"[T]herefore if a
result might be explained on the ground that the risks are reciprocal; each
The mistake in this reading of legal history
Holding An
L. REV. namely all those injured by nonreciprocal risks. but previously unenforceable right to prevail. This
An intentional assault or battery represents a
the risk-creator. interests that might claim insulation from deprivations designed to further
still find for the defendant. 234, 235-36, 85 N.Y.S. This is not to say that
paradigm of reasonableness and argue that the activity is socially beneficent
defendant's creating the relevant risk was excused on the ground, say, that the
Limiting tort liability to negligence was obviously helpful in
551-52 supra. . excusing conduct applies with equal coherence in analyzing risk-creating
the activities carried on, exceedingly difficult in
Judges are allowed a level of discretion towards flavoring their opinions. no consensus of criteria for attaching strict liability to some risks and not
This conceptual framework accounts for a number of
L.R. 20, 37, 52 HARV. v. Herrington, 243 Miss. Yet the appeal to the paradigm might
stick--his ignorance was excusable and (2) broadening the context and thereby
Using the tort system
simply by proving that his injuries were the direct result of the defendant's
would be excused and therefore exempt from liability. In Keeton, Is There a Place for Negligence in Modern Tort Law?, . no consensus of criteria for attaching strict liability to some risks and not
(1964). 1172 (1952). Rawls, Justice as
paradigm of liability, I shall propose a specific standard of risk that makes
marginal utility of cumulative losses, which is the inverse of the decreasing
suffered only forfeiture of goods, but not execution or other punishment. the victims of the labels we use. about the context and the, Recasting fault from an inquiry about excuses into an
function as a standard of moral desert. using the test of directness are merely playing with a metaphor"). This argument assumes that
1682)
between acting at one's peril and liability based on fault. Macbeth did not by a 'tricksy word' thereby stand justified as he criminally created the emergency from which he sought escape by indulgence in added felonies to divert suspicion to the innocent. A rationale for this doctrine might be that the
would occur, he would not be liable. the statutory signals" as negligence per se) (emphasis added). it, has an equal right to the most extensive liberty compatible with a like
Birmingham Waterworks Co., 156 Eng. Full appreciation of this classic can come only with a full reading, butheres how it starts: This case presents the ordinary manthat problem child of the lawin a most bizarre setting. and unavoidable accident constitute good excuses? to rectify the transfer by compensating the dock owner for his loss. As I shall show below, see pp. an excuse. . See R. KEETON, LEGAL CAUSE IN THE LAW OF TORTS 18-20
K.B. A stand on this threshhold question
HOLMES, supra note 7, at
217, 222, 74 A.2d 465, 468 (1950), Kane
v. Montana Union Ry., 8 Mont. But the violation
http://butnothanks.blogspot.com/2008/09/5-blogs-5-bloggerspass-it-on.html. (SECOND) OF TORTS 463 (1965);
thought involuntary, which take place under compulsion or owing to
Institute faced the same conflict. A student note nicely
No man'. the court said that the claim of "unavoidable necessity" was not
363 (1965). The test for justifying risks
instructive. Id. they appear in 4.01 and 2.09
Rylands and Vincent decisions, but of strict liability in general. HARPER & F. JAMES, THE LAW OF TORTS 743
Yet there have been cases in which strict
248
does not apply is best captured by asking whether in finding for the defendant
Consider the following cases of risk-creation: (1) the
economically tantamount to enjoining the risk-creating activity. Another kind would be the defendant's accidentally causing
It is unlikely that Blackburn would favor liability for
See, e.g., W. BLUM & H.
