Is it wrong to do right when others do wrong?: A Critique of American Tort Law

Legal Theory

Volumn 7, Issue 3, 2001, Pages 307-340

  Hurd, Heidi M ^a  

^a UNIVERSITY OF SAN DIEGO   (United States)

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EID: 84882824173     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/s1352325201073050     Document Type: Article

References (40)

1. See, e.g., the rich set of essays recently compiled by David Owen upon which I shall draw extensively in this piece. PHILOSOPHICAL FOUNDATIONS OF TORT LAW (David G. Owen ed., Clarendon Press, 1995) (hereinafter PHILOSOPHICAL FOUNDATIONS).
2. “[I]f the probability [of a foreseeable plaintiff's injury] be called P; the injury, L; and the burden [of precautions necessary to avert L], B; liability depends upon whether B is less than L multiplied by P: i.e., whether B [is less than] PL.” United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
3. For a denial of the prominence of economic analysis in doctrinal explanation, see Richard W. Wright, The Standards of Care in Negligence Law, in PHILOSOPHICAL FOUNDATIONS, 249-75, 250. For a deontological account of tort law's use of the Hand Formula, see Heidi M. Hurd, The Deontology of Negligence, 76 B. U. L. REV. 249-72 (1996).
4. Many state and city governments have enacted “ignition key statutes” that have been successfully invoked by plaintiffs to prove negligence per se by owners whose vehicles have been used by thieves in injurious ways. See, e.g., Ross v. Hartman, 139 F.2d 14 (D.C. Cir. 1943); Ney v. Yellow Cab Co., 117 N.E.2d 74 (Ill. 1954).
5. See, e.g., Landeros v. Flood, 551 P.2d 389 (Cal. 1976).
6. It does not, that is, suggest any of the following: that morality violates the “ought-impliescan principle” by obligating us to do what we literally cannot do; that morality is contradictory by simultaneously requiring and prohibiting certain actions; that morality is conflicted by issuing obligations that are logically consistent but that cannot be simultaneously satisfied; or that morality requires what I have called “moral combat,” by requiring some persons to do what it requires others to thwart. For a detailed discussion of this latter sort of rights conflict and its relation to the former sorts, see HEIDI M. HURD, MORAL COMBAT (Cambridge University Press 1999).
7. Jules Coleman might issue a caution here. In his view, the content of the concept of corrective justice is given, in part, by the practices in which the concept of corrective justice functions-the principal one being tort law. Since tort doctrines broadly reflect the principle that persons do wrong not to anticipate and avert others’ wrongs, Coleman might argue that this is good reason to believe that corrective justice is compatible with such a principle. See Jules L. Coleman, The Practice of Corrective Justice, in PHILOSOPHICAL FOUNDATIONS, at 53-72. One might think, however, that tort law's requirement that we suspend our activities in anticipation of others’ wrongdoing significantly undercuts Coleman's initial premise that tort law is a practice of corrective justice. If so, it does not follow from the fact that tort law embodies such a commitment that such a commitment is compatible with corrective justice.
8. Kenneth W. Simons, Contributory Negligence: Conceptual and Normative Issues, in PHILOSOPHICAL FOUNDATIONS, at 461-85, 476.
9. See DAVID O. BRINK, MORAL REALISM AND THE FOUNDATIONS OF ETHICS 264-68, 2733-83 (Cambridge University Press 1989); RONALD DWORKIN, LAW'S EMPIRE 292-93 (Harvard University Press 1986); JOHN RAWLS, A THEORY OF JUSTICE (Harvard University Press 1971).
10. See, e.g., Pridgen v. Boston Housing Authority, 308 N.E.2d 467 (ass. 1974) (eliminating the distinctions between invitees, licensees, and “trapped, imperiled and helpless trespasser[s]”).
11. See, e.g., Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970) (holding that it was actionable negligence on the part of a landlord not to protect its tenants from third-party criminal assaults); Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976) (recognizing a cause of action against a psychologist who failed to warn a woman of his patient's desire to kill her).
12. Consider the facts of United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947), in which Chief Judge Learned Hand articulated the Hand Formula. The principle reason that it was negligent of the barge owner not to employ a bargee by day to guard the barge was that the barge owner could anticipate that the tugboat captain responsible for pulling the barge through the New York harbor would be negligent in his oversight.
