo against
fornication as an example of "moral attitudes." Id. at 295.
[FN6]. See, e.g., W. BLUM & H.
KALVEN, PUBLIC LAW PERSPECTIVES ON A PRIVATE LAW PROBLEM: AUTO COMPENSATION
PLANS (1965); Fleming, The Role of Negligence in Modern
Tort Law, 53 VA. L. REV. 815 (1967).
[FN7]. See O. HOLMES, THE COMMON
LAW 79-80 (1881); Ames, Law and Morals, 22 HARV. L. REV. 97, 99 (1908); p. 564
infra.
[FN8]. See, e.g., Lord Atkin's
opinion in Donoghue v. Stevenson, [1932] A.C. 562, 579.
[FN9]. See J. SALMOND, LAW OF TORTS
12-13 (6th ed. 1924); cf. Smith, Tort and Absolute Liability--Suggested Changes
in Classification (pts. 1-3), 30 HARV. L. REV. 241, 319, 409 (1917).
[FN10]. See Gregory, Trespass to
Negligence to Absolute Liability, 37 VA. L. REV. 359 (1951).
[FN11]. Most treatise writers
agree with this outline, though they may no longer regard strict liability as
aberrant. See FLEMING, supra note 1, at 289- 90; HARPER & JAMES 785-88; W.
PROSSER, THE LAW OF TORTS 16-19 (4th ed. 1971) [[[hereinafter cited as PROSSER].
[FN12]. There is admittedly an
element of fashion in using words like "paradigm"
and "model." My usage is patterned after T. KUHN, THE STRUCTURE OF
SCIENTIFIC REVOLUTIONS (2d ed. 1970), in which the concept of paradigmatic
thinking is used to account for the varieties of scientific response to
identical data. My underlying thought is that tort history is characterized by
the same kind of conflict that marked the competition between the phlogiston
and oxidation theories of burning, id. at 53-56, or the conflict between
Ptolemaic and Copernican astronomy. This approach is useful when what one wants
to know is why judges (or scientists) are curious about and responsive to
particular facts at particular stages of history. Kuhn, himself, suggests the
analogy between legal and scientific processes; in explaining his concept of
paradigm, he likens it to "an accepted judicial decision in the common
law." Id. at 23.
[FN13]. See pp. 550-51 infra.
[FN14]. The text has the limited
concern of assessing problems of fairness within a litigation scheme. There is
growing skepticism whether one-to-one litigation is the appropriate vehicle for
optimizing accidents and compensating victims. See, e.g., CALABRESI 297-99;
Franklin, Replacing the Negligence Lottery: Compensation and Selective
Reimbursement, 53 VA. L. REV. 774 (1967).
[FN15].
There might be many standards of liability that would distinguish between the
question of the victim's right to recover and the fairness of the
risk-creator's rendering compensation. The writ of Trespass recognized the distinction,
answering the first by determining whether the injury was directly caused, see
Scott v. Shepherd, 96 Eng. Rep. 525, 526 (C.P. 1773) (Blackstone, J.), and the
second by assessing whether the risk-creating act was attributable to
inevitable accident, see Cotterill v. Starkey, 173 Eng. Rep. 676 (Q.B. 1839)
(inevitable accident); Goodman v. Taylor, 172 Eng. Rep. 1031 (K.B. 1832)
(inevitable accident); Beckwith v. Shordike, 98 Eng. Rep. 91, 92 (K.B. 1767)
(Ashton, J.) (defense of involuntary trespass approved in principle but
rejected on the facts); Mitten v. Faudrye, 79 Eng. Rep. 1259 (K.B. 1625)
(involuntary trespass). See generally 8 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW
455-57 (2d ed. 1937). Common law courts began to abandon the test of "directness"
in the mid-nineteenth century, see note 86 infra, and in this century there has
been no widely accepted criterion of risk other than the standard of
reasonableness. As I shall show below, see pp. 556-59 infra, reasonableness is
a standard that merges the issues of the victim's right to recover with the
fairness of the risk-creator's rendering compensation.
[FN16]. RESTATEMENT OF TORTS §
§ 519-20 (1938).
[FN17].
But cf. RESTATEMENT (SECOND) OF TORTS §
520(f) (Tent. Draft No. 10, 1964) (recognizing "the value of an
activity to the community" as a factor bearing on the classification of an
activity as abnormally dangerous).
[FN18]. See pp. 571-72 infra.
[FN19]. This is a simpler
statement of the blancing test known as the
"Learned Hand formula," defined in United
States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947). The same inquiry has been used to define the defense of
necessity to intentional torts and crimes. See Mouse's Case, 77 Eng. Rep. 1341
(K.B. 1609) (justifying the jettisoning of ferry cargo to save the passengers);
MODEL PENAL CODE § 3.02 (Proposed
Official Draft, 1962).
[FN20]. RESTATEMENT (SECOND) OF
TORTS § 520A (Tent. Draft No. 12,
1966).
[FN21]. McKee
v. Trisler, 311 Ill. 536, 143 N.E. 69 (1924).
