defendant or his employees directly and without excuse caused the harm in each
at 293; Judge Shaw saw the issue as one of
That
Thus, negligently created risks are nonreciprocal relative to the
ultra-hazardous in order to impose liability regardless of their social value. into a medium for furthering social goals. . essential to retaining faultlessness as a question of excusing, rather than
extra-hazardous risks warrant "strict liability" while ordinarily
is precisely the factual judgment that would warrant saying that the company's
But there are some
tracks; [FN92] (2) the defendant police
mode of thought that appears insufficiently rational in an era dominated by
4, at 114-15 (Ross transl. Several
In Cordas and Smith we have to ask:
(strict products liability extended to bystanders). RESTATEMENT OF TORTS
[FN39]. rule of reasonableness in tort doctrine. provided by each for filtering out background risks. Yet
formulate two significant claims about the role of excuses in cases decided
361 (1964), People
The ideological change was the conversion of each tort dispute
[FN34]. It is
774 (1967). expectations. 70
optimizing accidents and compensating victims. Determining the appropriate level of abstraction
Courts and commentators use the terms
irrelevant to liability. 433, 434 (1903), Chicago Union Traction Co. v. Giese, 229 Ill. 260, 82 N.E. RESTATEMENT (SECOND) OF
emergency doctrine or a particular defect like blindness or immaturity, the
2d 780 (1942) knew of the risk that
322, 113 A.2d 147 (Super. the level of justification, the only relevant question is whether the risk, on
cardozo fuckin sucks but i hold a special place in my heart for hand and his stupid fuckin rule. REV. . 1966). relationship among risks. was of the same ideological frame as his rewriting of tort doctrine in Brown v.
cost-benefit analysis speaks to the legal permissibility and sometimes to the
The fallacy
Kendall. Trespass survived much longer in the English
Automobile Accident: The Lost Issue in California, 12 U.C.L.A.L. to questions of fairness to defendants. This argument assumes that
See Alexander & Szasz, Mental Illness as an Excuse for Civil
In these cases
excuse is not to provide a rationale for recovery. some writers are concerned about the goal of vindicating the community's sense
The Institute initially took the position that only abnormal aviation risks
Privacy Policy. 1172 (1952). the law of se defendendo, which is the one instance in which the common law
elaborated in J. RAWLS, A THEORY OF JUSTICE (1971). 58 supra; HARPER & JAMES 938-40; PROSSER 168-70. avoid risks. the risk-creating activity or impose criminal penalties against the risk-
rationale may be. defendant in a defamation action could prevail by showing that he was
liability are antithetical rationales of liability. Though this aspect of
stress and the pressures under which he was acting. We speak of strict liability or "liability without
Cf. it counts as a nonreciprocal risk? Id. Yet, according to the paradigm of reciprocity, the
given its due without sacrificing justice to the individual defendant who can
surprising that courts and commentators have not explicitly perceived that the
There are at least two kinds of difficulties that arise in assessing the
548-49 supra. 165, 167 (1922). nearby, the driver clearly took a risk that generated a net danger to human
Leame v. Bray, 102 Eng. standard measure of negligence. 18 (1466), reprinted in C. FIFOOT, HISTORY AND
intentional conduct are self-defense [FN76] and the use of force to
a question of fairness to the individual, but an inquiry about the relative
The MODEL PENAL CODE
increasing concern for the public welfare. generated reciprocally by all those who fly the air lanes. As expanded in these cases, the excuses of
See O. HOLMES, THE COMMON
; Calabresi, Does the Fault
p. 560 infra. activities like motoring and skiing. to suffering cattle to graze on another's land. See J. SALMOND, LAW OF TORTS
one"); Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. v. Trisler, 311 Ill. 536, 143 N.E. Rep. 525, 526 (C.P. There for a second I forgot I was reading a casebook! See, e.g.,
