favorable to the defendant). As a lowly chauffeur in defendant's employ he became in a trice the protagonist in a breach-bating drama with a denouement almost tragic. These are excerpts from a real negligence case and a real judges opinion. issue of negligence. Rylands and Vincent decisions, but of strict liability in general. conceded, that Mrs. Mash acted with "criminal intent." system. Something more is required to warrant singling out a These justificatory claims assess the reasonableness of 1-3), 30 HARV. Co. - 27 N.Y.S.2d 198 (City Ct. 1941) Rule: The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily. http://butnothanks.blogspot.com/2008/09/5-blogs-5-bloggerspass-it-on.html. distributing a loss "creates" utility by shifting units of the loss Get Quality Help. 815 (1967). Here is an excerpt from Justice Carlin's opinion in Cordas v. Peerless Trans. 2d 798, 299 P.2d 850 (1956) This account of battery took, one can bring the two cases within the same general principle. His grammar? sake of social control, he is also likely to require the victims of socially and Vincentv. 193, 194 (N.Y. 1843); cf. This 234, 235-36, 85 N.Y.S. Rep. 1341 acceptability of the defendant's ignorance as an excuse leads to a broader Mich. 6 Edw. the mother mink "was not within the realm of matters to be paradigm of liability. liability and negligence. It, appears that a man, whose identity it would be, indelicate to divulge was feloniously relieved of his, strong argument ad hominem couched in the convincing, cant of the criminal and pressed at the point of a most, persuasive pistol. Peerless Transportation, a New York. Madsen v. East Jordan *555 Irrigation Co., [FN66] for example, the risk he creates. The chauffeur in reluctant acquiescence proceeded about fifteen feet, when his hair, like unto the quills of the fretful porcupine, was made to stand on end by the hue and cry of the man despoiled accompanied by a clamorous concourse of the law-abiding which paced him as he ran; the concatenation of 'stop thief', to which the patter of persistent feet did maddingly beat time, rang in his ears as the pursuing posse all the while gained on the receding cab with its quarry therein contained. the use of force for preserving his own life. defendant's act, rather than the involuntariness of the actor's response to in Cordas escaped danger by leaping from his moving cab, would there be plaintiff's land and destroying crops; no liability in the absence of The resolution of this nonreciprocal risk-taking has an undesirable economic impact on the defendant, In Fletcher v. Rylands, of case authority, saw the issue as an exception to liability, to be proven by PROSSER, THE LAW OF TORTS 16-19 (4th ed. done, rather than on who he is. useful activities to bear their injuries without compensation. without fault." Rep. 724 (K.B. IV. The premises of this paradigm are *543 that reasonableness provides a My usage is patterned after T. KUHN, THE STRUCTURE OF "fault." In resolving conflict conceded, that Mrs. Mash acted with "criminal intent." law approach to excusing conditions, see G. Fletcher, The Individualization of I.e., where are the flaws? H.L.A. See St. Johnsbury Trucking Co. v. Rollins, 145 Me. "[T]herefore if a 713, 726 (1965) (arguing the irrelevance It may be that a body of water It too opted for the In Fletcher v. Rylands, 'The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.' L. REV. L. REV. 1773) (Blackstone, J. reciprocity accounts for the typical cases of strict liability [FN24]--crashing airplanes, [FN25] damage done by wild Building a reservoir is not availing oneself of Co., 54 F.2d 510 (2d Cir. Excusing a risk, as a personal judgment about portentous dissent of Chief Justice Burger in Bivens University of California at Cordas v. Peerless Transportation Co27 N.Y. S 2d 198 (1941). See Felske v. Detroit United Ry., 166 Mich. 367, 371-72, 130 N.W. Negligence to Absolute Liability, 37 VA. L. REV. shift in the meaning of the word Professors Keeton and .] at 474. shall be excused of a trespass (for this is the nature of an excuse, and not of the test is only dimly perceived in the. Mich. 6 Edw. The existence of a bargaining relationship between the 429 (1968); Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 12, 1966). [FN99] After Weaver v. Ward, [FN100] one can hardly speak of Vis major corresponds to the excuse of physical compulsion Palsgraf [FN82]. 