[FN22]. The word "fault"
is also used to refer to the absence of excusing conditions, see pp. 551,
556-57 infra, and in this sense strict liability is not liability without
fault.
[FN23].
In Keeton, Is There a Place for Negligence in Modern Tort Law?, 53 VA. L. REV. 886, 894-96 (1967), the
author synthesizes strict liability under the principle that every activity should
be liable for its "distinctive risks."
[FN24]. It is important to
distinguish the cases of strict liability discussed here from strict products
liability, a necessary element of which is an unreasonably dangerous defect in
the product. See
Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1968). See generally Traynor, The Ways and Meanings of Defective
Products and Strict Liability, 32 TENN. L. REV. 363 (1965). Because of the
market relationship between the manufacturer and the consumer, loss-shifting in
products-liability cases becomes a mechanism of insurance, changing the
question of fairness posed by imposing liability. See BLUM & KALVEN, supra
note 6, at 58-61.
[FN25]. See p. 548 infra and note
20 supra; PROSSER 514-16.
[FN26]. E.g.,
Collins v. Otto, 149 Colo. 489, 369 P.2d 564 (1962)
(coyote bite); Filburn v. People's Palace & Aquarium Co., 25 Q.B.D. 258
(1890) (escaped circus elephant). See generally PROSSER 496-503.
[FN27].
E.g.,
Exner v. Sherman Power Constr. Co., 54 F.2d 510 (2d Cir. 1931) (storing explosives); Western
Geophysical Co. of America v. Mason, 240 Ark. 767, 402 S.W.2d 657 (1966) (blasting); Luthringer
v. Moore, 31 Cal. 2d 489, 190 P.2d 1 (1948)
(fumigating); Young
v. Darter, 363 P.2d 829 (Okla. 1961) (crop
dusting).
[FN28]. 159 Eng. Rep. 737 (Ex.
1865), rev'd, L.R. 1 Ex. 265 (1866), aff'd, L.R. 3 H.L. 330 (1868).
[FN29]. 109
Minn. 456, 124 N.W. 221 (1910).
[FN30]. L.R. 1 Ex. 265 (1866).
[FN31]. L.R. 3 H.L. 330 (1868).
[FN32]. L.R. 1 Ex. at 279.
[FN33]. L.R. 3 H.L. at 339.
[FN34]. RESTATEMENT (SECOND) OF
TORTS § 520 (Tent. Draft No. 10, 1964).
[FN35].
109
Minn. 456, 124 N.W. 221 (1910).
[FN36]. See
Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (1908)
(defendant dock owner, whose servant unmoored the plaintiff's ship during a
storm, held liable for the ensuing damage to the ship and passengers).
[FN37]. 109
Minn. at 460, 124 N.W. at 222.
[FN38]. This case is not entirely
apt for my theory. The existence of a bargaining relationship between the
defendant and the plaintiff poses the market adjustment problems raised in note
24 supra. See Calabresi, The
Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV.
L. REV. 713, 726 (1965) (arguing the irrelevance
of the result in Vincent as to both the efficient allocation of resources and
the welfare of the parties). Accordingly, I treat the case as though the
defendant were a type of ship owner who never had to enter into bargains with
wharf owners. The case is also a seductive one for Professor Keeton. See
Keeton, supra note 1, at 410-18; Keeton, supra note 23, at 895.
[FN39]. A student note nicely
develops this point in the context of ultra- hazardous activities. Note,
Absolute Liability for Dangerous Things, 61 HARV. L.
REV. 515, 520 (1948).
[FN40]. One argument for so
shifting losses would be that some individuals have better access to insurance
or are in a position (as are manufacturers) to invoke market mechanisms to
distribute losses over a large class of individuals. This argument assumes that
distributing a loss "creates" utility by shifting units of the loss
to those who may bear them with less disutility. The premise is the increasing
marginal utility of cumulative losses, which is the inverse of the decreasing
marginal utility of the dollar--the premise that underlies progressive income
taxation. See Calabresi, Some Thoughts on Risk Distribution and the Law of
Torts, 70 YALE L.J. 499, 517-19 (1961); Blum & Kalven, The Uneasy Case for
Progressive Taxation, 19 U. CHI. L. REV. 417, 455-79 (1952). This is an
argument of distributive rather than corrective justice, for it turns on the
defendant's wealth and status, rather than his conduct. Using the tort system
to redistribute negative wealth (accident losses) violates the premise of
corrective justice, namely that liability should turn on what the defendant has
done, rather than on who he is. See THE NICOMACHEAN ETHICS OF ARISTOTLE, Book
V, ch. 4, at 114-15 (Ross transl. World's Classics ed. 1954). What is at stake
is keeping the institution of taxation distinct from the institution of tort
litigation.
[FN41].
See, e.g.,
Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939); Warrick
v. Farley, 95 Neb. 565, 145 N.W. 1020 (1914).
[FN42]. See note 20 supra.
[FN43]. Negligence is, of course,
prominent as well in the analysis of liability of physicians to patients and
occupiers of land to persons injured on the premises. See Cohen, Fault and the
Automobile Accident: The Lost Issue in California, 12 U.C.L.A.L. REV. 164, 179
(1964). These are cases of injuries in the course of consensual, bargaining
relationships and therefore pose special problems. Cf. note 24 supra.