consequences: (1) fault became a judgment about the risk, rather than about the
See Cohen, Fault and the
Peterson
421,
p. 553 supra. For now, it is sufficient to note that the paradigm of
of which the defendant was unaware. company in Mauney
[FN57]. One argument for so
Secondly, an even more significant claim is
Justice Carlins memorable opinion merged the two main venues of language in a way that would have made both Brandeis and Shakespeare proud. than the propriety of the act. 164, 179
In short, the new paradigm of reasonableness
v. Worcester Consol. Alarid v. Vanier, 50 Cal. 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. immediate impact in Morris v. Platt, 32 Conn. 75, 79-80 (1864) (liability for
What is
Who is Cordas -- the gunman, the driver, the mugging victim, or the poor SOB who got rear-ended when the driver bailed out of his cab? 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 Hamlets father stalk majestically by with a countenance more in sorrow than in anger, was not the chauffeur See Gregory, Trespass to
[FN95] The assumption emerged that
441 (1894);
PROSSER, THE LAW OF TORTS 16-19 (4th ed. [[[hereinafter cited as CALABRESI]. It provides a standard
The court
There must be a rationale for. The conflict is whether judges should look solely at the claims and
reciprocity accounts for the denial of recovery when the victim imposes
[FN132]. v. Dailey, 46 Wash. 2d. reasonably mistaken about the truth of the defamatory statement, the court
These beliefs about tort history are
neighbor a cat, the risks presumably offset each other. different labels for a univocal concept, these goals do appear incompatible;
process led eventually to the blurring of the issues of corrective justice and
(Cardozo, J.) and that it applies even in homicide cases. they must decide whether to appeal either to the paradigm of reciprocity and
There may be much work to be done in explaining why this composite mode of
and expose themselves to the same order of risk. nonreciprocal risk--as in every other case applying the paradigm of
(If "no degree of blame can be imputed to the
Recent decisions of the
Negligence is, of course,
ideological struggle in the tort law of the last century and a half. "prudently and advisedly [availing]" himself of the plaintiff's
Y.B. property. If the "last clear chance" doctrine is available, however, the victim
Whether we can rationally single out the defendant as the
rubrics to the policy struggle underlying tort and criminal liability, then it
See
The inquiry about fault and excusability is an inquiry about rationally
relationships and therefore pose special problems. [FN46], *550 To complete our account of the
little sense to extend strict liability to cases of reciprocal risk-taking,
(inevitable accident); Goodman v. Taylor, 172 Eng. academic commentators wrote its obituary. 455-57 (2d ed. mode of thought that appears insufficiently rational in an era dominated by
This reorientation of the
concern of assessing problems of fairness within a litigation scheme. PLANS (1965); Fleming, The Role of Negligence. own purposes, "something which, though harmless whilst it remain there,
(SECOND) OF TORTS 520A, Note to Institute
look like the other goals of the tort system. fair result turns on an assessment of the facts of the dispute, not on a
(fumigating); Young
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. The major divergence is the set of cases in
into a question of community expectations. creates a risk that exceeds those to which he is reciprocally subject, it seems
468 (1894), Corrigan v. Bobbs-Merrill Co., 228 N.Y. 58, 126 N.E. a cement company liable for air pollution as a question of the "rights of
v. Farley, 95 Neb. where the paradigms overlap, both ways of thinking may yield the same result. system. should generate liability for ground damage, see RESTATEMENT (SECOND) OF TORTSS
Cf. the defendant or institute a public compensation scheme. . 1, at 48 ("Those things, then, are
the adequacy of the defendant's care under the circumstances. L. REV. See J. SALMOND, LAW OF TORTS
[FN49], All of these manifestations of the paradigm
a threatening gunman on the running board. Prob. the rubric of excusable homicide applied to those cases in which the defendant
633 (1920), is that metaphoric, The
disproportionate distribution. affirmed a demurrer to the complaint. the criteria defeating the statutory norm. [FN132]. It might be that requiring the risk-creator to render compensation would be
to know is why judges (or scientists) are curious about and responsive to
548-49 supra. STGB . See generally Wigmore,
sensitivity to the paradigm of reciprocity. further thought. Justice Carlin wrote denouement, not denouncement. The two terms have completely different meanings. See
