Torts

9 September

• First writing assignment is changed from 9/23 to 9/30
• Social event will take place on the 18th. 6:45 at Uno's.
• So. We have talked about the standard of care, and it's time to dig deeper.
• United States v. Carroll Towing Co.
  Connors owns the Anna C; that's the plaintiff. The barge was leased to the railroad. And zoinks, there are numerous defendants, and the whole thing is really complicated.

  Anyway, there was negligence in the securing of the barge, and the owner is trying recover from the towing company. And the owner is trying to reduce damages because the bargee was absent from the barge.

  And even though the suit is in 1947, the accident was a few years ago: 1944, just before D-Day. The waters were swarming with traffic in the Hudson. The cargo was supposed to be 200 tons of flour. It was loaded from the railway onto a barge, and it was supposed to make it onto a boat.

  There were barges all around, and many of them were tied to the Anna C. So that made things even more ludicrous. It turns out that the Carroll (the tug) was actually working on one of the other barges, trying to get it out. All the lines break, and all the previously connected barges start to drift off. Anna C. hits a tanker, cargo leaks out, and the whole mess sinks. The Carroll tug crew was chasing around all these barges, and overlooked the damages to the Anna C..

  Anyway, the bargee claims to have been on the Anna C. This was "a little bit probably not true" [Camic]. But whether he was there or not, there was potential for liability. And anyway, the harbormaster says that when they went back on board to re-adjust those lines, they didn't see anyone.

  If the bargee was there, he was potentially negligent for not noticing the damage, and the insecure lines. If he was not there, then he was potentially negligent by being absent. So either way, we can find negligence.

  The trial court finds no negligence (i.e., in favor of Connors and the bargee). Then, it reaches this appeals court, with Learned Hand on the panel, and he sees the bargee's absence or failure to notice a substantial hole (whichever it was) as negligence. No way that stuff should have happened.

  So. Three factors: is B < P * L? (Burden; Probability; Loss).

  Here, the cost of the bargee being there is pretty low in comparison to the fact that the harbor is pretty dangerous at this point, and the cargo is valuable (and likely to be lost).

  Now it would be OK to be absent if the harbor were less crowded, e.g. And it's OK to be off the barge a little, from time to time, for a good reason, but this was a prolonged absence with no explanation. So it really wouldn't be too much of a burden to require the bargee to be absent in this case, and there wasn't any kind of sensible excuse on offer.

  Now an algebraic formula seems intimidatingly technical, but this isn't really about quantifying those values, so much as it is about identifying the factors that need to be weighed. We need, in other words, to take into account the costs of investing in safety, and we need to recognize that there's a point where it's not worthwhile.

  Back to strict liability: we'd want strict liability whenever we want the defendant always to be liable no matter what (because under certain circumstances, the cost of the injuries should always be borne by the defendant). In other words, the defendant pays either way: either for prevention or for damages. At the other end of the spectrum, we'd want the injured party to pay the costs in cases when the cost of prevention is excessive. This is really the same issue, expressed as a formula, except that here were doing the analysis to decide which party we want to bear the costs.

  Now, lots of times, it's hard to get a handle on, e.g., the costs of injuries. So sometimes this formula makes sense, and sometimes not. It's not a trusty guide for how people should behave. We don't besiege juries with big technical details-- we just use this to illustrate the kind of reasoning to be done.

  There are those who like precision quantification, and those who don't think cost-benefit considerations are the end-all-and-be-all of analysis of due care. So it's not clear that this is the best or only to figure out whether due care was taken. And even here, it's not entirely about economics: the equation makes reference to bargee custom (i.e., being gone for 20 hours is irregular). We have expectations of normalcy that maybe supplement or even override the cut-and-dried economic analysis. Still, this is a useful tool, and we wouldn't want to reject it entirely; it does help us spot when we're dealing with an unreasonable standard.

• McCarty [Note 4, p. 47]: assault in a resort, with a poorly locked room. Verdict for the defendant. And the jury is presumed to have grasped the principle of the Hand formula, even though it's a rough judgment.
• So, what is reasonable behavior? It's what a reasonable person, placed in similar circumstances, would do. This is the most basic standard for negligence law. Fine, then why do we need the Hand formula? Because the reasonable person standard is pretty general-- how are we to know what a reasonable bargee would have done? We need a way to disentangle complex circumstances in certain cases. Most of the time, though, we sort of know how a reasonable person would behave under the circumstances.
• The reasonable person standard is objective: not what this defendant would have done under similar circumstances. We may not know that reasonable judgment would yield only one outcome, but we know unreasonableness when we see it.
• Bethel v. New York City Transit Authority
  Here we've got this idea of "constructive notice." A presumption that people shoulda known.