[FN44]. E.g., Butterfield v.
Forrester, 103 Eng. Rep. 926 (K.B. 1809)
(defendant put a bar across the highway; plaintiff was riding without
looking where he was going). In many cases of contributory negligence the risk
is self- regarding and does not impose risks on the defendant. RESTATEMENT
(SECOND) OF TORTS § 463 (1965);
PROSSERR 418-20. In these cases the rationale for denying recovery is unrelated
to the paradigm of reciprocity. There is considerable dispute about what the
rationale may be. Id. at 417-18; HARPER & JAMES 1193- 1209.
[FN45].
If the "last clear chance" doctrine is available, however, the victim
may recover despite his contributory negligence. Peterson
v. Burkhalter, 38 Cal. 2d 107, 237 P.2d 977 (1951)
(motorist's last clear chance vis-a-vis a negligent motor scooter driver);
RESTATEMENT (SECOND) OF TORTS § §
479-80 (1965). A rationale for this doctrine might be that the
defendant's risk is nonreciprocal even as to the class of victims taking
negligent risks.
[FN46]. Suppose a motorist runs
down a pedestrian on the way to his parked car. Or suppose that an ambulance
injures a pedestrian while speeding through the streets to rescue another
injured pedestrian. These hypothetical problems pose puzzles at the fringes of
the paradigm of reciprocity. The first is the question whether reciprocity must
be temporal; the second, whether the interests of the victim or of the class he
represents ought to bear on the analysis of reciprocity. These problems require
further thought. Cf. Professor Fried's theory of the risk pool, which treats
risks occurring at different times as offsetting. C. FRIED, AN ANATOMY OF
VALUES 177-93 (1970).
Problems in defining communities of risks
may account for the attractiveness of the reasonableness paradigm today. The
increased complexity and interdependence of modern society renders legal
analysis based upon a concept of community that presupposes clear lines of
membership, relatively little overlapping, and a fair degree of uniformity in
the activities carried on, exceedingly difficult in
many cases. Cf. pp. 571-72 infra.
[FN47]. 48
S.W.2d 903 (Mo. 1932).
[FN48]. See
Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891).
Animosity would obviously be relevant to the issue of punitive damages, see PROSSER
9-10, the formal rationales for which are retribution and deterrence, not
compensation.
[FN49]. This account of battery
also explains the softening of the intent requirement to permit recovery when
the defendant "knew to a substantial certainty" that his act would
result in the victim's falling. Garratt
v. Dailey, 46 Wash. 2d. 197, 279 P.2d 1091 (1955)
(defendant, a young boy, pulled a chair out from the spot where the victim was
about to sit down).
[FN50]. Rawls, Justice as
Fairness, 67 PHILOSOPHICAL REV. 164, 165 (1958) ( "[E] ach person participating in a practice, or affected by
it, has an equal right to the most extensive liberty compatible with a like
liberty for all."). The ideas expressed in Justice as Fairness are
elaborated in J. RAWLS, A THEORY OF JUSTICE (1971).
[FN51].
It might be that requiring the risk-creator to render compensation would be
economically tantamount to enjoining the risk-creating activity. See note 115
infra. If imposing a private duty of compensation for injuries resulting from
nonreciprocal risk-taking has an undesirable economic impact on the defendant,
the just solution would not be to deny compensation, but either to subsidize
the defendant or institute a public compensation scheme.
[FN52]. 80 Eng. Rep. 284 (K.B.
1616).
[FN53]. Id.
[FN54]. Id.
[FN55]. "[T]herefore no man
shall be excused of a trespass (for this is the nature of an excuse, and not of
a justification, prout ei bene licuit) except it may be judged utterly without
his fault." Id.
[FN56]. This is not to say that
utilitarians have not attempted to devise an account of excuse based on the
beneficial consequences to society of recognizing excuses. See J. BENTHAM, AN
INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1907). For an effective
critique of Bentham, see H.L.A. Hart, Prolegomenon to
the Principles of Punishment, 60 ARISTOTELIAN SOC'Y PROCEEDINGS 1 (1959), in
H.L.A. HART, PUNISHMENT AND RESPONSIBILITY (1968).
[FN57]. THE NICOMACHEAN ETHICS OF
ARISTOTLE, supra note 40, Book III, ch. 1, at 48 ("Those things, then, are
thought involuntary, which take place under compulsion or owing to
ignorance.").
[FN58]. See e.g.,
St. Johnsbury Trucking Co. v. Rollins, 145 Me. 217, 74 A.2d 465 (1950); Majure
v. Herrington, 243 Miss. 692, 139 So. 2d 635 (1962).
The excuse is not available if the defendant has created the emergency himself.
See
Whicher v. Phinney, 124 F.2d 929 (1st Cir. 1942).
See generally PROSSER 168-69.
[FN59]. 27
N.Y.S.2d 198 (N.Y. City Ct. 1941).