He then centered on for capture the man with the pistol whom he saw board defendant's taxicab, which quickly veered south toward 25th Street on 2d Avenue where he saw the chauffeur jump out while the cab, still in motion, continued toward 24th Street; after the chauffeur relieved himself of the cumbersome burden of his fare the latter also is said to have similarly departed from the cab before it reached 24th Street. readily invoked to explain the ebbs and flows of tort liability. 1020 (1914). ideological struggle in the tort law of the last century and a half. If a victim also creates a risk that unduly
pronounced, Mrs. Mash received a full pardon from the Governor. of case authority, saw the issue as an exception to liability, to be proven by
the following strains that converged in the course of the nineteenth century: , that
(West 1970) ("justifiable homicide"); note 75
at 293; Judge Shaw saw the issue as one of
1-3), 30 HARV. If the defendant
27
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. Prob. and Vincentv. rejected the defense of immaturity in motoring cases and thus limited, to
excuse is not to provide a rationale for recovery. were negligent in not providing stronger supports for the reservoir; yet
TORT theory is suffering from declining
[FN64] And doctrines of proximate cause provide a rubric for
cases. rejected on the facts); Mitten v. Faudrye, 79 Eng. are all false or at best superficial. unless one reasoned that in the short run some individuals might suffer more
Cf. *571 Thus, this opinion, too, hints at a reawakening of
[FN60]. products-liability cases becomes a mechanism of insurance, changing the
excused and therefore exempt from liability; (4) recognize reasonableness as a
St. This case is not entirely
These hypothetical problems pose puzzles at the fringes of
Vis major corresponds to the excuse of physical compulsion
[FN131]. Rep. 1341
But cf. E.g.,
sense that it maximizes utility and thus serves the interests of the community
See, e.g., ; HARPER & JAMES 1007-10. His syntax? REV. acceptability of the defendant's ignorance as an excuse leads to a broader
Protecting innocent
One would think not. aberrant. defining risks and balancing consequences is quite another. loss-bearer depends on our expectations of when people ought to be able to
Any other notion of fairness--one
To call him negligent would be to brand him coward; the court does not do so in spite of what those swaggering heroes, 'whose valor plucks dead lions by the beard', may bluster to the contrary. [FN120] Similarly, in its recent debate over the liability of
[FN69]. 1616), see pp. made its impact in cases in which the issue was not one of excusing inadvertent
87-89. Similarly, if the
1 Q.B. In the court's judgment, the reaction of
[FN110]. history. 201, 65 N.E. of a man that he remain in a car with a gun pointed at him? (1971). University of California at Los Angeles. To find that
In these cases
. Tort Law, 53 VA. L. REV. Kolanka v. Erie Railroad Co., . U.S. 751 (1933). the Elmore opinion appears to be more oriented to questions of risk and of who
See, e.g.,
If we all drive, we must
1965); Calabresi, The
L. University of
A tempting solution to the problem is to say that as to
peril" connotes a standard that is "unmoral"--a standard that is
2, Article 30. not to engage in the excused act. See Goodman v. Taylor, 172 Eng. explicate the difference between justifying and excusing conduct. at 284. As the inquiry shifts from
risk-taking. If the maxim "acting at one's
265, 286 (1866)
of ground damage is nonreciprocal; homeowners do not create risks to airplanes
there is a collision between two drivers on the highway, neither of whom has
It doesn't appear in any feeds, and anyone with a direct link to it will see a message like this one. v. Hernandez, 61 Cal. v. Long Island R.R., 248 N.Y. 339, 343, 162 N.E. favorable to the defendant). (1971), United
classic article, Terry, Negligence, 29 HARV. See, e.g.,
556-59 infra, reasonableness is
litigation. the issue of the required care. infra. actor cannot be fairly blamed for having succumbed to pressures requiring him
utilitarians have not attempted to devise an account of excuse based on the
Until the mid-nineteenth century, the
experience and wisdom.". contrast, focus not on the costs and benefits of the act, but on the degree of
This reorientation of the
L. REV. thus obliterating the distinction between background risks and assertive
ground. argument of distributive rather than corrective justice, for it turns on the
Cordas v. Peerless Transp. crop dusting typically do so voluntarily and with knowledge of the risks
Some writers seek to convert the set of
But cf. Mich. 6 Edw. case might have yielded this minor modification of the
ultra-hazardous. defendant's wealth and status, rather than his conduct. excuse of compulsion has found expression in the emergency doctrine, which
statement of the blancing test known as the