  Here, additionally, we also have this notion of "extraordinary care" applied to common carriers.

  Nowadays, says the court, we're free to shed this souped-up standard for common carriers: the factors that necessitated it no longer pertain, and the lopsided imposition of liability is no longer reasonable.

  Why get rid of something that worked so well in the past? Well, there are so many factors these days (modes of transport, e.g.): we don't know how to define or apply this standard. The reasonable person standard, on the other hand is pretty easy to explain and apply.

• See, though, note 2 on p. 52: the trial judge here gets overruled for applying the reasonable care standard (for locking up a gun). Why this disparity? Well, for one thing, public transport has gotten safer, but guns have not: we require this standard in cases where stuff is really dangerous. We want to put people on notice that when dealing with dangerous stuff, you need to be extra careful. Food for thought: would the "utmost care" jury instruction really have influenced the outcome of the trial? Whatever you might think, the "highest care" standard still has some areas of application-- we don't want to abolish it altogether.
• Not in the book: Stewart (accident at auto repair shop). Plaintiff argues that there was gas on the premises, and it got explody because of carelessness. Defendant, says the plaintiff, should be required to show utmost care, because there was gasoline on the premises. Is that a good idea? You can make good arguments for both sides. Unless there's a reason to consider the circumstances abnormally dangerous (and having gas in an auto repair shop isn't really abnormal), courts will tend to favor the reasonable person standard.
• When would we need the utmost care standard? The reasonable person standard considers the circumstances: if the circumstances are extreme, the reasonable person is extremely cautious. The utmost care standard is good for putting people on notice, though, and it is also good for simplifying litigation (maybe).
• The reasonable person is not impaired, and does not have a low IQ or exceptional volatility, etc.
• We do make some allowances for age and physical infirmity, though.
  • Age: we judge children by what other children of similar capacity would have done. It's a two-step process, and subjective (a smart and responsible child may be treated differently). We ask not only if the behavior is negligent, but if it is negligent given this child's level of development. Note, the super-young are presumed never to be capable of negligence (the parents may be liable, perhaps, for not providing adequate supervision... this is not respondeat superior though; at about 6, though, we start thinking about the reasonable child, and thinking about their level of maturity. This is because we know children don't develop uniformly, and it's hard to quantify. Why sue children, if the parents aren't vicariously liable? Because the parents have household liability insurance. Exception to the exception: we hold children to adult standards when they are engaged in adult activities (e.g., driving a car).
  • Physical infirmity: the blind, for example, aren't expected to behave as if they are sighted. Mental incapacity, however, is less recognized as grounds for reformulating the standard of car. Perhaps that's because we have a much harder time drawing the line, and defining who is capable of what.
• Side point, large liability umbrella insurance policies for poor people can be a bad idea (there are carriers who sell this, of course, but it's a bit predatory).
• The general rule is that juries decide whether the facts support a given legal theory. Judges set forth the legal standard. So the question "did the defendant exercise due care" is both factual and theoretical. Should it go to the jury? The difference between Goodman and Pakora is one of agenda: the judge is deciding what should go to the jury. They can do it by deciding what is a legal issue-- that means they can keep it for themselves.

11 September

• Roles of judges and juries: Goodman has a judge who wishes to insert himself into a jury issue. The question of "due care" is confusing, in the sense that it has both judge-ish and jury-ish sides.
• Goodman
  Everyone knows that trains can't stop at crossings, so you cross them at your own risk, and you're responsible for making sure it's safe.

  Why does he rule this way? In the first place, he believes that judges should take clear cases away from the jury; cases of daily experience should go to the jury (because then they can help determine how to interpret these facts). But if a judge has built up enough experience, then the judge will be able to do a better job with the situation than the jury. See Note 2 on p. 62, near the top.

  Why is it better to have judges take these cases away from the jury? To make the law clear and predictable. If we set up rules that certain circumstances lead to certain outcomes, we get predictability. Still, there's some usurpation of other branches' powers. And also, generalized rules fail to be fact-sensitive-- there will always be exceptions. So we don't want to just come out and say "you can't hold the railway responsible if you're crossing their track" or something of that sort.

• Now comes before us Pakora
  The trial court relies on Goodman, and the court of appeals affirms: that case articulated a clear rule about crossings.

  Cardozo finds this problematic. Courts can set rules, but when artificial rules lead to absurd consequences, they should be disregarded. Under the circumstances of this case, the Goodman rule doesn't apply: we like these rules, but only when they are so rooted in custom that there can be no variation.

  So why might this approach not be so ideal? Well, juries are unpredictable. At the same time, of course, we've got a wide variety of circumstances.