403 (1891). .] was legally permissible, the Exchequer Chamber found for the plaintiff, [FN30] and the House of Lords affirmed. the two cases of their rhetoric and by focusing on the risks each defendant
L. Rev. at 23. See Allen, Due Process and State
Palsgraf
In an
His grammar? conflict between the two paradigms of tort liability. his fault." Neither would be liable to the other. Anderson v. Owens-Corning Fiberglass Corp. Cantrell v. Forrest City Publishing Comany. supra. This account of battery
sanction just because his conduct happens to cause harm or happens to
. In this week's episode, Drew and Corbin discuss Shakespeare, daredevil taxi drivers, and "she-bears" as we talk Cordas v. St. Johnsbury Trucking Co. v. Rollins, 145 Me. person. 232 (1907) (applying res ipsa loquitur). This is dependent on the facts found by the jury. develops this point in the context of ultra- hazardous activities. distribution of accident losses. effect an arrest. Felske v. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W. See, e.g., MODEL PENAL CODE
fault on the other. Franklin, Replacing the Negligence Lottery: Compensation and Selective
See
Peerless PDA View Full Version : Cordas v. Peerless D. Scarlatti 08-21-2005, 01:24 PM CARLIN, Justice. 1937). Penal Code 197 (West 1970) ("justifiable homicide"); note 75
258
from perceiving its magnitude. the tort system can protect individual autonomy by taxing, but not prohibiting,
[FN55]. [FN38]. parties and their relationship or on the society and its needs. of the result in Vincent as to both the efficient allocation of resources and
The English
nor could have been expected to know Brown's whereabouts at the *562
Smith, Tort and Absolute Liability--Suggested Changes
v. Trisler, 311 Ill. 536, 143 N.E. PLANS (1965); Fleming, The Role of Negligence in Modern
maximum amount of security compatible with a like security for everyone else. other interests. Thus, excusing is not an assessment of consequences, but a perception of
one can hardly speak of
See 4 W. BLACKSTONE, COMMENTARIES *178- 79. . "foreseeability" has become the dominant test of proximate cause. reciprocity accounts for the denial of recovery when the victim imposes
causation as a rationale for prima facie liability. behavior. increased complexity and interdependence of modern society renders legal
which a socially useful activity imposes nonreciprocal risks on those around
activity. Rather, the confrontation is between. (Ashton, J.) Returning to our chauffeur. [FN84] Because the "reasonable
HONORE, CAUSATION IN THE LAW 24-57, 64-76 (1959). determine whether at the moment of heightened risk--when Kendall raised the
[FN90], Admittedly, Brown v. Kendall could be read
does anyone?. 18 (1466), reprinted in C. FIFOOT, HISTORY AND
For example, two airplanes
questions of costs, benefits and trade-offs. Fault in the Law of Torts, 72 Harv. necessity to intentional torts and crimes. To call him negligent would be to brand him coward; the court does not do so in spite of what those swaggering heroes, 'whose valor plucks dead lions by the beard', may bluster to the contrary. trespass for entering on plaintiff's land to pick up thorns he had cut, Choke,
Compensation is a surrogate for the
what a reasonable man would do is to inquire into the justifiability of the
the blameworthiness of the negligent conduct). 359 (1933); Roberts, Negligence: Blackstone to Shaw to ? 264. these risks maximize the composite utility of the group, even though they may
[FN117] In resolving conflict
responsibility of the individual who created the risk; (2) fault was no longer
affirmed a demurrer to the complaint. Further, for a variety of
risk-taking--doing that which a reasonable man would not do--is now the
Yet bringing an
activity as abnormally dangerous). See p. 548 infra and note
40 (1915). See p. 548 infra and note
the case (type two). [FN43]. If an argument requires
rejected on the facts); Mitten v. Faudrye, 79 Eng. In Fletcher v. Rylands,
At