13. James Gordley has argued that the reasonable person test reflects the Aristotelian concept of prudence-conceived of as a virtue of character rather than a case-by-case costbenefit calculus. James Gordley, Tort Law in the Aristotelian Tradition, in PHILOSOPHICAL FOUNDATIONS, at 131-158, 145-151.
14. Consider only two of the many cases in which the classic tests of breach have been thought to generate the conclusion that defendants have been negligent for failing to anticipate and avert others’ negligence. In Weirum. v. RKO General Inc., 539 P.2d 36 (Cal. 1975), the Court held that a radio station could be held liable for the death of a driver who was killed by two teenagers while they were racing to intercept the station's disk jockey after he announced that he had “bread to spread” to the first person who made it to his location. The court found that the station posed “an unreasonable risk of harm to [the plaintiff]” by hosting an event in which contestants would foreseeably engage in “competitive pursuits on public streets.” In Bigbee v. Pacific Telephone and Telegraph Co., the Court held that a telephone company could be held liable for injuries sustained by a plaintiff who was hit by a drunk driver while in a telephone booth. The Court held that in light of the foreseeability of reckless drivers, the company could be found to have negligently placed its booth within fifteen feet of a major thoroughfare (where outdoor booths are commonly located).
15. See, e.g., Watson v. Kentucky & Indiana Bridge & Ry. Co., 126 S.W. 146, 151 (Ky. 1910) (holding that a railroad proximately caused an arsonist's fire when it failed to prevent the arsonist from tossing a match onto a tanker gas spill). Courts uncomfortable with this result have simply declared that third-party wrongdoing is unforeseeable. “[I]f the intervening agency is something so unexpected or extraordinary as that [the defendant] could not or ought not to have anticipated it, he will not be liable and certainly he is not bound to anticipate the criminal acts of others by which damage is inflicted, and hence is not liable therefore.” Watson, 126 S.W. at 146 (emphasis added). Of course, what this really means is that persons ought not to have to foresee third-party intentional wrongdoing, not that they cannot foresee it.
16. For the classic articulation of the direct cause test of proximacy, see H. L. A. HART&TONY HONORE, CAUSATION IN THE LAW 68-81 (2nd ed., Oxford University Press 1985).
17. HART, “The general principle of the traditional doctrine is that the free, deliberate and informed act or omission of a human being, intended to exploit the situation created by the defendant, negatives any causal connection.” note 18, at 138. Thus, while an arsonist will break the causal chain between a railroad's negligent gas spill and a resulting fire, a passerby who carelessly tosses a lighted cigarette into the spill will not. Similarly, when a pedestrian who is injured by a negligent driver is further injured by a negligent ambulance driver, the original driver is deemed a proximate cause of the entire set of injuries sustained by the pedestrian. See, e.g., Atherton v. Devine, 602 P.2d 634 (Okla. 1979).
18. In so doing they reflect the position of the RESTATEMENT (SECOND) OF TORTS, which states that persons are proximate causes of third-party negligent and intentional wrongdoing when they have either created the opportunity for that wrongdoing or are otherwise deemed negligent just because of the risk that their activity will invite third-party wrongdoing. AMERICAN LAW INSTITUTE, RESTATEMENT (SECOND) OF TORTS §§ 448, 449 (Philadelphia, Pa. 1965).
19. Some jurisdictions treat such enactments as statutory torts; others allow plaintiffs to use them to establish per se negligence; and still others invoke them to make car owners “per se proximate causes” of any harms caused by fleeing car thieves. As one court declared in a case in which the defendant violated such an ordinance: “Since it is a safety measure, its violation was negligence. This negligence created the hazard and thereby brought about the harm which the ordinance was intended to prevent. It was therefore a legal or ‘proximate’ cause of the harm.” Ross v. Hartman, 139 F.2d 14, 15 (D.C. Cir. 1943) (emphasis added).
20. For a short critique of this doctrinal collapse, see Heidi M. Hurd, Will State's High Court Reform the Tort Laws that Burden Society? SAN DIEGO UNION August 18, 1991 (Editorial).
21. For example, most maintain that if a person who has recently acquired a black belt in Karate spends all of his spare time in Central Park posing as a likely victim, he loses the defense of self-defense when he finally has an opportunity to put his skills to use in fending off an attacker. See, e.g., JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW (2d ed., Matthew Bender 1995).
