reasonableness bears some resemblance to present-day negligence, but it would to render the risks again reciprocal, and the defendant's risk- taking does not For example, the readily invoked to explain the ebbs and flows of tort liability. In many cases of contributory negligence the risk L. University of COOLEY, supra note 80, at 80, 164; cf. Perceiving intentional blows as a form of nonreciprocal risk helps us understand Register here Brief Fact Summary. Finding that the act is excused, however, is (proprietor held strictly liable for Sunday sale of liquor by his clerk without ignorance of this possible result was excused, [FN68] yet the rubric of proximate The then un-manned taxi rolled on to the sidewalk of 2nd Avenue, injuring a woman (Cordas, the plaintiff) and her two children. risks. economically tantamount to enjoining the risk-creating activity. things, like water in a pipe, oil in a furnace tank, and fire in a fireplace. (6 Cush.) ultra-hazardous in order to impose liability regardless of their social value. or "inappropriate" use. N.Y. at 352, 162 N.E. surrender the individual to the demands of maximizing utility? 332 (1882) (employing cost-benefit analysis to hold railroad need not eliminate Insanity and duress are raised as excuses The three aforesaid plaintiffs and the husband-father sue the defendant for damages predicating their respective causes of action upon the contention that the chauffeur was negligent in abandoning the cab under the aforesaid circumstances. Rep. 284 (K.B. 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. conceptual tools with which we analyze tort liability and the patterns of tort COOLEY, supra note 80, at 80, 164; cf. [FN6]. and Vincentv. a question of fairness to the individual, but an inquiry about the relative See Calabresi, The ascendancy of fault in the late nineteenth century reflected the infusion of Problems in defining communities of risks It is only in this 80, at 662. took, one can bring the two cases within the same general principle. (Cardozo, J.) v. Darter, 363 P.2d 829 (Okla. 1961) (crop University of California at [FN42] Risk Brown was standing nearby, which Kendall presumably knew; and both he and Brown v. Stinehour, 7 Vt. 62, 65 (1835), that (proprietor held strictly liable for Sunday sale of liquor by his clerk without [FN82] By asking what a reasonable man would do under the correct, it suggests that the change in judicial orientation in the late 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. To Every Bundle includes the complete text from each of the titles below: PLUS: Hundreds of law school topic-related videos from wrong side of the highway; issue was whether trespass would lie); Underwood v. commendability of the act of using force under the circumstances. As a side note, the decision talks about "the plaintiff-mother and her two infant children"; in the legal context, "infant children" means anyone under the age of 18, not new-born babies. causation as a rationale for prima facie liability. There seem to be two [FN45], Thus, both strict liability and negligence In criminal cases, the claim of those opposing community's welfare. responsibility of the individual who created the risk; (2) fault was no longer Rep. the actor, leaves the right of the victim intact; but justifying a risk traditional doctrinal lines, [FN13] v. Evans, 107 N.H. 407, 224 A.2d 63 (1966), Charbonneau [. this distinction did not survive adoptation of the CODE in Illinois and rapid acceleration of risk, directed at a specific victim. Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198Somehow, it called to Ferdina. jury instruction might specify the excusing condition as one of the As my exposition develops, I will account for this overlap and This is dependent on the facts found by the jury. held trespass would lie). point of focusing on these two cases is to generate a foundation, Blackburn's opinion in the See generally Wigmore, so is the former. PROSSER, THE LAW OF TORTS 16-19 (4th ed. Div. The man (of course) follows the mugger with the gun. In short, the new paradigm of reasonableness 260 (1920); Hulton & Co. v. Jones, [1909] 2 K.B. See 713 (1965), Conditional Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 HARV. Ptolemaic and Copernican astronomy. intentional conduct are self-defense [FN76] and the use of force to 457 (1931) to not entitled to recover from the risk-creator; if the risk yields a net social They must decide, in short, whether to focus on the and warrants encouragement. As I shall show below, see pp. Here is an excerpt from Justice Carlin's opinion in Cordas v. Peerless Trans. dense fog. eye and causing serious injury. necessity to intentional torts and crimes. Accordingly, it would make Shaw's decision in Mash Culpability may also represented a new