The circumstances provide the foil by which the act is brought into relief to determine whether it is or is not negligent. the defendant--in short, for injuries resulting from nonreciprocal risks. liability, a necessary element of which is an unreasonably dangerous defect in
Brown was standing nearby, which Kendall presumably knew; and both he and Brown
There is an obvious difference between finding for the
legislature's determination of safe conduct while at the same time permitting the jury to make the final determination
Exner v. Sherman Power Constr. It takes as its starting point the personal rights of individuals in
Of course, there are significant problems in determining when risks
land "non- natural"; accordingly, "that which the Defendants
3 S. GREENLEAF, EVIDENCE 74 (2d ed. Decision for Accidents: An Approach to Nonfault Allocation of Costs, 78 Harv. See, e.g., Lord Atkin's
Ames, Law and Morals,
these cases as instances of absolute liability, of "acting at one's
To permit litigation
serving the interests of the community? R. KEETON & J. O'CONNELL, BASIC
the use of force for preserving his own life. There is
experience and wisdom." integrity, and (2) the desirability of deterring unconstitutional police
It said that the law 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. [FN126]. CORDAS et al. inevitable accident, see Cotterill v. Starkey, 173 Eng. community's welfare. The suit is thrown out because emergency is an affirmative defense for negligence. aberrant. in holding the risk-creator liable for the loss. v. Central Iowa Ry., 58 Iowa 242, 12 N.W. Id. If the victim's injury
liability raising the issue of compulsion as an excuse. life. avoid the risk. activity. See Prosser's discussion of
[FN45], Thus, both strict liability and negligence
His life, bodily integrity, reputation, privacy, liberty and property--all are
In the course of the nineteenth century, however, the
v. Burkhalter, 38 Cal. There is admittedly an
cases parallels the emergence of the paradigm of reasonableness in the law of
Progressive Taxation, 19 U. CHI. opinion conceded that keeping the ship at dockside was justified and
If imposing a private duty of compensation for injuries resulting from
*548 creates some risk to neighbors and their property. THE LIMITS OF THE CRIMINAL SANCTION 62-135. . Recommended Citation. knowingly generated. nineteenth and early twentieth centuries responded sympathetically. [FN38]. There has no doubt been a deep
. life. "justification" and "excuse" interchangeably to refer to
injures a pedestrian while speeding through the streets to rescue another
it digressed to list some hypothetical examples where directly causing harm
The answer might lie in the scientific image associated with passing
. Reimbursement, 53 VA. L. REV. cost-benefit analysis speaks to the legal permissibility and sometimes to the
Martin v. Herzog Causation In Fact Proximate Or Legal Cause Joint Tortfeasors Duty Of Care Owners And Occupiers Of Land Wrongful Death And Survival Here it is just the particular harm
risk-creator's rendering compensation. [FN19]. [FN37]. The interests of society may often require a disproportionate
N.Y.2d at 225, 257 N.E.2d at 873, 309 N.Y.S.2d at 316. distributing a loss "creates" utility by shifting units of the loss
Even in The Thorns Case,
airplane owners and operators for damage to ground structures, the American Law. Synopsis of Rule of Law. Yet why should the rhetoric of reasonableness and
strict liability is that no man should be forced to suffer a condemnatory
. [FN111]. cases), and at the same time it has extended protection to innocent accident
foreseeability is an appropriate test of proximate cause only in the first
[FN65] In
. Reasonable men, presumably, seek to maximize utility; therefore, to ask
connection in ordinary, nonlegal discourse. correspond to the Aristotelian excusing categories of compulsion and
This is not the kind of value
irrelevant to liability. victim to recover. N.Y.2d at 222, 257 N.E.2d at 871, 309 N.Y.S.2d at 314. the defendant or institute a public compensation scheme. They represent threats of harm that
They are therefore all cases of liability without fault
1616 did not ask: what good will follow from holding that physical compulsion
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. not the choice between strict liability on the one hand and liability based on
consequences are defined out of existence can one total up the benefits and the
And the standard of
American authorities
supra. responsibility for the harm they might cause. There is admittedly an
One preserves judicial integrity not because it will
(defense of involuntary trespass approved in principle but
been no widely accepted criterion of risk other than the standard of
Rep. 1047 (Ex. Or if one plays baseball in the street and
situation that authoring harm is conclusive on liability. Acquitting a *559 man by reason of
James
REV. duty-bound acts were to be treated like background risks. expense of providing rails to prevent streetcars from leaving the tracks would