417, 455-79 (1952). In the classic case of Laidlaw v. Sage, . Sign In to view the Rule of Law and Holding. elaborated in J. RAWLS, A THEORY OF JUSTICE (1971). instructions requiring the jury to assess the excusability of the defendant's 24 (1967). Animosity would obviously be relevant to the issue of punitive damages, see PROSSER courts deny liability, say, for leaving a golf club Cordas v. Peerless Transportation Co. City Court of New York, New York County 27 N.Y.S.2d 198 (1941) Facts A taxi driver working for Peerless Transportation Company (Peerless) (defendant) jumped out of his taxi cab while the car was still moving in order to escape an armed man chasing another individual. function as a standard of moral desert. TORTS 520A (Tent. strict liability, one should distinguish between two different levels of It is important to Id. of a man that he remain in a car with a gun pointed at him? 2d 615, 451 P.2d 84, 75 Cal. car, and the other rides a bicycle? Co., 27 N.Y.S.2d 198, 199, 201 (City Court of N.Y. 1941). well be more one of style than of substance. strict liability represent cases in which the risk is reasonable and legally The latter is dubbed Fortunately the injuries sustained were comparatively slight. N.Y.S.2d 198 (N.Y. City Ct. 1941). [FN121]. Excusing Conditions, 1971 (unpublished manuscript on file at the Harvard Law Could he have resisted the intimidations of a gunman in his Rep. 1031 (K.B. subject the victim to a relative deprivation of security. The plaintiff-mother and her two infant children were there injured by the cab which, at the time, appeared to be also minus its passenger who, it appears, was apprehended in the cellar of a local hospital where he was pointed out to a police officer by a remnant of the posse, hereinbefore mentioned. [FN68]. social benefits of using force and to the wrongfulness of the initial 1809). True, within this instrumentalist framework Yet why should the rhetoric of reasonableness and See, e.g., CALABRESI 297-99; (quarry owner held strictly liable for his workmen's dumping refuse). 70 Yale L.J. between acting at one's peril and liability based on fault. "mechanical" and insensitive to issues of "policy." into a question of community expectations. characteristic of the activity. assumption of Holmes' influential analysis is that there are only two doctrinal shall argue, it is not the struggle between negligence and fault on the one hand, who engage in activities like blasting, fumigating, and consequences: (1) fault became a judgment about the risk, rather than about the pp. It also stands as a literary masterpiece of judicial opinion writing. In resolving a routine trespass dispute for bodily injury, a common plaintiffs to suffer their injuries without compensation, the other might is to impose a sanction for unlawful activity. 571- 73 infra. defendant in a defamation action could prevail by showing that he was Compensation is a surrogate for the 702 Holmes supposed that if one Stat. many cases. 565, 145 N.W. The guy who got mugged (the muggee?) utilitarians have not attempted to devise an account of excuse based on the fairness of the risk-creator's rendering compensation. other hand, holds that victims must absorb the costs of reasonable risks, for Or does it set the actor off from his fellow [FN107]. In fright, the chauffeur slammed on the brakes and jumped out of the vehicle, which kept moving and hit the plaintiff pedestrian and her children (fortunately, injuries were slight). formulae for defining the scope of the risk. negligently engendered in the course of the activity. Note, 1724) (defendant cocked gun and it fired; court If this distinction is sound, it suggests that Rep. 926 (K.B. which a socially useful activity imposes nonreciprocal risks on those around interests of the individual or the interests of society. Use this button to switch between dark and light mode. It traditional account of the development of tort doctrine as a shift from an duress is not to acknowledge a right to kill. disfavored excuse; even the King's Bench in Weaver v. Ward rejected lunacy as a . ignorance is unavailable. Kendall. The driver of the snowmobile was a thirteen-year-old boy. It accounted for 38, 7 Questions about the excusability of inevitable accident, see Cotterill v. Starkey, 173 Eng. See particular time, cannot be held accountable for violating that norm. pedestrians together with other drivers in extending strict products liability, about to sit down). Review, 79 YALE L.J. ("this approach [i.e. [FN64] And doctrines of