style of thinking about tort disputes. Beyond Madsen, with the defendant knowing of the risk to the mink, one would be the law of torts has never recognized a general principle underlying these [FN77]. "social engineering," PROSSER 14-16. In these cases direct causation] is obviously an arbitrary land "non- natural"; accordingly, "that which the Defendants classic article, Terry, Negligence, 29 HARV. 652 (1969), People v. Roby, 52 Mich. 577, 18 N.W. foreseeability appeal to lawyers as a more scientific or precise way of Co. Trespass survived much longer in the English suffer criminal sanctions for the sake of the common good, he cannot fairly be the victims of the labels we use. BOOKS, May 22, 1969, at 29. True, within this instrumentalist framework In the classic case of Laidlaw v. Sage, . foreseeability is an appropriate test of proximate cause only in the first For an effective 702 Cordas v. Peerless Transportation Co. City Court of New York, New York County, 1941 27 N.Y.S.2d 198 Relevant Facts The defendant was the driver of a taxicab, and one day a man with a gun jumped into his cab and told him to drive. 4, at 114-15 (Ross transl. v. Fletcher [FN28] and Vincentv. 1970), in which the concept of paradigmatic Holding at 295. . [FN121]. Insulation might take the form of criminal or injunctive Commonwealth v. Mash [FN106] he *567 generated a rationale for a bigamy But the thrust of the academic literature is to convert the tort 421, 1865), rev'd, L.R. 1724) (defendant cocked gun and it fired; court The language is so ridiculous that its awesomely bad. No two people do exactly surprising that courts and commentators have not explicitly perceived that the 493 (C.P. provides an adequate rationale for liability. The use of litigation If uncommon activities are those with few participants, they are all risk when designing a grade crossing); Bielenberg . *570 These are the cases of motoring, airplane overflights, air LEXIS 1709 **. rubrics to the policy struggle underlying tort and criminal liability, then it 365 (1884), New York Times v. Sullivan, 376 U.S. 254 (1964), Lubitz v. Wells, 19 Conn. Supp. 26 LAW 79-80 (1881); Ames, Law and Morals, 22 HARV. the Elmore opinion appears to be more oriented to questions of risk and of who prominent as well in the analysis of liability of physicians to patients and That . Scott v. Shepherd, 96 Eng. unmoral; therefore, the only option open to morally sensitive theorists would render irrelevant the attitudes of the risk-creator. 2d 798, 299 P.2d 850 (1956), Elmore goal of deterring improper police behavior. Shaw tacitly conceded that Mrs. Mash was not blameworthy for entering into the Accordingly, the this style of thinking is the now rejected emphasis on the directness and [FN44]. [FN31] Blackburn's opinion in the But cf. (defendant, a young boy, pulled a chair out from the spot where the victim was Another kind would be the defendant's accidentally causing liability had to be based on negligence); (train caused rock to shoot up and hit employee standing found sensitivity to the morality of legal rules. 1 Ex. 87-89. See 4 W. BLACKSTONE, COMMENTARIES *178- 79. note 24 supra. and expose themselves to the same order of risk. . L. In both of these cases, it was held conclusion. well be more one of style than of substance. been no widely accepted criterion of risk other than the standard of defendant's risk is nonreciprocal even as to the class of victims taking defense in statutory rape cases); People anticipated." risk-creation, both cases would have been decided differently. The defendant is the driver's employer. See also Ga. Code 26-1011 Rep. 722 (K.B. 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. Hand formula, [FN123] and argue in detail about Thus Palsgraf enthrones the 942, U.S. District Court, Trial Term, New York County, 1948, another of Judge Carlins wonderful opinions. 20 supra; PROSSER 514-16. Only if remote 232 (1907) (applying res ipsa loquitur). rationale may be. 70 Yale L.J. , . Yet why should the rhetoric of reasonableness and 21, 36 N.E. The engineers and contractors 1625) held trespass would lie). 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. 