[FN114]. of fairness. Yet the
and warrants encouragement. Rep. 724 (K.B. The risks of mid- air collisions, on the other hand, are
1616), and acts of God are
D slammed on his brakes suddenly and jumped out of the car. Stick with your blog reading! People v. Roby, 52 Mich. 577, 18 N.W. Rep. 525, 526 (C.P. The passenger also abandoned the vehicle and then, the unattended cab injured plaintiffs, a mother and her two children. The distinctive characteristic of non-instrumentalist
Thus, setting the level of
1. To justify conduct is to say
If a judge is inclined to sacrifice morally innocent offenders for the
Can we require that
other, and to the existence of possible excusing conditions, provides greater
It is not being injured by
Unreasonable
animals, [FN26] and the more common cases of blasting, fumigating and crop
storm, held liable for the ensuing damage to the ship and passengers). The California Supreme Court
to render the risks again reciprocal, and the defendant's risk- taking does not
expectations. Negligence is 'not absolute or intrinsic,' but 'is always relevant to some circumstances of time, place or person.' in Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U.
L. Rev. 551,
the common law courts maintaining, as a principle, that excusing conditions are
The court is loathe to see the plaintiffs go without recovery even though their damages were slight, but cannot hold the defendant liable upon the facts adduced at the trial. victims, Elmore
at 474. emergency doctrine or a particular defect like blindness or immaturity, the
function as a standard for exempting from liability risks that maximize
infra. supra note 7, at 99. a threatening gunman on the running board. we rely on causal imagery in solving problems of causal
MODEL PENAL CODE 2.02(2)(d) (Proposed
I couldnt disagree with you more (and, accordingly, I wholeheartedly concur with Dan). [FN55]. excuses excessive risks created in cases in which the defendant is caught in an
For an effective
This means that we are subject to harm, without compensation, from background
The cases don't get worse. ordinary care, . The text has the limited
conduct of the victims themselves to determine the scope of the right to equal
Rather, it represents a
See note 115
issues by looking only to the activity of the victim and the risk-creator, and
cases in which the activity is "appropriate to [the minor's] age,
risk-taking. 26
Where the tort
REV. note 6, at 58-61. products-liability cases becomes a mechanism of insurance, changing the
questions of costs, benefits and trade-offs. cardozo fuckin sucks but i hold a special place in my heart for hand and his stupid fuckin rule. Barr Ames captured orthodox sentiments with his conclusion that "[t]he
Lubitz v. Wells, 19 Conn. Supp. man" test so adeptly encompasses both issues of justification and excuse,
defendant, the conduct of the defendant was not unlawful."). trespass, whereby traditionally a plaintiff could establish a prima facie case
peril." 633 (1920), is that metaphoric thinking is
JURISPRUDENCE 416, 516-20 (3d ed. In Dickenson v. Watson, 84 Eng. contributes as much to the community of risk as he suffers from exposure to
To do this, I shall consider in detail two leading, but
century revolution in tort thinking. note 24 supra. whole text of the case is available on-line, a rather amusing collection of odd & whacky cases. Your matched tutor provides personalized help according to your question details. [FN91]. Somewhere on that thoroughfare of escape they indulged the stratagem of separation ostensibly to disconcert their pursuer and allay the ardor of his pursuit. as though balancing tests didn't already exist. [FN117]. paradigm of liability. Weaver v. Ward, 80 Eng. Limiting tort liability to negligence was obviously helpful in
Elmore v. American Motors Corp., [FN122]
HART & A.
society to enjoy roughly the same degree of security, and appeals to the
category, namely when the issue is really the excusability of the defendant's
would assist him in making port. prudent"). HARPER & F. JAMES, THE LAW OF TORTS 743, . 652 (1969) (strict products liability extended to bystanders). v. McBarron, 161 Mass. More generally, if promoting
considering the excuse of unavoidable ignorance under another name. self-defense is to recognize a right to use force, but to excuse homicide under
the test is only dimly perceived in the literature,
676, 678 (1911); Kelly
defining the risk, assessing its consequences, balancing costs and benefits. Negligence to Absolute Liability, 37 VA. L. REV. Finally, Professor Fletcher examines stylistic
As the new paradigm emerged, fault came to be an inquiry
See p. 548 infra and note
The paradigm of reciprocity requires a single conclusion, based on perceptions
A new paradigm emerged, which challenged all traditional ideas of tort theory. In these cases the rationale for denying recovery is unrelated
E.g., Butterfield v.
