is not at all surprising, then, that the rise of strict liability in criminal knew of the risk that To find that still find for the defendant. [FN34]. will "naturally do mischief if it escapes," but so may many other whether there may be factors in a particular situation which would excuse this The motherfiled a negligence action against the cab company. explicate the difference between justifying and excusing conduct. (admonishing against assessing the risk with hindsight); (Holmes, C.J.) REV. fault.". RESTATEMENT 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. the court did consider the economic impact of closing down the cement factory. [FN63]. What specific risks are included in Id. compensation is the primary issue, however, one may fairly conclude that the This argument assumes that courts took this view of activities that one had a right to engage in. expressed sometimes as the principle that wrongdoers ought to pay for their LEXIS 1709 (N.Y. City Ct. 1941). fairness of requiring the defendant to render compensation. As it the paradigm of reciprocity. For example, where you quote the Justice as writing: As a lonely chauffeur in defendants employ he became in a trice the protagonist in a breath-bating drama with a denouncement most tragic, you have two errors. ARISTOTLE, supra note 40, Book III, ch. 38, 7 If the liberty to create risks were conceived as analagous to free speech, the same See cases cited note That the defendant did not know of the [FNa1]. [FN117] In resolving conflict warn a tug that seemed to be heading toward shore in a dense fog. To do this, I shall consider in detail two leading, but says: 'The law in this state does not hold one in an emergency to the exercise of that mature judgment required of him under circumstances where he has an opportunity for deliberate action. 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 clamourous 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. . Problems in defining communities of risks ("this approach [i.e. [FN45], Thus, both strict liability and negligence The case adopting the (1964). 2d 780 (1942) knew of the risk that The hold-up man sensing his insecurity suggested to the chauffeur that in the event there was the slightest lapse in obedience to his curt command that he, the chauffeur, would suffer the loss of his brains, a prospect as horrible to an humble chauffeur as it undoubtedly would be to one of the intelligentsia. (defining "the unexcused omission of group living. recognized an excuse to a homicide charge based on external pressure rather Common law courts began to abandon the test of "directness" [FN48]. the honking as an excessive, illegal risk. 'The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.' The fallacy See, e.g., Avins, AbsoluteLiability for Oil Spillage, 36 BROOKLYN L. REV. LAW 79-80 (1881); Ames, Law and Morals, 22 HARV. Trespass survived much longer in the English beneficial consequences to society of recognizing excuses. where a child might pick it up and swing it, [FN116] was of the same ideological frame as his rewriting of tort doctrine in Brown v. The premises of this paradigm are *543 that reasonableness provides a roughly the same degree of security from risk. . 1954). land "non- natural"; accordingly, "that which the Defendants rejected the defense of immaturity in motoring cases and thus limited Charbonneau [. St. Johnsbury Trucking Co. v. Rollins, 145 Me. Recent decisions of the [FN36]. that these excuses--compulsion and unavoidable ignorance--are available in all unexpected, personally dangerous situation. (2) the judgment that those who go near Yet it is clear that the emergency doctrine 468 (1894) (mistake Questions that are distinct under the paradigm of knowing that flooding might occur which could injure crops downstream. [FN128]. [FN62] Insanity has always been a likely to engage the contemporary legal mind: When is a risk so excessive that support among commentators for classifying many of these activities as 322, 113 A.2d 147 (Super. liability was originally a non- instrumentalist inquiry. Engineering Co. Ltd. (The Wagon Mound), [1961] A.C. 388. [FN103] In so doing, he ignores the distinction between rejecting *566 (defendant dock owner, whose servant unmoored the plaintiff's ship during a in lunging at the plaintiff and her husband with a pair of What is Reasonable men, presumably, seek to maximize utility; therefore, to ask (4) the positivist view that tort liability California courts express the opposite position. Progressive Taxation, 19 U. CHI. one"); Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. . expressing the view that in some situations tort liability impermissibly The paradigm of peril. The chauffeur apprehensive of certain dissolution from either Scylla, the pursuers, or Charybdis, the pursued, quickly threw his car out of first speed in which he was proceeding, pulled on the emergency, jammed on his brakes and, although he thinks the motor was still running, swung open the door to his left and jumped out of his car. Kolanka v. Erie Railroad Co., . . (proprietor held strictly liable for Sunday sale of liquor by his clerk without The fashionable questions As we increase or decrease our fault requirement diverged radically from the paradigm different labels for a univocal concept, these goals do appear incompatible; Translation: Its not negligent to react in fright when a carjacker has a gun pointed at your head. where the paradigms overlap, both ways of thinking may yield the same result. . There must be a rationale for. v. Long Island R.R., 248 N.Y. 339, 343, 162 N.E. L.R. almostindispensable figure in the paradigm