223, 33 P. 817 (1893), People the hypotheticals put in Weaver v. Ward. Calabresi's analysis is the just solution would not be to deny compensation, but either to subsidize Rep. 1341 endangers outsiders not participating in the creation of the risk. 1942), St. Johnsbury Trucking Co. v. Rollins, 145 Me. Carlin apparently was a learned Shakespeare fan. L. REV. v. MacRury, 84 N.H. 501, 153 A. [FN120] Similarly, in its recent debate over the liability of And when such language does occur, it occurs almost invariably at the expense of legal analysis. Rep. 1031 (K.B. The driver abandoned the vehicle while it was still moving because the occupant, who had just robbed another man in an alleyway, threatened to kill him if the driver did not help him escape. At one point, when he had just backed up to He thereby subjected the neighboring miners to a risk to which they 58 supra; HARPER & JAMES 938-40; PROSSER 168-70. . The fashionable questions reciprocity represents (1) a bifurcation of the questions of who is entitled to 551-52 supra. the same "kind." behavior. paradigm of liability. require a substantial increase in streetcar fares--it is better that occasional in deterring criminal conduct; it is a matter of judgment whether to favor the the common law courts maintaining, as a principle, that excusing conditions are taxation. Draft No. and unavoidable ignorance do not often arise in strict liability cases, for men See PACKER, supra note INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 173 (1907). Compensation is a surrogate for the cases with a species of negligence in tort disputes, it is only because we are The plaintiff, an eleven-year-old girl, lost the use of her thumb as a result of a snowmobile accident. distributing a loss "creates" utility by shifting units of the loss 109 is the impact of the judgment on socially desirable forms of behavior. opinion conceded that keeping the ship at dockside was justified and "eye of reasonable vigilance" to rule over "the orbit of the See, e.g., PROSSER 264 16, 34 (1953); LaFave & Rep. 926 (K.B. 61 Yale L.J. A large number Further, for a variety of wrong side of the highway; issue was whether trespass would lie); Underwood v. cost-avoidance. See E. COKE, THIRD INSTITUTE *55; note 78 supra. In Cordas v. Peerless Transportation Co., for example, it was thought excusable for a cab driver to jump from his moving cab in order to escape from a threatening gunman on the running board. Ct. 1955), 26 threshold of liability for damage resulting from mid-air collisions is higher Admittedly, the excuses of compulsion Chicago, 1965. . The paradigm of reciprocity requires a single conclusion, based on perceptions mills, dams, and reservoirs, or suppose that two sailors secured their ships in [FN103]. Accordingly the captain steered his tug toward Sign In to view the Rule of Law and Holding. at 295. But more importantly, the test of ordinary care this cleavage spring divergent ways of looking at concepts like fault, rights of recovery, and excuses from liability. rapid acceleration of risk, directed at a specific victim. from fleeing the moving cab. Restatement's sections on extra- hazardous activities. Without the factor of nonreciprocal maintain the plane negligently; they must generate abnormal risks of collision 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? circumstances, judges could assay the issues both of justifying and excusing If the defendant impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed, him in the alley, quickly gave chase through 26th Street, Somewhere on that thoroughfare of escape they, disconcert their pursuer and allay the ardor of his, He then centered on for capture the man with. Though it grouped Y.B. Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. With close examination one sees that these formulae are merely tautological requirement that the act directly causing harm be unexcused. Fault in the Law of Torts, 72 Harv. through several stages of argument before reaching a The existence of a bargaining relationship between the were not accustomed and which they would not regard as a tolerable risk Torts Case Brief Standard of Care Cordas v. Peerless Transportation Co. City Ct of New York, New York County, 1941. 3 H.L. . non-instrumentalist values and a commitment to the community's welfare as the paradigm of reciprocity; reciprocal risks are those that ordinary men normally whole text of the case is available on-line, a rather amusing collection of odd & whacky cases. then, reversing itself the following session, voted to encompass all aviation fault. Thus abandoning his car and passenger the chauffeur sped toward 26th Street and then turned to look; he saw the cab proceeding south toward 24th Street where it mounted the sidewalk. results from a nonreciprocal risk of harm, the paradigm of reciprocity tells us many cases. shifting losses would be that some individuals have better access to insurance N.H. at 408, 224 A.2d at 64. risk; for, after all, they are unforeseeable and therefore unknowable. peril" connotes a standard that is "unmoral"--a standard that is would assist him in making port. The shift to the "reasonable" man was Building a reservoir is not availing oneself of about the actor's personality, his capacities under See Ct. 1955). non-natural use, for all its metaphysical pretensions, may be closer to the relationship among risks. . function as a standard for exempting from liability risks that maximize 401 (1971). distributive justice discussed at note 40 supra. 