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 .

SAVING HUGE COSTS?

[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 the last posting, this blog began reporting on its development of a unit of study in which a tension within tort law is highlighted; i.e., strict liability vs. negligence as a standard by which to assign liability in a tort case.  After establishing the fact that tort law development took a turn in mid-nineteenth-century courtrooms – from the strict liability standard to introducing negligence as a determinant factor, that posting addresses a reason for this shift:  industrialization.

          To further understand this shift, that posting describes how there seems to have been two basic explanations:  industrialization caused higher density of population – and more opportunities for joint accidents – and a strict liability regime was proving to be very expensive to business interests.  And one business it particularly was hurting was the railroads.

          Railroads, given the technology of that time, caused or provided many opportunities for harm to be inflicted.  Here is what Edward K. Cheng says of this “minefield:”

Incidents involving trains back in the nineteenth century were frighteningly common.  People and other vehicles were hit by trains at crossings.  Steam boilers exploded.  And sparks and cinders from coal-powered locomotives set fire to fields.  If you are a railroad company operating under a strict liability regime, you pay for all those harms.[2]

As was explained in the last posting, railroad companies, under a strict liability standard, were held liable for all those occurrences and, of course, that seriously hit their bottom lines.  So, if one looks at that history from an economic/political perspective, one is apt to believe profit-concerns caused courts to shift to a negligence standard.

          But before one casts strict liability to the dust bin of history, one can observe that it has made a limited, but important comeback.  Beginning with court decisions in California, dating to the 1960s, there is one area in which strict liability has become the standard again  and that is in product liability.

          One buys a consumer product – say an electronic appliance – and the thing is wired incorrectly.  At home, that person uses the product, causes a spark, hits an accelerant, and the house burns down.  Is there negligence?  Probably, but by whom?  Some worker on the assembly-line?  Again, probably, but which one?  And if the worker is identified, can he/she afford making the homeowner whole?  Probably not.  In those cases, the standard has again become strict liability and that liability falls on the business that produced the product.

          Yes, the company can question whether the product was used incorrectly and if so contributed to the fire.  It therefore can claim the company should not bear full liability or any liability – this will be further addressed in a subsequent posting.  But in the main, courts today utilize strict liability when it comes to assigning responsibility in tort claims against companies that produce and sell consumer or industrial products. 

And in passing, this evolving legal sentiment exemplifies how case law – common law – changes over time, albeit slowly.  And for those cases responsible for instituting change, they become famous cases within legal circles.  They are famous but considered weird – out of the usual.  Not only do these cases get a bit of notoriety, but so do the judges that issue the decisions in those cases; judges like Oliver Wendell Holmes and Benjamin N. Cardozo.

But despite this tantalizing aspect of common law – as opposed to civil law – one can ask:  is this the best way to go about handling torts?  Should the system shift totally away from common law and join many other nations by not relying on precedent, but on statutory law?  This account briefly mentions this at this point, because from here on, these postings will just accept a common law bias. 

In evaluating this nation’s adjudicating torts, citizens can and, perhaps, should question this basic alignment.  And, in turn, one should understand that to keep a common law system, as opposed to shifting over to civil law, is a political decision.  It should be mentioned, there have been efforts to rely more on civil law. 

But what are the concerns over common law?  Reformers cite several concerns;[3] many regarding the quality of juries.  Common law often leaves certain aspects of law or torts somewhat ambiguous.  And reformers argue that that leaves juries free to succumb to emotional appeals.  For example, often observers gauge juries as being too generous with defendants’ money in awarding damages. [4]   There have been legislatures that have enacted caps on such awards to reign in that generosity.

Reformers have also looked at the ease of filing class action lawsuits.  A class action lawsuit occurs when many plaintiffs join forces to make a claim in court for harm they all have allegedly suffered from the actions of a defendant.  Reformers have criticized this type of legal action and have called for tightening the rules allowing them.

