[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 posting, as the
blog works its way through a short history of tort law in the US, is covering the
last of three tensions in that history.
The first was strict liability vs. negligence; then malfeasance vs.
nonfeasance; and the last will be factual causation vs. legal causation. The last posting and this one are short
transition reports on supportive concepts related to causation: reasonableness and intervening nuances.
By intervening nuances, this posting describes
those factors that possibly intervene to compromise the more general principles
of responsibility in a tort claim.
Again, it is the history of related case law that supplies this
narrative. But before beginning this last
effort, a reminder is worth pointing out.
As this blog tells this history, one
should keep in mind its aim. It is not
to initiate a process resulting in a student choosing a law career or to
introduce the basic framework of the nation’s law system. It is not even to make lawyering attractive
or legitimate. Instead, the blog aims to
bring out the issues surrounding tort law so that students will be able to
address them as citizens. These issues should
be attended to and citizens should be willing to address them since they are important
to a community, a state, or the nation.
Since the nation shares many of the
components of its legal system throughout its jurisdictions, despite its
federal structure (and the exceptions of the Louisiana’s civil foundation), the
whole concern can be easily treated as a national one. A national approach is being used here as this
account cites case law from various states and the federal judiciary. To set the stage for the third tension –
factual causation vs. legal causation – this posting reviews some exceptions or
potential exceptions to the negligence standard in how courts treat tort
claims.
Earlier in this history, the point was
made that legislatures – at the state level – and Congress – at the national
level – can impose exceptions on the negligence principle or undo the effects
of precedent by enacting appropriate legislation. Overall, this power has not been employed;
the nation has a strong commitment to abiding by common law. But in one area, one law, has had an
extensive effect on undoing the common law related to employment.
The US Congress, with the leadership of the Johnson
administration, passed the Civil Rights Act of 1964. That law – not standard – imposed a rule
making discrimination based on race, color, religion, sex, or national origin
(added since this law’s enactment are handicap and familial status – a total of
seven groups as being designated as suspect classes) illegal. This law takes on a definite affirmative duty,
in a negative direction – it tells employers what they cannot do – and by so doing disregards relevant common law.
This law, therefore, provides a
nuanced difference in how tort claims are treated when it comes to job related
issues. Cases that on the surface has
nothing or little to do with the treatment of a suspect class, upon further investigation,
can be potentially shown to reflect prejudicial or otherwise discriminatory
practice against a member of that group.
Once shown, common law has little authority in determining the outcome
of the case. And, this law has had effects
on non-employment issues as well. [2]
The next nuance that deserves attention
is the case when there is no law or practice addressing the “reasonableness” of
a behavior but can be shown to have been contributory either in its fulfillment
or in its disregard. In the case, Martin v. Herzog[3]
of 1917, the plaintiff, Martin, was an injured victim and her husband killed, when
her buggy was hit by a car. The nuance
was that in contradiction to the law, the buggy did not have an illuminated
light. The defendant, Herzog, pointed
this fact out and claimed the Martins were guilty of contributory negligence
and, as common law provides, exonerated him of any liability.
The determining court decision agreed
with Herzog, but in addition, the case gave the famous judge, Benjamin Cardozo,
the opportunity to establish a legal principle.
That is, the act of disobeying a law is unreasonable in and of
itself. The term negligence per se has become an important tort
principle – an influential nuance – that both plaintiffs, like the Martins, and
defendants need to take into account.
And the last nuanced factor is
custom. Many professions, jobs, and
other pursuits, through the years, have established “the way of doing things.” They need not be written down or part of a
professional list of standards, but, by and large, those that perform the related
activities know them. The legal question
these customs have brought up is: do
they supersede negligence considerations in tort claims? A case that helped define the role of custom
is The T. J. Hooper case.[4]
Without getting into the details of the
case, the defendant, a tugboat company, was held liable due to its reluctance
to use a new technological invention, the radio, and, as a result was not
informed about a storm approaching one of its tugboats and its customer’s barges. This, in turn, resulted in the tugboat and
barges being hit by the storm and sinking, losing the plaintiff’s coal which
was the barges’ cargo.
Even
though the radio was not customarily used, the judge, another famous legal icon,
Learned Hand, established the responsibility of professional customs keeping abreast
of newer developments. Generally,
professional standards or customs can be held to various degrees of
authority.
The
courts have extended quite a bit of authority to the customs of particular
professions. They are the professions of
medicine, law, and accounting. Other
areas, for example, engineering, not so much.
To the extent it is, the rationale is that the profession is noted for
its specialization and technical aspects.
These characteristics are judged to be subject matter juries would find difficult
to fully understand.
With
that background – appreciating the role of reasonableness and factors that
present nuances in negligence claims – this blog is ready to address, more
directly, causation.
[1] Edward K.
Cheng, “Torts,” Law School for Everyone
– a transcript book (Chantilly, VA: The
Teaching Company/The Great Courses, 2017), 230-445.
[2] A case establishing this reliance on the Civil Rights Act in
a non-employment issue was Graham v.
Richardson. In that case, an Arizona welfare law was determined to be
discriminatory against suspect groups and, therefore, unconstitutional. In so doing, a statue was used to define a
constitutional designation. See “Graham v.
Richardson,” Case Briefs, 403 U.S. 365
(1971), n. d., accessed October 11, 2018, https://www.google.com/search?q=in+law+what+is+a+suspect+group&oq=in+law+what+is+a+suspect+group&aqs=chrome..69i57.10298j0j7&sourceid=chrome&ie=UTF-8
.
[3] “Martin v.
Herzog,” Case Brief, n. d., accessed October 11, 2018, 176 A.D. 614, 163
N.Y.S. 189, 1917 N.Y. App. Div. LEXIS 5114 (N.Y. App. Div. Feb. 2, 1917), https://www.quimbee.com/cases/martin-v-herzog
.
[4] The T. J. Hooper Case, Case Briefs, n. d., accessed October
11, 2018, n. d., https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/the-negligence-issue/the-t-j-hooper-3/
.
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