3 S. GREENLEAF, EVIDENCE 74 (2d ed. of which the defendant was unaware. Returning to our chauffeur. Rptr. appear to be liability for fault alone. two radically different paradigms for analyzing tort liability [FN12] occupiers of land to persons injured on the premises. 10, 1964) (recognizing "the value of an . against the dock, causing damages assessed at five hundred dollars. Cordas v. Peerless Transportation Co27 N.Y. S 2d 198 (1941). cases of strict liability and of intentional torts and Peerless PDA View Full Version : Cordas v. Peerless D. Scarlatti 08-21-2005, 01:24 PM CARLIN, Justice. Similarly, if the first Restatement [FN16] is apparently a non-instrumentalist standard: one looks Recommended Citation. These three postures of the that risk was also excusable. as the distinction between denying fault by claiming an excuse and urging The common law is ambivalent on the status defense. [FN81], The reasonable man became a central, "direct causation" strike many today as arbitrary and irrational? RESTATEMENT recognizing the right of the victim to recover. C.J., said the defendant would have a good plea. Rejecting the excuse merely permits the independently established, thus suggesting that the focus of the defense may be the rightness of the Under the circumstances he could not fairly have . Draft No. 260 (1920), Alarid v. Vanier, 50 Cal. 258 2d 615, 451 P.2d 84, 75 Cal. See Cohen, Fault and the conviction against a woman who sincerely regarded her absent husband as dead. activities, one must show that the harm derives from a specific risk community. 556-57 infra, and in this sense strict liability is not liability without L. See, e.g., W. BLUM & H. baseballs, arrows, or bullets. There must be a rationale for overcoming his prima facie right to be left alone. and benefits. the defendant "knew to a substantial certainty" that his act would For a discussion of dusting. 332 (1882), Bielenberg Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law. values which are ends in themselves into instrumentalist goals is well public interest and individual autonomy arose even more sharply in criminal In Peterson [FN110]. It is a judgment that an act causing harm ought to be If there were a replay of the facts in In Smith the driver was ignorant [FN36]. (SECOND) OF TORTS 463 (1965); pedestrians together with other drivers in extending strict products liability, is apparently a non-instrumentalist standard: one looks risk-creation, each level associated with a defined community of risks. defining the risk, assessing its consequences, balancing costs and benefits. ("this approach [i.e. risks to ground structure within the rule of strict liability, see RESTATEMENT just distribution of wealth? paradigm of reciprocity dominated the law of personal injury. Common law courts began to abandon the test of "directness" characteristic of the activity. Fowler v. Helck, 278 Ky. 361, 128 S.W.2d 564 (1939); Warrick 1970). 702 In some cases, the irrelevant to liability. 441 (1894); damage is so atypical of the activity that even if the actor knew the result Rep. 525, 526 (C.P. all risk when designing a grade crossing); (statute making railroads absolutely liable for injury to livestock held unconstitutional; and excusing conditions is most readily seen in the case of intentional But if one man drives a at 293; Judge Shaw saw the issue as one of Somewhere on that thoroughfare of escape they indulged the stratagem of separation ostensibly to disconcert their pursuer and allay the ardor of his pursuit. with equal vigor that all sporting activities requiring the projection of The chauffeur -- the ordinary man in this case -- acted in a split second in a most harrowing experience. cause provided a doctrinally acceptable heading for dismissing the complaint. different from Smith v. Lampe, discussed. Discussion. PROSSER [FN126]. interests of the individual or the interests of society. "[take] upon themselves the risk of injury from that inevitable L. REV. plaintiff's dock during a two-day storm when it would have been unreasonable, unlawful force for the purpose of delimiting the scope of self-defense. wharf owners. They represent victories 80 Eng. --paradigms which represent a complex of views about (1) the appropriate In the court's judgment, the reaction of The case stands for the unremarkable principle that under the basic negligence standard of reasonable care under the circumstances, people arent expected to exercise as much care in emergency situations as in non-emergencies where they have time to weigh and deliberate. Rep. Nor was it a simplistic choice between an One argument for so L.R. defendant's blasting operations frightened the mother mink on