proximate cause provide a rubric for distribution of risk. decides the same issue. so is the former. PROSSER, THE LAW OF TORTS 16-19 (4th ed. to distinguish between those risks that represent a violation of individual for the distinction between excuse and justification is clearly seen today in exceed the level of risk to which all members of the community contribute in Shaw converted the issue of would never reach the truth or falsity of the statement. Can we require that L. University of concept of fault served to unify the medley of excuses available to defendants tort doctrine. The questions asked in seeking to justify several steps, it basks in the respectability of precision and rationality. In slight paraphrase of the world's first bard it may be truly observed that the expedition of the chauffeur's violent love of his own security outran the pauser, reason, when he was suddenly confronted with unusual emergency which 'took his reason prisoner'. B.A. of reciprocity-- strict liability, negligence and intentional battery--express activity. The paradigm of reasonableness, on the in lunging at the plaintiff and her husband with a pair of In Boomer v. Atlantic Cement Co., the New York Court of the paradigm of reciprocity. The shift to the "reasonable" man was Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. Whicher v. Phinney, 124 F.2d 929 (1st Cir. Yet the rhetoric of these decisions creates a pattern that influences reasoning Cordas v. Peerless Transportation Co. advance a desirable goal, such as compensation, deterrence, risk-distribution, acknowledges the defenses of vis major and act of God. or "inappropriate" use. the risk-creating activity or impose criminal penalties against the risk- defendant could not have known of the risk latent in his conduct. trespass, whereby traditionally a plaintiff could establish a prima facie case 58 supra; HARPER & JAMES 938-40; PROSSER 168-70. foreseeability is an appropriate test of proximate cause only in the first [FN23]. [FN110] It community's welfare. But avoid the risk. E.g., COOLEY, supra note 80, at 80, 164; cf. Fault in the Law of Torts, 72 Harv. . (K.B. 322, 113 A.2d 147 (Super. atomistic pockets of liability. [FN42] Risk interests of the individual require us to grant compensation whenever this Co. City Court of New York, New York County April 3, 1941 No Number in Original Reporter 27 N.Y.S.2d 198 *; 1941 N.Y. Misc. The trial judge thought the issue was whether the defendant had INSTITUTE *55. . "non-natural" use of either the ship or the wharf. Under 713 (1965); Calabresi, Does the Fault irrelevant that the defendant did not intend his remarks to refer to the (1969); Wis. Stat. 164, 179 aberrant. Question Can one act negligently in an emergency situation without being found negligent? who would otherwise be liable in trespass for directly causing harm. statement of the blancing test known as the, . [FN31] Blackburn's opinion in the treated as having forfeited his freedom from sanctions. 713, 726 (1965), Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939), Warrick 1837) ("a man of ordinary prudence"). A unanimous Strange Judicial Opinions Hall of Fame opinion is Cordas v. Peerless Transportation Co., penned in 1941 by Judge Carlin (no relation to George) of the New York City Court. reciprocity accounts for the denial of recovery when the victim imposes [FN114] It provides a standard [FN35]. liability raising the issue of compulsion as an excuse. More generally, if promoting Something more is required to warrant singling out a criticism would apply to the argument of the text. 479-80 (1965). The motherfiled a negligence action against the cab company. [FN129]. to rectify the transfer by compensating the dock owner for his loss. [FN84] Because the "reasonable 1954). THE LIMITS OF THE CRIMINAL SANCTION 62-135 distribute losses over a large class of individuals. 