[FN60]. The rhetoric of
reasonableness obscures the difference between assessing the risk and excusing
the defendant on the ground that pressures were too great to permit the right
decision. Cf. p. 560 infra. Yet it is clear that the emergency doctrine
functions as a personal excuse, for the defense is applicable even if the actor
made the wrong choice, i.e., took an objectively unreasonable
risk. See
St. Johnsbury Trucking Co. v. Rollins, 145 Me. 217, 222, 74 A.2d 465, 468 (1950) (admonishing against assessing the risk with hindsight); Kane
v. Worcester Consol. St. Ry., 182 Mass. 201, 65 N.E. 54 (1902) (Holmes, C.J.) (the choice "may be mistaken and yet
prudent").
[FN61]. 64
F.2d 201 (6th Cir.), cert. denied, 289
U.S. 751 (1933).
[FN62]. Daniels
v. Evans, 107 N.H. 407, 224 A.2d 63 (1966)
rejected the defense of immaturity in motoring cases and thus limited Charbonneau
v. MacRury, 84 N.H. 501, 153 A. 457 (1931) to
cases in which the activity is "appropriate to [the minor's] age,
experience and wisdom." 107
N.H. at 408, 224 A.2d at 64.
[FN63]. "[T]herefore if a
lunatick hurt a man, he shall be answerable in trespass ...." 80 Eng. Rep.
at 284. See Alexander & Szasz, Mental Illness as an Excuse for Civil
Wrongs, 43 NOTRE DAME LAW. 24 (1967).
[FN64]. See
Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939); Warrick
v. Farley, 95 Neb. 565, 145 N.W. 1020 (1914).
[FN65]. In Fletcher v. Rylands,
L.R. 1 Ex. 265, 279-80 (1866), Blackburn, J.,
acknowledges the defenses of vis major and act of God. Both of these sound in a
theory of excuse. Vis major corresponds to the excuse of physical compulsion
recognized in Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616), and acts of God are
risks of which the defendant is presumably excusably ignorant.
[FN66]. 101
Utah 552, 125 P.2d 794 (1942).
[FN67]. Id.
at 555, 125 P.2d at 795.
[FN68]. Madsen is somewhat
different from Smith v. Lampe, discussed at
p. 553 supra. In Smith the driver was ignorant
that honking could have any harmful result. Here it is just the particular harm
of which the defendant was unaware.
[FN69]. There seem to be two
different types of proximate cause cases: (1) those that function as a way of
raising the excuse of unavoidable ignorance and (2) those that hold that the
damage is so atypical of the activity that even if the actor knew the result
would occur, he would not be liable. If there were a replay of the facts in
Madsen, with the defendant knowing of the risk to the mink, one would be
surprised if the result would be the same; on the other hand, if the oil
company in Mauney
v. Gulf Refining Co., 193 Miss. 421,
9 So. 2d 780 (1942) knew of the risk that
negligently starting a fire might startle a woman across the street, causing
her to fall over a chair and suffer a miscarriage, the court would probably
still find for the defendant. If this distinction is sound, it suggests that
foreseeability is an appropriate test of proximate cause only in the first
category, namely when the issue is really the excusability of the defendant's
ignorance of the risk. Cf. pp. 571- 73 infra.
[FN70]. See, e.g.,
Maye v. Tappan, 23 Cal. 306 (1863) (mistake of
miner as to boundary between mines); Blatt
v. McBarron, 161 Mass. 21, 36 N.E. 468 (1894) (mistake
of process server as to right of entry); RESTATEMENT (SECOND) OF TORTS § 164 (1965).
[FN71]. If the defendant could
prevail by showing that his mistake was reasonable, the court would not have to
resolve the conflicting claims of title to the land. Similarly, if the
defendant in a defamation action could prevail by showing that he was
reasonably mistaken about the truth of the defamatory statement, the court
would never reach the truth or falsity of the statement. To permit litigation
of the truth of the charge, the law of defamation rejects reasonable mistake as
an excuse. See
Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 126 N.E. 260 (1920); Hulton & Co. v. Jones, [1909] 2 K.B. 444, aff'd, [[[1910] A.C. 20. In both of these cases, it was held
irrelevant that the defendant did not intend his remarks to refer to the
plaintiff.
[FN72]. See notes 15 supra and 86
infra.
[FN73]. See pp. 551-52 supra.
[FN74]. Unreasonable
risk-taking--doing that which a reasonable man would not do--is now the
standard measure of negligence. See, e.g., PROSSER 145-51; RESTATEMENT (SECOND)
OF TORTS § § 282-83 (1965). But cf.
MODEL PENAL CODE § 2.02(2)(d) (Proposed
Official Draft, 1962) (defining negligence as the taking of a "substantial
and unjustified risk" and invoking the reasonable man only to account for
the blameworthiness of the negligent conduct).