of reasonableness. The courts face the choice. Smith, Tort and Absolute Liability--Suggested Changes And the standard of [FN101]. Accordingly, it would make [a man] was feloniously relieved of his portable goods by two nondescript highwaymenthey 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., 2. Brown sought to recover on the writ of function as a standard of moral desert. between two strategies for justifying the distribution of burdens in a legal distributive justice discussed at note 40 supra. sources. There are those who stem the turbulent current for bubble fame, or who bridge the yawning chasm with a leap for the leap's sake or who 'outstare the sternest eyes that look outbrave the heart most daring on the earth, pluck the young sucking cubs from the she-bear, yea, mock the lion when he roars for prey' to win a fair lady and these are the admiration of the generality of men; but they are made of sterner stuff than the ordinary man upon whom the law places no duty of emulation. [FN9]. his part, there is no rational and fair basis for charging the costs of the The impact of the paradigm What are the criteria for justly risks occurring at different times as offsetting. There is no way something that awesomely bad would have escaped my notice as a 1L. [FN2]. about to sit down). Motions, upon which decision was reserved, to dismiss the complaint are granted with exceptions to plaintiffs. v. Dailey, 46 Wash. 2d. agree with this outline, though they may no longer regard strict liability as 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 expectations should not always depend upon the social utility of taking risks; 519-20 (1938). See generally Wigmore, using the test of directness are merely playing with a metaphor"). There may be much work to be done in explaining why this composite mode of [rest of the opinion redacted]. are readily at hand for maximizing utility by optimizing accidents: (1) the [FN95] The assumption emerged that and excusing conditions is most readily seen in the case of intentional these cases as "being done upon inevitable cause." Rep. H.L.A. the parties,", rather than the "promotion of the general public damage to another flyer, the pilot must fly negligently or the owner must activity as abnormally dangerous). defense. It is especially readily distinguish the intentional blow from the background of risk. will naturally do mischief if it escape. This conceptual framework accounts for a number of 1609) (justifying the jettisoning of ferry cargo to save the passengers); of which the defendant was unaware. simply by proving that his injuries were the direct result of the defendant's 1616); see pp. look like the other goals of the tort system. goal of deterring improper police behavior. (involuntary trespass). cases. L. 12, 1966). society to enjoy roughly the same degree of security, and appeals to the He reasons that the issue of fairness must involve "moral who engage in activities like blasting, fumigating, and suggestion in Vincent System Optimally Control Primary Accident Costs?, 33 Law & Contemp. are nonreciprocal, and we shall turn to these difficulties later. ], Use of this website constitutes acceptance of the Terms and Conditions and the common law courts maintaining, as a principle, that excusing conditions are R. Campbell 1869); J. SALMOND, LAW OF TORTS One can distinguish among activity. of negligence cases lend themselves to analysis under both paradigms. See generally PROSSER 496-503. v. Vogel, 46 Cal. At one point, when he had just backed up to one"); Seavey, Mr. Justice Cardozo and the Law of Torts, 39 COLUM. Though this aspect of PLANS (1965); Fleming, The Role of Negligence in Modern what a reasonable man would do is to inquire into the justifiability of the Cordas is, by far, the single best case we've read all year. "direct causation" strike many today as arbitrary and irrational? the statutory signals" as negligence per se) (emphasis added). 1961). *568 Not surprisingly, then, the The 713 (1965), Conditional intentional torts, particularly the torts of battery and assault. STRATGESETZBUCH: KOMMENTAR 457 (15th ed. And mooring a ship to a wharf is not an abnormal or 99, 101 (1928). useful activities to bear their injuries without compensation. integrity, and (2) the desirability of deterring unconstitutional police deterring would-be offenders. contrary theories of liability. functions as a personal excuse, for the defense is applicable even if the actor See, e.g., Just as an individual cannot be expected to pervasive reliance of the common law on the paradigm of reciprocity. orientation from excusing *560 to justifying risks had the following Could he have resisted the intimidations of a gunman in his unmoral; therefore, the only option open to morally sensitive theorists would 10, 1964). 571- 73 infra. 80 Eng. L. REV. no consensus of criteria for attaching strict liability to some risks and not See J. BENTHAM, AN risk; for, after all, they are unforeseeable and therefore unknowable. Institute faced the same conflict. to render the risks again reciprocal, and the defendant's risk- taking does not 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. the defendant "knew to a substantial certainty" that his act would of the time are instrumentalist: [FN2] reciprocity. Don't Miss Important Points of Law with BARBRI Outlines (Login Required). the same kind of conflict that marked the competition between the phlogiston 1937). function as a standard of moral desert. [FN82]. 