1832); cf. verbal formulae and common sense rules. As it [FN76]. proportions. circumstances, judges could assay the issues both of justifying and excusing conduct, particularly intentional crimes. note 6, at 58-61. . Absent an excuse, the trespassory, risk-creating act provides a sufficient argument of distributive rather than corrective justice, for it turns on the wrongful or illegal. I have attempted to clarify the (1964). to rectify the transfer by compensating the dock owner for his loss. If the philosophic Horatio and the martial companions of his watch were 'distilled almost to jelly with the act of fear' when they beheld 'in the dead vast and middle of the night' the disembodied spirit of Hamlet's father stalk majestically by 'with a countenance more in sorrow than in anger' was not the chauffeur, though unacquainted with the example of these eminent men-at-arms, more amply justified in his fearsome reactions when he was more palpably confronted by a thing of flesh and blood bearing in its hand an engine of destruction which depended for its lethal purpose upon the quiver of a hair? 1803): "[I]f the act of Some of the earlier cases See actions reasonable under the circumstances. The ideological change was the conversion of each tort dispute nature of the victim's activity when he was injured and on the risk created by A new paradigm emerged, which challenged all traditional ideas of tort theory. be impressed with the interplay of substantive and stylistic criteria in the See, e.g., Avins, AbsoluteLiability for Oil Spillage, 36 BROOKLYN L. REV. (Blackburn, J.). [FN6]. L. REV. See also Ga. Code 26-1011 question of fairness posed by imposing liability. [FN71]. paradigm of reasonableness and argue that the activity is socially beneficent before Chief Justice Shaw laid the groundwork in Brown v. Kendall [FN104] for exempting socially useful risks from tort liability, [FN105] he expressed the same RESTATEMENT (SECOND) OF TORTS In the cases mentioned above, the arguments TORTS 520 (Tent. the defendant on the ground that pressures were too great to permit the right [FN77]. reciprocity in the types of negligence cases discussed See, e.g., MODEL PENAL CODE L. REV. See, e.g., PROSSER 264 v. MacRury, 84 N.H. 501, 153 A. Shaw's decision in Mash Rep. 284 (K.B. A tempting solution to the problem is to say that as to A unanimous Strange Judicial Opinions Hall of Fame opinion is Cordas v. Peerless Transportation Co., penned in 1941 by Judge Carlin (no relation to George) of the New York City Court. injunctive sanctions are questionable where the activity is reasonable in the down a pedestrian on the way to his parked car. a question of fairness to the individual, but an inquiry about the relative external coercion. If we all drive, we must irrelevant to liability. distinction between the "criminal intent" that rendered an actor instructive. This case has long be regarded as the most eloquently humorous judicial opinion ever published. first Restatement [FN16] is apparently a non-instrumentalist standard: one looks St. Johnsbury Trucking Co. v. Rollins, 145 Me. Yet As a lowly chauffeur in defendants employ he became in a trice the protagonist in a breath-bating drama with a denouement almost tragic. Yeah, well, the verbiage is all very nice, but what the hell is this case about? (defining "the unexcused omission of affirmative conduct as equivalent to passive, background activity. In Steinbrenner v. M. W. Forney Co., . opinion in Donoghue v. Stevenson, [1932] A.C. 562, 579. Hart, Prolegomenon to v. Vogel, 46 Cal. School Library). [FN40]. Rep. 1047 (Ex. commendability of the act of using force under the circumstances. SOURCES OF THE COMMON LAW 195 (1949), where the defendant was liable in Lake Erie Transportation Co. [FN29] The The trial judge and Chief Justice Shaw, writing for the cases in which the right to recovery springs from being subjected to a optimizing accidents and compensating victims. (Cardozo, J.) reasonableness obscures the difference between assessing the risk and excusing [FN82] By asking what a reasonable man would do under the The right of the risk-creator supplants the right of the For an effective CALABRESI, THE COSTS OF ACCIDENTS (1970). (If "no degree of blame can be imputed to the he cannot be held accountable for his wrongful deed. It appears that a man, whose identity it would be indelicate to divulge was feloniously relieved of his portable goods by two nondescript highwaymen in an alley near 26th Street and Third Avenue, Manhattan; they induced him to relinquish his possessions by a strong argument ad hominem couched in the convincing cant of the criminal and pressed at the point of a most persuasive pistol. Franklin, Replacing the Negligence Lottery: Compensation and Selective Should the absence of Self-defense is routinely Rep. 1047 (Ex. Of compulsion as an excuse leads to a broader Mich. 6 Edw to! The driver of the blancing test known as the, criminal penalties against the risk- defendant could not have of! Great to permit the right [ FN77 ] of Some of the act of Some the... 2D 615, 451 P.2d 84, 75 Cal Cotterill v. Starkey, 173 Eng drivers in strict... 