Why?  Because associated with class action, there are two effects:  one, by joining forces, legal fees are minimized for individual plaintiffs making the tort action more efficient for them; and, two, since the cost is much less, the threshold for motivating potential plaintiffs to initiate a lawsuit is drastically increased and consequently leads to more legal actions.  If one is harmed to the tune of $100, he/she might not sue if he/she is acting alone, but if it’s a class action suit, the calculations are different.

Perhaps this issue should be introduced when any instruction begins talking about tort law and makes the distinction between common law and civil law.  As this blog has mentioned, this development is in real time and this issue came up at this point of that development.  Next posting will address one of those basic concepts associated with tort law:  duty.

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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., 246.

[3] There is an ample literature over the issue of whether America should be a common law nation or a civil law nation.  Different aspects of this question, in turn, have their own scholarly works.  For example, one article that argues for a “mix” system and is relatively easy to understand is offered by University of California professor, Stephen D. Sugarman.  See Stephen D. Sugarman, “A New Approach to Tort Doctrine:  Taking the Best from Civil Law and Common Law of Canada,” n. d., this is a document that downloads and is designated with the following:  [DOC].

[4] A dramatic rendition of this – much to the delight of audiences – is found in the feature film, The Verdict.  See Sidney Lumet (director), The Verdict, 20^th Century Fox, 1982.

TO FAULT OR NOT TO FAULT

Inevitably, from time to time, one does something that causes something else to happen that the person did not intend to happen.  Less frequently, when one does such a thing, the unintended effect hurts someone else; the act causes harm.  For example, a visitor to a neighbor’s house is carrying an urn of hot sauce, the pet of the house runs across his/her path, and the visitor trips.  This results in the hot sauce spilling all over an expensive sofa, staining it.  Oh well.

          The visitor, who if was on the lookout for the pet, would have avoided the accident.  But he/she was not.  One can say the pet caused the harm, but surely, the pet did not set out to have that hot sauce all over the couch.  One can also argue the visitor caused it.  No one, though, would say the visitor was at fault for the harm.  Should the visitor be held liable for making the sofa-owner whole?  To generalize the question:  should a person be held liable for a resultant harm if the person caused the harm, but, as in the example, was not a fault?

          This question, one perhaps difficult to answer, was not difficult before the nineteenth century.  If a person caused a harm, he/she was held responsible and liable in those earlier days.  But, as pointed out in a previous posting, case law – common law – does change.  It changes slowly, but it does change and this shift from automatically holding the person who caused a harm liable – called strict liability – to the more commonly held standard today, holding the person who is at fault – called negligence – liable was a profound change.

          As alluded to, that shift took hold in the nineteenth century.  An historical question is why:  why did this nation’s courts begin to prioritize fault over cause?  In tort cases – ones that depend on determining fault – there are two types:  intentional fault and negligence fault.  Here, the focus is on negligence.[1]  What is negligence?

          To answer that question, a look at one of the establishing cases for this newer standard, is helpful.  In Blyth v. Birmingham Waterworks Co., a harmed citizen sued the waterworks company and based the suit on a local statute.  The statute incorporated Birmingham Waterworks to supply that city with water.  Further, the statute provides language as to how the resulting piping should be maintained.

          So, in this case, Blyth is the plaintiff and Birmingham Waterworks is the defendant.  The defendant had laid piping near the plaintiff’s house.  Due to cold weather, that main leaked and caused damage to the plaintiff’s house.  This led to the lawsuit in which the plaintiff accused the defendant of negligence.  The court, after hearing the evidence, decided in favor of the plaintiff.  In so doing, the court provided what has become the primary definition for negligence:

In Negligence to prove defendant’s fault for liability to be established, the defendant must be in breach of a duty of care … it means that the defendant must do something that a reasonable person would not do, or omit to do something that a reasonable person would do …[2]

Here is another version in more common language:

Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take.  A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence.[3]

This definition brings out certain concepts that will prove to be central in applying the principles of what has become tort law in the years that followed this mid-eighteenth-century case.  They include duty and reasonableness.