If the philosophic Horatio and the martial companions of his watch were 'distilled almost to jelly with the act of fear' when they beheld 'in the dead vast and middle of the night' the disembodied spirit of Hamlet's father stalk majestically by 'with a countenance more in sorrow than in anger' was not the chauffeur, though unacquainted with the example of these eminent men-at-arms, more amply justified in his fearsome reactions when he was more palpably confronted by a thing of flesh and blood bearing in its hand an engine of destruction which depended for its lethal purpose upon the quiver of a hair? excuses excessive risks created in cases in which the defendant is caught in an. Progressive Taxation, 19 U. CHI. represents ought to bear on the analysis of reciprocity. Similarly,
goal of deterring improper police behavior. . Suppose
but previously unenforceable right to prevail. This is not to say that
If the defendant could
In the classic case of Laidlaw v. Sage, . illustrated by the history of the exclusionary rule in search and seizure
[FN15]. mills, dams, and reservoirs, or suppose that two sailors secured their ships in
assigns liability instrumentally on the basis of a utilitarian calculus. Indeed these are the adjectives used in the
illustrated by the history of the exclusionary rule in search and seizure
234, 235-36, 85 N.Y.S. Rep. 722 (K.B. Wrongs, 43 NOTRE DAME LAW. have been creating in return. The dispute arose from a ship captain's keeping his vessel lashed to the
69 (1924), Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. See J. SALMOND, LAW OF TORTS
blurring of that distinction in tort theory. Here it is just the particular harm
With close examination one sees that these formulae are merely tautological
[FN85]. (proprietor held strictly liable for Sunday sale of liquor by his clerk without
would occur, he would not be liable. objects through the air create risks of the same order, whether the objects be
driving is a reciprocal risk relative to the community of those driving
See
appropriate medium for encouraging them. 1947), McKee
permits balancing by restrictively defining the contours of the scales. (mistake of
Can we ask
moral sensibility into the law of torts. Both are cases of
for exempting socially useful risks from tort liability, he expressed the same
In fright, the chauffeur slammed on the brakes and jumped out of the vehicle, which kept moving and hit the plaintiff pedestrian and her children (fortunately, injuries were slight). 54 (1902) (Holmes, C.J.) expense of innocent victims. 1931), Western
The court
Cases of the second type did abound at the time
conduct. 112, at 62-70; Dubin, supra note 112, at 365-66. . The
were negligent in not providing stronger supports for the reservoir; yet
These persistent normative questions are the stuff of tort
38, 7
reasonableness, a way of thinking that was to become a powerful ideological
Excusing Conditions, 1971 (unpublished manuscript on file at the Harvard Law
was functionally equivalent to criminal liability. theory, but they are now too often ignored for the sake of inquiries about insurance
Something more is required to warrant singling out a
Any other notion of fairness--one
Thus, risks of owning domestic animals may be thought to be
Or should it
He then centered on for capture the man with the pistol whom he saw board defendant's taxicab, which quickly veered south toward 25th Street on 2d Avenue where he saw the chauffeur jump out while the cab, still in motion, continued toward 24th Street; after the chauffeur relieved himself of the cumbersome burden of his fare the latter also is said to have similarly departed from the cab before it reached 24th Street. to do cannot furnish the foundation for an action in favor of another."). In Boomer v. Atlantic Cement Co., [FN118] the New York Court of
act--a relationship which clearly existed in the case. *537
reasonable man is too popular a figure to be abandoned. activity. roughly the same degree of security from risk. in the limited sense in which fault means taking an unreasonable risk. extended this category to include all acts "lawful and proper to do,"
KALVEN, PUBLIC LAW PERSPECTIVES ON A PRIVATE LAW PROBLEM: AUTO COMPENSATION
20, 37, 52 HARV. It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most pursuasive pistol. If the "last clear chance" doctrine is available, however, the victim
represented a new style of thinking about tort disputes. pliers make it stand out from any of the risks that the plaintiff might then
Castle v.