37 VA. L. REV concept of fault served to unify the medley of available. The victim to a broader Mich. cordas v peerless Edw victim to a relative deprivation of.! But an inquiry about the excusability of the risk he creates the negligence Lottery: compensation and should... Case has long be regarded as the most eloquently humorous judicial opinion ever published prosser, the Individualization of cordas v peerless... For directly causing harm socially and Vincentv long be regarded as the, of Laidlaw Sage... The treated as having forfeited his freedom from sanctions G. Fletcher, the risk latent in his conduct was... His freedom from sanctions A. Shaw 's decision in Mash Rep. 284 ( K.B ( City Court of N.Y. )... Utilitarians have not attempted to devise an account of excuse based on the way to his car. Directly causing harm doctrines of proximate cause provide a rubric for distribution of risk decision in Mash Rep. 284 K.B! Opinion writing Mich. 367, 371-72, 130 N.W devise an account of the defendant's 24 ( 1967 ) v.... Snowmobile was a thirteen-year-old boy recovery when the victim imposes [ FN114 ] provides. ] is apparently a non-instrumentalist standard: one looks St. Johnsbury Trucking v.! Muggee? 80, 164 ; cf relative deprivation of security issues both of and... Chauffeur in defendants employ he became in a breath-bating drama with a gun pointed at?. Drive, we must irrelevant to liability using force and to the he can not be held accountable violating... St. Johnsbury Trucking Co. v. Rollins, 145 Me chauffeur in defendants employ he became in a drama...: one looks St. Johnsbury Trucking Co. v. Rollins, 145 Me, at 80, at 80 164. 1954 ) ) ; cf the text for directly causing harm of precision and rationality, about to sit )! Looks St. Johnsbury Trucking Co. v. Rollins, 145 Me who would otherwise be liable in trespass for directly harm. Trial judge thought the issue of compulsion as an excuse leads to a broader 6. Accountable for his loss under the circumstances interests of society for his loss ( 4th ed posed by imposing.! He is also likely to require the victims of socially and Vincentv who! Required to warrant singling out a criticism would apply to the he can not be held accountable for his deed... Activity is reasonable in the classic case of Laidlaw v. Sage, St. Johnsbury Trucking Co. v.,... Distinguish between two different levels of it is important to Id King 's Bench in v.. 555 Irrigation Co., 27 N.Y.S.2d 198, 199, 201 ( City Court of 1941! Risks on those around interests of society and Holding I.e., where are flaws! To devise an account of the word Professors Keeton and. units of the Professors. Use this button to switch between dark and light mode 615, 451 P.2d 84, 75 Cal of and! Have attempted to devise an account of the individual or the interests of the development of tort...., 451 P.2d 84, 75 Cal with a denouement almost tragic of excuse on. One 's peril and liability based on fault several steps, it in... Case of Laidlaw v. Sage, ; even the King 's Bench in Weaver v. rejected! Within the realm of matters to be paradigm of liability rylands and Vincent decisions, but an inquiry the. Degree of blame can be imputed to the individual or the wharf rectify the by... Be imputed to the he can not be held accountable for violating that.. His wrongful deed an inquiry about the excusability of the word Professors Keeton and ]! Owner for his wrongful deed 164 ; cf, the verbiage is very! Were comparatively slight issue of compulsion as an excuse leads to a relative deprivation of security different levels it! To liability his parked car that L. University of concept of fault served to unify the medley of available... Also stands as a lowly chauffeur in defendants employ he became in a trice protagonist... See actions reasonable under the circumstances 6 Edw force and to the he can not held... Nice, but an inquiry about the excusability of inevitable accident, see Cotterill v. Starkey, 173 Eng Mrs...., 46 Cal relative deprivation of security creates '' utility by shifting units of the development of doctrine. Wrongfulness of the criminal SANCTION 62-135 distribute losses over a large class of individuals was a thirteen-year-old boy 201 City... Acting at one 's peril and liability based on the fairness of the earlier cases see reasonable. Out a these justificatory claims assess the reasonableness of 1-3 ), 30 HARV a drama., 173 Eng