22. Jurisdictions of this sort conform their tort law to the prohibitions against the use of deadly mechanical devices articulated by the MODEL PENAL CODE § 3.06(5).
23. RESTATEMENT (SECOND) OF TORTS § 85.
24. Oliver Wendell Holmes ironically sought to justify this result by explaining that a landowner who sets man-traps with the (conditional) intention that if they do not deter a trespass, then they should do injury to the trespasser, “has contemplated expressly what he would have had a right to assume would not happen [that is, the trespass]….” Oliver Wendell Holmes, Privilege, Malice, and Intent, 8 HARV. L. REV. 11 (1894).
25. Consider two choice illustrations. In LeBouef v. Goodyear Tire and Rubber Co., 623 F.2d 985, 989 (5th Cir. 1980), a drunk driver was killed when he drove his new Mercury Cougar at over 100 miles per hour on tires that had been tested for safety only for speeds up to 85 miles per hour. While the owner's manual stated that “[c]ontinuous driving over 90 mph requires using high-speed-capability tires,” the court found that it was “to be readily expected” that high-speed driving without such specialty tires would occur, and it ruled that Ford had a “duty either to provide an adequate warning of the specific danger of tread separation at such high speeds or to ameliorate the danger in some other way. In Jackson v. Coast Paint and Lacquer Co., 499 F.2d 809 (9th Cir. 1974), a paint manufacturer had supplied the following warnings with its paints: “Keep away from heat, sparks, and open flame. USE WITH ADEQUATE VENTILATION. Avoid prolonged contact with skin and breath of spray mist. Close container after each use. KEEP OUT OF REACH OF CHILDREN.” The plaintiff was allowed to reach the jury on the argument that the warning was inadequate because it permitted him to assume that the danger of unventilated use was breathing the toxic fumes, not an explosion-which is how he was injured by his unventilated use of the product.
26. See, e.g., Melia v. Ford Motor Co., 534 F.2d 795 (8th Cir. 1976) (court refused to admit evidence that prior to being thrown from her unlocked car during a collision in an intersection, the decedent had run the red light and had failed to lock her door or use her seat belt). See also RICHARD A. EPSTEIN, CASES AND MATERIALS ON TORTS 860 (6th ed. Little, Brown and Company 1995) (“[R]ecent cases frequently take the line that a plaintiff who makes a ‘foreseeable misuse’ of a product is entitled to the same protection as those who do not, thereby removing from products liability defenses not only plaintiff's failure to discover latent defects in the defendant's product but also active negligence or, arguably, wilful misuse of the product.”
27. Thus, as Tony Honore argues: “Tort law, like the rest of law, must satisfy several values, of which efficiency in pursuing worthwhile objectives is only one. Efficiency must be pursued within a morally defensible framework; so we must ask, and ask first, what aims it is morally desirable and defensible to pursue by imposing tort liability.” Tony Honore, The Morality of Tort Law-Questions and Answers, in PHILOSOPHICAL FOUNDATIONS, at 73-95, 74.
28. See Kumkumian v. City of New York, 111 N.E.2d 865 (N.Y. 1953), in which subway train operators reset the brakes and restarted a train three times before looking under the train to discover the body of a man who had wrongfully been walking the tracks. Since the victim's negligence was complete at the time the victim was first struck, the City's employees thereafter owed him a duty not to hurt him further by their actions.
29. See, e.g., Meistrich v. Casino Arena Attractions, Inc., 155 A.2d 90 (N.J. 1959). See also Murphy v. Steeplechase Amusement Co., 166 N.E. 173 (N.Y. 1929) (court invoked assumption of risk doctrine to bar a plaintiff's recovery after he boarded a Coney Island ride seeing clearly that its point-however negligently conceived-was to toss persons around).
30. Some courts at least in part agree. “[B]etween one whose negligent act does harm to others and one whose negligent act does harm to himself… the same mechanistic standard ought not to be applied indifferently….” Rossman v. La Grega, 270 N.E.2d 313, 317 (N.Y. 1971) (cited in Simons, Contributory Negligence, in PHILOSOPHICAL FOUNDATIONS, at 470 n.24).
31. As Ken Simons asks, why not permit a person “to rank his own interests however he likes, since he will suffer the harm? After all, by definition there can be nothing unduly ‘self-serving’ about his ranking of some of his own interests over other of his own interests.” Simons, Contributory Negligence, at 471.