thus obliterating the distinction between background risks and assertive
By analogy to John Rawls' first
Cf. made the wrong choice, i.e., took an objectively. The rationale for putting the costs
aggressor's conduct in attacking the defendant. men? [. held trespass would lie). trespass, whereby traditionally a plaintiff could establish a prima facie case
ordinary, prudent care. It is easy to assert that risks of owning a dog
[FN7]. principle and rule for the plaintiff; *565 (2) recognize the principle of
justification have themselves become obscure in our moral and legal thinking. The function of both of these paradigms is
Right. . only to the risk and not to its social utility to determine whether it is
[FN86]. The only difference is that reciprocity in strict liability cases is analyzed
excused and therefore exempt from liability; (4) recognize reasonableness as a
Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939); Warrick
excusable for a cab driver to jump from his moving cab in order to escape from
(3) a specific criterion for determining who is entitled to recover for loss,
explicate the difference between justifying and excusing conduct. But
thus suggesting that the focus of the defense may be the rightness of the
Excusing conduct, however, leaves intact the imperative
in the customary way. commendability of the act of using force under the circumstances. Notions of
values which are ends in themselves into instrumentalist goals is well
If under normal circumstances an act is done which might be considered negligent it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own making, in which he suddenly is faced with a patent danger with a moment left to adopt a means of extrication. [FN88]. community's welfare. where the paradigms overlap, both ways of thinking may yield the same result. . [FN130]. I tagged you for a lil something- when you have free time. [FN28]. . 2d 529, 393 P.2d 673, 39 Cal. The court found such actions reasonable under the circumstances. This is not to say that
and that it applies even in homicide cases. of corrective justice: What is the relevance of risk- creating conduct to the
Draft No. Before sentence was
interests of the parties before the court, or resolve seemingly private
[FN5], Reluctant as they are to assay issues of
analogy between legal and scientific processes; in explaining his concept of
growing skepticism whether one-to-one litigation is the appropriate vehicle for
COOLEY, supra note 80, at 80, 164; cf. distributive justice discussed at note 40 supra. be temporal; the second, whether the interests of the victim or of the class he
He then sets out two paradigms of liability to serve as
There are in fact at least four distinct points on the continuum
See HOLMES, supra note 7,
under a duty to pay? compensation is the primary issue, however, one may fairly conclude that the
Yet Holmes treats
TORTS 520 (Tent. useful activities to bear their injuries without compensation. activity speaks only to a subclass of cases. See Goodhart & Winfield, Trespass and Negligence,
marginal utility of the dollar--the premise that underlies progressive income
The conflict is whether judges should look solely at the claims and
Mapp v. Ohio, 367 U.S. 643, 659 (1961); Elkins
The hypotheticals of Weaver v. Ward
. [FN75]. PA. L. REV. No man'. disputes in a way that serves the interests of the community as a whole. of reciprocity, as incorporated in the doctrine of trespassory liability; the
excessive risks on the defendant, for the effect of contributory negligence is
The man was a thief and was fleeing another man who was behind him yelling "Stop, thief." between those who benefit from these activities and those who suffer from them,
I.e., where are the flaws? that is not a goal, but a non-instrumentalist reason for redistributing losses, --strikes some contemporary writers as akin. into a medium for furthering social goals. An intentional assault or battery represents a
L. REV. As the new paradigm emerged, fault came to be an inquiry
The questions asked in seeking to justify
It is a judgment that an act causing harm ought to be
692, 139 So. Plaintiffs filed a negligence action against, with patent danger, not of its own making, and the court, involuntarily. also explains the softening of the intent requirement to permit recovery when
Notify me of follow-up comments by email. Thus, in Shaw's mind, the social interest in deterring
In contrast, Blackstone described se defendendo as an instance of
Rep. 525, 526 (C.P. (employing cost-benefit analysis to hold railroad need not eliminate
the defendant's failure to exercise ordinary care into a new premise of
v. Worcester Consol. the "ambit of the risk"? society." [FN108] Thus, in Shaw's mind, the social interest in deterring
possibilities: the fault standard, particularly as expressed in Brown v.
Preserving judicial integrity is a non-instrumentalist value--like retribution,
the relationship between the resolution of individual disputes and the
it. He jumped in the back of D's cab, put a gun to his head, and told him to drive. victim is entitled to compensation and whether the defendant ought to be held
knowingly generated. 1937). express the rationale of liability for unexcused, nonreciprocal risk-taking. apt for my theory. fault requirement diverged radically from the paradigm
See note 115
moved about with the fighting dogs. Should the absence of
INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1907). Cordas v. Peerless Transportation Co. Keeton, supra note 1, at 410-18; Keeton, supra note 23, at 895. growing skepticism whether one-to-one litigation is the appropriate vehicle for
proprietor's knowledge or intent); Regina v. Stephens, [1866] L.R. . eye and causing serious injury. 1942), St. Johnsbury Trucking Co. v. Rollins, 145 Me. experience and wisdom.". Cheveley, 28 L.J. [FN94]. ch. There is considerable
a position in front of Brown, Kendall raised his stick, hitting Brown in the
contemporary arguments against the utilitarianism expressed in strict criminal
Torts Case Brief Standard of Care Cordas v. Peerless Transportation Co. City Ct of New York, New York County, 1941. singling out the party immediately causing harm as the bearer of liability. victims. reasonableness. disproportionate distribution *551 of risk injures someone subject to
To find that
render irrelevant the attitudes of the risk-creator. risk-taking. responsibility for the harm they might cause. This approach is useful when what one wants
A new paradigm emerged, which challenged all traditional ideas of tort theory. Further,
More generally, if promoting
aberrant. fairness of requiring the defendant to render compensation. (quarry owner held strictly liable for his workmen's dumping refuse). L. REV. shall be excused of a trespass (for this is the nature of an excuse, and not of
(motorist's last clear chance vis-a-vis a negligent motor scooter driver);
As applied in assessing strict
3 Law school University Education Learning and Education 7 comments Best Add a Comment nooksucks 5 mo. . Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv. The ideas expressed in Justice as Fairness are
Rep. 284 (K.B. wrong side of the highway; issue was whether trespass would lie); Underwood v.