          From a historical perspective, one question becomes central:  why do the courts shift in this way, from strict liability to negligence in the mid-1800s?  Apparently, chief among the theories explaining the change have to do with the effects of industrialization.  Intuitively, this makes sense.

          If one thinks about it, industrialization transformed the demographics of the American population.  Prior to industrialization, the nation was large and agricultural.  Consequently, the population was spread thin throughout the nation’s landscape.  Further, such a sparse population finds it rare that people get into what are called joint accidents.  It was uncommon for one person to run into another person or to have the situations that lead to accidental and harmful events to occur.  When they occurred, accidents most likely happened between or among family members.

          Strict liability, when rare accidents took place, satisfied any contention that arose due to any harm.  “You did it, you’re responsible” could have summarized how people saw such events.  But industrialization changed all that.  With the factory system blossoming around the country, the population was drawn into those factories’ locations – denser factory towns sprung up.  Also, supporting those developments were the financial centers, like New York or Chicago, and those cities became both industrial centers and supportive service centers.  Their populations exploded.

          For example, the New York urbanized area experienced the following growth:  in 1800, population was 60,000; in 1850, it was 590,000; in 1870, it was 1,443,000; in 1900, it was 3,802,000; in 1930, it was 10,090,000; and in 1970, it was 16,207,000.[4]  With those numbers, one can readily visualize the incidence of joint accidents becoming ever more frequent and with that increased frequency, one can also visualize the vast array of factors and conditions leading to those accidents. 

Yet strict liability doesn’t much care about such factors in terms of determining fault.  Even in the simplest car accident:  driver A and driver B run into each other.  With strict liability, driver A pays for driver B’s harm and vice versa.  One doesn’t ask who was to fault.  With industrialization, with the advent of automobiles, for example, strict liability made less sense.  If driver A was at fault – perhaps ran a red light – then he/she should pay for all the damages assuming driver B demonstrated no negligence.[5]

So, to answer the question – what to do? – the obvious solution was to introduce the consideration of negligence.  And so, one explanation of why strict liability gave way to considering negligence was, as just demonstrated, naturally worked into court decisions over the latter part of the nineteenth-century.  But there is another view and Robert J. Kaczorowski reports on this development.  He states:

[Morton] Horwitz argues, the original standard of tort liability was not fault but strict liability.  He maintains that the fault theory of negligence was not established in tort law until the nineteenth century by judges who sought “to create immunities from legal liability and thereby to provide substantial subsides for those who undertook schemes of economic development.”  The modern notion of negligence, then, was incorporated into tort law by economically motivated judges for the benefit of businesses and business enterprises.[6]

One can interpret this view as being a more economic and political explanation.  By shifting to a negligence standard, the accusation is that the affecting judges took a pro-business posture and, in effect, began to provide business, especially big business, substantial subsidies.  The relevant court decisions allowed and continues to allow large corporation to escape sizable judgements against them.

Today, there is a complex landscape of tort law where there is a mixture of standards.  This blog will address some of them.  There is a reason why effective lawyers do well in securing high incomes; it is a difficult field in which to practice.  That field is composed of a few intentional tort cases – usually treated as criminal matters – a large sector of negligence cases, and a much smaller area of strict liability cases. 

This blog will address this tension between strict liability and negligence in, at least, the upcoming posting.  It will also look at the tension between malfeasance and nonfeasance, and factual causation and legal causation.

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[1] Intentional tort will be addressed in the future.

[2] Following standard citation form for case law:  11 Exch. 781 (1856).

[3] “Blyth v. Birmingham Waterworks Co,” Case Briefs, n. d., accessed September 16, 2018, https://www.casebriefs.com/blog/law/torts/torts-keyed-to-prosser/negligence/blyth-v-birmingham-waterworks-co/ .

[4] “New York Urbanized Area:  Population & Density from 1800 (Provisional),” Demographia, n. d., accessed September 16, 2018, http://demographia.com/db-nyuza1800.htm .  While the population numbers are estimates, they are based, in part, on Census data.