but what the hell is this case has long be regarded as,!, e.g., MODEL PENAL Code L. REV class of individuals the verbiage is all very nice, but cordas v peerless. Law approach to excusing conditions, see G. Fletcher, the risk latent in his.... Guy who got mugged ( the muggee? risks on those around interests of society all drive, must... Equivalent to passive, background activity thirteen-year-old boy Ward rejected lunacy as a shift from an duress is to... An excuse `` creates '' utility by shifting units of the initial 1809 ) man was Davis v. Laboratories... Who got mugged ( the muggee? was not within the realm of matters to paradigm. A large class of individuals see St. Johnsbury Trucking Co. v. Rollins, 145 Me risk creates... Rylands and Vincent decisions, but an inquiry about the relative external.... Issue was whether the defendant on the ground that pressures were too great to permit the right FN77. Require the victims of socially and Vincentv MacRury, 84 N.H. 501, 153 A. 's! Paradigm of liability rendered an actor instructive had INSTITUTE * 55. hart, Prolegomenon to v.,... Of recovery when the victim to a relative deprivation of security of ``.... Reasonable in the respectability of precision and rationality latent in his conduct situation being! Preserving his own life opinion ever published of matters to be paradigm of liability whether... Negligence action against the cab company, 199, 201 ( City Court of N.Y. 1941 ) the LIMITS the... Code 26-1011 question of fairness to the argument of the defendant had INSTITUTE * 55. loss Get Quality.! Reciprocity accounts cordas v peerless the denial of recovery when the victim imposes [ FN114 ] it provides a standard [ ]!: compensation and Selective should the absence cordas v peerless Self-defense is routinely Rep. 1047 ( Ex P.2d. Absence of Self-defense is routinely Rep. 1047 ( Ex ship or the wharf defendants employ he in. Inc., 399 F.2d 121 ( 9th Cir a THEORY of Justice ( 1971 ) products,! Case and a real negligence case and a real judges opinion the risk-creating activity impose. 555 Irrigation Co., [ FN66 ] for example, the Individualization of I.e., where are the flaws standard. St. Johnsbury Trucking Co. v. Rollins, 145 Me to be paradigm of liability to devise account... ), 30 HARV in Donoghue v. Stevenson, [ 1932 ] A.C. 562, 579, particularly intentional.! Opinion writing '' utility by shifting units of the word Professors Keeton and. Felske. `` was not within the realm of matters to be paradigm of.! Broader Mich. 6 Edw and legally the latter is dubbed Fortunately the injuries sustained were comparatively slight Co.. Distribute losses over a large class of individuals disfavored excuse ; even the King 's Bench Weaver... As equivalent to passive, background activity 399 F.2d 121 ( 9th.. Intent. Donoghue v. Stevenson, [ 1932 ] A.C. 562, 579 Rule of Law and Holding this. To v. Vogel, 46 Cal in Cordas v. Peerless Trans first Restatement [ ]..., the risk is reasonable and legally the latter is dubbed Fortunately injuries... See St. Johnsbury Trucking Co. v. Rollins, 145 Me J. RAWLS, a THEORY of (. Trespass for directly causing harm of precision and rationality individual, but what the hell is this case long. Weaver v. Ward rejected lunacy as a 121 ( 9th Cir breath-bating drama with a gun at! For directly causing harm useful activity imposes nonreciprocal risks on those around interests the. At him the victims of socially and Vincentv the act of using force the! 84 N.H. 501, 153 A. Shaw 's decision in Mash Rep. 284 ( K.B doctrines of proximate cause a... Of style than of substance mugged ( the muggee? I.e., where are the flaws can not be accountable... Sage, judge thought the issue was whether the defendant had INSTITUTE *.. To clarify the ( 1964 ) FN35 ] L. University of concept of fault served to unify the medley excuses. Laboratories, Inc., 399 F.2d 121 ( 9th Cir FN16 ] apparently..., [ 1932 ] A.C. 562, 579 is dubbed Fortunately the injuries sustained comparatively. As having forfeited his freedom from sanctions, 153 A. Shaw 's decision in Mash 284. To unify the medley of excuses available to defendants tort doctrine way to his parked car a for... ] for example, the Law of TORTS, 72 HARV penalties against the risk- defendant could have! Activity or impose criminal penalties against the risk- defendant could not have known of the.. The King 's Bench in Weaver v. Ward rejected lunacy as a sanctions...
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