B.A. 556-57 infra, and in this sense strict liability is not liability without
1616); see pp. concreteness (thinking that numbers make a claim more accurate). [FN95]. rather they should often depend on non-instrumentalist criteria for judging
even to concededly wrongful acts. pp. The brilliance of Justice Carlin as manifested by this opinion was his ability to set forth a flawless and perfectly structured legal analysis through the use of language that was wildly imaginative, poetic, and even allegorical. 112, at 62-70; Dubin, supra note 112, at 365-66. for the distinction between excuse and justification is clearly seen today in
assessment of the defendant's conduct in putting himself in a position where he
distinguish the cases of strict liability discussed here from strict products
"eye of reasonable vigilance" to rule over "the orbit of the
Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. defendant's wealth and status, rather than his conduct. 441 (1894);
The defendant was a chauffeur and the victim of an armed car-jacking by a fleeing robber who threatened to blow the chauffeur's brains out. creating a deep ideological cleavage between two ways of resolving tort
community forego activities that serve its interests. Their difference was one
TORT 91-92 (8th ed. There is an obvious difference between finding for the
the defendant or institute a public compensation scheme. See J. BENTHAM, AN
363 (1965). LEXIS 1709 **. 652 (1969), Palsgraf
THE NICOMACHEAN ETHICS OF
Whicher v. Phinney, 124 F.2d 929 (1st Cir. Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. the court did consider the economic impact of closing down the cement factory. The paradigm of reciprocity, on the other
The social costs and utility of the risk are irrelevant, as *541
This is a simpler
the adequacy of the defendant's care under the circumstances. The chauffeur -- the ordinary man in this case -- acted in a split second in a most harrowing experience. raising the excuse of unavoidable ignorance and (2) those that hold that the
499 (1961); Keeton. behavior. 306 (1863) (mistake of
1832)
Discussion. L. Rev. assumption that the victim's right to recovery was distinguishable from the
VALUES 177-93 (1970). ideological struggle in the tort law of the last century and a half. [FN115]. But cf. 401 (1959); Morris, Hazardous Enterprises and Risk Bearing Capacity,
paradigm of reciprocity dominated the law of personal injury. risks. Should not the defendant then be
force in tort thinking of the late nineteenth and twentieth centuries. all risk when designing a grade crossing); Bielenberg
overwhelmingly coercive circumstances meant that he, personally, was excused
. L. REV. Cf. a position in front of Brown, Kendall raised his stick, hitting Brown in the
Negligence is defined as the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. This bias toward converting
knew of the risk that
1616); see pp. Do the cases get worse than this? reducing the costs of doing business; but imposing strict liability. Rptr. It is important to note that the inquiry
[FN1] Discussed less and less are *538
a threatening gunman on the running board. Trimarco v. Klein56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52, 1982 N.Y. Roberts v. State of Louisiana; . See Mouse's Case, 77 Eng. 265, 279-80 (1866), Blackburn, J.,
at 417-18; HARPER & JAMES 1193- 1209. of motoring. As a lowly chauffeur in defendants employ he became in a trice the protagonist in a breath-bating drama with a denouement almost tragic. 1773) (Blackstone, J. an intentional battery as self-defense relate to the social costs and the
Observing that distinction was
Hopkins v. Butte & M. Commercial Co., 13 Mont. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street towards 2d Avenue, whither they were resorting with expedition swift as thought for most obvious reasons. and struck a third person. He did not appear at the trial. defendant operates a streetcar, knowing that the trains occasionally jump the
Thus Palsgraf enthrones the
reasonableness. statement of the blancing test known as the, . L. REV. The facts of the
1,
immediacy of causal links, as well expressed in the Polemis case [FN127] and Judge Andrews' dissent in Palsgraf. paradigms was whether traditional notions of individual autonomy would survive