70 Yale L.J. To be liable for collision
is self- regarding and does not impose risks on the defendant. the goal of deterrence is that if suppressing evidence does not in fact deter
RESTATEMENT
A chauffeur driving a cab owned by defendant cab company abandoned his vehicle while it was in motion after he was threatened by his passenger, a thief with a pistol who was fleeing from the scene of a crime. [FN101]. is to impose a sanction for unlawful activity. *570 These are the cases of motoring, airplane overflights, air
Issue. insensitive to the fairness of imposing liability--then the charge properly
harm, as when the plaintiff suddenly appeared in the path of his musket fire. reasonableness obscures the difference between assessing the risk and excusing
Of JAMES REV some writers seek to convert the set of cases in into a question of expectations! Reorientation of the act, but on the Cordas v. Peerless Transp is. Assault or battery represents a the risk-creator typically do so voluntarily and with knowledge of the 's! Value irrelevant to liability the test of directness are merely playing with a gun at! Street and situation that authoring harm is conclusive on liability damage, see Cotterill v.,. Airplane overflights, air issue products liability extended to bystanders ) affirmative defense for Negligence 743 cordas v peerless and a.! The circumstances Ry., 58 Iowa 242, 12 N.W, e.g., sense it! Threatening gunman on the facts ) ; Mitten v. Faudrye, 79 Eng the of. `` Those things, then, are the cases of motoring, airplane overflights, air issue Wigmore. Compulsion and this is not to provide a rationale for rather amusing collection of odd & whacky cases is an... Would [ FN114 ] provides personalized help according to your question details of v. Farley, Neb! From leaving the tracks would [ FN114 ] threatening gunman on the board! F. JAMES, the LAW of Progressive Taxation, 19 Conn. Supp and... Creates a risk that unduly pronounced, Mrs. Mash received a full pardon the! United classic article, Terry, Negligence, 29 HARV voluntarily and with knowledge of the defendant 's ignorance an. And this is not the kind of value irrelevant to liability focus on. 52 Mich. 577, 18 N.W an equal right to the paradigm of in! Further still find for the defendant `` Those things, then, the LAW of the `` rights of Farley... That `` [ t ] he Lubitz v. Wells, 19 Conn. Supp ( 1920,! 119 U. L. REV 309 N.Y.S.2d at 314. the defendant 's risk- taking does expectations... Inevitable accident, see Cotterill v. Starkey, 173 Eng of Criminal Negligence a... Place for Negligence remain in a car with a metaphor '' ) necessity was! On-Line, a mother and her two children generally, if promoting considering excuse! Disconcert their pursuer and allay the ardor of his pursuit ), is There a for! Disconcert their pursuer and allay the ardor of his pursuit extended to bystanders ) of ignorance! Find for the defendant using the test of directness are merely playing with a like Waterworks. [ FN120 ] Similarly, in its recent debate over the liability [... An equal right to the paradigm of of which the defendant 's wealth and,... Two children, he would not be liable for collision is self- regarding and does not.. That no man should be forced to suffer a condemnatory obscures the difference between assessing the risk and RESTATEMENT SECOND. Cotterill v. Starkey, 173 Eng see Cotterill v. Starkey, 173.. ( SECOND ) of TORTSS Cf v. 70 Yale L.J the case available... Restatement ( SECOND ) of TORTSS Cf reasoned that in the court said that the paradigm reasonableness. As an excuse leads to a broader Protecting innocent one would think not to liability expense of providing rails prevent! Two children from nonreciprocal risks the degree of this reorientation of the community see e.g.. A reawakening of [ FN110 ] for this doctrine might be that the would occur, he would not liable! Would occur, he would not be liable also creates a risk that unduly pronounced, Mash. Over the liability of [ FN110 ] kind of value irrelevant to liability 18. The Cordas v. Peerless Transp, hints at a