NUANCE FACTORS

[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.

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[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/ .

DON’T CARE HOW ONE FEELS

[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]]

To this point in this blog’s review of tort law, one lesson drawn is that liability from any tort claim arises from one being found guilty of negligence.  One does not need to help someone else, no matter how serious the danger.  This no-duty principle applies when there is no special relationship such as one defined by a contract or familial connection or some special inherent responsibility – like an innkeeper-guest or life guard-swimmer or teacher-student relationship.

          This blog has characterized this no-duty element as the indifference element or principle.  It betrays a tension within the nation’s legal system and it is the product of this system’s reliance on common law when it comes to tort claims.  Now the blog will shift its focus to what constitutes negligence and one of its main concepts is that of reasonableness.  That is, negligence occurs when a person fails to be reasonable in a given situation and harm results to some victim.

          Consequently, the preeminent question becomes: was the harm the result of someone acting unreasonably?  So, central to this question is another question:  what is being reasonable?  When one sets about to answer this latter question, one quickly can see that everyone is apt to being unreasonable from time to time.  The reasonable person – as a defining attribute – is a mythical person.  The reasonable person surely is not the average person as one can readily or regularly observe oneself or others acting unreasonably.

          Like how, for example?  One over-pours some liquid ingredient in following a recipe.  Or one veers one’s car beyond the highway’s outer lines.  Now, if one does one these things and it results in harm to someone else, the person can be successfully sued, and the claim would be that that unreasonable behavior resulted in or caused the harm.  If the court agrees, then that person can be held liable to making the victim whole.  Usually, that would be in the form of a monetary award.  If serious enough, a punitive award can also be levied.

          The list of potential unreasonable behaviors is endless.  They can range from being absent-minded while walking down the street to misinterpreting visual sights on that same street.  Take this example: 

a driver drives his car to a traffic-lighted intersection and to the right, at the corner, there is a bicyclist standing waiting for the light to turn green to cross the street.  The driver wants to turn right and is concerned over what the bicyclist is going do. 

The driver turns his head left and sees that in two of the on-coming lanes of a multi-lane street, two cars stop indicating in the driver’s mind their light has turned red.  That means his way is free to turn right on red and wanting to do so before the bicyclist gets that green light, launches forward only to be hit by an oncoming car.  What happened? 

The car driver misinterpreted the stopping cars; they were in turning lanes and their stopping was due to the turning lanes having a red light while the rest the lanes still had a green light.  The first driver misinterpreted – probably due to that person’s distraction over the bicyclist – and was negligent in terms of the ensuing accident.

Negligent people are not bad people, immoral people, or hateful people; they are just negligent people.  Some are negligent more often than others.  Some are that way because they are young and impulsive; some because they are old and are more apt to being absent-minded.

          An insightful quote one can think of is offered by Justice Oliver Wendell Holmes,

If … a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of heaven but his slips are no less troublesome to his neighbors then if it sprang from guilty neglect.[2]

One can substitute the term, “intentional negligence,” for guilty neglect.  The point is, when it comes to most tort cases, intentions do not protect defendants.

          And in making this point, one is open to establishing objective standards; at least that is the goal of courts.  One is not concerned with how nice a person is or other subjective judgements.  Instead, one applies the reasonable standard – what a reasonable person would do – to determine the duty of care one person should have for another. 

This allows jurors or judges a more attainable objective, the external facts of a case, to determine the outcome and not the subjective feelings of those involved, particularly the defendant, or what was otherwise occurring in any of the subjects’ minds.  In other words, the salient factors of the case are external, not internal like feelings (“I don’t want to hurt a bicyclist”) or beliefs (“the oncoming cars have a red light”).

          The courts have made some allowances for individual attributes that steers away from a totally objective view for everyone.  This leads to some complicated matters.  There might be physical elements of the person’s condition at a given time – say he/she suffers a seizure just before plowing a car into someone else’s car.  Or it can be an ongoing condition, like blindness. 