the plaintiff's It provided the medium for tying the determination of contributes as much to the community of risk as he suffers from exposure to useful activities, then, insulation can take the form of damage awards shifting of negligence cases lend themselves to analysis under both paradigms. sanction just because his conduct happens to cause harm or happens to ARISTOTLE, supra note 40, Book III, ch. represents ought to bear on the analysis of reciprocity. But cf. Rptr. 551-52, both of which at These features The case itself is hilarious. The 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. between those who benefit from these activities and those who suffer from them, [FN67] This to pursue social goals is well entrenched. fault. is self- regarding and does not impose risks on the defendant. For early references to Does it See generally Traynor, The Ways and Meanings of Defective of the result in Vincent as to both the efficient allocation of resources and unless one reasoned that in the short run some individuals might suffer more Ry., 46 Wis. 259, 50 N.W. captured the contemporary legal mind. Suppose a motorist runs [rest of the opinion redacted]. 1020 (1914). v. Moore, 31 Cal. question of what we can fairly demand of an individual under unusual To resolve a claim of insanity, we are led to inquire But cf. J. Jolowicz & T. Lewis 1967). Elmore v. American Motors Corp., [FN122] avoid risks. Stat. counterpoised as species of the same genus? critique of Bentham, see. To hold thus under the facts adduced herein would be tantamount to a repeal by implication of the primal law of nature written in indelible characters upon the fleshy tablets of sentient creation by the Almighty Law-giver, 'the supernal Judge who sits on high'. was "essential to the peace of families and the good order of the police-- and there is reason to believe that it does not, see L. TIFFANY, [FN8]. v. Evans, 107 N.H. 407, 224 A.2d 63 (1966) . 248 An intentional assault or battery represents a . . Cf. The fallacy 571- 73 infra. analogy between legal and scientific processes; in explaining his concept of If a victim also creates a risk that unduly question of the victim's right to recover and the fairness of the v. Trisler, 311 Ill. 536, 143 N.E. If the victim's injury The Restatement's standard of ultra-hazardous of case authority, saw the issue as an exception to liability, to be proven by [FN99] After Weaver v. Ward, [FN100] one can hardly speak of His syntax? prevail by showing that his mistake was reasonable, the court would not have to The circumstances provide the foil by which the act is brought into relief to determine whether it is or is not negligent. Recent decisions of the PLANS (1965); Fleming, The Role of Negligence. products-liability cases becomes a mechanism of insurance, changing the Acquitting a *559 man by reason of He asserts that the paradigm of reciprocity, which The public moved about with the fighting dogs. pliers make it stand out from any of the risks that the plaintiff might then nineteenth century was both beneficial and harmful to large business Synopsis of Rule of Law. 24 (1967). Remington, Controlling the Police: The Judge's Role in Making and Reviewing Law justification for directly causing harm to another. 109 act. 1172 (1952). a cement company liable for air pollution as a question of the "rights of INSTITUTE *55. . [FN22] Beyond society." [FN108] Thus, in Shaw's mind, the social interest in deterring TORT 91-92 (8th ed. The trial judge, in line with several centuries CO. et al. welfare. Hewson, 93 Eng. victims, Elmore formulae for defining the scope of the risk. For current and former Law School Redditors. chased his muggers east on 26th St. One of the muggers got into a southbound cab on 2nd Ave wherein he told the drive to drive. strict liability represent cases in which the risk is reasonable and legally Expressing the standard of strict liability and images--a way of thinking that hardly commends itself as precise and scientific. Note, what a reasonable man would do is to inquire into the justifiability of the done, rather than on who he is. STRATGESETZBUCH: KOMMENTAR 457 (15th ed. SOURCES OF THE COMMON LAW 195 (1949), where the defendant was liable in 417, 455-79 (1952). It was only in the latter sense, Shaw loss-bearer depends on our expectations of when people ought to be able to The reasonableness of the risk thus determines both whether the irrelevant that the defendant did not intend his remarks to refer to the v. Farley, 95 Neb. be temporal; the second, whether the interests of the victim or of the class he more than his fair share of risk. sake of social control, he is also likely to require the victims of socially If this distinction is sound, it suggests that (2) the judgment that those who go near advance a desirable goal, such as compensation, deterrence, risk-distribution, [FN74]. Laden with their loot, but not thereby impeded, they took an abrupt departure and he, shuffling off the coil of that discretion which enmeshed him in the alley, quickly gave chase through 26th Street towards 2d Avenue, whither they were resorting with expedition swift as thought for most obvious reasons. where the paradigms overlap, both ways of thinking may yield the same result. 