A Crucial Element of Democracy

This is a blog by Robert Gutierrez ...
While often taken for granted, civics education plays a crucial role in a democracy like ours. This Blog is dedicated to enticing its readers into taking an active role in the formulation of the civics curriculum found in their local schools. In order to do this, the Blog is offering a newer way to look at civics education, a newer construct - liberated federalism or federation theory. Daniel Elazar defines federalism as "the mode of political organization that unites separate polities within an overarching political system by distributing power among general and constituent governments in a manner designed to protect the existence and authority of both." It depends on its citizens acting in certain ways which Elazar calls federalism's processes. Federation theory, as applied to civics curriculum, has a set of aims. They are:
*Teach a view of government as a supra federated institution of society in which collective interests of the commonwealth are protected and advanced.
*Teach the philosophical basis of government's role as guardian of the grand partnership of citizens at both levels of individuals and associations of political and social intercourse.
*Convey the need of government to engender levels of support promoting a general sense of obligation and duty toward agreed upon goals and processes aimed at advancing the common betterment.
*Establish and justify a political morality which includes a process to assess whether that morality meets the needs of changing times while holding true to federalist values.
*Emphasize the integrity of the individual both in terms of liberty and equity in which each citizen is a member of a compacted arrangement and whose role is legally, politically, and socially congruent with the spirit of the Bill of Rights.
*Find a balance between a respect for national expertise and an encouragement of local, unsophisticated participation in policy decision-making and implementation.
Your input, as to the content of this Blog, is encouraged through this Blog directly or the Blog's email address: gravitascivics@gmail.com .
NOTE: This blog has led to the publication of a book. The title of that book is TOWARD A FEDERATED NATION: IMPLEMENTING NATIONAL CIVICS STANDARDS and it is available through Amazon in both ebook and paperback versions.

Friday, October 5, 2018

NOT THE MUGGER, BUT THE LANDLORD


[Note:  This posting is a continuation of a report on the development of a civics unit of study.  This unit is directing students to formulate informed positions on a governmental topic:  ground rules overseeing tort law.  It is being developed in real time.  Writer wants to identify his basic source of information, the Great Course’s course, Law School for Everyone.[1]]
This blog has been of late looking at the tort concern over interpreting negligence, especially as this standard relates to the common law limitations placed on potential tort claims and represented by the saying:  no duty to a stranger.  While this “indifference” is applicable to most social interactions where harm befalls someone and others having no legal obligation to help, there are exceptions arising from established and legally recognized relationships.
This topic deserves the review of one more case, Kline v. 1500 Massachusetts Avenue Apartment Corporation.  This 1970 case reflects what might happen to many people who live in large urban areas, especially during the years of the nineteen-seventies. 
Sarah B. Kline began renting an apartment some years before an unfortunate event occurred.  That is a mugger attacked her, stole from her, and caused her injury one day.  The attack took place in the common hallways of the apartment building.  She sued the owners of the apartment building and the relevant question was:  did the owners of the building have a duty to Kline and, therefore, liable in this case? 
This event is not a simple mugging.  To begin with, when Kline moved to this building, the neighborhood in which it was located had a great deal less crime.  Actually, the apartment building was what one might consider luxurious with a doorman, marble floors, and fresh flowers in the common areas very day.  But in the ensuing years the neighborhood changed, and crime became common.
Demand for the apartments fell and, while it is not known if rents decreased – part of the record seems to indicate they had – the owners of the building ceased providing a doorman.  Incidences of crimes in the building began to become common and the renters expressed their desire to reestablish the doorman-service.  The owners refused.  Where they now held negligent in Kline’s case?
Part of the argument for holding them liable was that if the elevator ceased to work, lessees would not be responsible to fix it; it would be up to the landlord to fix it.  Was this not comparable?  Wasn’t a safe building – along with elevator service – part of the assumed conditions a renter can expect when he/she signs a lease or pays the rent?  And would it not be more efficient if the common landlord took care of this problem as opposed to each tenant taking on the expenses of providing more protection?
The trial court – the federal District Court[2] – found in favor of the defendant – the owners of the building – but the plaintiff appealed.  One argument the trial court used to support its decision was to point out that a lessee balances what he/she spends on rent against any services or protections the building provides.  Kline made these calculations in her deciding to stay in the building.  In addition, she was a month-to-month lessee, and, therefore, she could of have moved at any time without penalty.
In addition, the defendant, the owners of the building, did not mug the plaintiff.  The mugger did.  So, the chain of causation, according to this trial ruling, ends with the mugger.  In effect, the trial decision could not see why the owners were liable for what someone else did.  As indicated above, Kline appealed this decision.
In the appeal decision, while noting this causation argument, the court did believe that a safe common area is basic to this sort of business.  Therefore, the federal appeals court reversed the decision.  The U.S. Circuit Court of Appeals found in favor of Kline and held the apartment building owners liable for her expenses, mostly due to medical care.
So, as a precedent, this decision further defines what related parties (related by contract) have in terms of duty for a given fault and for a given harm.[3]  Also, this decision helps to introduce the next subject to be addressed in this account.  That is causation.  It demonstrates one of various legal concerns related to defining and attributing causation.
Highly relevant to the concerns of this overall history, Edward K. Cheng states something very revealing about the inherent tension between the federated obligations among citizens and what common law has bequeathed this nation, the individualist view of legal obligations:
And in these cases, duty is not only all-important from a technical sense.  Duty also becomes fundamental because it defines the difference between law and morality, and because it implicitly adopts certain values, which can be quite controversial.  The no duty to a stranger rule undoubtedly celebrates rugged individualism and a desire for personal liberty, but it also sets aside values about community and regard for others, at least from the standpoint of legal obligation.
          It is this tension, between individual liberty and collective welfare, that makes the concept of duty interesting.  And it is because of this tension that the exceptions to the no affirmative duty rule have historically been a battleground for courts and tort scholars.[4]
This writer would replace the word, “collective,” in this quotation with the word “associational,” but beyond that, this quote summarizes what this history’s main point is.
What Cheng has to say reflects the inherent antagonistic forces a free nation must face. This nation initially opted, in its political ideals, for the more communal approach – at least as reflected in its espoused values – but of the last sixty to seventy years, has shifted toward the individualist perspective not just in its common behaviors, but in its espoused values as well.  And so, with that disparity noted, this account will next turn to causation and related legal concepts and principles.



[1] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445.

[2] Apparently, the apartment building is in the District of Columbia, a federal jurisdiction.

[3] “Kline v. 1500 Massachusetts Avenue Apartment Corporation,” Case Briefs, 439 F.2d 477, 1970 U.S. App. LEXIS 7831, 141 U.S. App. D.C. 370, 43 A.L.R. 3d 311 (D.C. Cir. Aug. 6, 1970), n. d., accessed October 3, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/owners-and-occupiers-of-land/kline-v-1500-massachusetts-ave-apartment-corp/ .

[4] Edward K. Cheng, “Torts,” Law School for Everyone – a transcript book (Chantilly, VA:  The Teaching Company/The Great Courses, 2017), 230-445, 264-265.

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