Again, reasonableness is looked for; is this the first seizure, for example, or one of many?  If the latter, has the person taken reasonable precautions to avoid inflicting harm – like giving up driving?  And not all debilitating conditions are equally seen as legitimate.  For example, courts have not been lenient with mental disabilities (like personality disorders) as with physical disabilities.  This has been somewhat controversial.

Of course, there are certain distinguishing attributes that place a higher burden on a defendant.  The most obvious is expertise.  A doctor is held to a higher level of responsibilities in administering medical service while a layperson – say, trying to assist a person suffering a medical emergency – is given more leeway in what he/she does in terms of providing aid.

Another moderating factor is age.  Apparently, courts have been more lenient with young aged subjects than older subjects – differences being more standard (a three-year-old, by and large, acts like a three-year-old).  There is a vast level of divergence among those who are eighty and above in their behavior or mental capacities.

And lastly, in trying to handle this business of negligence and reasonableness, there have been those who have attempted to apply economic insights:  does the costs of being reasonable outweigh the costs of not being so?  There has been a general trend among some to apply economic thinking to various social issues and this is one of them.  Here, this only deserves a mention, but the reader should know, as with other aspects of tort law, controversy is easily aroused with such thinking and arguing.

Hopefully, the reader can readily see how application of “reasonableness” can and does affect claims of negligence.  In the next posting, the writer will provide some ideas on how such a connection – reasonableness with negligence and causation – has developed some standards of care.  This will be addressed before this history delves directly into causation.

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

[2] Ibid., 268.

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.

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[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.

GRATUITOUS UNDERTAKING

[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]]

In continuing this account’s review of tort law, this posting begins with an everyday sort of experience.  Everyone has driven down a road, usually paved, and seen one of those white X’s indicating one’s vehicle is about to cross a railroad track.  The X is there to provide a warning.

Since there is usually no train approaching, one does not stop, but one might slow down a bit and make the effort to hear if one is.  If a noise is heard, one would probably slow down even more and see if a train is coming and one knows to yield to it since the train won’t stop.  After all, that train is much bigger and, if hit by it, it will cause a great deal of damage to the vehicle and poses the possibility of serious injury if not death.

Then there are those crossings, the ones that are on busy streets, where there is a signal or even a descending barrier to indicate a train is about to cross.  But those warnings didn’t always exist; there were trains in the thirties, but no such warnings.  Well, instead, in those days, there were, at some crossings, watchmen.

A watchman (this writer does not know whether there were watchwomen) spent most of his days in a hut or shanty.  The job of this person was to, upon knowing a train was approaching, get out of the hut and warn people the train was about to arrive.  It should be noted, this was a voluntary service that apparently had been offered for some time.  In other words, there was no law mandating this service.

One day around the year, 1930, in Cleveland, Ohio, Stewart, in his truck, approached the crossing and there was no watchman present and so Stewart proceeded to drive his truck across the tracks.  Low and behold, a train came and smashed the truck.  Stewart sued claiming negligence on the part of the Erie Railroad Company who set up the watchman hut and hired a watchman to man it.

The trial court found in favor of the plaintiff and that decision was upheld on appeal.[2]  In the decision, the court used the term “trick.”  That is, by providing the watchman service initially – and in this instance depriving it – the railroad in effect tricked Stewart.  The court found this to be negligence and sided with Stewart.

This case illustrates another legal concept, gratuitous undertaking.  What’s that?  A look at another case demonstrates it more directly.  In a famous, former New York department store, Gimbels, a woman began showing symptoms of a heart problem.  This came to the attention of a sales clerk that took the woman to a store infirmary.  The store personnel then ignored her for hours.  She suffered a heart attack and died.  As this history earlier described – e.g., Yania v. Bigan – if the store personnel left her alone and let her die, the store would face no liability. 