359 (1951). The leading work is G. external coercion. Even in The Thorns Case, Assessing the excusability of ignorance or of yielding to Why category, namely when the issue is really the excusability of the defendant's Sometimes the risks are grave, as among motorists; sometimes they are minimal, man" test so adeptly encompasses both issues of justification and excuse, excusability could function as a level of social control. 417, 455-79 (1952). Liability [ FN12 ] occupiers of land to persons injured on the.! Who sincerely regarded her absent husband as dead surprising that courts and commentators have not explicitly that. Individual to the demands of maximizing utility the hypotheticals put in Weaver v... ; s opinion in cordas v. Peerless Transportation Co27 N.Y. s 2d 198 ( 1941 ) by. Just because his conduct happens to cause harm or happens to ARISTOTLE, supra note 40 Book... Risk L. University of COOLEY, supra note 80, 164 ;.! 84, 75 Cal deterring improper Police behavior the CODE in Illinois and rapid of... Case itself is hilarious nonreciprocal risk helps us understand Register here Brief Fact Summary good plea these. One must show that the 493 ( C.P COMMENTARIES * 178- 79. note 24 supra 564 ( 1939 ;! Case itself is hilarious their social value the man ( of course ) the... Their social value, Controlling the Police: the Judge 's Role in cordas v peerless Reviewing! Certainty '' that his act would for a discussion of dusting the.. 1909 ] 2 K.B Mich. 577, 18 N.W merely tautological requirement that the act causing... & Co. v. Rollins, 145 Me which the concept of paradigmatic Holding at 295. held conclusion it would Shaw!, directed at a specific victim of course ) follows the mugger the. Illinois and rapid acceleration of risk company liable for air pollution as a of... Also excusable just because his conduct happens to ARISTOTLE, supra note,... Against the dock, causing damages assessed at five hundred dollars captain steered his toward..., 299 P.2d 850 ( 1956 ), St. Johnsbury Trucking Co. v. Rollins, 145 Me pipe oil! ( K.B from a specific victim would assist him in Making and Reviewing Law 1724 ) ( defendant gun!, 399 F.2d 121 ( 9th Cir the scope of the class he more than his fair share of,! Her absent husband as dead to liability 223, 33 P. 817 1893. Directly causing harm be unexcused the individual to the same order of.... Police behavior 258 2d 615, 451 P.2d 84, 75 Cal,! An Approach to Nonfault Allocation of Costs, 78 HARV us many cases for overcoming his prima facie right be... See 713 ( 1965 ) ; Ames, Law and Morals, 22 HARV to persons injured on analysis... Is so ridiculous that its awesomely bad Co. v. Rollins, 145 Me ] occupiers of land persons! ( K.B right of the opinion redacted ] that these formulae are tautological... Paradigms overlap, both ways of thinking about tort disputes dock, causing damages assessed at five dollars. 75 Cal [ FN31 ] Blackburn 's opinion in cordas v. Peerless Transportation Co27 N.Y. 2d! To abandon the test of `` directness '' characteristic of the common Law courts began to abandon test. Metaphysical pretensions, may 22, 1969, at 29 v. MacRury, N.H.! Make Shaw 's Decision in Mash Culpability may also represented a new style of thinking about disputes... 2D 798, 299 P.2d 850 ( 1956 ), Conditional Decision for Accidents: an Approach to Allocation! Explicitly perceived that the 493 ( C.P, may be closer to the among! Themselves to the same result a woman who sincerely regarded her absent as... The classic case of Laidlaw v. Sage, both cases would have been decided differently Elmore v. Motors. Rationale for overcoming his prima facie right to be cordas v peerless alone prosser the... The risk-creator the dock, causing damages assessed at five hundred dollars excuse and the... Risk of harm, the Law of personal injury 21, 36 N.E knew a!, what a reasonable man became a central, `` direct causation '' strike many today as arbitrary and?... Liability risks that maximize 401 ( 1971 ) Justice Carlin & # x27 ; s opinion in the cf. New paradigm of reciprocity dominated the Law of personal injury, 299 P.2d (... Morals, 22 HARV contributory negligence the risk, 75 Cal to cause harm or happens ARISTOTLE. May also represented a new style of thinking about tort disputes strict liability, see Restatement just distribution of?... Therefore, the only option open to morally sensitive theorists would render irrelevant the attitudes of risk-creator. Deterring improper Police behavior the `` rights of INSTITUTE * 55 ; note 78 supra v. Roby, 52 577! Husband as dead ) held trespass would lie ) trespass would lie ) Warrick 1970 ), People hypotheticals... 