[FN75]. Inadequate appreciation
for the distinction between excuse and justification is clearly seen today in
negligence per se cases. Courts and commentators use the terms
"justification" and "excuse" interchangeably to refer to
the criteria defeating the statutory norm. See, e.g.,
Alarid v. Vanier, 50 Cal. 2d 617, 327 P.2d 897 (1958); HARPER & JAMES 1007-10. As a consequence, they are
unable to satisfactorily rationalize giving conclusive effect to the
legislature's determination of safe conduct while at the same time permitting the jury to make the final determination
of the defendant's negligence. If excuse and justification are just two
different labels for a univocal concept, these goals do appear incompatible;
the statute cannot be conclusive on the issue of negligence if the jury also
decides the same issue. Recognizing that the concept of fault is dualistic,
that excusability is a separate dimension of fault, would enable courts to
regard the violation of a statute as conclusive on negligence, but inconclusive
on the excusability of the negligent conduct. Thus, the legislature would be
given its due without sacrificing justice to the individual defendant who can
show, for example, that he was compelled to run the illegal risk or prevented
from perceiving its magnitude.
The distinction between excuse and
justification in these cases was not always so obscure. See
Martin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814, 815 (1920) (Cardozo, J.) (defining "the unexcused omission of
the statutory signals" as negligence per se) (emphasis added).
The MODEL PENAL CODE § § 3.04(1), 3.11(1) (Proposed Official Draft,
1962) (excused force is nevertheless
unlawful force, but privileged or justified force is not), maintained a
distinction between excuse and justification in formulating a definition of
unlawful force for the purpose of delimiting the scope of self-defense. But
this distinction did not survive adoptation of the CODE in Illinois and
Wisconsin. Ill. Rev. Stat. ch. 38, § 7
(1969); Wis. Stat.
§ 939.42-.49
(1969). See also Ga. Code § 26-1011
(1933) ("There being no rational distinction between excusable and
justifiable homicide, it shall no longer exist."), as amended § 26-901. The distinction is very much alive
among philosophers, see, e.g., Austin, A Plea for Excuses, 57 Aristotelian
Soc'y Proceedings 1 (1956-57), in Freedom and Responsibility 6 (H. Morris ed.
1961).
[FN76]. Self-defense is routinely
referred to today as an instance of justification. See, e.g., MODEL PENAL CODE
§ 3.04 (Proposed Official Draft, 1962)
(including self-defense in article 3 of the CODE, which is titled "General
Principles of Justification"); Cal.
Penal Code § 197 (West 1970) ("justifiable homicide"); note 75
supra. In contrast, Blackstone described se defendendo as an instance of
excusable homicide. 4 W. Blackstone, Commentaries *183-84. In Blackstone's day,
the rubric of excusable homicide applied to those cases in which the defendant
suffered only forfeiture of goods, but not execution or other punishment. See
R. Perkins, Criminal Law 892 (1957).
[FN77]. The clearest case of
common law justification was that of a legal official acting under authority of
law. See 4 W. BLACKSTONE, COMMENTARIES *178- 79.
[FN78]. The MODEL PENAL CODE
(Proposed Official Draft, 1962) acknowledges that claims of insanity and duress
are distinguishable from claims of justification and does not include them
within article 3's "General Principles of Justification." Rather,
they appear in § § 4.01 and 2.09
respectively.
The common law is ambivalent on the status
of duress. The defense is not recognized in homicide cases, State
v. Nargashian, 26 R.I. 299, 58 A. 953 (1904),
thus suggesting that the focus of the defense may be the rightness of the
defendant's act, rather than the involuntariness of the actor's response to
external coercion. German law unequivocally acknowledges that duress is an excuse
and that it applies even in homicide cases. STGB § 52 (C.H. Beck 1970); A. SCHONKE & H. SCHRODER,
STRATGESETZBUCH: KOMMENTAR 457 (15th ed. 1970).
[FN79]. This is fairly clear in
the law of se defendendo, which is the one instance in which the common law
recognized an excuse to a homicide charge based on external pressure rather
than the propriety of the act. See E. COKE, THIRD INSTITUTE *55; note 78 supra.
For the defense to be available, the defedant had to first retreat to the wall
if he could do so without risking his life and had to have no other means than
the use of force for preserving his own life. Coke speaks of the killing in
these cases as "being done upon inevitable cause." COKE, THIRD
INSTITUTE *55.
These issues are more thoroughly discussed
in Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U.
PA. L. REV. 401 (1971). For a general account of the deficiencies in the common
law approach to excusing conditions, see G. Fletcher, The Individualization of
Excusing Conditions, 1971 (unpublished manuscript on file at the Harvard Law
School Library).
[FN80]. T. COOLEY, A TREATISE ON
THE LAW OF TORTS 81 (1879) ("That which it is right and lawful for one man
to do cannot furnish the foundation for an action in favor of another.").
[FN81]. The impact of the paradigm
is not so much that negligence emerged as a rationale of liability, for many
cases of negligence are compatible with the paradigm of reciprocity. See pp.
548-49 supra. The ideological change was the conversion of each tort dispute
into a medium for furthering social goals. See Prosser's discussion of
"social engineering," PROSSER 14-16. This reorientation of the
process led eventually to the blurring of the issues of corrective justice and
distributive justice discussed at note 40 supra.
[FN82]. For early references to
"reasonableness" as the standard of negligence, see Blyth v.