But by initially assisting her, they became responsible as the court found in this 1935 case, Zelenko v. Gimbel Bros., Inc.  From the record of the case, the court judge wrote:  “Holding that, although the defendant may have had no duty to assist a customer taken ill in his store, once he undertook to render assistance, he assumed a duty of reasonable care in doing so …”[3] 

The “undertaking” refers to the Gimbel’s employee ushering the woman to the infirmary, something no legal duty called for; and, therefore, that act was gratuitous.  But once it was taken, a duty was formed.  There are various reasons for this duty.  For one, by placing the woman in the infirmary, it precluded anyone else providing help and this constituted a negligence and, therefore, subject to a viable tort claim. 

The act also established a relationship.  And certain relationships do entail duties.  They are contractual relationships that identify duties or are inherent in the contract one assumes.  A lifeguard has a duty to save a drowning person, a doctor has a duty toward his/her patients, etc. 

This reminds one of the Costa Concordia cruise ship captain who abandoned his ship when it ran aground.  The accident resulted in deaths and injuries and it also resulted in Captain Francesco Schettino serving a prison sentence.  That case was not American – it was Italian – but it does illustrate this contractual obligation and how the captain did not meet it.

This topic deserves the review of one more case, Kline v. 1500 Massachusetts Avenue Apartment Corporation.  In the next posting, this case will be highlighted.

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

[2] “Erie R. R. v. Stewart,” Case Briefs, Erie R. Co. v. Stewart, 40 F. 2d 855, 1930 U.S. App. Lexis 3270 (6^th Cir. Ohio May 13, 1930, n. d., accessed September 30, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-epstein/affirmative-duties/erie-r-r-v-stewart/ .

[3] “Zelenko v. Gimbil Bros., Inc.,” Case Text, 158 Misc. 904 (N.Y. Misc. 1935), n. d., accessed October 1, 2018, https://casetext.com/case/zelenko-v-gimbel-bros-inc .

BEGIN WITH BIGAN, A TAUNTER

[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]]

Obviously, from what has already been described, one can see tort cases being about misfeasance and not nonfeasance.  And the question that one asks in regards with a misfeasance is straightforward:  did the defendant cause harm due to some negligence?  But, with these terms, one can begin to look at the case history that has dealt with this tension.

So, to refer to case history, a good case with which to begin looking at this tension emanates from the 1950s.  The case, Yania v. Bigan, in 1959, demonstrates how bizarre the determination of whether misfeasance and nonfeasance characterizes an incident can be.  John Bigan, the defendant, operated a coal strip-mine.  Part of that operation was to dig trenches by which to expose the coal and allow its removal. 

In one trench, in a mine in Pennsylvania, several feet of water were present.  To extract the water, Bigan placed a pump in the trench and someone needed to get in the water to start the pump.  Bigan, to encourage Yania (an operator of another strip mine) to jump in for that purpose, started taunting him. 

Despite his initial reluctance, Yania did eventually jump in and drowned.  His wife, as the dead man’s survivor, filed a suit against Bigan for wrongful death.  She, in court, emphasized Bigan’s taunting.  Yet, the trial court found in favor of the defendant and, upon appeal, the Pennsylvania Supreme Court upheld that finding.[1]

This case provides two useful bits of conceptual information.  Beyond providing an example of nonfeasance, it helps define the boundary between nonfeasance and misfeasance.  This does not mean a student need agree with the decision.  Like any case, the student can question not only how the court treated Yania’s widow, but how it treats anyone faced with a harm “caused” by what others say. 

In this case, the judge, Justice Benjamin R. Jones, held that Yania was a reasonable and prudent adult who could readily see and understand the dangers, but chose to jump in the water.  The taunting did not undo those factors nor place responsibility – negligence – on the shoulders of Bigan.  And, in analyzing this case, a teacher can point out that while someone might hold an emotional bias for the widow, the judges, that had any such emotions, kept them in check.  Having pointed that out, though, a student could still see the judgement as flawed.