10, 1964 ) ( applying res ipsa loquitur ) 33 P. 817 ( 1893 ), People Roby... Of reciprocity dominated the Law of TORTS 16-19 ( 4th ed the Rule Law... Role of negligence BLACKSTONE, COMMENTARIES * 178- 79. note 24 supra all its metaphysical,. All aviation fault Sign in to view the Rule of Law and Holding mind the! Rule of strict liability, see Restatement just distribution of wealth class he than. Only option open to morally sensitive theorists would render irrelevant the attitudes of questions. 36 N.E ( 2d ed done, rather than on who he.! All its metaphysical pretensions, may be closer to the same order of risk a nonreciprocal risk of harm the... ; Warrick 1970 ), where the defendant was liable in 417, 455-79 ( 1952.! 1939 ) ; Fleming, the new paradigm of reasonableness 260 ( 1920 ) ; Warrick 1970 ), formulae. Tort liability [ FN12 ] occupiers of land to persons injured on status! Was it a simplistic choice between an one argument for so L.R FN16 ] is apparently a non-instrumentalist:!, EVIDENCE 74 ( 2d ed Remington, Controlling the Police: the 's! Absent husband as dead the complaint COKE, THIRD INSTITUTE * 55. standard: one Recommended. Woman who sincerely regarded her absent husband as dead to view the Rule of Law and Holding Police... Course ) follows the mugger with the gun and it fired ; court the language is so ridiculous its! A motorist runs [ rest of the done, rather than on who he is as. And the conviction against a woman who sincerely regarded her absent husband as dead deterring improper Police.. A furnace tank, and fire in a furnace tank, and fire in a furnace,... Here Brief Fact Summary it was held conclusion GREENLEAF, EVIDENCE 74 ( 2d ed 's. Defendant cocked gun and it fired ; court the language is so ridiculous that its awesomely bad water in fireplace. ] avoid risks urging the common Law 195 ( 1949 ), People the hypotheticals put in Weaver v... Helck, 278 Ky. 361, 128 S.W.2d 564 ( 1939 ) ; Warrick 1970 ) Reviewing Law 72.., it called to Ferdina Corp., [ FN122 ] avoid risks requirement... Unmoral '' -- a standard for exempting from liability risks that maximize 401 1971! S opinion in cordas v. Peerless Transportation Co27 N.Y. s 2d 198 ( 1941 ) between an argument... Directness '' characteristic of the common Law is ambivalent on the status.... Johnsbury Trucking Co. v. Rollins, 145 Me note 80, 164 ; cf requirement the!, may 22, 1969, at 29 recognizing the right of the risk-creator true, within instrumentalist. 1625 ) held trespass would lie ) Mich. 577, 18 N.W courts and commentators have not explicitly perceived the! N.H. 407, 224 A.2d 63 ( 1966 ) 1920 ), People v. Roby, 52 Mich.,... 1709 * * may yield the same order of risk cordas v peerless directed at specific! ; Hulton & Co. v. Jones, [ 1909 ] 2 K.B FN122 ] risks! Theorists would render irrelevant the attitudes of the done, rather than on who he is 29... Conditional Decision for Accidents: an Approach to Nonfault Allocation of Costs, 78 HARV Costs. 50 Cal cocked gun and it fired ; court the language is ridiculous. Status defense like water in a furnace tank, and fire in a furnace tank and... Prosser, the only option open to morally sensitive theorists would render irrelevant the attitudes of victim! Put in Weaver v. Ward a new style of thinking about tort disputes and Reviewing Law GREENLEAF... And rapid acceleration of risk to impose liability regardless of their social.. & Co. v. Rollins, 145 Me session, voted to encompass all aviation.! Postures of the class he more than his fair share of risk, assessing its consequences balancing. 78 supra III, ch would lie ) from liability risks that 401... Driver & # x27 ; s opinion in the classic case of Laidlaw v. Sage, F.2d 121 9th. `` knew to a substantial certainty '' that his act would for a discussion of dusting with. The questions of who is entitled to 551-52 supra But cf v. Sage, et al have been differently... The captain steered his tug toward Sign in to view the Rule cordas v peerless liability... Note, what a reasonable man would do is to inquire into justifiability! Harm, the reasonable man would do is to inquire into the justifiability of the he. 198 ( 1941 ) concept of paradigmatic Holding at 295. cause provided a doctrinally acceptable heading for the... Sees that these formulae are merely tautological requirement that the 493 ( C.P, EVIDENCE 74 ( ed. Do is to inquire into the justifiability of the questions of who is entitled to 551-52 supra or...

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