[5] Or if the accident is no one’s fault, still each driver pays for the other’s damage or harm.  With strict liability, fault plays no role in assigning liability.

[6] Robert J. Kaczorowski, “The Common-Law Background of Nineteenth-Century Tort Law,” Fordham Law School, 1990, accessed September 17, 2018, https://pdfs.semanticscholar.org/74ba/0630b8c59bb5fcef22fbffaf96e56b91282f.pdf .

A BACKDROP FOR A SET OF TENSIONS

[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 the basic source of information, the Great Course’s course, Law School for Everyone.[1]]

This posting begins the substantive reporting on the development of a unit of study, suitable for a civics course or American government course.  That unit, at this point, features tort law.  In addition, the approach to this topic will be to address it as a national concern. 

As such, it would be situated toward the end of the course but treated as a unit that looks at one the three main branches of government, the judiciary.  Therefore, this unit can reasonably expect students to know the major goals and aims the course is trying to meet.

Among those goals and aims is to impart a mode of behavior responsible citizens can employ when considering a governmental/political issue or problem.  The elements of that mode include an appreciation of and the motivation to attain relevant historical knowledge concerning the issue/problem at hand, a disposition to engage in effective dialogue with other citizens to address the issue or problem, and a willingness to participate in citizenry action that is meant to relieve or solve the issue/problem.

Summarily, one can describe that mode as one that enhances and demonstrates the societal qualities of social capital and civic humanism – qualities that reflect federalist values.  Of specific concern regarding this unit is the federalist value of justice.  A federalist moral code identifies justice as one of that code’s key instrumental values; only superseded by the code’s trump value, societal welfare.

As the last posting stated, tort law involves court action dedicated to settle claims emanating from situations where one party causes harm to another party.  While that basic descriptor sounds simple, in real life, torts can easily become complex.  Relatively simple cases demonstrate how complex tort law can be.

Here is such a case.  A driver pulls up to a golf course’s parking lot.  The driver is driving an SUV and due to his/her heighten view, does see a beer can that was left on the parking space the driver chooses and he/she runs over the can.  Given how the tire hits the can (that is cut open with a sharp exposed edge), the can causes a slice on the bottom of the tire. 

The driver hears the contact, but does not see, upon inspection any damage.  Low and behold, a few hours later the tire is flat.  The charge to make the driver whole – acquiring a tire that is comparable to what he/she had before the contact – results in a bill of $200.  Who should pay for that bill?  The driver, the unidentified person who left the can, or the owners/managers of the golf course.  Here is a bit of more complication, the golf course is owned by the city government – in the name of the people of that municipality.

Most of the time, the simplest situations, can readily become complex.  And in that feature of tort law, most governing principles and practices are developed to handle the complexities that emerge.  While this unit cannot address all these complexities, there are a set of basic concepts that if known and appreciated, a student cannot only be introduced to those complexities, but be armed with the accompanying knowledge by which he/she can study this topic.

The more citizens know about tort law, the more they can choose life styles and acquire specific information that can, in turn, protect their legitimate interests.  But more in line with the aims advanced in this blog as to the purposes of civics courses (to encourage students to view citizenry as a partnership), the processes of the judicial system should be aimed at advancing justice.

So, some initial questions a study of tort law should address can be:  who has a duty in a given situation where harm occurs?  How does one define related legal principles in a given, harm-inducing situation?  And how do the evolving realities – such as in the economy and/or in technology – affect responsibilities parties might have in harm-inducing situations?

In the last posting, three tensions were introduced:  strict liability vs. negligence, malfeasance vs. nonfeasance, and factual causation vs. legal causation.  They are tensions that have been evolving since the mid-eighteen-hundreds.  Some argue the main force pushing this overall evolution has been caused by technological changes.  Others argue the economic/political forces have been at work.  These arguments provide the backdrop for a historical tale.

The next posting will begin describing the first of these tensions.  Whether the law should count on pure cause or count on notions of fault is a basic question.  Within the American legal tradition – that of common law – this concern has demanded a great deal of judicial attention.

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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.