Beyond the taunting, did Bigan have a duty to jump in himself and try to save the drowning man?  Here, again, the court ruled that he did not have such a duty.  Perhaps he had a moral duty, but not a legal one.  So, one can see, at least as this court ruled, the term “stranger”[2] is broad.  And it might not extend if Yania was a child or an infirmed person, but he was not; he was a “prudent” adult.

And so, the law draws a line between what is good from what is legal; but why?  Again, as with the question over the shift from strict liability and negligence, there is more than one explanation.  This blog has already claimed that this aspect of tort law challenges the federalist values that define what the nation’s constitution establishes; i.e., a citizenry that does not include citizens who are antagonistically arranged – or, at least, indifferently arranged – in their social interactions.  A federated citizen is expected to aid or help fellow citizens.

Before reviewing any explanation for a judicial bias that seems to counter the ideal of a federated citizenry, a federal value needs to be understood.  That value is constitutional integrity or federal liberty.  This blog has offered the following definition:  liberty is the freedom to do what one should do, not what one wants to do.  This emanates from the writings of John Winthrop all the way back to this nation’s colonial days. 

Again, it needs to be emphasized, this is ideal language, the espoused values of American generations from those of colonial days to the days after World War II.  But the common law that has led to this “un-federalist” bias predates that war and actually stretches back to British law.  Consequently, this apparent institutionalized divergence should be addressed.  Therefore, with that historical inconsistency noted, a review of a strain of explanations is in order. 

One account relies on a natural rights argument.  It states that liberty – a la natural rights values – means that a person simply has the liberty to ignore the cries of a flailing baby or stricken old man on some church steps.  That sense of liberty is silent in terms of what should be done in these types of situations – that’s up to the individual.  This view repeats the notion:  one has a right to wave his/her hands up to where someone else’s nose begins.  While this view has a good deal of support in the legal profession, there are other views.

A second explanation in this line of thinking can be stated as the concern:  if one places a legal obligation on one citizen to aid another (or at least not encourage dangerous behavior), where do the obligations end?  Can the law demand someone to do something or anything that might be needed by another party? 

For example, does that mean a person needs to bear burdens, such as money expenses, to aid a needy party?  Where does it end?  Providing duty in nonfeasance cases opens “slippery slope” situations or, at least, that is what defenders of the existing standard argue.

That is, a defender of the natural rights perspective might ask:  If such thinking takes hold, can public policy demand everyone to give up income or wealth so that everyone has enough to eat?  Just to be fair:  such thinking lines up with a federalist definition of equality – what can be called regulated equality or regulated condition.  But that value is not as stark as natural right advocates claim. 

Federalist values gauge such policy relative to a slew of factors including the wealth of a nation.  In terms of the US, the aim, to eliminate hunger, for example, is well within the financial means of the nation.  And this debate makes one wonder whether the debates over litigant responsibilities do not really reflect a concern for legal principles or justice but political and/or economic interests.

But that digresses and the concern for an inability to draw a limit on duties is well taken.  But does such a concern trump the demand for citizens to help others when it can be demonstrated that the conditions under question are obvious and serious in terms of another party’s health or some other essential condition?  Here, the question is asked, but not answered.  It is proposed as a question for citizens to consider.  Further, if the answer is yes, the solution will not be provided by common law, but by statutory law.

Then there is an extreme case that possibly demonstrates a serious shortcoming with holding nonfeasance beyond tort law review.  This case does not refer to a court case.  In 1964, in the borough of Queens, 38 normal New York residents heard the cries and saw the stabbing of Kitty Genovese.  None of those witnesses called the police or provided any assistance to Ms. Genovese; she subsequently died. 

Of course, none of those observers were subject to any tort or criminal action.  This case, in its extremity, brings up what many feel is offensive by the common law’s indifference to people in serious need.  Is there a compromise between complete indifference and mandated decrees that insist on affirmative duty to assist those who need help, sometimes to save their lives?