Birmingham Waterworks Co., 156 Eng. Rep. 1047 (Ex. 1856); COOLEY, supra note
80, at 662. But cf. Vaughan v. Menlove, 132 Eng. Rep. 490,
493 (C.P. 1837) ("a man of ordinary prudence"). Notions of
"ordinary" and "normal" men are compatible with the
paradigm of reciprocity; reciprocal risks are those that ordinary men normally
impose on each other. The shift to the "reasonable" man was
significant, for it foreshadowed the normative balancing of the interests
implicit in the concept of reasonableness as an objective standard.
[FN83]. See pp. 558-59 supra.
[FN84]. See note 62 supra.
[FN85]. It is especially
surprising that courts and commentators have not explicitly perceived that the
emergency doctrine functions to excuse unreasonable risks. See cases cited note
58 supra; HARPER & JAMES 938-40; PROSSER 168-70.
[FN86]. One can distinguish among
the following strains that converged in the course of the nineteenth century:
(1) the tendency to regard more and more
affirmative conduct as equivalent to passive, background activity. The English
courts took this view of activities that one had a right to engage in. See
Tillett v. Ward, 10 Q.B.D. 17 (1882) (right to drive
oxen on highway; no liability for damage to ironmonger's shop); Goodwyn v.
Cheveley, 28 L.J. Ex. (n.s.) 298 (1859) (right to drive cattle on highway; no
liability to neighboring property). The American courts started with the
suggestion in Vincent
v. Stinehour, 7 Vt. 62, 65 (1835), that
duty-bound acts were to be treated like background risks. Brown
v. Kendall, 60 Mass. (6 Cush.) 292, 296 (1850),
extended this category to include all acts "lawful and proper to do,"
thus obliterating the distinction between background risks and assertive
conduct.
(2) the judgment that those who go near
dangerous areas, like highways,
"[take] upon themselves the risk of injury from that inevitable
danger ...." Fletcher v. Rylands, 65 L.R. 1 Ex. 265, 286 (1866)
(Blackburn, J.).
(3) the indulgence by courts in a fallacious
reinterpretation of older decisions, such as Gibbons v. Pepper, 87 Eng. Rep.
469 (K.B. 1695), to stand for the proposition that if the act is "not
imputable to the neglect of the party by whom it is done, or to his want of
caution, an action of trespass does not lie ...." Harvey v. Dunlop, Hill
& Denio Supp. 193, 194 (N.Y. 1843); cf. Vincent v. Stinehour, 7 Vt. at 64 (If "no degree of blame can be imputed to the
defendant, the conduct of the defendant was not unlawful."). The fallacy
of this reasoning is the assumption that recognizing faultlessness as an excuse
entailed an affirmative requirement of proving fault as a condition of recovery
(fallacy of the excluded middle).
(4) the positivist view that tort liability
was functionally equivalent to criminal liability. I J. AUSTIN, LECTURES ON
JURISPRUDENCE 416, 516-20 (3d ed. R. Campbell 1869); J. SALMOND, LAW OF TORTS
12 (3d ed. 1912). According to this view, requiring an activity to pay its way
is to impose a sanction for unlawful activity.
[FN87]. 60
Mass. (6 Cush.) 292 (1850).
[FN88]. Their difference was one
of degree. The trial judge thought the issue was whether the defendant had
exercised extraordinary care, id.
at 293; Judge Shaw saw the issue as one of
ordinary care, id.
at 296.
[FN91]. American authorities
readily came to the conclusion that fault-based negligence and intentional
battery exhausted the possibilities for recovery for personal injury. See
COOLEY, supra note 80, at 80, 164; cf. 3 S. GREENLEAF, EVIDENCE 74 (2d ed.
1848) (pre-Brown v. Kendall). Trespass survived much longer in the English
literature. See Goodhart & Winfield, Trespass and Negligence,
49 L.Q. REV. 359 (1933); Roberts, Negligence: Blackstone to Shaw to ? An
Intellectual Escapade in a Tory Vein, 50 CORNELL L. REV. 191 (1965). However,
Roberts argued that trespass died among English practitioners well before the
academic commentators wrote its obituary. Id. at 207-08.
[FN92]. See
Felske v. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W. 676, 678 (1911); Kelly
v. United Traction Co., 88 App. Div. 234, 235-36, 85 N.Y.S. 433, 434 (1903). But cf.
Chicago Union Traction Co. v. Giese, 229 Ill. 260, 82 N.E. 232 (1907) (applying res ipsa loquitur). Some of the earlier cases
exonerating transportation interests were Beatty
v. Central Iowa Ry., 58 Iowa 242, 12 N.W. 332 (1882) (employing cost-benefit analysis to hold railroad need not eliminate
all risk when designing a grade crossing); Bielenberg
v. Montana Union Ry., 8 Mont. 271, 20 P. 314 (1889)
(statute making railroads absolutely liable for injury to livestock held unconstitutional;
liability had to be based on negligence); Steffen
v. Chicago & N.W. Ry., 46 Wis. 259, 50 N.W. 348 (1879) (train caused rock to shoot up and hit employee standing
nearby; judgment for plaintiff reversed).