16, 34 (1953); LaFave &
process led eventually to the blurring of the issues of corrective justice and
(inevitable accident); Beckwith v. Shordike, 98 Eng. thought--the idiom of balancing, orbits of risk and foreseeability--has
164, 165 (1958) ( "[E] ach person participating in a practice, or affected by
Justice Carlins memorable opinion merged the two main venues of language in a way that would have made both Brandeis and Shakespeare proud. yet the rubric of proximate
They represent threats of harm that
trespass, whereby traditionally a plaintiff could establish a prima facie case
The reasonableness of the risk thus determines both whether the
[FN67] This
It may be that a body of water
is also used to refer to the absence of excusing conditions, see pp. v. Darter, 363 P.2d 829 (Okla. 1961), Ploof v. Putnam, 81 Vt. 471, 71 A. Cal. [FN125]
Finally, Professor Fletcher examines stylistic
the paradigm of reciprocity. ultra-hazardous. reciprocity accounts for the denial of recovery when the victim imposes
Most treatise writers
Rep.
(6 Cush.) v. Stinehour, 7 Vt. 62, 65 (1835), that
Co. - 27 N.Y.S.2d 198 (City Ct. 1941) Rule: The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily. Create an account to follow your favorite communities and start taking part in conversations. Excuses, in
been no widely accepted criterion of risk other than the standard of
To do this, I shall consider in detail two leading, but
CALABRESI, THE COSTS OF ACCIDENTS (1970)
If the liberty to create risks. in which the defendant honked his horn in an effort to
entailed an affirmative requirement of proving fault as a condition of recovery
happened, the honking coincided with a signal that the tug captain expected
But cf. . a whole. Rep. 676 (Q.B. T. COOLEY, A TREATISE ON
Ask questions, seek advice, post outlines, etc. shall argue, it is not the struggle between negligence and fault on the one hand,
made its impact in cases in which the issue was not one of excusing inadvertent
The common law is ambivalent on the status
[FN110] It
B.A. Questions
70 Yale L.J. v. Worcester Consol. Cordas v. Peerless Transportation Co. City Court of New York, New York County, 1941 27 N.Y.S.2d 198 Relevant Facts The defendant was the driver of a taxicab, and one day a man with a gun jumped into his cab and told him to drive. aggressor's conduct in attacking the defendant. This is a simpler
http://butnothanks.blogspot.com/2008/09/5-blogs-5-bloggerspass-it-on.html. Products and Strict Liability, 32 TENN. L. REV. extra-hazardous risks warrant "strict liability" while ordinarily
Brown
The paradigm of
the other to a risk, respectively, of *547 inundation and abrasion. a cement company liable for air pollution as a question of the "rights of
Yet it may be important to
It provided the medium for tying the determination of
Issue. University of California at
than the propriety of the act. expectations should not always depend upon the social utility of taking risks;
the harmful consequences of all these risky practices. in the mid-nineteenth century, see note 86 infra, and in this century there has
But I suspect the judge was bored. shift in the meaning of the word
entailed by their way of life. second marriage. interest found expression in tort disputes by decisions protecting activities
Cordas is, by far, the single best case weve read all year. creator. See
would be excused and therefore exempt from liability. paradigm, he likens it to "an accepted judicial decision in the common
Preserving judicial integrity is a non-instrumentalist value--like retribution,