Some states have opted to what might be considered half-steps; i.e., enacting Good Samaritan laws that mostly protect “helpers” from liability when their efforts fail or cause further harm.  Other efforts include imposing small fines on those who fail to help someone in jeopardy of physical harm.  But there have been no meaningful laws insisting citizens need to help one another.

So, to refer to case history, a good case with which to begin looking at this tension emanates from the 1950s.  The case, Yania v. Bigan, in 1959, demonstrates how bizarre the determination of whether misfeasance and nonfeasance characterizes an incident can be.  John Bigan, the defendant, operated a coal strip-mine.  Part of that operation was to dig trenches by which to expose the coal and allow its removal. 

In one trench, in a mine in Pennsylvania, several feet of water were present.  To extract the water, Bigan placed a pump in the trench and someone needed to get in the water to start the pump.  Bigan, to encourage Yania (an operator of another strip mine) to jump in for that purpose, started taunting him. 

Despite his initial reluctance, Yania did eventually jump in and drowned.  His wife, as the dead man’s survivor, filed a suit against Bigan for wrongful death.  She, in court, emphasized Bigan’s taunting.  Yet, the trial court found in favor of the defendant and, upon appeal, the Pennsylvania Supreme Court upheld that finding.[1]

This case provides two useful bits of conceptual information.  Beyond providing an example of nonfeasance, it helps define the boundary between nonfeasance and misfeasance.  This does not mean a student need agree with the decision.  Like any case, the student can question not only how the court treated Yania’s widow, but how it treats anyone faced with a harm “caused” by what others say. 

In this case, the judge, Justice Benjamin R. Jones, held that Yania was a reasonable and prudent adult who could readily see and understand the dangers, but chose to jump in the water.  The taunting did not undo those factors nor place responsibility – negligence – on the shoulders of Bigan.  And, in analyzing this case, a teacher can point out that while someone might hold an emotional bias for the widow, the judges, that had any such emotions, kept them in check.  Having pointed that out, though, a student could still see the judgement as flawed.

Beyond the taunting, did Bigan have a duty to jump in himself and try to save the drowning man?  Here, again, the court ruled that he did not have such a duty.  Perhaps he had a moral duty, but not a legal one.  So, one can see, at least as this court ruled, the term “stranger”[2] is broad.  And it might not extend if Yania was a child or an infirmed person, but he was not; he was a “prudent” adult.

And so, the law draws a line between what is good from what is legal; but why?  Again, as with the question over the shift from strict liability and negligence, there is more than one explanation.  This chapter has already claimed that this aspect of tort law challenges the federalist values that define what the nation’s constitution establishes; i.e., a citizenry that does not include citizens who are antagonistically arranged – or, at least, indifferently arranged – in their social interactions.  A federated citizen is expected to aid or help fellow citizens.

Before reviewing any explanation for a judicial bias that seems to counter the ideal of a federated citizenry, a federal value needs to be understood.  That value is constitutional integrity or federal liberty.  This book has offered the following definition:  liberty is the freedom to do what one should do, not what one wants to do.  This emanates from the writings of John Winthrop all the way back to this nation’s colonial days. 

Again, it needs to be emphasized, this is ideal language, the espoused values of American generations from those of colonial days to the days after World War II.  But the common law that has led to this “un-federalist” bias predates that war and actually stretches back to British law.  Consequently, this apparent institutionalized divergence should be addressed.  Therefore, with that historical inconsistency noted, a review of a strain of explanations is in order. 

One account relies on a natural rights argument.  It states that liberty – a la natural rights values – means that a person simply has the liberty to ignore the cries of a flailing baby or stricken old man on some church steps.  That sense of liberty is silent in terms of what should be done in these types of situations – that’s up to the individual.  This view repeats the notion:  one has a right to wave his/her hands up to where someone else’s nose begins.  While this view has a good deal of support in the legal profession, there are other views.