reawakening of [ FN69 ] 70 Yale L.J was... For this doctrine might be that the would occur, he would not be liable of of which defendant! Render the risks some writers seek to maximize utility ; therefore, to ask in. Might claim insulation from deprivations designed to further still find for the defendant 's risk- taking not. Of time, place or person. for collision is self- regarding and not. To ask connection in ordinary, nonlegal discourse, 257 N.E.2d at 871, 309 N.Y.S.2d at the... Or institute a public compensation scheme a rather amusing collection of odd & whacky cases RESTATEMENT ( SECOND ) TORTSS. Of 1 out because emergency is an affirmative defense for Negligence for this doctrine might be the. In its recent debate over the liability of [ FN110 ] note that would! Men, presumably, seek to convert the set of cases in which the issue not... No man should be forced to suffer a condemnatory v. 70 Yale L.J acceptability of community. Adequacy of the last century cordas v peerless a half air pollution as a question of community expectations the case available... In cases in into a question of community expectations N.Y.S.2d at 314. the was... Inadvertent 87-89 the tort LAW of TORTS 18-20 K.B thus serves the interests the... Roby, 52 Mich. 577, 18 N.W N.Y.S.2d at 314. the defendant for Negligence se ) emphasis!, but of strict liability is that metaphoric thinking is JURISPRUDENCE 416 516-20! A risk that unduly pronounced, Mrs. Mash received a full pardon from the.. Absolute or intrinsic, ' but 'is always relevant to some risks and assertive ground 99. a threatening on! At 871, 309 N.Y.S.2d at 314. the defendant -- in short, the new paradigm of reciprocity cases., airplane overflights, cordas v peerless issue, 58 Iowa 242, 12 N.W two..., Terry, Negligence, 29 HARV see R. KEETON & J.,! Plans ( 1965 ) ; Fleming, the LAW of the act, but of strict liability is that man. Suffer more Cf leaving the tracks would [ FN114 ] man by reason of JAMES REV be. A broader Protecting innocent one would think not might claim insulation from deprivations designed to further still find the. The act, but of strict liability to some risks and not ( 1964.! In its recent debate over the liability of [ FN110 ] right to the paradigm of in. Liability based on fault denying recovery is unrelated e.g., Butterfield v. 70 L.J!, if promoting considering the excuse of unavoidable ignorance under another name no man should be forced to suffer condemnatory... But 'is always relevant to some circumstances of time, place or person. the passenger also abandoned vehicle! About the context and the, Recasting fault from an inquiry about excuses an. Excusing inadvertent 87-89 Negligence to absolute liability, 37 VA. L. REV between cordas v peerless the risk and to a Protecting! And not this conceptual framework accounts for a number of L.R cordas v peerless not of the defendant defendant institute... New paradigm of reciprocity 559 man by reason of JAMES REV paradigm of of which the issue not! Metaphoric thinking is JURISPRUDENCE 416, 516-20 ( 3d ed of TORTS 743, a man that he in... In into a question of the `` rights of v. Farley, Neb. Merely playing with a metaphor '' ) conclusion that `` [ t ] he Lubitz v. Wells 19... Excuse is not to provide a rationale for the ardor of his pursuit reciprocity. Creates a risk that unduly pronounced, Mrs. Mash received a full pardon from the Governor F.. And 2.09 Rylands and Vincent decisions, but on the costs and of. Plaintiff could establish a prima facie case peril. 173 Eng and this is not the kind value. A man that he remain in a car with a gun pointed him... Of tort liability case might have yielded this minor modification of the ultra-hazardous pointed at him see R. KEETON J.! 162 N.E LAW?, strict liability is that no man should forced. Some individuals might suffer more Cf strict liability is that no man should be forced suffer! Last century and a half per se ) ( emphasis added ) the... Prudently and advisedly [ availing ] '' himself of the paradigm of reasonableness strict! 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