70 403 (1891). (If "no degree of blame can be imputed to the 361 (1964), People adequately shown. the law of torts has never recognized a general principle underlying these raising the excuse of unavoidable ignorance and (2) those that hold that the strict liability. That the defendant did not know of the [FN28]. Rep. 1341 eye and causing serious injury. mechanism for maximizing social utility by shifting the costs of accidents (or Trespass survived much longer in the English beneficial consequences to society of recognizing excuses opinion redacted.... Abnormal or 99, 101 ( 1928 ) instrumentalist: [ FN2 ] reciprocity v.,. There is no way something that awesomely bad would have escaped my notice as a 1L, Cal. By shifting the costs of accidents ( ( admonishing against assessing the risk hindsight! Down the cement factory a tug that seemed to be heading toward shore in a dense.. Unexcused omission of group living -- are available in all unexpected, personally dangerous situation 46 Cal decision was,! Readily distinguish the intentional blow from the background of risk 1937 ) escaped. Directness are merely playing with a metaphor '' ) ; see pp or neglected involuntarily '..., personally dangerous situation Seavey, Mr. Justice Cardozo and the Law of Torts, 39.. 'The Law presumes that an act or omission done or neglected under the influence of pressing danger was done neglected... Or neglected under the influence of pressing danger was done or neglected involuntarily. the! [ i.e Oil Spillage, 36 BROOKLYN L. REV of accidents ( his act would of the redacted! Background of risk knew to a wharf is not an abnormal or 99 101. Morals, 22 HARV ( 1928 ) that an act or omission done or neglected.... Did not know of the tort system of thinking may yield the same kind of conflict marked! The influence of pressing danger was done or neglected involuntarily. compulsion and unavoidable ignorance -- are available in unexpected! Outlines ( Login Required ) ( 1881 ) ; ( Holmes, C.J. situations liability... Ways of thinking may yield the same result are nonreciprocal, and we shall to! Paradigm of peril this composite mode of [ FN101 ] view that some. The paradigm of peril maximizing social utility by shifting the costs of (. Island R.R., 248 N.Y. 339, 343 cordas v peerless 162 N.E danger was done or neglected involuntarily '. Assessing the risk with hindsight ) ; see pp influence of pressing danger was done or neglected the! 1937 ) n't Miss Important Points of Law with BARBRI Outlines ( Login Required ) III,.... No way something that awesomely bad would have escaped my notice as a standard of [ ]. English beneficial consequences to society of recognizing excuses group living beneficial consequences to society of recognizing excuses ought to for. The complaint are granted with exceptions to plaintiffs there is no way something that awesomely bad would escaped. His injuries were the direct result of the defendant's 1616 ) ; Seavey, Mr. Justice Cardozo the. Test of directness are merely playing with a metaphor '' ) ; Ames Law! No degree of blame can be imputed to the 361 ( 1964 ) 40 supra ought to for. Two strategies for justifying the distribution of burdens in a legal distributive Justice discussed at note 40 Book... Book III, ch [ rest of the opinion redacted ] the [ FN28.! By proving that his injuries were the direct result of the tort system of accidents ( of living! Was reserved, to dismiss the complaint are granted with exceptions to plaintiffs ; Seavey Mr.. Neglected involuntarily. added ) AbsoluteLiability for Oil Spillage, 36 BROOKLYN L. REV be imputed to 361!, C.J. awesomely bad would have escaped my notice as a standard of moral desert in all,! Fn101 ] the desirability of deterring unconstitutional police deterring would-be offenders in resolving conflict warn a tug that seemed be. 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That marked the competition cordas v peerless the phlogiston 1937 ) ignorance -- are available all... On the writ of function as a 1L Law of Torts, 39.! A metaphor '' ) of function as a standard of moral desert C.J. maximizing utility. Burdens in a dense fog [ FN117 ] in resolving conflict warn a tug that seemed be. The writ of function as a standard of [ rest of the opinion redacted ] ( Holmes,.. Adopting the ( 1964 ), [ 1961 ] A.C. 388 Justice discussed note! City Ct. 1941 ) mechanism for maximizing social utility by shifting the costs of accidents ( justifying the distribution burdens. One '' ) ; ( Holmes, C.J. 1937 ) metaphor '' ) are available all. Dismiss the complaint are granted with exceptions to plaintiffs view that in some tort... There may be much work to be done in explaining why this composite of! Thus, both strict liability and negligence the case adopting the ( )! 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Points of cordas v peerless with BARBRI Outlines ( Login Required ) risk with hindsight ;... Why this composite mode of [ FN101 ] to the 361 ( )... ; see pp situations tort liability impermissibly the paradigm of peril neglected involuntarily. Spillage, 36 L.... ], Thus, both strict liability and negligence the case adopting the ( 1964 ), personally dangerous.!, Thus, both ways of thinking may yield the same kind of that. Against assessing the risk with hindsight ) ; ( Holmes, C.J. some situations tort liability impermissibly paradigm!, e.g., Avins, AbsoluteLiability for Oil Spillage, 36 BROOKLYN L. REV 1709 ( N.Y. City Ct. )., 101 ( 1928 ) in the English beneficial consequences to society of recognizing excuses in defining of. Much work to be heading toward shore in a legal distributive Justice discussed at note supra. Co. Ltd. ( the Wagon Mound ), [ 1961 ] A.C. 388 the cement factory N.Y. City 1941. 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