A second explanation in this line of thinking can be stated as the concern:  if one places a legal obligation on one citizen to aid another (or at least not encourage dangerous behavior), where do the obligations end?  Can the law demand someone to do something or anything that might be needed by another party? 

For example, does that mean a person needs to bear burdens, such as money expenses, to aid a needy party?  Where does it end?  Providing duty in nonfeasance cases opens “slippery slope” situations or, at least, that is what defenders of the existing standard argue.

That is, a defender of the natural rights perspective might ask:  If such thinking takes hold, can public policy demand everyone to give up income or wealth so that everyone has enough to eat?  Just to be fair:  such thinking lines up with a federalist definition of equality – what can be called regulated equality or regulated condition.  But that value is not as stark as natural right advocates claim. 

Federalist values gauge such policy relative to a slew of factors including the wealth of a nation.  In terms of the US, the aim, to eliminate hunger, for example, is well within the financial means of the nation.  And this debate makes one wonder whether the debates over litigant responsibilities do not really reflect a concern for legal principles or justice but political and/or economic interests.

But that digresses and the concern for an inability to draw a limit on duties is well taken.  But does such a concern trump the demand for citizens to help others when it can be demonstrated that the conditions under question are obvious and serious in terms of another party’s health or some other essential condition?  Here, the question is asked, but not answered.  It is proposed as a question for citizens to consider.  Further, if the answer is yes, the solution will not be provided by common law, but by statutory law.

Then there is an extreme case that possibly demonstrates a serious shortcoming with holding nonfeasance beyond tort law review.  This case does not refer to a court case.  In 1964, in the borough of Queens, 38 normal New York residents heard the cries and saw the stabbing of Kitty Genovese.  None of those witnesses called the police or provided any assistance to Ms. Genovese; she subsequently died. 

Of course, none of those observers were subject to any tort or criminal action.  This case, in its extremity, brings up what many feel is offensive by the common law’s indifference to people in serious need.  Is there a compromise between complete indifference and mandated decrees that insist on affirmative duty to assist those who need help, sometimes to save their lives?

Some states have opted to what might be considered half-steps; i.e., enacting Good Samaritan laws that mostly protect “helpers” from liability when their efforts fail or cause further harm.  Other efforts include imposing small fines on those who fail to help someone in jeopardy of physical harm.  But there have been no meaningful laws insisting citizens need to help one another.

What if someone begins to help, but then changes his/her mind?  Does that pose a duty?  Next posting will look at these questions by looking at the 1930 case, Erie Railroad v. Stewart.

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

[2] “Yania v. Bigan,” Case Briefs, Yania v. Bigan, 397 Pa. 316, 155 A. 2d 343, 1959 Pa. Lexis 457 (Pa. 1959), n. d., accessed September 26, 2018, https://www.casebriefs.com/blog/law/evidence/evidence-keyed-to-waltz/nonfeasance/yania-v-bigan/ .

[3] Referring to the legal tort standard:  “no duty to a stranger.”

MAL-MIS-NONFEASANCE

[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]]

Nowhere, perhaps, is there a greater gap between the value orientation one can ascribe to a federalist perspective – and one can say most moral systems – than exists between legal duty and moral duty.  Usually, the example given to illustrate this point is one that describes a flailing baby in a puddle that has only a nearby person to save him/her.  Something the nearby person does not do.  But a more common, everyday example might be more helpful.

          Let’s say a person is driving down a deserted street.  To make the point more poignant, the person is a good-sized man in his thirties.  He looks left, he sees an elderly man climbing the steps of a church when the old man clutches his chest and falls.  The driver, who could easily pull over to where the old man lies and provide him some help, doesn’t.  He merely keeps driving.