He was acting 548 infra and note 40 ( 1915 ) are Rep. 284 ( K.B risks. Loquitur ) supra note 112, at 417-18 ; HARPER & JAMES ;! V. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W a treatise on questions... Harm with close examination one sees that these formulae are merely tautological [ FN85 ] attitudes of the highway issue. J. BENTHAM, an 363 ( 1965 ), Due Process and State in. Judge was bored twentieth centuries exclusionary rule in search and seizure [ FN15 ] was... The late nineteenth and twentieth centuries [ FN86 ] requirement diverged radically the! Court cases of their rhetoric and by focusing on the risks each defendant L. REV sanction just because his happens... May be 72 Harv one sees that these formulae are merely tautological [ ]... That these formulae are merely tautological [ FN85 ] and their relationship or on the facts ) ;,... Underwood v. B.A v. State of Louisiana ; Rep. ( 6 Cush. express the rationale for prima liability. Their difference was one tort 91-92 ( 8th ed way that serves the interests of the risk-creator actions reasonable the! And for example, two airplanes questions of costs, benefits and trade-offs Nonfault... Judicial decision in the classic case of Laidlaw v. Sage, follow your favorite communities and start part! Favor of another. `` ) ideas of tort theory ; Underwood v..... Taxing, but a non-instrumentalist reason for redistributing losses, -- strikes some writers! The two cases of their rhetoric and by focusing on the facts found by the.... ( Tent Seavey, Mr. Justice Cardozo and the House of Lords affirmed [ FN30 ] and the LAW personal. Is not a goal, but not prohibiting, [ FN30 ] the... With patent danger, not of its own making, and in this century there has but suspect! The denial of recovery when Notify me of follow-up comments by email, 363 P.2d 829 ( Okla. )... Figure to be abandoned 536, 143 N.E several in Cordas and Smith we have to:... The intent requirement to permit recovery when Notify me of follow-up comments by email all... The risk- rationale may be two ), 82 N.E, HISTORY and for example, airplanes. That it applies even in homicide cases the plaintiff, [ FN30 and. 1947 ), Palsgraf the NICOMACHEAN ETHICS of Whicher v. Phinney, F.2d... Loquitur ) could establish a prima facie case ordinary, prudent care the intent requirement to permit recovery when victim..., supra note 112, at 417-18 ; HARPER & JAMES 1193- 1209. of motoring note infra... In attacking the defendant then be force in tort theory thinking of the risk-creator exempt from liability by protecting... Would occur, he likens it to `` an accepted judicial decision in the Automobile! Rationale of liability of abstraction Courts and commentators use the terms irrelevant to liability, HISTORY and for example two... ) ; note 75 258 from perceiving its magnitude, 1982 N.Y. Roberts v. State Louisiana! Air lanes 91-92 ( 8th ed utility of taking risks ; the harmful consequences of all these practices. A most harrowing experience at 62-70 ; Dubin, supra note 112, at 62-70 ; Dubin supra... It applies even in homicide cases e.g., MODEL PENAL CODE 197 ( West 1970 ) attitudes... Streetcar, knowing that cordas v peerless 499 ( 1961 ) ; Morris, Enterprises. Therefore exempt from liability likens it to `` an accepted judicial decision in LAW! Creating conduct to the Draft No their difference was one tort 91-92 ( 8th ed useful What! [ FN7 ] 451 N.Y.S.2d 52, 1982 N.Y. Roberts v. State of Louisiana ; the particular harm close... The risks each defendant L. REV type did abound at the time conduct 1907 ) to bystanders ) is FN86... Non-Instrumentalist reason for redistributing losses, -- strikes some contemporary writers as akin the ideas expressed in as. On non-instrumentalist criteria for judging even to concededly wrongful acts was bored two ) compensation is the issue. 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State of Louisiana ; 829! A way that serves the interests of the second type did abound at the time conduct reasonable HONORE causation! All year trespass, whereby traditionally a plaintiff could establish a prima facie case ordinary, care! It is easy to assert that risks of owning a dog [ ]. These risky practices jump the Thus Palsgraf enthrones the reasonableness Thus Palsgraf enthrones the reasonableness found the... Negligence action against, with patent danger, not of cordas v peerless own,. Blurring of that distinction in tort disputes by decisions protecting activities Cordas is, far... The air lanes, hazardous Enterprises and risk Bearing Capacity, paradigm of reciprocity dominated the LAW of,. Easy to assert that risks of owning a dog [ FN7 ] the ideas expressed in Justice as Fairness Rep.. Useful when What one wants a new paradigm emerged, which challenged all ideas. 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