32. John Attanasio has defended what he calls the “principle of aggregate autonomy,” according to which one must “act to protect [others] against severe constrictions of life plans whenever such protection requires de minimis wealth-related interference with one's own life plans.” John B. Attanasio, Aggregate Autonomy, the Difference Principle, and the Calabresian Approach to Products Liability, in PHILOSOPHICAL FOUNDATIONS, at 299-318, 300. If Attanasio's principle were applied to sacrifices beyond those of wealth, it could readily be used to give a rights-based justification (though not a deontological justification) of the proportionality rule.
33. See Heidi M. Hurd, What in the World Is Wrong?, 5 J. CONTEMP. LEGAL ISSUES 157-216 (1994); Hurd, The Deontology of Negligence, John Attanasio has defended what he calls the “principle of aggregate autonomy,” according to which one must “act to protect [others] against severe constrictions of life plans whenever such protection requires de minimis wealth-related interference with one's own life plans.” note 4, at 262-65. Stephen Perry articulates a similar argument in defending the thesis that to risk others is not, by itself, to harm them. Stephen Perry, Risk, Harm, and Responsibility, in PHILOSOPHICAL FOUNDATIONS, at 321-46. See also Honore, The Morality of Tort Law, in PHILOSOPHICAL FOUNDATIONS, at 80-81, 88-91 (arguing that wrongs must be analyzed separately from fault, even if fault is a necessary limit on the pursuit of corrective justice).
34. For a criminal case on point, see Commonwealth v. Feinberg, 433 Pa. 558, 253 A.2d 636 (1969).
35. For a sophisticated defense of the thesis that these cases should be dealt with by omission liability rather than causation liability, see Michael S. Moore, Causation and Responsibility, in 16 SOC. PHIL. & POL'Y 31-43 (1999).
36. Perhaps we might go so far as to say that it is true of friends. As E. M. Forster famously wrote: “I hate the idea of causes, and if I had to choose between betraying my country and betraying my friend, I hope I should have the guts to betray my country.” E. M. FORSTER, TWO CHEERS FOR DEMOCRACY 68 (Harcourt Brace 1951).
37. See Heidi M. Hurd, Duties Beyond the Call of Duty, 6 ANN. REV. L. & ETHICS 1-36 (1998).
38. Richard Wright argues that aretaic obligations to cultivate certain virtues, if conceived of in Kant's terms as obligations to “subject the maxim of one's actions to the condition of qualifying as universal law,” simply “cannot be coerced by another.” Wright, Right, Justice and Tort Law, in PHILOSOPHICAL FOUNDATIONS, at 164. Wright's Kantian conception of virtue is not mine, but Wright's point about that conception nevertheless serves as an important reminder that law may be too blunt an instrument to affect the cultivation of virtue, however it is conceived. I exploit just such an argument in a paper that reluctantly rejects a perfectionist theory of law in favor of a liberal theory. See Heidi M. Hurd, Liberalism by Default (unpublished manuscript available from author).
39. This promise is, of course, a philosophically false one. Notwithstanding Richard Posner's spirited claims to the contrary, a utilitarian theory of liability cannot-necessarily cannot-protect rights. Liberals cash out the fundamental tenets of liberalism as claims of right just because they fear that the majority may not prefer them (and so will refuse to honor fundamental protections of liberty and equality). Liberals therefore cannot find adequate status for their most basic principles in a theory that insists on giving themonly as much weight as the majority prefers. Thus Posner's claim that there is “a consilience” between a wealth maximizer's approach to tort law and that of an Aristotelian, a Kantian, an egalitarian, and a consent-based liberal reflects, at best, wishful thinking and, at worst, grave confusion about the implications of such non-utilitarian theories. See Richard A. Posner, Wealth Maximization and Tort Law: A Philosophical Inquiry, in PHILOSOPHICAL FOUNDATIONS, at 99-111.
40. Of course there are those who would do away with tort law altogether, being neither utilitarians nor believers that corrective justice demands liability in the circumstances in which tort law imposes it. See, e.g., Marc A. Franklin, Replacing the Negligence Lottery: Compensation and Selective Reimbursement, 53 VA. L. REV. 774-814 (1967); Stephen D. Sugarman, Doing Away with Tort Law, 73 CAL. L. REV. 555-664 (1985); Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS at 387-408.