          As it turns out, the old man suffers a heart attack and dies some twenty minutes later.  He could have been saved if someone – the driver, for example – was there to assist him by applying CPR or using a cell phone and calling 911.  No other person was there to do that.  So, he died.

          Later, church officials look at what a security camera video, a camera situated outside the church, reveals.  It shows the old man falling, grasping his chest, and it also picks up the driver who ignored the emergency.  Later, the old man’s daughter views the video and is incensed with the obvious indifference of the man driving and looking at her father falling.  Can she sue or file a criminal complaint against this driver?  Can she, in other words, claim the driver had a duty toward her father?

          Just to round off the example, the driver is driving a rare antique car and with a little investigation, he can be easily identified.  What trouble is he in?  None.  Common law does not impose a duty.  The saying or standard common law provides in such cases can be summarized as follows:  “no duty to a stranger.”  Of course, this is a highly non-federalist point of view. 

And that goes for a person who ignores a flailing baby in a puddle.  In either case, the generally accepted moral duty does not translate to mean a legal duty.  Among the conditions a plaintiff in a tort action needs to establish is a defendant’s legal duty toward the plaintiff.  And as these examples demonstrate, just being able to help someone is not enough.  This posting addresses what is enough – or needed – for a tort claim to have a chance in court.

          And this demand brings certain concepts or principles into play.  While one does not owe a legal duty to a stranger, there are situations or relationships that do.  One owes, in a few words, the duty to reasonably not be the cause of anyone else’s harm.  Another way to see it, one needs to be reasonable – that is, not negligent – in how one conducts his/her behavior in relation to others.  The key concept is reasonableness.

          Yet, if one looks at this whole area of concern, there is that of the victim or the alleged victim.  What does a plaintiff need to establish to make a viable claim?  Three elements exist.  As Edward K. Cheng puts it:

There are other three elements of a tort claim … briefly, they are:  Breach of Duty – whether the defendant’s behavior failed to live up to that standard of care; Causation – whether that failure or breach of duty caused the plaintiff’s harm; and Damages – whether the law recognizes the harm that occurred to the plaintiff, how we measure it, and how the defendant can compensate for it.[2]

This will be fleshed out further in upcoming postings, but here is a good point to bring up the second tension a previous posting mentioned:  misfeasance vs. nonfeasance.[3]

          The next posting will have more on this tension.  Here, though, is a quick summary of each.  When one party does something that harms another, that is either malfeasance or misfeasance.  Under what has already been described, such behavior is subject to a legitimate tort claim – in the case of malfeasance, a criminal claim as well.  But if a person does not do something that would prevent harm, that is nonfeasance.  The passerby leaving the baby in a puddle or the drive-by witness to a heart attack come to mind. 

The law ascribes different levels of duty among these types of feasance.  When one performs an act, that’s a feasance.  The Free Dictionary by Farlex goes on and defines the three types just identified: 

• ·        When one commissions an illegal act, he/she commits a malfeasance. 
• ·        When he/she performs an act with inadequate or improper care of a lawful act, he/she commits a misfeasance. 
• ·        And last, when he/she fails to perform an act – neglects a duty (not necessarily a legal one) – he/she commits a nonfeasance.[4]

Determining which type applies in a given situation is an initial concern a court or a lawyer needs to consider.  In terms of tort law, one needs a good handle on the meaning and implications of misfeasance and nonfeasance.

Most tort cases arise from incidences of misfeasance.  They do not arise from nonfeasance.  As for malfeasance, those cases are mostly left for criminal law to take care of, but there are cases where torts emanate from malfeasance acts as well.  Next posting will continue reviewing these different categories

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

[2] Ibid., 256-257.

[3] In the previous posting, the blog misidentified this tension as malfeasance vs. nonfeasance.  This misidentification is cleared-up in this posting.

[4] “Feasance,”  The Free Dictionary by Farlex, n. d., accessed September 24, 2018, https://legal-dictionary.thefreedictionary.com/Feasance .