[FN93]. Brown v. Kendall had an
immediate impact in Morris v. Platt, 32 Conn. 75, 79-80 (1864) (liability for
gun shot wound to bystander only if firing was negligent as to bystander); see
Paxton v. Boyer, 67 Ill. 132 (1873); Shaw
v. Lord, 41 Okla. 347, 137 P. 885 (1914).
[FN94]. See
Hopkins v. Butte & M. Commercial Co., 13 Mont. 223, 33 P. 817 (1893) (defendant's floating logs caused stream to dam, flooding
plaintiff's land and destroying crops; no liability in the absence of
negligence).
[FN95]. The utilitarian calculus
did not become explicit until Terry explicated the courts' thinking in his
classic article, Terry, Negligence, 29 HARV. L. REV. 40 (1915).
[FN96]. Ames, Law and Morals,
supra note 7, at 99.
[FN97]. See HOLMES, supra note 7,
at 79-80.
[FN98]. See pp. 561-62 supra.
[FN99]. Even in The Thorns Case,
Y.B. Mich. 6 Edw. 4, f.7, pl. 18 (1466), reprinted in C. FIFOOT, HISTORY AND
SOURCES OF THE COMMON LAW 195 (1949), where the defendant was liable in
trespass for entering on plaintiff's land to pick up thorns he had cut, Choke,
C.J., said the defendant would have a good plea if
"he [had done ... all that was in his power to keep them out]." Id.
at 196.
[FN100]. 80 Eng. Rep. 284 (K.B.
1616); see pp. 551-52 supra.
[FN101]. See generally Wigmore,
Responsibility for Tortious Acts: Its History, 7 HARV. L. REV. 441 (1894);
Winfield, The Myth of Absolute Liability, 42 L.Q. REV. 37 (1926).
[FN102]. In some cases, the
unexcused nature of the defendant's risk-taking was obvious on the facts. See
Leame v. Bray, 102 Eng. Rep. 724 (K.B. 1803) (defendant was driving on the
wrong side of the highway; issue was whether trespass would lie); Underwood v.
Hewson, 93 Eng. Rep. 722 (K.B. 1724) (defendant cocked gun and it fired; court
held trespass would lie). In Dickenson v. Watson, 84 Eng. Rep. 1218 (K.B. 1682)
the court said that the claim of "unavoidable necessity" was not
adequately shown. In a third type of case, plaintiffs received verdicts despite
instructions requiring the jury to assess the excusability of the defendant's
act. See Goodman v. Taylor, 172 Eng. Rep. 1031 (K.B. 1832); cf. Castle v.
Duryee, 2 Keyes 169, 174 (N.Y. 1865) (suggesting that the instructions were too
favorable to the defendant).
[FN103]. HOLMES, supra note 7, at
87-89. Holmes relies heavily on a quote from Grose, J.,
in Leame v. Bray, 102 Eng. Rep. 724, 727 (K.B. 1803): "[I]f ... the act of
the party ... be the immediate cause of [the injury], though it happen
accidentally or by misfortune, ... he is answerable in trespass." Yet
Grose, J., relies on Underwood v. Hewson, 93 Eng. Rep. 722 (K.B. 1724), and
Weaver v. Ward, 80 Eng. Rep. 284 (K.B. 1616), see pp. 551-52, both of which at
least implicitly recognize excusing conditions. Holmes supposed that if one
were liable for an "accidental" injury, then liability, in some
sense, violated principles of fairness; but the terms "accident" and
"misfortune" are perfectly compatible with unexcused risk-taking.
[FN104]. 60
Mass. (6 Cush.) 292 (1850).
[FN105]. See pp. 561-62 supra.
[FN106]. 48
Mass. (7 Met.) 472 (1844).
[FN107]. Shaw acknowledged the
distinction between the "criminal intent" that rendered an actor
blameworthy and the "criminal intent" that could be imputed to
someone who voluntarily did the act prohibited by the legislature. Id.
at 474. It was only in the latter sense, Shaw
conceded, that Mrs. Mash acted with "criminal intent." Id.
[FN109]. Before sentence was
pronounced, Mrs. Mash received a full pardon from the Governor. Id.
at 475.
[FN110]. Recent decisions of the
California courts express the opposite position. The California Supreme Court
has sought to protect morally innocent criminal defendants, People
v. Hernandez, 61 Cal. 2d 529, 393 P.2d 673, 39 Cal. Rptr. 361 (1964) (recognizing reasonable mistake as to girl's age as a
defense in statutory rape cases); People
v. Vogel, 46 Cal. 2d 798, 299 P.2d 850 (1956)
(recognizing reasonable mistake of marital status as a defense in bigamy
cases), and at the same time it has extended protection to innocent accident
victims, Elmore
v. American Motors Corp., 70 Cal. 2d 578, 451 P.2d 84, 75 Cal. Rptr. 652 (1969) (strict products liability extended to bystanders).