  See Note 2 on p. 64-65. The Goodman approach persists, a bit, if not the case itself. Safety regarding a baseball injury: the school had done all that was required, and therefore could not be held to be negligent. The dissent, of course, wants the jury to hear the case, because blanket rules are too blunt an instrument (they don't, e.g., take technological advances into account).

• Andrews
  Footnote: this case is procedurally a bit unusual, in terms of when the motion for summary judgment comes. The evidence in question here was deposition evidence, not evidence given to the jury.

  Also, note that this court still thinks common carriers should be held to a heightened standard of care. Maybe this is because stuff up in the air is so dangerous.

  So here we're back wrestling with the question of whether it's appropriate to have a standard that keeps cases from the jury.

• Trimarco: the role of custom
  This isn't a complicated area of the law.

  The plaintiff puts forth tons of evidence of custom about how it's done out there in the shower stall world. That's something that can help the jury, but should it be dispositive? And more to the point, once a custom is established, should contractors be required to go back and retrofit?

  Here, the cost of replacement is less than the potential injury cost, so it was negligent not to replace.

• The role of custom is important, and we should remember that it can go the other way too: defendants can argue that conformity with some custom is evidence of due care. Trimarco, of course is the opposite-- failure to comply is indicative of negligence. See note 2 on p. 72 [T.J. Hooper!]: Learned Hand on the reasonableness of requiring radios on tugs-- custom is important, but not dispositive. And after all, maybe an entire industry is following an antiquated or bad custom. Note: if you find a defendant who is complying with custom to be negligent, you are telling a whole industry that they are doing something negligent (i.e., lawsuit avalanche...). Another classic case: note 4 on p. 73: emergency lighting in hotel rooms. Custom is a useful guide, unless it is apparent in the particular circumstances that a resonable person wouldn't have followed the custom.
• Role of statutes: if we have a statute specifying conduct (e.g., no sharpies on airplanes, or always drive on the right), and you violate the statute, and cause injury, what happens? Well, there may be a criminal proceeding against you, or a citation, or some other penalty. But can there also be a separate civil proceeding? Well, yes, there may well be also a separate civil proceeding. But does your violation of the statute imply anything about your liability?
• Martin v. Herzon
  More than one statute violated here: auto on the wrong side of road, no lights on buggy.

  Should these statutory issues be important in an action for negligence? Probably so. But should it be dispositive? No, not necessarily. Did, for example, the violation contribute to the injury?

  So here, it's important that the statute was violated: it is "some evidence" of negligence. The jury didn't find fault with the buggy drivers, in this case.

  Cardozo: a statutory violation is negligence per se, unless there's a satidfactory excuse. The jury doesn't have the option of deciding that the violation is immaterial: they don't have the power to relax a statutory duty. This is totally a common-law rule: nothing in the statute tells us how to treat statutory duties in civil cases. We just declare that reasonable people don't violate the law, and so therefore in the ordinary case, violation of the law is lack of reasonable care, by definition.

  Statute is different from judge-made law (viz. Pakora): a statute is something that sets the standard of care, and it is presumed that the reasonable person knows the statute before setting out on the road.

• Tedla v. Ellman
  This opinion is not distinguished by its clarity. Three excuses are often recognized: incapacity, emergency, and necessity. This seems to be a necessity type of deal.

  And the court says that the statute contemplates only normal circumstances, and not abnormal ones (like asymmetric traffic flow). How does the court get away with presuming what conditions the legislature contemplated? Never you mind, that's just what they're doing.

  Anyway, when we've got an unexpected situation, the statutes aren't good barometers of liability, and we find ourselves in the standard law of negligence.

  So, in a roundabout way, this is like necessity, but they cast the decision in the form of saying that the statute doesn't really apply to these people. Even though it clearly does, and they just have an excuse. They're kind of jumping through hoops to stick with the statutory per se negligence rule (i.e., to avoid discarding it).

• OK, so these excuses for civil liability... do they get us out of criminal liability? Or, put differently, if a criminal court finds you liable, would that presumptively make you liable in civil court? They're not unrelated domains-- we may want to look on the criminal side from time to time, because tort law and criminal law rub shoulders from time to time.
• Mixing custom and statute is interesting. See Note 5 on p. 81. Plaintiff got hit by a police van and was contributorily negligent for walking outside the crosswalk. She argues that everyone does that in that location. The court disagrees: common practice doesn't excuse violations of the law. When custom stands alone, it might influence a decision, but when it's in opposition to the statute, statute wins.
• In Martin, the statutory violation contributed in some way to the injury. They may have been doing other things incorrectly, but if you can't relate that to what happened on the rode, it's irrelevant.