Alternative Rules for Determining Tort Liability
Coke's Institutes of the Law, No. 2, Series Editors: Amanda J. Owens & Charles K. Rowley
Negligence
Over the centuries the common law courts developed doctrines to assist in the determination of civil liability when accidents occurred. These doctrines became the core of what is now tort law. The foundational principle was that of negligence.
The United States negligence case law is based on English precedents, such as Vaughan v. Menlove, (1837). In this case, the plaintiff rented two cottages that adjoined the defendant's land. The defendant built a haystack on his land extremely close to the cottages. The plaintiff gave repeated warnings about the dangerous state of the haystack, and eventually the haystack ignited and set the two cottages on fire. The defendant was liable for the damage because he had failed to exercise the same degree of care as a man of ordinary prudence. This case illustrates one of the foundational principles of negligence law. An actor is expected to behave as a reasonable person exercising ordinary prudence. This subjective principle has been strong enough to govern court decisions for centuries, yet flexible enough to ensure that justice is dispensed fairly.
The New Hampshire case of Brown v. Collins, (1873) clearly demonstrates the ordinary prudence, or due care principle. The defendant's horses were frightened by a locomotive and trespassed onto the plaintiff's land causing property damage. There was no evidence to show that the defendant had acted without due care, and so the court the defendant was not liable. In Illinois, City of Lanark v. Dougherty, (1894), the state Supreme Court discussed the city of Lanark's liability for an injury sustained by a pedestrian who stepped into a hole on the sidewalk. The hole was two months old, and the decision turned on whether the city authorities were negligent. The law of negligence applied only if the city officials knew of the defect, or should have known of the defect if they had used due diligence. The court made the judgement that a reasonable city authority would make regular inspections of its pathways. Therefore, even if the authority did not have actual knowledge of the state of the highway, it was deemed to have known of the poor state of repair and was responsible for the accident.
Before a defendant is held liable for damages under the negligence rule, there must be a connection between the act of negligence and the injury incurred. Louisville Railway Co. v. Sweeney, (1914) was a Kentucky case concerning a streetcar which struck a curve going down hill, became derailed and struck a telephone pole. The telephone pole hit a gate that then fell on the plaintiff. The streetcar was going too fast, and the curve on the track was in the process of being repaired. The negligent operation of the car was the proximate cause of the plaintiff's injury because the force of the streetcar set the actions in motion that resulted in an injury. The fact that it was a gate and not the train that hit the plaintiff was irrelevant. Generally, the chain of causation between a negligent act and an injury can be broken only by an act of God or by a separate intervening circumstance.
The duty of a defendant to act with ordinary care and skill needs further explanation. It is an affirmative obligation to perform those acts that can be reasonably anticipated to be necessary. For example, in Maye v. Yappen, (1863), two mining claims were being worked next to each other. One team of miners accidentally crossed onto the adjoining property, found gold in the seams and mined it. The owners of the land recovered damages from the defendants because their property had been taken. The defendants were not allowed to use their lack of intent to take another's property as a defense. A reasonable set of miners would have a survey performed to ensure that they were mining their own property.
In the English case of Bolton v. Stone,a person standing in a street of residential houses was hit by a cricket ball which soared over the fence of an adjoining cricket field. The cricket club was not liable in damages for the injuries sustained because a reasonable man could not have anticipated, and therefore prevented, this type of injury. Lord Reid added that although a much higher fence could have prevented the injury, men are not bound to act on the bare possibility of an injury, but must take into account the circumstances and degree of danger.
Cooley v. Public Service, Co., (1940) is a similar case where a New Hampshire telephone company hung well-insulated wires, grounded according to industry practices, from telephone poles. The Public Service Company had an uninsulated wire eight to ten feet above the telephone company's wire. During a storm, the uninsulated wire fell onto the telephone wire. The telephone wire switched off, but not before the plaintiff experienced a loud noise from her telephone receiver that resulted in loss of sensation on the left side and traumatic neurosis. The issue was whether the telephone company should have taken safety measures to protect the plaintiff. The court decided that the duty to take precautions rests on the rule of reasonable anticipation, i.e. that the more foreseeable event is the controlling event. The telephone company anticipated a live wire falling onto the telephone cable, and so installed safety measures to ground the wire. However, the company could not reasonably anticipate the personal injuries sustained by the plaintiff. The evidence showed that these injuries were extremely rare, almost unique to the plaintiff, and so the defendant was not liable.