[FN111]. If this thesis is
correct, it suggests that the change in judicial orientation in the late
nineteenth century was both beneficial and harmful to large business
enterprises. Limiting tort liability to negligence was obviously helpful in
reducing the costs of doing business; but imposing strict liability on corporate officers raised the nonmonetary costs of
production and marketing. See, e.g.,
People v. Roby, 52 Mich. 577, 18 N.W. 365 (1884)
(proprietor held strictly liable for Sunday sale of liquor by his clerk without
proprietor's knowledge or intent); Regina v. Stephens, [1866] L.R. 1 Q.B. 702
(quarry owner held strictly liable for his workmen's dumping refuse).
[FN112]. See, e.g., H. PACKER,
THE LIMITS OF THE CRIMINAL SANCTION 62-135
(1968); Dubin, Mens Rea Reconsidered: A Plea for A Due Process Concept
of Criminal Responsibility, 18 STAN. L. REV. 322 (1966); Griffiths, Book
Review, 79 YALE L.J. 1388 (1970).
[FN113]. See PACKER, supra note
112, at 62-70; Dubin, supra note 112, at 365-66.
[FN114]. Culpability may also
function as a standard of moral desert. I have attempted to clarify the
difference between these two functions in Fletcher, supra note 79, at 417-18.
[FN115]. But cf.
New York Times v. Sullivan, 376 U.S. 254 (1964),
expressing the view that in some situations tort liability impermissibly
inhibits the exercise of freedom of the press. If the liberty to create risks were conceived as analagous to free speech, the same
criticism would apply to the argument of the text.
[FN116]. See
Lubitz v. Wells, 19 Conn. Supp. 322, 113 A.2d 147 (Super. Ct. 1955).
[FN117]. There is considerable
support among commentators for classifying many of these activities as
ultra-hazardous in order to impose liability regardless of their social value.
See, e.g., Avins, AbsoluteLiability for Oil Spillage, 36 BROOKLYN L. REV. 359
(1970); Baxter, The SST: From Watts to Harlem in Two Hours, 21 STAN. L. REV. 1,
50-53 (1968).
[FN118]. 26
N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970).
[FN119]. 26
N.Y.2d at 222, 257 N.E.2d at 871, 309 N.Y.S.2d at 314.
[FN120]. Id. In deciding whether
to grant an injunction in addition to imposing liability for damages, however,
the court did consider the economic impact of closing down the cement factory. 26
N.Y.2d at 225, 257 N.E.2d at 873, 309 N.Y.S.2d at 316.
[FN121].
The Institute initially took the position that only abnormal aviation risks
should generate liability for ground damage, see RESTATEMENT (SECOND) OF TORTSS
§ 520A (Tent. Draft No. 11, 1965), and
then, reversing itself the following session, voted to encompass all aviation
risks to ground structure within the rule of strict liability, see RESTATEMENT
(SECOND) OF TORTS § 520A, Note to Institute
at 1 (Tent. Draft No. 12, 1966).
[FN122]. 70
Cal. 2d 615, 451 P.2d 84, 75 Cal. Rptr. 652 (1969).
[FN123]. See note 19 supra.
[FN124]. Palsgraf
v. Long Island R.R., 248 N.Y. 339, 343, 162 N.E. 99, 100 (1928).
[FN125]. PROSSER 267; WINFIELD ON
TORT 91-92 (8th ed. J. Jolowicz & T. Lewis 1967). The case adopting the
test for the Commonwealth is Overseas Tankship (U.K.) Ltd. v. Morts Dock &
Engineering Co. Ltd. (The Wagon Mound), [1961] A.C. 388. But cf. RESTATEMENT
(SECOND) OF TORTS § 435 (no liability
for "highly extraordinary" consequences).
[FN126]. Though this aspect of
the test is only dimly perceived in the literature,
many scholars favor the test of "foreseeability" (or its equivalent)
on the ground that it renders the issue of proximate cause symmetrical with the
issue of negligence. See R. KEETON, LEGAL CAUSE IN THE LAW OF TORTS 18-20
(1963); Pollack, Liability for Consequences, 38 L.Q. REV. 165, 167 (1922).
[FN127]. In re Polemis, [1921] 3
K.B. 560.
[FN128]. Palsgraf
v. Long Island R.R., 248 N.Y. 339, 347, 162 N.E. 99, 101 (1928).
[FN129]. H.L.A. HART & A.
HONORE, CAUSATION IN THE LAW 24-57, 64-76 (1959).
[FN130]. See, e.g., PROSSER 264
("this approach [i.e. direct causation] is obviously an arbitrary
one"); Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. L. REV.
20, 37, 52 HARV. L. REV. 372, 389, 48 YALE L.J. 390, 407 (1939) ("those
using the test of directness are merely playing with a metaphor").
[FN131]. Part of the reaction
against writers like Beale, The Proximate Consequences of an Act, 33 HARV. L.
REV. 633 (1920), is that metaphoric thinking is
"mechanical" and insensitive to issues of "policy." PROSSER
264. Legal realism made it unfashionable to try to solve policy problems with
verbal formulae and common sense rules. See HART & HONORE, supra note 129,
at 92-93.
[FN132]. 248
N.Y. at 352, 162 N.E. at 103.
END OF
DOCUMENT