The cases described above were decided on clear, logical lines. However, with some cases the decisions are made on less easily understood rationales. An example of this phenomenon is the English case of Paris v. Stepney Borough Council, [1951], which concerned a metal worker who only had one good eye. A metal chip flew up into the functioning eye, and the workman was blinded. In this case the employers were found negligent for failing to provide the workman with protective goggles, entitling him to damages. The majority decided that when an employer is taking protective measures for an employee, all circumstances relevant to that employee must be taken into consideration. Even though the custom was not to use goggles for that type of work, a reasonably prudent person would provide goggles to a one-eyed person because of the devastating risk associated with flying gravel. The dissenting Lords were concerned as to the fairness of the majority decision that held that an one-eyed man deserved more protection than a two-eyed man. Additionally, this decision placed a considerable burden on employers to discover and protect persons with unusual disabilities.
The subjectiveness of the reasonable person standard is further illustrated in cases dealing with persons with protected interests.
Minor children generally are not held to the same standard of care as an adult. Children are expected to exercise the care of an average child of his or her age, experience and stage of mental development. However, when engaging in adult-type activities, the standard of care by which children are judged can be adjusted. Daniels v. Evans, (1966) concerned a New Hampshire boy who was killed in a car accident involving a minor driver. The court held that to apply to minors a more lenient standard of motor vehicular care than adults was unrealistic, contrary to expressed legislative policy and inimical to public safety. A minor driver was held to the same standards as a reasonable adult.
For similar public policy reasons, not all types of insanity are exempt from responsibility for tortious acts. Breunig v. American Family, Inc., (1970) a Wisconsin case, concerned a car accident caused by a driver who was afflicted by a mental aberration which rendered her suddenly incapable of controlling her car with her conscious mind. The issue was whether the defendant was negligent given that she had no knowledge or forewarning to prompt her reasonably to foresee that a mental delusion was imminent which would result in loss of control of the car. The court reasoned that not all types of insanity vitiate responsibility for a negligent tort. The important considerations were firstly determining the afflicted party's ability to understand and appreciate the duty to drive a car with ordinary care and secondly whether the driver had any warning that an affliction was about to take place. In this case, the court held that it was unjust to hold the defendant responsible for her conduct when she was incapable of avoiding the accident, and had no knowledge of the aberration before it clouded her mind.
Fletcher v. City of Aberdeen, (1959), a Washington state case, concerned a physical infirmity. In this case, the City dug a ditch in a parking strip adjacent to the sidewalk and erected safety barriers. An employee failed to replace these barriers after performing some work. The plaintiff, a blind man, fell into the excavation. If the barriers had been in place, the blind man would have detected them with his cane and would not have fallen into the hole. The court found that there were two correlative obligations in this case. First, a person under a physical disability is obliged to use the care that a reasonable person under the same or similar disability would exercise under the same circumstances. Second, the city is obliged to provide warnings to protect an infirm person from danger. The city is under this obligation, and in this case was liable, because it knows that those with physical infirmities will use the streets as well as the able-bodied.
These cases illustrate both the strengths and the weaknesses of the negligence tort doctrine. The case law has evolved to encourage efficient conduct by individuals and corporations. In many circumstances the level of behavior required by the actors to avoid liability for accidents is easy to predict. This standard creates certainty and positively affects behaviors. However, the inherent subjectiveness of the reasonable person test can undermine the stability of the negligence doctrine for more complicated cases. For example, both the majority and the dissent make coherent arguments in Paris v. Stepney Borough Council. Courts frequently refer to the custom of the trade to determine reasonable behavior. In this case, a higher standard was imposed than that of custom, mainly because of the serious impact of the accident. Decisions such as this deprive the negligence doctrine of its essential predictive quality.
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